AC/99/0046

TRUTH AND RECONCILIATION COMMISSION

AMNESTY COMMITTEE

APPLICATION IN TERMS OF SECTION 18 OF THE PROMOTION OF NATIONAL UNITY AND RECONCILIATION ACT NO. 34 OF 1995.

SATHY ANDRANATH RAGUNANAN MAHARAJ (AM 5514/97) 1ST APPLICANT

JOHANNES MODISE 2ND APPLICANT

(AM 5500/97)

ANDREW MANDLA LEKOTO MASONDO 3RD APPLICANT

(AM 5501/97)

STEPHEN VUKILE TSHWETE 4TH APPLICANT

(AM 5539/97)

NGOAKO ABEL RAMATHLODI 5TH APPLICANT

(AM 5538/97)

GODFREY NHLANHLA NGWENYA 6TH APPLICANT

(AM 5537/97)

LAMBERT LEHLOHONOLO MOLOI 7TH APPLICANT

(AM 5512/97)

SNUKI JOSEPH ZIKALALA 8TH APPLICANT

(AM 6515/97)

PETER RAMOSHOANE MOKABA 9TH APPLICANT

(AM 5504/97)

B. P. GILDER 10TH APPLICANT

(AM 5510/97)

B.L. MASETHLA 11TH APPLICANT

(AM 5511/97)

M.N. PHOSA 12TH APPLICANT

(AM 5520/97)

Z.P. TOLO 13TH APPLICANT

(AM 5526/97)

T.M. MBEKI 14TH APPLICANT

(AM5506/97)

C. NQAKULA 15TH APPLICANT

(AM 5507/97)

N.N. MAPHISA 16TH APPLICANT

(AM 5505/97)

S.W. SIGXASHE 17TH APPLICANT

(AM 5536/97)

B.A. MANCI 18TH APPLICANT

(AM 5535/97)

R.S. MOPATI 19TH APPLICANT

(AM 5527/97)

S.S. MAKANA 20TH APPLICANT

(AM 6158/97)

T.M.G. SEXWALE 21ST APPLICANT

(AM 5533/97)

J.K. NETSHITENZHE 22ND APPLICANT

(AM 5532/97)

P.R.F. MDLULU-SEDIBE 23RD APPLICANT

(AM 5530/97)

J.G. ZUMA 24TH APPLICANT

(AM 5530/97)

J.K. NKADIMENG 25TH APPLICANT

(AM 5529/97)

J.S. SELEBI 26TH APPLICANT

(AM 5528/97)

A. NZO 27TH APPLICANT

(AM 6203/97)

DECISION

On the 9th of May 1997, 29 applications were submitted to the Amnesty Committee by the Truth and Reconciliation Commission desk of the African National Congress. The applications were lodged under cover of a notice dated 09 May 1997, indicating that the 29 applications were to be considered in terms of Section 19 (5) (b) of the Promotion of National Unity and Reconciliation Act No. 34 of 1995, which section empowers the Amnesty Committee to jointly consider individual applications. Further, a declaration was submitted "in support" of the applications and the applicants in turn referred to the declaration as the basis for their applications for amnesty. The content of this declaration is dealt with herein under.

On receiving the notice and 29 applications, individual files were opened, each registered separately in terms of the procedures of the Amnesty committee. In the meantime, further individual applications from various applicants other than those received from the ANC/TRC desk were received which also referred to the declaration, purporting to be an extension of the original joint applications of the applications of 29 applicants.

These applications were administratively dealt with individually. After some time 37 applications, 21 of which included names of those mentioned above and 16 others not part of the original 29 were submitted by staff to a panel of the Amnesty Committee. The notice attached to the original 29 applications, appears not to have been placed on all the files. This resulted in 8 of the original 29 applications intended for joint consideration not being included amongst the 37.

The granting of Amnesty to the 37 and the subsequent court proceedings, are matters of history. What is however important, is that the court directed the Amnesty Committee "to consider afresh the applications for Amnesty of the third to thirty ninth respondents (the 37), including the issue of whether such applications properly comply with the relevant requirements of the Promotion of National Unity and Reconciliation Act. 34 of 1995".

The Committee decided to consider the 29 original applications received from the TRC desk of the ANC jointly and to consider the other 16 applications separately. It needs to be mentioned that a large number of further applications, similarly based and relying on the declaration, have since been lodged with the Committee. All of these will be considered separately.

The declaration on which the above applicants rely, reads as follows:

"We, the applicants, having at various times between 1 March 1960 and 10 May 1994, as indicated below been members and leaders of the African National Congress (hereinafter referred to as the ANC), elected and/or appointed to serve in various structures including its highest organ, the National Executive Committee, do hereby make the following declaration:

1. During the said period, the ANC played the foremost role in the leadership of the struggle of the masses of our people for the end of the hateful system of apartheid, appropriately dubbed a crime against humanity by the international community.

