REPUBLIC OF SOUTH AFRICA

 

PROMOTION OF NATIONAL UNITY AND RECONCILIATION BILL

 

(As submitted by the Portfolio Committee on Justice (National Assembly))

 

(MINISTER OF JUSTICE)

 

[B 30-95]

 

REPUBLIEK VAN SUID-AFRIKA WETSONTWERP OP DIE BEVORDERING VAN NASIONALE

EENHEID EN VERSOENING

 

(Soos voorgele deur die Portefeuljekomitee oor Justisie (Nasionale

Vergadering))

 

(MINISTER VAN JUSTISIE)

 

[W 30-95]ISBN 0 621 16455 0 No. of copies printed 3 000

 

BILL

 

To provide for the investigation and the establishment of as complete a

picture as possible of the nature, causes and extent of gross violations of

human rights committed during the period from 1 March 1960 to the cut-off

date contemplated in the Constitution, within or outside the Republic,

emanating from the conflicts of the past, and the fate or whereabouts of

the victims of such violations; the granting of amnesty to persons who make

full disclosure of acts associated with a political objective committed in

the course of the conflicts of the past during the said period; affording

victims an opportunity to relate the violations they suffered; the taking

of measures aimed at the granting of reparation to, and the rehabilitation

and the restoration of the human and civil dignity of, victims of

violations of human rights; reporting to the Nation about such violations

and victims; the making of recommendations aimed at the prevention of the

commission of gross violations of human rights; and for the said purposes

to provide for the establishment of a Truth and Reconciliation Commission,

a Committee on Human Rights Violations, a Committee on Amnesty and a

Committee on Reparation and Rehabilitation; and to confer certain powers

on, assign certain functions to and impose certain duties upon that

Commission and those Committees; and to provide for matters connected

therewith.

 

SINCE the Constitution of the Republic of South Africa, 1993 (Act No. 200

of 1993), provides a historic bridge between the past of a deeply divided

society characterized by strife, conflict, untold suffering and injustice,

and a future founded on the recognition of human rights, democracy and

peaceful co-existence for all South Africans, irrespective of colour, race,

class, belief or sex;

 

AND SINCE it is deemed necessary to establish the truth in relation to past

events as well as the motives for and circumstances in which gross

violations of human rights have occurred, and to make the findings known in

order to prevent a repetition of such acts in future;

 

AND SINCE the Constitution states that the pursuit of national unity, the

well-being of all South African citizens and peace require reconciliation

between the people of South Africa and the reconstruction of society; AND

SINCE the Constitution states that there is a need for understanding but

not for vengeance, a need for reparation but not for retaliation, a need

for ubuntu but not for victimization;

 

AND SINCE the Constitution states that in order to advance such

reconciliation and reconstruction amnesty shall be granted in respect of

acts, omissions and offences associated with political objectives committed

in the course of the conflicts of the past;

 

AND SINCE the Constitution provides that Parliament shall under the

Constitution adopt a law which determines a firm cut-off date, which shall

be a date after 8 October 1990 and before the cut-off date envisaged in the

Constitution, and providing for the mechanisms, criteria and procedures,

including tribunals, if any, through which such amnesty shall be dealt

with;

 

BE IT THEREFORE ENACTED by the Parliament of the Republic of South Africa,

as follows:-

 

CHAPTER 1

 

Interpretation and application

 

Definitions

 

1. (1) In this Act, unless the context otherwise indicates-

 

(i) "act associated with a political objective" has the meaning ascribed

thereto in section 21(2) and (3); (ii)

 

(ii) "article" includes any evidence, book, document, file, object,

writing, recording or transcribed computer printout produced by any

mechanical or electronic device or any device by means of which information

is recorded or stored; (xix)

 

(iii) "Commission" means the Truth and Reconciliation Commission

established by section 2; (ix)

 

(iv) "commissioner" means a member of the Commission appointed in terms of

section 8(2)(a); (viii)

 

(v) "committee" means the Committee on Human Rights Violations, the

Committee on Amnesty or the Committee on Reparation and Rehabilitation, as

the case may be; (vii)

 

(vi) "Constitution" means the Constitution of the Republic of South Africa,

1993 (Act No. 200 of 1993); (iv)

 

(vii) "cut-off date" means the latest date allowed as the cut-off date by

the provisions of the Constitution set out under the heading "National

Unity and Reconciliation"; (i)

 

(viii) "former state" means any state or territory which was established by

an Act of Parliament or by proclamation in terms of such an Act prior to

the commencement of the Constitution and the territory of which now forms

part of the Republic; (xvii)

 

(ix) "gross violation of human rights" means the violation of human rights

through-

 

(a) the killing, abduction, torture or severe ill-treatment of any person;

or

 

(b) any attempt, conspiracy, incitement, instigation, command or

procurement to commit an act referred to in paragraph (a), which emanated

from conflicts of the past and which was committed during the period 1

March 1960 to the cut-off date within or outside the Republic, and the

commission of which was advised, planned, directed, commanded or ordered,

by any person acting with a political motive; (v)

 

(x) "joint committee" means a joint committee of the Houses of Parliament

appointed in accordance with the Standing Orders of Parliament for the

purpose of considering matters referred to it in terms of this Act; (iii)

 

(xi) "Minister" means the Minister of Justice; (x)

 

(xii) "prescribe" means prescribe by regulation made in terms of section

41; (xviii)

 

(xiii) "President" means the President of the Republic; (xi)

 

(xiv) "reparation" includes any form of compensation, ex gratia payment,

restitution or recognition; (vi)

 

(xv) "Republic" means the Republic of South Africa referred to in section

1(2) of the Constitution; (xii)

 

(xvi) "security forces" includes-

 

(a) any full-time or part-time member or agent of the South African Defence

Force, the South African Police, the National Intelligence Service, the

Bureau of State Security, the Department of Correctional Services, or any

of their organs;

 

(b) a member or agent of a defence force, police force, intelligence agency

or prison service of any former state, or any of their organs; (xvi)

 

(xvii) "State" means the State of the Republic; (xiv)

 

(xviii) "subcommittee" means any subcommittee established by the Commission

in terms of section 5(d); (xv)

 

(xix) "victims" includes-

 

(a) persons who, individually or together with one or more persons,

suffered harm in the form of physical or mental injury, emotional

suffering, pecuniary loss or a substantial impairment of human rights-

 

(i) as a result of a gross violation of human rights; or

 

(ii) as a result of an act associated with a political objective for which

amnesty has been granted; and

 

(b) persons who, individually or together with one or more persons,

suffered harm in the form of physical or mental injury, emotional

suffering, pecuniary loss or a substantial impairment of human rights, as a

result of such person intervening to assist persons contemplated in

paragraph (a) who were in distress or to prevent victimization of such

persons; and

 

(c) such relatives or dependants of victims as may be prescribed. (xiii)

 

(2) For the purposes of sections 11(1), (2), (3), and (4) and 12 and

Chapters 6 and 7 "Commission" shall be construed as including a reference

to "committee" or "subcommittee", as the case may be, and "Chairperson",

"Vice-Chairperson" or "commissioner" shall be construed as including a

reference to the chairperson or the vice-chairperson of a committee or

subcommittee.

