TRC Final Report

Volume 6

Section 1

Chapter 3

Subsection 6

Decision - making

64. Only in the most exceptional cases did the Committee deliver its decision immediately on conclusion of the proceedings. These few ex tempore ( immediate ) decisions were handed down in clear-cut cases where all parties agreed that amnesty ought to be granted and that any further delay would occasion irreparable prejudice to the applicant, who was in many cases serving a prison sentence for the offence for which amnesty was being sought.

65. However, in the normal course of events, the Committee would reserve its decision at the end of the hearing to allow members of the panel to consider the case. In the majority of cases, panels reached consensus. There were, however, instances where dissenting decisions were handed down. For the most part, the dissenting opinion related to the overall outcome of the application. In some cases, however, it applied only to a particular issue, or to only one of a number of incidents forming the subject matter of the application, or to some of the applicants only.

66. In all cases, the hearings panel handed down reasoned, written decisions.⁴² The decision was then made available to all parties that had participated in the application, and was simultaneously made public.

67. Insofar as the specific process of decision-making was concerned, it was the responsibility of the presiding judge to allocate the writing of the particular decision to a member of the hearings panel. In most cases, the panel was able to come to a decision soon after the finalisation of the hearing. In more complex cases, or where there was no immediate consensus, the panel took time to consider the entire case and review the transcript and any preliminary views expressed by members of the panel. Sometimes, one or more meetings had to be convened to canvass the matter.

68. In order to decide a case, the panel had to make a decision based on the relevant facts. These findings were then tested against the requirements laid down in the Act in order to determine whether the particular applicant qualified for amnesty. One of the difficulties that confronted the Committee was that hearings panels w e re sometimes presented with only a single version, namely that of the amnesty applicant. This was the case where the applicant was the only witness to the incident in question, or where other potential witnesses were untraceable or deceased. Needless to say, this was not a particularly satisfactory way of determining applications, especially those concerning grave incidents. The reality was, however, that panels had to make a decision on each and every application and were left with the task of assessing the single version as best they could, taking into consideration the established objective facts as well as the probabilities. Unfortunately, there was always the possibility of suspicion or doubt around cases of this nature. There was, however, no foolproof method of eliminating the possibility of abuse of the process in cases of this nature .

69. Usually, however, hearings panels were faced with the task of deciding cases in the face of conflicting versions of fact. These could and did take a variety of forms and related to both peripheral and material issues. There was often a conflict between the version of the applicant and the version of those opposing the application. Frequently this conflict did not relate directly to the merits of the incident in question but to other relevant issues, such as the political motivation for the incident, or the alleged political activities of a deceased victim. In other instances, the factual dispute related to conflicting versions amongst multiple applicants.

70. Equally frequent l y, there was a conflict between versions tendered at the amnesty application and those that had been given at earlier criminal trials, inquests, commissions of inquiry and the like. In many instances, there was a conflict between the written application for amnesty and the testimony of the applicant at the amnesty hearing.

71. In situations where amnesty applicants and other parties who appeared at amnesty hearings readily admitted to having given false testimony in earlier judicial proceedings, the Committee could obtain very little assistance from the decisions of those tribunals. The same caveat applied with respect to the potential value of prior police investigations. The shocking injustices that had been perpetrated as a result of police investigations in some of the incidents that came before the Committee often meant that the results of these investigations had to be treated with caution when deciding amnesty applications. One of the m o re prominent examples of this was the so-called ‘Eikenhof incident’, where the w rong people were convicted and sentenced on the strength of false confessions obtained in the course of the police investigation.^{4 3}

7 2 . In these rather challenging circumstances, the Committee tried as best it could, by means of its own investigative capacity and a very careful weighing of all the relevant facts and circumstances, to reach just and fair conclusions. Aggrieved parties had the option of taking decisions of the Committee on review to the High Court. To date, eight of the Committee’s decisions have been challenged and taken on revie w. Though the Committee was required by the High Court to review one of its decisions, that process resulted in the Committee reaffirming its original refusal of amnesty. The most prominent of these cases was that involving the assassins of the senior ANC/South African Communist Party official, Mr Chris Hani – namely Messrs Clive Derby-Lewis and Janusz Walus – where the Committee’s rejection of their amnesty applications was upheld.^{4 4}

73. Finally, it is also pertinent to note that the Act did not expressly introduce an onus of proof on applicants. It simply required that the Committee should be satisfied that the applicant had met the re q u i rements for the granting of a m nesty. This requirement is less onerous on applicants and introduced greater Back to Contents Page... go to page 54flexibility when deciding amnesty applications.