2. In the course of our people's struggle, with the intent to induce the apartheid government of the National Party to abandon apartheid with its concomitant violent repression and with the intent to achieve, bring about and promote fundamental political, social and economic changes in the Republic, the ANC, inter alia, established its military wing, Umkhonto weSizwe, through which it prosecuted an armed struggle."

3. At all material times, Umkhonto weSizwe operated under political authority, direction and leadership of the ANC.

4. Due to its peculiar circumstances and the attacks mounted upon it by its adversary, the apartheid government, the ANC established various organs at various times such as the RC, PMC and a security organ NAT which at all material times also operated under its authority, direction and leadership.

5. Due to the circumstances which prevailed in the townships, in the early 1990s as a result of third force activities, the leadership of the ANC established and in some instances encouraged the establishment of Self Defence Units (SDUs), which played a critical role in the defence of defenceless communities.

6. In the event and to the extent that any of the activities of any of the above mentioned institutions and structures including the SDU's could in any manner whatsoever be regarded as the kind of acts or omissions or offences envisaged in the Promotion of National Unity and Reconciliation Act, "we collectively take full responsibility therefore applying for amnesty in respect thereof".

Following the court order, the Amnesty Committee made further inquiries from the ANC - TRC desk which represents at least the original 29 applicants and gave directions in respect of the attestation of the applications and requested for further particulars.

As a result of such enquiries, a letter dated the 10 November 1998 was received by the Committee from the ANC's Secretariat.

The contents thereof are as follows:

"Amnesty Committee

Truth and Reconciliation Commission

Cape Town

Dear Judge Khampepe

RE: ANC AMNESTY APPLICATION

As you are aware, during 1997, the ANC applied fro amnesty for a group of 29 of its leaders.

The list was conveyed in a communication dated 9 May 1997 which apparently had a list of 30. However, the list contained a mistake in that the name of ZP Tolo appears twice on the lists. (We attach the list for ease of reference).

The application was launched in keeping with the ANC commitment made in its submission to the Human Rights Violations Committee of the TRC that its leadership would take collective responsibility for the bona fide activities of members of the organisation.

The ANC consciously and deliberately took this position in order to contribute to the realisation of the purposes of the Promotion of National Unity and Reconciliations Act whose effectiveness was necessarily premised on the full cooperation of all who had been involved in the conflict that occurred during the period specified in the Act.

More specifically, the leadership of the ANC was determined then, as it is now, not to abandon or desert the thousand(s) of cadres who acted in furtherance of the struggle which it led, by suggesting that only they had an obligation to apply for amnesty, where necessary.

The leadership also hoped that by making this application, it would lead its members by example, encouraging those affected to follow in its footsteps.

The group selected to apply for amnesty was not the complete list of the leadership of the ANC during the mandate period of the ANC.

It was representative of a group of this leadership, chosen in a manner consistent with the definition of "the leadership of the ANC" by the Human Rights Committee.

This overall leadership is reflected in Appendix One of the May 1997 "Further Submission and Responses by the African National Congress to Questions Raised by the Commission for Truth and Reconciliation". (pp 34-56).

Accordingly, the list of 29 covered the period 1960-94 and included people who had been members of various committees of the ANC, from the NEC downwards.

Further, the group was also selected on the basis that, to the knowledge of the ANC, none of the people on its list had been involved in any individual action(s) for which they would require to apply for amnesty.

From the foregoing, it should be clear that "the 29" would not be able to answer any questions which sought to establish the specific acts for which they were applying for amnesty, since there are none.

It also seems clear that there are other leaders of the ANC who applied for amnesty on their own and in the same way as "the 29" who would also not be able to supply specific information as they applied in furtherance of the collective responsibility assumed by the leadership of the ANC.

The ANC would be willing to join these to "the 29", after having established in each case that the persons involved meet the criterion that they have no need to apply for amnesty for any specific act.

Contrary to what has been falsely argued, the ANC never sought a "blanket amnesty" for leadership of the ANC, in bona fide belief that each one of "the 29" would stand any detailed scrutiny with regard to whether they were culpable of any gross violation of human rights, within the meaning of the provisions relating to the granting of amnesty.

As the records of the Amnesty Committee will show, though some of the names are common to both, our list of "the 29" is not the same as the list of 37 which the Committee seemed to have considered.

We are therefore uncertain as to whether the selection of those among "the 37" other than "the 29" was based on the same criteria as were used when "the 29" were selected.