 

CHAPTER 2

 

Truth and Reconciliation Commission

 

Establishment and seat of Truth and Reconciliation Commission

 

2. (1) There is hereby established a juristic person to be known as the

Truth and Reconciliation Commission.

 

(2) The seat of the Commission shall be determined by the President.

 

Objectives of Commission

 

3. (1) The objectives of the Commission shall be to promote national unity

and reconciliation in a spirit of understanding which transcends the

conflicts and divisions of the past by-

 

(a) establishing as complete a picture as possible of the causes, nature

and extent of the gross violations of human rights which were committed

during the period from 1 March 1960 to the cut-off date, including the

antecedents, circumstances, factors and context of such violations, as well

as the motives and perspectives of the victims and of the persons

responsible for the commission of the violations, by instituting

investigations and holding hearings;

 

(b) facilitating the granting of amnesty to persons who make full

disclosure of acts associated with a political objective and comply with

the requirements of this Act;

 

(c) establishing and making known the fate or whereabouts of the victims of

gross violations of human rights and by restoring the human and civil

dignity of such victims by granting them an opportunity to relate their own

accounts of the violations of which they are the victims, and by

recommending reparation measures in respect of them;

 

(d) compiling a report providing as comprehensive an account as possible of

the activities and findings of the Commission contemplated in paragraphs

(a), (b) and (c), and which contains recommendations of measures to prevent

the future violations of human rights.

 

(2) The provisions of subsection (1) shall not be interpreted as limiting

the power of the Commission to investigate or make recommendations

concerning any matter with a view to promoting or achieving national unity

and reconciliation within the context of this Act.

 

(3) In order to achieve the objectives of the Commission-

 

(a) the Committee on Human Rights Violations, shall deal inter alia with

matters pertaining to investigations of gross violations of human rights as

contemplated in Chapter 3;

 

(b) the Committee on Amnesty shall deal with matters relating to amnesty,

as contemplated in Chapter 4;

 

(c) the Committee on Reparation and Rehabilitation shall deal with matters

referred to it relating to reparations, as contemplated in Chapter 5;

 

(d) the investigating unit, referred to in section 5(k), shall perform the

investigations contemplated in section 29(4); and

 

(e) the subcommittees shall exercise, perform or carry out the powers,

functions and duties conferred upon, assigned to or imposed upon them by

the Commission.

 

Functions of Commission

 

4. The functions of the Commission shall be to endeavour to achieve its

objectives with all the means at its disposal, and for the purpose of

achieving those objectives the Commission shall-

 

(a) facilitate, and where necessary initiate or coordinate, inquiries into-

 

(i) gross violations of human rights, including violations which were part

of a systematic pattern of abuse;

 

(ii) the nature, causes and extent of gross violations of human rights,

including the antecedents, circumstances, factors and context which led to

such violations;

 

(iii) the identity of all persons, authorities and organisations involved

in such violations;

 

(iv) the question whether such violations were the result of deliberate

planning on the part of the State or a former state or any of their organs,

or of any political organisation, liberation movement or other group or

individual; and

 

(v) accountability, political or otherwise, for any such violation;

 

(b) facilitate, and initiate or coordinate, the gathering of information

and the receiving of evidence from any person, including persons claiming

to be victims of such violations or the representatives of such victims,

which establish the identity of victims of such violations, their fate or

present whereabouts and the nature and extent of the harm suffered by such

victims;

 

(c) facilitate and promote the granting of amnesty in respect of acts

associated with political objectives, by receiving from persons desiring to

make a full disclosure of all the relevant facts, applications for the

granting of amnesty in respect of such acts, and transmitting such

applications to the Committee on Amnesty for its decision, and by

publishing decisions granting amnesty, in the Gazette;

 

(d) determine what articles have been destroyed by any person in order to

conceal violations of human rights or acts associated with a political

objective;

 

(e) prepare a comprehensive report which sets out its activities and

findings, based on factual and objective information and evidence collected

or received by it or placed at its disposal;

 

(f) make recommendations to the President with regard to-

 

(i) the policy which should be followed or measures which should be taken

with regard to the granting of reparation to victims or the taking of other

measures aimed at rehabilitating and restoring the human and civil dignity

of victims;

 

(ii) measures which should be taken to grant urgent interim reparation to

victims;

 

(g) make recommendations to the President with regard to the creation of

institutions conducive to a stable and fair society and the institutional,

administrative and legislative measures which should be taken or introduced

in order to prevent the commission of violations of human rights.

 

Powers of Commission

 

5. For the purpose of achieving its objectives and performing its functions

the Commission shall, subject to the provisions of this Act, and in

addition to any other powers conferred upon it by this Act, have the power-

 

(a) to enter into an agreement with any person, including any department of

State, in terms of which the Commission will be authorized to make use of

any facility, equipment or staff belonging to or under the control or in

the employment of such person or department;

 

(b) to have the work incidental to the exercise of its powers, the

performance of its functions and the carrying out of its duties performed

by-

 

(i) persons employed by it;

 

(ii) persons appointed by it for the performance of specified tasks;

 

(iii) officials and employees of any department of State seconded to the

service of the Commission in terms of the provisions of the Public Service

Act, 1994 (Proclamation No. 103 of 1994);

 

(c) to establish such offices as it may deem necessary for the purposes of

its functions;

 

(d) to establish subcommittees to exercise, carry out or perform any of the

powers, duties and functions of the Commission assigned to it by the

Commission;

 

(e) to give guidance and instructions to, or to review the decisions of,

any committee or subcommittee or the investigating unit with regard to the

exercise of its powers, the performance of its functions, the carrying out

of its duties and the working procedures which should be followed, and the

divisions which should be set up by a committee in order to deal

effectively with the work of the committee: Provided that no guidance or

instruction may be given and no decision may be reviewed with regard to the

procedure or decision to be followed or given by the Committee on Amnesty

with regard to any application for amnesty;

 

(f) on its own initiative, or at the request of any committee or

subcommittee, to direct that any committee or subcommittee make information

which it has in its possession available to another committee or

subcommittee;

 

(g) to refer specific or general matters to any of the committees or to

direct the Committee on Human Rights Violations to conduct specific

investigations into gross violations of human rights;

 

(h) to receive reports or to direct that interim reports be submitted to it

by any subcommittee, committee or the investigating unit;

 

(i) to determine the seat of each committee;

 

(j) to recommend to the President that steps be taken to obtain an order

declaring a person to be dead;

 

(k) to establish the investigating unit contemplated in section 29;

 

(l) through diplomatic channels, to negotiate with the government of, or

any authority or persons in, a foreign country in order to gather

information and receive evidence in that foreign country or to request and

receive information.

 

Additional powers of Commission and committees

 

6. Subject and in addition to the provisions referred to in section 5, the

Commission and any committee shall have the power-

 

(a) with regard to any matter to carry out such investigations as it may

deem necessary to achieve its objectives;

 

(b) to convene meetings at any place within or outside the Republic for the

purpose of hearing evidence with regard to any matter relating to its

functions;

 

(c) on its own initiative or at the request of any interested person, to

inquire into any matter with a view to promoting or achieving its

objectives.

