TRC Final Report

Volume 6

Section 1

Chapter 1

Subsection 6

THE ROLE OF PRECEDENT

34. The Act provided expressly for the establishment of subcommittees or hearings panels to deal with amnesty applications. This provision enabled the Committee to arrange for various hearings panels to hear different matters simultaneously and so expedite the finalisation of its work. The composition of these panels was not fixed, which resulted indifferent permutations of Committee members constituting hearings panels on diff e rent occasions. This situation created the potential for inconsistencies of approach between the diff e rent hearings panels. There were those who saw this is as a risk and believed that it could be eliminated or limited only by introducing a system of precedent, as is followed in the courts, where, in defined circumstances, prior decisions on issues of law become binding in subsequent similar cases.

35. It is important to point out that the Amnesty Committee was an administrative tribunal, and that no formal system of precedent applied to its activities. Apart from certain broad determinations made by the Committee itself (for example the interpretation of what constituted ‘relevant facts’ for the purpose of full disclosure), it would, in the Committee’s view, have been inappropriate to attempt to establish a system of precedent.

36. In order to facilitate its proceedings, the Committee accepted the submissions made by the leadership of some of the structures involved in the past political conflict as duly established for the purposes of subsequent hearings. For example, according to the submissions of the Azanian People’s Liberation Army (APLA) leadership, APLA operatives executed robberies in terms of a particular directive and policy decision on the part of the organisation in furtherance of its political struggle. Subsequent APLA amnesty applicants were able to rely on this fact without having to re-establish it. A similar situation applied to the submissions of the African National Congress (ANC) in respect of its role in establishing self-defence units (SDUs) in response to violent conflicts in certain townships during the early 1990s.

37. Apart from such instances, it would have been quite impractical to attempt to establish a system of precedent. The myriad diff e rent permutations of facts and circumstances that applied to the various applications resulted in no two being identical or sufficiently comparable to justify applying the principle of precedent . Each case had to be decided in the light of its own peculiar facts and circumtances. Each hearings panel was ultimately responsible for making an independent decision on the particular facts of the case to be decided, even though it was possible to engage in collegial discussions and consultations to elicit the views or draw on the experiences of other members of the Committee in particularly complex matters.

38. Although no formal system of precedent was followed, the Committee approached its work on the basis that every amnesty applicant enjoyed the constitutionally entrenched right to fair administrative action, equality and an even-handed approach. The Committee is ultimately satisfied that the absence of a formal system of precedent did not detract from the quality of decision-making, nor did it result in any patent injustice to any participant in the amnesty process .

GRANTING OF AMNESTY AND THE EFFECT THEREOF (SECTION 20)

39. Amnesty was granted where the Committee was satisfied that the application complied with the requirements of the Act: that is, the act, omission or offence to which the application related was an act associated with a political objective and committed in the course of the conflicts of the past, and the applicant had made a full disclosure of all the relevant facts (as defined above).

40. Where amnesty was granted, the Committee informed the applicant and the victim of the decision and also, by proclamation in the Government Gazette, published the full details of the person concerned as well as the specific act, o ffence or omission in respect of which amnesty was granted.

41. The granting of amnesty completely extinguished any criminal or civil liability arising from the act in question. Any pending legal proceedings against the applicant were likewise terminated. Where applicants were serving a sentence consequent upon a conviction for the act in question, they were entitled to immediate release from custody. The granting of amnesty also had the effect of expunging any criminal record relating to the offence in respect of which amnesty had been granted. It did not, however, affect the operation of any civil judgment given against the successful applicant based upon the act for which amnesty had been granted.

REFUSAL OF AMNESTY AND THE EFFECT THEREOF (SECTION 21)

42. When the Committee refused an application for amnesty, it notified the applicant and victims concerned of its decision and the reasons for its refusal. If criminal or civil proceedings had been suspended pending the outcome of the amnesty application, the court concerned was notified of this.

43. W here amnesty was refused, the law would take its course against the applicant. Any legal proceeding that might have been suspended pending finalisation of the amnesty application was free to continue. The applicant would, however, be protected against the disclosure or use of the record of the amnesty application in any subsequent criminal proceedings. The prosecution would, moreover, be precluded from relying on the facts disclosed in the amnesty application, or facts that had been discovered as a result of information disclosed in the amnesty application. The Act specifically provides that any evidence obtained during the amnesty process, as well as any evidence derived f rom such evidence, may not be used against the person concerned in any criminal proceed i n g s .

REFERRALS TO THE REPARATION AND REHABILITATION COMMITTEE (SECTION 22)

44. In line with the objectives of the Commission relating to reparation and rehabilitation, the Act provided that, where amnesty was granted and the Committee was of the opinion that a person was a victim of the incident in question, the matter should be referred to the Reparation and Rehabilitation Committee (RRC) for consideration. Where amnesty was refused and the Committee was of the opinion that the act constituted a gross violation of human rights and a person was a victim in the matter, it was also referred to the RRC.

45. In these instances, the hearings panel was obliged to endeavour to identify any possible victims. This was not, however, always possible, often due to a lack of sufficient information. In such an event, the hearings panels were compelled to make generic victim findings without identifying specific individuals. This was a particular drawback in the process, given the importance of catering for the needs of victims, particularly where the granting of amnesty obliterated the prospects of civil or criminal proceedings. There was some comfort in the fact that the reparation and rehabilitation process had the potential of dealing with these weaknesses.

REMEDIES

46. Any party aggrieved by a decision of the Committee had the right to approach the High Court for a review of the decision. The process of review of administrative decisions is regulated by the Constitution,^{1 8} which grants everyone the right to administrative action that is lawful, reasonable and procedurally fair.^{1 9} This constitutional provision has superseded the common-law rules relating to revie w, the latter having been subsumed under the Constitution.

47. A court reviewing a decision of the Committee does not consider whether the decision is correct, but rather whether it is justifiable. Thus the review court does not retry the matter, but simply concerns itself with the question of whether the decision the Committee has made is justifiable in the sense that t h e re is a rational connection between the facts of the particular application and the decision arrived at by the Committee. The review court does not substitute its own views on the merits of the application for those of the Committee in matters where the rational connection re f erred to above has been established. The review court does, however, consider the merits of the application in ord e r to decide whether the rational connection has actually been established (see also Chapter Four, ‘Legal Challenges’).

18 Pharmaceutical Manufacturers’ Association of SA and Another : In re Ex Parte President of the Republic of South Africa & Others 2000(2) SA 674 (CC) at para 33. 19 Section 33 of the Constitution, 1 9 9 6 .