Accordingly, we would humbly suggest that the Amnesty Committee should consider "the 29" or any new list which might be drawn up, which would include other leaders of the ANC who have applied for amnesty, as reflected above.

We trust that this letter will help you and the Committee in its work. We are ready further to assist the Committee as it requires, according to our ability. We therefore look forward to hearing from you in due course.

Yours sincerely

DEPUTY SECRETARY GENERAL"

Subsequent to receiving this letter the Applications of Mokoape and Mafu have been withdrawn from the list, bringing the total number for joint consideration down to 27.

ISSUES

In our view there are two principal issues to be considered in these applications.

The first issue relates to the reliance by the applicants on the declaration quoted herein above. The thrust of the declaration is that the applicants collectively take full responsibility for the activities of their institutions or structures and apply for amnesty "in the event and to the extent that any of the activities of these institutions and structures could in any way whatsoever be regarded as acts/omissions or offences envisaged in the Act".

The cardinal point for consideration is whether this Committee can grant amnesty to the applicants for acts committed by members of the various structures (which acts they are unaware of) on the basis of collective political and moral responsibility.

The second issue relates to whether the applications, as amplified in terms of the letter of the 10th November 1998, disclose any specific act that constitutes an offence or delict.

We therefore accordingly proceed to deal with these issues seriatim.

Having regard to the declaration it is quite evident that the individual applicants apply for amnesty not because they committed any acts that could constitute an offence or a delict but do so solely because they are persons who were either in the leadership of the ANC at various times between 1960 to 1994, or were members of the structures established by the ANC in order to wage a struggle against the NP led government and therefore take collective responsibility for the acts committed by their members in the various structures which acts were committed under the ANC's political authority, direction and leadership. They accordingly assume political and moral accountability for such acts.

It is appropriate at this stage to refer to the sections for the granting of amnesty as contained in the Act. Section 20 (1) stipulates as one of the requirements for amnesty that "the act, omission or offence" in respect of which amnesty is sought must be an "act associated with a political objective". Section 20 (1) (c) stipulates that the applicant must make a full disclosure of all the relevant facts in respect of the "act, omission or offence for which amnesty is sought. Section 20 (2) then steps in to define an "act associated with a political objective". It states that an "act associated with a political objective means an act or omission which constitutes an offence or a delict which according to the criteria in subsection (3), is associated with a political objective,...". It is clear from these sections that for an applicant to qualify for amnesty he should have committed an act which constitutes a delict or offence; he should fully disclose, inter alia, the nature and extent of his participation in respect of the offence or delict for which he seeks amnesty and provide other relevant facts which will be used by the Committee in its application of the prescribed criteria contain in Section 20(3) in determining whether or not a particular act, omission or offence qualifies for amnesty.

The applicants' applications are founded on collective responsibility for acts committed by their members in the event and to the extent that such acts are found to be acts associated with a political objective. In as much as the applicants are to be commended for taking such a noble step of publicly taking collective responsibility in the manner they have done, it was not the intention of the legislature to extend amnesty to the applicants merely on the basis of collective responsibility as the applicants seek to do. The sections dealing with the granting of amnesty are quite clear and unambiguous. The individual applicant must, inter alia, fully disclose a specific offence or delict advised, planned, directed, commanded, ordered or committed by herself/himself in order to qualify for amnesty. In the case of the applicants it is quite evident that they are not aware of all the acts committed by their members and one can comprehend their conundrum in this regard.

It is further evident that from the declaration and the letter relied upon by the individual applicants the applications sought to apply not as individuals in their personal capacities but in their capacity as "a representative group of the ANC leadership" for the period 1960 to 1994.

It is instructive to point out that the Act does not provide locus standi to Liberation Movements, Political Organisations of the State to apply for amnesty for acts associated with a political objective as defined in the sections quoted herein above. These juristic entities are nevertheless immune from both criminal and civil liability in terms of Section 20 (7) (a), once "a person" has been granted amnesty in respect of an act, omission or offence. In the case of the ANC, once a member or supporter of that organisation has been granted amnesty for an act, offence or omission, the ANC is indemnified against any criminal and civil liability for the acts of the wrongdoer (who has been granted amnesty) which could have arisen in consequence of its vicarious liability for such an act, omission or offence. The State is equally discharged from any civil liability if its employee has been granted amnesty for any act, omission or offence in circumstances where it could have been held vicariously liable.

It therefore follows that the ANC will not be held vicariously liable for the acts that the applicants might have intended to cover through their applications and for which they take collective responsibility once amnesty is granted in respect of acts committed by them in their various structures set up by the ANC leadership at various times.