 

Consultation by Commission in exercising certain powers

 

7. (1) Subject to the provisions of section 46, the Commission shall

exercise its powers in terms of sections 5(c) and 10(1) in consultation

with the Minister.

 

(2) Subject to the provisions of section 46, the Commission shall exercise

its powers in terms of sections 6(b), 11(1) and 30(a), in terms of which it

may convene meetings or carry out investigations or inspections outside the

Republic, in consultation with the Minister.

 

Constitution of Commission

 

8. (1) The Commission shall consist of not fewer than 11 and not more than

17 commissioners, as may be determined by the President in consultation

with the Cabinet.

 

(2) (a) The President shall appoint the commissioners in consultation with

the Cabinet.

 

(b) The commissioners shall be South African citizens who are impartial and

respected and who do not have a high political profile.

 

(3) The President shall make the appointment of the commissioners known by

proclamation in the Gazette.

 

(4) The President shall designate one of the commissioners as the

Chairperson, and another as the Vice-Chairperson, of the Commission.

 

(5) A commissioner appointed in terms of subsection (2)(a) shall, subject

to the provisions of subsections (6) and (7), hold office for the duration

of the Commission.

 

(6) A commissioner may at any time resign as commissioner by tendering his

or her resignation in writing to the President.

 

(7) The President may remove a commissioner from office on the grounds of

misbehaviour, incapacity or incompetence, as determined by the joint

committee and upon receipt of an address from the National Assembly and an

address from the Senate.

 

(8) If any commissioner tenders his or her resignation under subsection

(6), or is removed from office under subsection (7), or dies, the President

in consultation with the Cabinet, may fill the vacancy by appointing a

person for the unexpired portion of the term of office of his or her

predecessor or may allow the seat vacated as a result of a resignation,

removal from office or death to remain vacant.

 

Acting Chairperson of Commission

 

9. If both the Chairperson and Vice-Chairperson are absent or unable to

perform their duties, the other commissioners shall from among their number

nominate an Acting Chairperson for the duration of such absence or

incapacity.

 

Conditions of service, remuneration, allowances and other benefits of staff

of Commission

 

10. (1) The persons appointed by the Commission in terms of section 5(b),

who are not officials of the State, shall receive such remuneration,

allowances and other employment benefits and shall be appointed on such

terms and conditions and for such periods, as the Commission may determine.

 

(2) (a) A document setting out the remuneration, allowances and other

conditions of employment determined by the Commission in terms of

subsection (1), shall be tabled in Parliament within 14 days after each

such determination.

 

(b) If Parliament disapproves of any determination, such determination

shall cease to be of force to the extent to which it is so disapproved.

 

(c) If a determination ceases to be of force as contemplated in paragraph

(b)-

 

(i) anything done in terms of such determination up to the date on which

such determination ceases to be of force shall be deemed to have been

validly done; and

 

(ii) any right, privilege, obligation or liability acquired, accrued or

incurred up to the said date under and by virtue of such determination,

shall lapse upon the said date.

 

(3) The Commission may, at its request and after consultation with the

Public Service Commission, be assisted in the performance of the functions

contemplated in section 4 by officers and employees in the Public Service

seconded to the service of the Commission in terms of the Public Service

Act, 1994 (Proclamation No. 103 of 1994).

 

Meetings, procedure at and quorum for meetings of Commission and recording

of proceedings

 

11. (1) The Commission may meet at any place within or outside the Republic

for the purpose of the exercise, carrying out or performance of any of the

powers, duties or functions of the Commission.

 

(2) A meeting of the Commission shall be held at a time and place

determined by the Chairperson of the Commission or, in the absence of such

Chairperson, by the Vice-Chairperson of the Commission.

 

(3) The Commission shall, except in so far as the President has by

regulation under section 41 determined otherwise, with due regard to the

purpose of this Act and the objectives and functions of the Commission,

determine the procedure, including the manner in which decisions shall be

taken, to be followed at meetings of the Commission, and the manner in

which the Commission shall conduct its affairs: Provided that any

subcommittee or committee may, in the absence of such regulation or

determination, itself determine such procedure and manner.

 

(4) The Commission shall cause a record to be kept of its proceedings.

 

(5) The quorum for the first meeting of the Commission shall be two less

than the total number of the Commission.

 

Principles to govern actions of Commission when dealing with victims

 

12. When dealing with victims the actions of the Commission shall be guided

by the following:

 

(a) Victims shall be treated with compassion and respect for their dignity;

 

(b) victims shall be treated equally and without distinction of any kind

such as race, colour, gender, sex, sexual orientation, age, language,

religion, nationality, political or other opinion, cultural beliefs or

practices, property, birth or family status, ethnic, or social origin or

disability;

 

(c) procedures for dealing with applications by victims shall be

expeditious, fair, inexpensive and accessible;

 

(d) victims shall be informed through the press and any other medium of

their rights in seeking redress through the Commission, including

information of-

 

(i) the role of the Commission and the scope of its activities;

 

(ii) the right of victims to have their views and submissions presented and

considered at appropriate stages of the inquiry;

 

(e) appropriate measures shall be taken in order to minimize inconvenience

to victims, when necessary, to protect their privacy, to ensure their

safety as well as that of their families and of witnesses testifying on

their behalf, and to protect them from intimidation;

 

(f) appropriate measures shall be taken to allow victims to communicate in

the language of their choice;

 

(g) informal mechanisms for the resolution of disputes, including

mediation, arbitration and customary justice and indigenous practices shall

be applied, where appropriate, to facilitate reconciliation and redress for

victims.

 

CHAPTER 3

 

Investigation of Human Rights Violations

 

Committee on Human Rights Violations

 

13. There is hereby established a committee to be known as the Committee on

Human Rights Violations, hereinafter in this Chapter referred to as the

Committee.

 

Constitution of Committee

 

14. (1) The Committee shall consist of-

 

(a) a Chairperson;

 

(b) two Vice-Chairpersons;

 

(c) not more than 10 other members; and

 

(d) in addition to the commissioners referred to in subsection (2), such

other commissioners as may be appointed by the Commission.

 

(2) Commissioners designated by the Commission shall be the Chairperson and

Vice-Chairpersons of the Committee.

 

(3) The Commission shall, for the purpose of subsection (1)(c), appoint as

members of the Committee, South African citizens who are fit and proper

persons and broadly representative of the South African community and

shall, when making such appointments, give preference to persons possessing

knowledge of the content and application of human rights or of

investigative or fact-finding procedures.

