TRC Final Report

Volume 6

Section 1

Chapter 4

Subsection 10

THE NAMIBIAN EXTRADITION CASE: APPEALS OF DARRYLE STOPFORTH AND LEONARD VEENENDAL^{5 6}

103. Because similar questions of law were raised in both these appeals, the Supreme Court of Appeal deemed it convenient to deal with them at one and the same time.

104. The court was constituted of five judges, namely Justices Mahomed, Olivier, Melunsky, Farlam and Madlanga. The only question raised in these appeals that affected the work of the Commission concerned the jurisdiction of the Committee to grant amnesty for offences committed by South African citizens outside the Republic. This matter was reported in Volume One^{5 7} of the Comission’s Final Report, where the facts are comprehensively set out.

Background to the appeal

105. In November 1996, the appellants launched motion proceedings in the Transvaal Provincial Division of the Supreme Court of South Africa. The proceedings were, amongst other things, for an order suspending the Minister of Justice’s decision of 10 October 1996 ordering their extradition to Namibia, pending the adjudication by the Committee of their applications for amnesty – primarily for the killing of two persons during an attack on the United Nations Transitional Action Group (UNTAG) offices in Outjo on 10 August 1989.

106. The application was heard by Justice Daniels who came to the conclusion that the Commission (acting through the Committee) could not grant amnesty for deeds committed in Namibia, because it had no jurisdiction over crimes that had been committed in what was then South West Africa. The court also held that section 20 of the Act was not applicable, as Namibia could not be classified as a ‘former state’ of South Africa. He accordingly dismissed the application with costs.

1 0 7 . On appeal, the court investigated the competency of the Committee to grant amnesty to an applicant for gross violations of human rights committed outside the country. The court relied on the provisions of section 20(2) of the Act, namely that the act in question must have been advised, planned, directed, commanded, ordered or committed within or outside the Republic against the state, or any former state or another publicly known political organisation (section 20(2)(a)).

108. According to the preamble to the Act, amnesty is to be granted in respect of acts, omissions and offences associated with political objectives committed in the course of the conflicts of the past. These conflicts must have sprung fro m South Africa’s deeply divided society. The envisaged amnesty is intended to reconcile opposing South African people.

109. The court held further that the acts of the appellants committed in 1989 in what was then South West Africa were not part of the conflicts of the past as intended by the Act. Those acts were not directed against South African opponents in the context of South Africa’s own past. Thus an internal conflict between groups in South West African society fell outside the jurisdiction of the Committee.

110. The appeals were accordingly dismissed.