Having said that, it needs to be mentioned that the ANC will be so indemnified only to the extent that their members have been granted amnesty for specific acts. It is trite that notwithstanding the lack of locus standi to these juristic entities, no provision has been made in the Act to extend indemnification to such bodies as the ANC or the State in circumstances where their members have not applied and have not been granted amnesty for acts associated with a political objective.

The second and fundamental issue that we have to consider is whether the applications of the individual applicants comply with the requirements of the Act at all, in terms of Section 18 and 20(1) of the Act.

Section 19(1) which deals with applications for granting of amnesty provides that:

"Any person who wishes to apply for amnesty in respect of any act, omission or offence on the grounds that it is an act associated with a political objective, shall within 12 months from the date of the proclamation referred to in Section 7 (3), or such extended period as may be prescribed, submit such an application to the Commission in the prescribed form".

Section 20(1) which deals with the granting of amnesty provides that:

"If the Committee, after considering an application for amnesty, is satisfied that:

(a) the application complies with the requirements of this Act;

(b) the act, omission or offence to which the application relates is an act associated with a political objective committed in the course of the conflicts of the past in accordance with the provisions of subsections (2) and (3); and

(c) the applicant has made a full disclosure of all relevant facts, it shall grant amnesty in respect of that act, omission or offence."

Section 20 (2) further defines an act associated with a political objective as follows:

In this Act, unless the context otherwise indicates, "act associated with a political objective" means any act of omission which constitutes an offence or delict which, according to the criteria in subsection (3), is associated with a political objective and which was advised, planned, directed, commanded, ordered or committed within or outside the Republic during the period 1 March 1960 to the cut-off date.

Having regard to the provisions of Section 20(1)(a)(b) and Section 20(2) it is quite clear that an application will only comply with the requirements of the Act if it discloses an act which constitutes an offence or delict (Section 20(2) for which an applicant has made a full disclosure in terms of Section 20(1)(c).

None of the applicants have disclosed any such act, omission or offence. On the contrary, pursuant to the enquiries made by this Committee in terms of Section 19, the applications as amplified in the letter quoted herein above, categorically state that "none of the people on its list had been involved in any individual action(s) for which they would require to apply for amnesty"; "...that the persons involved meet the criterion that they have no need to apply for amnesty for any specific act", that they do not have to apply for amnesty for "specific acts...since there are none".

According to the amplification the stated reasons for the applications were that the leadership of the ANC was determined then as at present, to:

Show its determination "not to abandon or desert the thousand(s) of cadres who acted in furtherance of the struggle which it led, by suggesting that only they had an obligation to apply for amnesty, where necessary."

"Lead its members by example, encouraging those affected to follow in its footsteps" by applying for amnesty.

"...to contribute to the realisation of the purposes of the Promotion of National Unity and Reconciliation Act whose effectiveness was necessarily premised on the full cooperation of all who had been involved in the conflict that occurred during the period specified in the Act".

The Committee notes the reasons advanced by the ANC. Unfortunately no matter how noble and commendable these reasons may be, they clearly demonstrate that these applications do not comply with the requirements of the Act as no act, omission or offence is the subject of the applications do not comply with the requirements of the Act as no act, omission or offence is the subject of the applications as required by Section 18(1) of the Act. The applications do not relate to any specific act, omission or offence. On their own admission none of the applicants have been involved in any act "for which they would require to apply for amnesty". In the premises, no amnesty can be granted to the applicants because in terms of what is before the Committee they have committed no offence or delict.

The intention of the applicants to support the thousands of cadres did not warrant an application of this nature. It would have been sufficient for the applicants to support their members' applications for amnesty where necessary without themselves applying for amnesty for the acts of such members. That it was never envisaged by the Act to have persons such as the applicants applying for amnesty on the basis of collective responsibility or for the aforementioned reasons is to be found in Section 20(7)(a) which has already been discussed herein above.

FINDINGS

It is our finding that:

Insofar as the applicants seek to apply for amnesty for acts committed by their members in the various institutions and structures on the basis of collective political and moral responsibility, their applications fall outside the ambit of the act and accordingly they do not require to apply for amnesty.

Insofar as the applications read with the amplification are concerned, we find that NO AMNESTY CAN BE GRANTED to the applicants because:

1. On their own version they have committed no offence or delict in terms of the Act.

2. Their applications do not relate to any specific act, omission or offence in terms of Section 20(1) and therefore do not fall within the ambit of the Act.

CONCLUSION

In the premises the applications do not comply with the requirements of the Act and NO AMNESTY IS GRANTED.

(Signed)

JUDGE S KHAMPEPE

JUDGE S MILLER

ADV N J MOTATA

W C MALAN

https://www.justice.gov.za/trc/decisions/1999/990330_maharajmodisemasondo.html