 

Powers, duties and functions of Committee

 

15. (1) In addition to the powers, duties and functions conferred on,

imposed upon and assigned to it in this Act, and for the purpose of

achieving the objectives of the Commission, referred to in section 3(1)(a),

(c) and (d)-

 

(a) the Committee shall-

 

(i) institute the inquiries referred to in section 4(a);

 

(ii) gather the information and receive the evidence referred to in section

4(b);

 

(iii) determine the facts contemplated in section 4(d);

 

(iv) take into account the gross violations of human rights for which

indemnity has been granted during the period between 1 March 1960 and the

date of commencement of this Act or for which prisoners were released or

had their sentences remitted for the sake of reconciliation and for the

finding of peaceful solutions during that period;

 

(v) record allegations and complaints of gross violations of human rights;

 

(b) the Committee may-

 

(i) collect or receive from any organisation, commission or person,

articles relating to gross violations of human rights;

 

(ii) make recommendations to the Commission with regard to the matters

referred to in section 4(f) or (g);

 

(iii) make information which is in its possession available to a committee

referred to in Chapter 4 or 5, a subcommittee or the investigating unit;

 

(iv) may submit to the Commission interim reports indicating the progress

made by the Committee with its activities;

 

(v) exercise the powers referred to in section 6 and Chapters 6 and 7.

 

(2) The Committee shall at the conclusion of its functions submit to the

Commission a comprehensive report of all its activities and findings in

connection with the performance of its functions and the carrying out of

its duties in terms of this Act.

 

Referrals to Committee on Reparation and Rehabilitation

 

16. (1) When the Committee finds that a gross violation of human rights has

been committed and if the Committee is of the opinion that a person is a

victim of such violation, it shall refer the matter to the Committee on

Reparation and Rehabilitation for its consideration in terms of section 27.

 

(2) After a referral to the Committee on Reparation and Rehabilitation has

been made by the Committee in terms of subsection (1), it shall, at the

request of the Committee on Reparation and Rehabilitation, furnish that

Committee with all the evidence and other information relating to the

victim concerned or conduct such further investigation or hearing as the

said Committee may require.

 

CHAPTER 4

 

Amnesty mechanisms and procedures

 

Committee on Amnesty

 

17. There is hereby established a committee to be known as the Committee on

Amnesty, hereinafter in this Chapter referred to as the Committee.

 

Constitution of Committee

 

18. (1) The Committee shall consist of a Chairperson, a Vice-Chairperson

and three other members who are fit and proper persons, suitably qualified,

South African citizens and broadly representative of the South African

community and vacancies in the Committee shall be filled in accordance with

this section.

 

(2) The President shall appoint the Chairperson, the Vice-Chairperson, one

other person and, after consultation with the Commission, two commissioners

as members of the Committee.

 

(3) The Chairperson of the Committee shall be-

 

(a) a judge as defined in section 1(1) of the Judges' Remuneration and

Conditions of Employment Act, 1989 (Act No. 88 of 1989); or

 

(b) a judge who has been discharged from active service in terms of section

3 of the said Act.

 

Applications for granting of amnesty

 

19. (1) Any person who wishes to apply for the granting of amnesty to him

or her 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 8(3), or such extended

period as may be prescribed, submit to the Commission for transmission to

the Committee an application in the prescribed form, which shall be

accompanied by the prescribed particulars.

 

(2) Notwithstanding the provisions of subsection (1), a number of persons

may be allowed to submit their applications jointly in respect of any

particular act, omission or offence in which each one of them was involved.

 

(3) The Committee shall endeavour to give priority to applications of

persons in custody and prescribe measures in respect of such applications

after consultation with the Minister and the Minister of Correctional

Services.

 

Committee shall consider applications for amnesty

 

20. (1) Upon receipt of any application for amnesty the Committee may

return the application to the applicant and give such directions in respect

of the completion and submission of the application as may be necessary or

request the applicant to provide such further particulars as it may deem

necessary.

 

(2) The Committee shall investigate the application and may make such

enquiries as it may deem necessary: Provided that the provisions of section

31(2) shall mutatis mutandis apply in respect of such investigation.

 

(3) After such investigation, the Committee may-

 

(a) if it is satisfied that the application does not disclose an act

associated with a political objective, after the Committee has informed the

applicant of its views and has afforded him or her the opportunity to make

a further submission within a specified time and has considered such

further submission (if any), refuse the application in the absence of the

applicant without a hearing and deal with the application in terms of

section 22; or

 

(b) grant amnesty in the absence of the applicant without a hearing, if it

is satisfied that-

 

(i) the application complies with the requirements of section 21(1);

 

(ii) there is no need for such hearing; and

 

(iii) the act associated with a political objective does not constitute a

gross violation of human rights.

 

(4) If an application has not been dealt with in terms of subsection (3),

the Committee shall conduct a hearing as contemplated in Chapter 6 and

shall, subject to the provisions of section 34-

 

(a) notify the applicant and any victim or person implicated, or having an

interest in the application, in the prescribed manner of the place where

and the time when the application will be heard and considered;

 

(b) inform the applicant, a victim and the said other person in the said

manner of his or her right to be present at the hearing and to testify,

adduce evidence and submit any article to be taken into consideration;

 

(c) deal with the application in terms of section 21 or 22 by granting or

refusing amnesty.

 

(5) The Committee shall, for the purpose of considering and deciding upon

an application referred to in subsection (1), have the same powers as those

conferred upon the Commission in section 6 and Chapters 6 and 7.

 

(6) If the act or omission which is the subject of an application under

section 19 constitutes the ground of any claim in civil proceedings

instituted against the person who submitted that application, the court

hearing that claim may at the request of such person, if it is satisfied

that the other parties to such proceedings have been informed of the

request and afforded the opportunity to address the court or to make

further submissions in this regard, suspend those proceedings pending the

consideration and disposal of the application.

 

(7) If the person who submitted an application under section 19 is charged

with any offence constituted by the act or omission to which the

application relates, or is standing trial upon a charge of having committed

such an offence, the Committee may request the appropriate authority to

postpone the proceedings pending the consideration and disposal of the

application for amnesty.

 

(8) (a) Subject to the provisions of section 34, the applications,

documentation in connection therewith, further information and evidence

obtained before and during an investigation by the Commission, the

deliberations conducted in order to come to a decision or to conduct a

hearing contemplated in section 34, shall be confidential.

 

(b) Subject to the provisions of section 34, the confidentiality referred

to in paragraph (a) shall lapse when the Commission decides to release such

information or when the hearing commences.

 

Granting of amnesty and effect thereof

 

21. (1) If the Committee, in 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. (2) In

this Act, unless the context otherwise indicates, "act associated with a

political objective" means any act or 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, by-

 

(a) any member or supporter of a publicly known political organisation or

liberation movement on behalf of or in support of such organisation or

movement, bona fide in furtherance of a political struggle waged by such

organisation or movement against the State or any former state or another

publicly known political organisation or liberation movement;

 

(b) any employee of the State or any former state or any member of the

security forces of the State or any former state in the course and scope of

his or her duties and within the scope of his or her express or implied

authority directed against a publicly known political organisation or

liberation movement engaged in a political struggle against the State or a

former state or against any members or supporters of such organisation or

movement, and which was committed bona fide with the object of countering

or otherwise resisting the said struggle;

 

(c) any employee of the State or any former state or any member of the

security forces of the State or any former state in the course and scope of

his or her duties and within the scope of his or her express or implied

authority directed-

 

(i) in the case of the State, against any former state; or

 

(ii) in the case of a former state, against the State or any other former

state, whilst engaged in a political struggle against each other or against

any employee of the State or such former state, as the case may be, and

which was committed bona fide with the object of countering or otherwise

resisting the said struggle;

 

(d) any employee or member of a publicly known political organisation or

liberation movement in the course and scope of his or her duties and within

the scope of his or her express or implied authority directed against the

State or any former state or any publicly known political organisation or

liberation movement engaged in a political struggle against that political

organisation or liberation movement or against members of the security

forces of the State or any former state or members or supporters of such

publicly known political organisation or liberation movement, and which was

committed bona fide in furtherance of the said struggle;

 

(e) any person in the performance of a coup d' état to take over the

government of any former state, or in any attempt thereto;

 

(f) any person referred to in paragraphs (b), (c) and (d), who on

reasonable grounds believed that he or she was acting in the course and

scope of his or her duties and within the scope of his or her express or

implied authority;

 

(g) any person who associated himself or herself with any act or omission

committed for the purposes referred to in paragraphs (a), (b), (c), (d),

(e) and (f).

 

(3) Whether a particular act, omission or offence contemplated in

subsection (2) is an act associated with a political objective, shall be

decided with reference to the following criteria:

 

(a) The motive of the person who committed the act, omission or offence;

 

(b) the context in which the act, omission or offence took place, and in

particular whether the act, omission or offence was committed in the course

of or as part of a political uprising, disturbance or event, or in reaction

thereto;

 

(c) the legal and factual nature of the act, omission or offence, including

the gravity of the act, omission or offence;

 

(d) the object or objective of the act, omission or offence, and in

particular whether the act, omission or offence was primarily directed at a

political opponent or State property or personnel or against private

property or individuals;

 

(e) whether the act, omission or offence was committed in the execution of

an order of, or on behalf of, or with the approval of, the organisation,

institution, liberation movement or body of which the person who committed

the act was a member, an agent or a supporter; and

 

(f) the relationship between the act, omission or offence and the political

objective pursued, and in particular the directness and proximity of the

relationship and the proportionality of the act, omission or offence to the

objective pursued,

 

but does not include any act, omission or offence committed by any person

referred to in subsection (2) who acted-

 

(i) for personal gain: Provided that an act, omission or offence by any

person who acted and received money or anything of value as an informer of

the State or a former state, political organisation or liberation movement,

shall not be excluded only on the grounds of that person having received

money or anything of value for his or her information; or

 

(ii) out of personal malice, ill-will or spite, directed against the victim

of the acts committed.

 

(4) In applying the criteria contemplated in subsection (3), the Committee

shall take into account the criteria applied in the Acts repealed by

section 49.

 

(5) The Commission shall inform the person concerned and, if possible, any

victim, of the decision of the Committee to grant amnesty to such person in

respect of a specified act, omission or offence and the Committee shall

submit to the Commission a record of the proceedings, which may, subject to

the provisions of this Act, be used by the Commission.

 

(6) The Committee shall by proclamation in the Gazette make known the full

names of any person to whom amnesty has been granted, together with

sufficient information to identify the act or omission in respect of which

amnesty has been granted.

 

(7) (a) No person who has been granted amnesty in respect of an act,

ommission or offence shall be criminally or civilly liable in respect of

such act, omission or offence and no body or organisation or the State

shall be liable, and no person shall be vicariously liable, for any such

act, omission or offence.

 

(b) Where amnesty is granted to any person in respect of any act, omission

or offence, such amnesty shall have no influence upon the criminal

liability of any other person contingent upon the liability of the

first-mentioned person.

 

(8) If any person-

 

(a) has been charged with and is standing trial in respect of an offence

constituted by the act or omission in respect of which amnesty is granted

in terms of this section; or

 

(b) has been convicted of, and is awaiting the passing of sentence in

respect of, or is in custody for the purpose of serving a sentence imposed

in respect of, an offence constituted by the act or omission in respect of

which amnesty is so granted,

 

the criminal proceedings shall forthwith upon publication of the

proclamation referred to in subsection (6) become void or the sentence so

imposed shall upon such publication lapse and the person so in custody

shall forthwith be released.

 

(9) If any person has been granted amnesty in respect of any act or

omission which formed the ground of a civil judgment which was delivered at

any time before the granting of the amnesty, the publication of the

proclamation in terms of subsection (6) shall not affect the operation of

the judgment in so far as it applies to that person.

 

(10) Where any person has been convicted of any offence constituted by an

act or omission associated with a political objective in respect of which

amnesty has been granted in terms of this Act, any entry or record of the

conviction shall be deemed to be expunged from all official documents or

records and the conviction shall for all purposes, including the

application of any Act of Parliament or any other law, be deemed not to

have taken place: Provided that the Committee may recommend to the

authority concerned the taking of such measures as it may deem necessary

for the protection of the safety of the public.

 

Refusal of amnesty and effect thereof

 

22. (1) If the Committee has refused any application for amnesty, it shall

as soon as practicable notify-

 

(a) the person who applied for amnesty;

 

(b) any person who is in relation to the act, omission or offence

concerned, a victim; and

 

(c) the Commission,

 

in writing of its decision and the reasons for its refusal.

 

(2) (a) If any criminal or civil proceedings were suspended pending a

decision on an application for amnesty, and such application is refused,

the court concerned shall be notified accordingly.

 

(b) No adverse inference shall be drawn by the court concerned from the

fact that the proceedings which were suspended pending a decision on an

application for amnesty, are subsequently resumed.

 

Referrals to Committee on Reparation and Rehabilitation

 

23. (1) Where amnesty is granted to any person in respect of any act,

omission or offence and the Committee is of the opinion that a person is a

victim in relation to that act, omission or offence, it shall refer the

matter to the Committee on Reparation and Rehabilitation for its

consideration in terms of section 27.

 

(2) Where amnesty is refused by the Committee and if it is of the opinion

that-

 

(a) the act, omission or offence concerned constitutes a gross violation of

human rights; and

 

(b) a person is a victim in the matter,

 

it shall refer the matter to the Committee on Reparation and Rehabilitation

for consideration in terms of section 27.

 

CHAPTER 5

 

Reparation and rehabilitation of victims

 

Committee on Reparation and Rehabilitation

 

24. There is hereby established a committee to be known as the Committee on

Reparation and Rehabilitation, hereinafter in this Chapter referred to as

the Committee.

 

Constitution of Committee

 

25. (1) The Committee shall consist of-

 

(a) a Chairperson;

 

(b) a Vice-Chairperson;

 

(c) not more than five other members; and

 

(d) in addition to the commissioners referred to in subsection (2), such

other commissioners as may be appointed to the Committee by the Commission.

 

(2) Commissioners designated by the Commission shall be the Chairperson and

Vice-Chairperson of the Committee.

 

(3) The Commission shall for the purpose of subsection (1)(c) appoint as

members of the Committee fit and proper persons who are suitably qualified,

South African citizens and broadly representative of the South African

community.

 

Powers, duties and functions of Committee

 

26. (1) In addition to the powers, duties and functions in this Act and for

the purpose of achieving the Commission's objectives referred to in section

3(1)(c) and (d)-

 

(a) the Committee shall-

 

(i) consider matters referred to it by-

 

(aa) the Commission in terms of section 5(g);

 

(bb) the Committee on Human Rights Violations in terms of section 16(1);

and

 

(cc) the Committee on Amnesty in terms of section 23(1);

 

(ii) gather the evidence referred to in section 4(b);

 

(b) the Committee may-

 

(i) make recommendations which may include urgent interim measures as

contemplated in section 4(f), as to appropriate measures of reparation to

victims;

 

(ii) make recommendations referred to in section 4(g);

 

(iii) prepare and submit to the Commission interim reports in connection

with its activities;

 

(iv) may exercise the powers referred to in section 6 and Chapters 6 and 7.

 

(2) The Committee shall submit to the Commission a final comprehensive

report on its activities, findings and recommendations.

 

Applications for reparation

 

27. (1) Any person who is of the opinion that he or she has suffered harm

as a result of a gross violation of human rights may apply to the Committee

for reparation in the prescribed form, which shall be accompanied by the

prescribed particulars.

 

(2) (a) The Committee shall consider an application contemplated in

subsection (1) and may exercise any of the powers conferred upon it by

section 26.

 

(b) In any matter referred to the Committee, and in respect of which a

finding as to whether an act, omission or offence constitutes a gross

violation of human rights is required, the Committee shall refer the matter

to the Committee on Human Rights Violations to deal with the matter in

terms of section 15.

 

(3) If upon consideration of any matter or application submitted to it

under subsection (1) and any evidence received or obtained by it concerning

such matter or application, the Committee is of the opinion that the

applicant is a victim, it shall, having regard to criteria as prescribed,

make recommendations as contemplated in section 26(1)(b)(i) in an endeavour

to restore the human and civil dignity of such victim.

 

Parliament to consider recommendations with regard to reparation of victims

 

28. (1) The recommendations referred to in section 4(f)(i) shall be

considered by the President with a view to making recommendations to

Parliament and making regulations.

 

(2) The recommendations referred to in subsection (1) shall be considered

by the joint committee and the decisions of the said joint committee shall,

when approved by Parliament, be implemented by the President by making

regulations.

 

(3) The regulations referred to in subsection (2)-

 

(a) shall-

 

(i) determine the basis upon which and the conditions subject to which

reparation shall be granted;

 

(ii) determine the authority responsible for the application of the

regulations; and

 

(b) may-

 

(i) provide for the revision and, in appropriate cases, the discontinuance

or reduction of any reparation;

 

(ii) prohibit the cession, assignment or attachment of any reparation in

terms of the regulations, or the right to any such reparation;

 

(iii) determine that any reparation received in terms of the regulations

shall not form part of the estate of the recipient should such estate be

sequestrated; and

 

(iv) provide for any other matter which the President may deem fit to

prescribe in order to ensure an efficient application of the regulations.

 

(4) The joint committee may also advise the President in respect of

measures that should be taken to grant urgent interim reparation to

victims.

 

CHAPTER 6

 

Investigations and hearings by Commission

 

Constitution of investigating unit

 

29. (1) The investigating unit referred to in section 5(k) shall consist of

such persons as the Commission may appoint for the period determined by it.

 

(2) The Commission may extend the period of an appointment made by it under

subsection (1) or withdraw such appointment during the period referred to

in that subsection.

 

(3) The Commission shall appoint a commissioner to head the investigating

unit and may designate one or more commissioners to serve on the

investigating unit.

 

(4) (a) The investigating unit shall, subject to the directions of the

Commission, investigate such matters as the Commission may assign to it and

follow such procedure during the performance of its functions as the

Commission may direct: Provided that the purpose of the investigating unit

shall be to establish and gather the facts and evidence in a manner similar

to that of an investigating officer in a criminal case.

 

(b) The investigating unit shall at the request of a committee investigate

a matter under the jurisdiction of such a committee and such investigation

shall be conducted under the direction of the committee concerned.

 

Powers of Commission with regard to investigations and hearings

 

30. For the purpose of conducting an investigation or a hearing in terms of

this Act the Commission shall, subject to the provisions of this Act and in

addition to any other powers conferred upon it by this Act, have the power-

 

(a) to carry out local inspections within, or outside, the Republic with

regard to any matter relating to the functions of the Commission;

 

(b) to require any person by notice in writing under the hand of a

commissioner and delivered by a member of the staff of the Commission or a

sheriff, in relation to an investigation, to appear before the Commission

at a time and place specified in such notice and to produce to it all

articles in the possession or custody or under the control of any such

person and which may provide proof to the Commission of gross violations of

human rights, or which relates to any matter relating to the functions and

powers of the Commission: Provided that any such notice shall contain the

reason why the presence of any such person, or the production of any such

article, is required;

 

(c) to require by notice in writing under the hand of a commissioner,

addressed and delivered by a member of the staff of the Commission or a

sheriff, the production of any article in the custody or under the control

of the State, any department of State, the Auditor-General, any

Attorney-General or any person in the service or acting on behalf of the

State, which, in the opinion of the Commission, relates to any matter

pertaining to its functions and powers: Provided that if the Commission is

of the opinion that the production of such an article may adversely affect

existing, instituted or pending judicial procedures or investigations which

may lead to the institution of judicial procedures, such an article shall

be dealt with by the Commission in such a manner that such procedures or

investigations are not adversely affected;

 

(d)

 

to require any person who gives evidence before the Commission, to take the

oath or to make an affirmation;

 

(e) to administer the oath to or accept an affirmation from any such person

through the Chairperson, a commissioner or any member of the staff so

authorized;

 

(f) subject to the provisions of section 33, to cause to be seized any

article referred to in paragraphs (b) and (c);

 

(g) after having afforded the person who brought the matter to its

attention an opportunity to state his or her case and to submit

representations, to refuse to inquire into any matter brought to its notice

under this Act if in the opinion of the Commission the matter is of a

vexatious, trivial or frivolous nature or on any other reasonable grounds,

and shall, if it is of such opinion, inform the person concerned

accordingly;

 

(h) having due regard to the principles of openness and transparency and

the purpose of this Act, to declare any information or article to be

confidential.

 

Procedures to be followed by Commission at investigations and hearings

 

31. (1) The Commission shall, except in so far as the President has

prescribed otherwise, with due regard to the purpose of this Act and the

objectives and functions of the Commission, determine fair procedures to be

followed during the investigations and hearings of the Commission: Provided

that any subcommittee or committee may, in the absence of such regulation

or determination, itself determine such procedure.

 

(2) If during an investigation or hearing before the Commission-

 

(a) any person is implicated in a manner which may be to his or her

detriment;

 

(b) the Commission contemplates to make a decision that may be to the

detriment of a person who has been so implicated; or

 

(c) it appears that any person may be a victim,

 

the Commission shall, if such a person is available and willing to do so,

afford such a person the opportunity to submit representations regarding

the matter under consideration within a specified time or to give evidence

before a hearing of the Commission.

 

(3) (a) Subject to the provisions of section 34, the documentation, further

information and evidence obtained by the investigating unit and the

deliberations in this regard shall be confidential.

 

(b) Subject to the provisions of section 34, the confidentiality referred

to in paragraph (a) shall lapse when the Commission decides to release such

information or at the commencement of a hearing.

 

Compellability of witnesses and inadmissibility of incriminating evidence

given before Commission

 

32. (1) Any person who is questioned by the Commission in the exercise of

its powers in terms of this Act, or who has been subpoenaed to give

evidence or to produce any article at a hearing of the Commission shall,

subject to the provisions of subsections (2), (3) and (5), be compelled to

produce any article or to answer any question put to him or her with regard

to the subject-matter of the hearing notwithstanding the fact that the

article or his or her answer may incriminate him or her.

 

(2) A person referred to in subsection (1) shall only be compelled to

answer a question or to produce an article which may incriminate him or her

if the Commission has issued an order to that effect, after the Commission-

 

(a) has consulted with the attorney-general who has jurisdiction;

 

(b) has satisfied itself that to require such information from such a

person is reasonable, necessary and justifiable in an open and democratic

society based on freedom and equality; and

 

(c) has satisfied itself that such a person has refused or is likely to

refuse to answer a question or produce an article on the grounds that such

an answer or article might incriminate him or her.

 

(3) Any incriminating answer or information obtained or incriminating

evidence directly or indirectly derived from a questioning in terms of

subsection (1) shall not be admissible as evidence against the person

concerned in criminal proceedings in a court of law or before any body or

institution established by or under any law: Provided that incriminating

evidence arising from such questioning shall be admissible in criminal

proceedings where the person is arraigned on a charge of perjury or a

charge contemplated in section 40(d)(ii) of this Act or in section 319(3)

of the Criminal Procedure Act, 1955 (Act No. 56 of 1955).

 

(4) Subject to the provisions of this section, the law regarding privilege

as applicable to a witness summoned to give evidence in a criminal case in

a court of law shall apply in relation to the questioning of a person in

terms of subsection (1).

 

(5) Any person appearing before the Commission by virtue of the provisions

of subsection (1) shall be entitled to peruse any article referred to in

that subsection, which was produced by him or her, as may be reasonably

necessary to refresh his or her memory.

 

Entering upon and search of premises with or without warrant and seizure

and removal of articles

 

33. (1) Any commissioner or any member of the staff of the Commission or a

police officer, authorized thereto by a commissioner may, subject to the

provisions of this section, for the purposes of an investigation, enter any

premises on or in which anything connected with that investigation is or is

suspected to be.

 

(2) The entering upon and search of any premises under this section shall

be conducted with strict regard to decency and order, which shall include

regard to-

 

(a) a person's right to, respect for, and protection of, his or her

dignity;

 

(b) the right to freedom and security of the person; and

 

(c) the right to his or her personal privacy.

 

(3) Any commissioner, member or police officer referred to in subsection

(1) may, subject to the provisions of this section-

 

(a) inspect and search the premises referred to in that subsection, and

there make such enquiries as he or she may deem necessary;

 

(b) examine any article found on or in the premises;

 

(c) request from the owner or person in control of the premises or from any

person in whose possession or control that article is, information

regarding that article;

 

(d) make copies of or take extracts from any article found on or in the

premises;

 

(e) request from any person whom he or she suspects of having the necessary

information, an explanation regarding that article;

 

(f) seize anything on or in the premises which in his or her opinion has a

bearing on the investigation concerned;

 

(g) if he or she wishes to retain anything on or in the premises

contemplated in paragraph (f) for further examination or for safe custody,

against the issue of a receipt, remove it from the premises: Provided that

any article that has been so removed, shall be returned as soon as possible

after the purpose for such removal has been accomplished.

 

(4) (a) Subject to the provisions of subsection (5), the premises referred

to in subsection (1) shall only be entered by virtue of an entry warrant

issued by a magistrate, or judge of the Supreme Court, if it appears to

such magistrate or judge from information on oath that there are reasonable

grounds for believing that an article referred to in subsection (3) is in

the possession or under the control of any person or on or in any premises

within such magistrate's or judge's area of jurisdiction.

 

(b) Subject to the provisions of subsection (5), the functions referred to

in subsection (3) shall only be performed by virtue of a search warrant

issued by a magistrate, or judge of the Supreme Court, if it appears to

such magistrate or judge from information on oath that there are reasonable

grounds for believing that an article referred to in subsection (3) is in

the possession or under the control of any person or on or in any premises

within such magistrate's or judge's area of jurisdiction.

 

(c) A warrant issued in terms of this subsection shall authorize any

commissioner or any member of the staff of the Commission or a police

officer to perform the functions referred to in subsection (3) and shall to

that end authorize such person to enter and search any premises identified

in the warrant.

 

(d) A warrant issued in terms of this subsection shall be executed by day,

unless the person issuing the warrant in writing authorizes the execution

thereof by night at times which are reasonable in the circumstances.

 

(e) A warrant issued in terms of this subsection may be issued on any day

and shall be of force until-

 

(i) it is executed; or

 

(ii) it is cancelled by the person who issued it or, if such person is not

available, by any person with like authority; or

 

(iii) the expiry of one month from the day of its issue; or

 

(iv) the purpose for the issuing of the warrant has lapsed,

 

whichever may occur first.

 

(f) A person executing a warrant under this section shall, at the

commencement of the search, hand the person referred to in the warrant or

the owner or the person in control of the premises, if such a person is

present, a copy of the warrant: Provided that if such person is not

present, the person executing the warrant shall affix a copy of the warrant

to the premises at a prominent and visible place.

 

(g) A person executing a warrant under this subsection or an entry or

search under subsection (5) shall, at the commencement of such execution,

identify himself of herself and if that person requires authorization to

execute a warrant under this section, the particulars of such authorization

shall also be furnished.

 

(5) Subject to the provisions of subsections (2), (3)(g), (6), (7) and (8),

any commissioner or any member of the staff of the Commission or a police

officer upon the request of a commissioner may, without an entry and search

warrant, enter and search any premises, other than a private dwelling, for

the purpose of attaching and removing, if necessary, any article-

 

(a) if the person or persons who are competent to consent to the entering

and search for and seizure and removal of an article consent to such

entering, search, seizure and removal of the article concerned; or

 

(b) if he or she, on reasonable grounds believes-

 

(i) that a warrant will be issued to him or her under subsection (4) if he

or she were to apply for such warrant; and

 

(ii) that the delay in obtaining such a warrant would defeat the object of

the entry and search.

 

(6) An entry and search in terms of subsection (5) shall be executed by day

unless the execution thereof by night is justifiable and necessary.

 

(7) (a) A person who may lawfully under this section enter and search any

premises may use such force as may be reasonably necessary to overcome any

resistance against such entry and search of the premises, including the

breaking of any door or window of such premises: Provided that such person

shall first audibly demand admission to the premises and notify the purpose

for which he or she seeks to enter and search such premises.

 

(b) The proviso to paragraph (a) shall not apply where the person concerned

is on reasonable grounds of the opinion that any article which is the

subject of the search may be destroyed or disposed of if the provisions of

the said proviso are first complied with.

 

(8) If during the execution of a warrant or search in terms of this

section, a person claims that an article found on or in the premises

concerned contains privileged information and refuses the inspection or

removal of such article, the person executing the warrant or search shall,

if he or she is of the opinion that the article contains information that

has a bearing on the investigation and that such information is necessary

for the investigation, request the registrar of the Supreme Court which has

jurisdiction or his or her delegate, to attach and remove that article for

safe custody until a court of law has made a ruling on the question whether

the information concerned is privileged or not.

 

Hearings of Commission to be open to public

 

34. (1) (a) Subject to the provisions of this section, the hearings of the

Commission shall be open to the public.

 

(b) If the Commission, in any proceedings before it, is satisfied that-

 

(i) it would be in the interest of justice; or

 

(ii) there is a likelihood that harm may ensue to any person as a result of

the proceedings being open,

 

it may direct that such proceedings be held behind closed doors and that

the public or any category thereof shall not be present at such proceedings

or any part thereof: Provided that the Commission shall permit any victim

who has an interest in the proceedings concerned, to be present.

 

(c) An application for proceedings to be held behind closed doors may be

brought by a person referred to in paragraph (b) and such application shall

be heard behind closed doors.

 

(d) The Commission may at any time review its decision with regard to the

question whether or not the proceedings shall be held behind closed doors.

 

(2) Where the Commission under subsection (1)(b) on any grounds referred to

in that subsection directs that the public or any category thereof shall

not be present at any proceedings or part thereof, the Commission may,

subject to the provisions of section 21(6)-

 

(a) direct that no information relating to the proceedings, or any part

thereof held behind closed doors, shall be made public in any manner;

 

(b) direct that no person may, in any manner, make public any information

which may reveal the identity of any witness in the proceedings;

 

(c) give such directions in respect of the record of proceedings as may be

necessary to protect the identity of any witness:

 

Provided that the Commission may authorize the publication of so much

information as it considers would be just and equitable.

 

Legal representation

 

35. (1) Any person questioned by an investigation unit and any person who

has been subpoenaed or called upon to appear before the Commission is

entitled to appoint a legal representative.

 

(2) The Commission may, in order to expedite proceedings, place reasonable

limitations with regard to the time allowed in respect of the

cross-examination of witnesses or any address to the Commission.

 

(3) The Commission may appoint a legal representative to appear pro Deo on

behalf of the person concerned if it is satisfied that the person is not

financially capable of appointing a legal representative himself or

herself, and if it is of the opinion that it is in the interests of justice

that the person be represented by a legal representative.

 

(4) A person referred to in subsection (1) shall be informed timeously of

his or her right to be represented by a legal representative.

 

Protection of witnesses

 

36. (1) When the Commission is satisfied that any person who testifies or

who has been requested to testify on any matter dealt with by it, has

reason to believe that his or her safety or the safety of any member of his

or her family or household is being threatened by any person or by any

group or category of persons, whether known to him or her or not, who have-

 

(a) caused or wish to cause him or her harm as a result of the evidence

which he or she has given;

 

(b) attempted to prevent or wish to prevent him or her from giving

evidence; or

 

(c) attempted to persuade or wish to persuade him or her to give evidence

to a particular effect,

 

as the case may be, the Commission may, on the written application of any

such person, and in the prescribed manner, request a person in charge of

any police station or prison as defined in section 1 of the Correctional

Services Act, 1959 (Act No. 8 of 1959), to detain such applicant, such

member or any dependant of such applicant or such member in, or to place

such applicant, such member or such dependant under, protective custody.

 

(2) If a witness or prospective witness referred to in subsection (1), a

member of his or her family or household or a dependant of his or hers or

of such member or, where such witness, member or dependant is a minor, his

or her parent or guardian has completed and signed an authorization, on the

form prescribed by regulation under this section-

 

(a) to be detained in protective custody, such witness, member or dependant

shall forthwith be taken to a place of safety similarly prescribed for that

purposes and detained there in accordance with regulations under this

section; or

 

(b) to be placed under protective custody, such witness, member or

dependant shall forthwith be placed under protective custody in such manner

as may be prescribed by the said regulations:

 

Provided that any person in respect of whom an authorization has been

completed and signed-

 

(i) to be detained in protective custody and who is so being detained under

paragraph (a), may at any time be placed under protective custody in terms

of paragraph (b); and

 

(ii) to be placed under protective custody and who has been so placed in

terms of paragraph (b), may at any time be detained in protective custody

under paragraph (a).

 

(3) Any person who is detained in or has been placed under protective

custody under this section shall so remain in or under custody until the

Commission submits a discharge from detention or he or she or, where he or

she is a minor, his or her parent or guardian submits a waiver of

protection, on the form prescribed by regulation under this section, to the

person in charge of the place where he or she is being detained or to the

person who is responsible for his or her custody in terms of any regulation

under this section, as the case may be.

 

(4) (a) The President may make regulations as to-

 

(i) the detention in or the placing under protective custody of persons;

 

(ii) the protection of the identity of such persons;

 

(iii) any matter required or permitted to be prescribed under this section

by regulation; and

 

(iv) in general, any matter which the President may consider necessary or

expedient to prescribe or regulate in order that the objects of this

section may be achieved.

 

(b) Different regulations may be made under paragraph (a) in respect of

different categories of persons, witnesses or prospective witnesses.

 

(c) Regulations made under paragraph (a) may prescribe for any

contravention thereof or failure to comply therewith penalties of a fine or

imprisonment for a period not exceeding five years.

 

(d) A magistrate's court shall have jurisdiction to impose any penalty

provided for by regulations made under paragraph (a).

 

(5) The State, or any person in the service of the State, shall not be

liable in respect of anything done in good faith under the provisions of

this section or any regulation made thereunder.

 

(6) Any person who in, or in connection with, a request to be detained in

or placed under protective custody wilfully furnishes information or makes

a statement which is false or misleading shall be guilty of an offence and

liable on conviction to the punishment prescribed for the offence of

perjury.

 

(7) For the purpose of subsections (1) and (2) "the person in charge of a

police station or prison" means the senior person in charge of the police

station or prison at the relevant time.

 

CHAPTER 7

 

General provisions

 

Independence of Commission

 

37. (1) The Commission, its commissioners and every member of its staff

shall function without political or other bias or interference and shall,

unless this Act expressly otherwise provides, be independent and separate

from any party, government, administration, or any other functionary or

body directly or indirectly representing the interests of any such entity.

 

(2) To the extent that any of the personnel of the entities referred to in

subsection (1) may be involved in the activities of the Commission, such

personnel will be accountable solely to the Commission.

 

(3) (a) If at any stage during the course of proceedings at any meeting of

the Commission it appears that a commissioner has or may have a financial

or personal interest which may cause a substantial conflict of interests in

the performance of his or her functions as such a commissioner, such a

commissioner shall forthwith and fully disclose the nature of his or her

interest and absent himself or herself from that meeting so as to enable

the remaining commissioners to decide whether the commissioner should be

precluded from participating in the meeting by reason of that interest.

 

(b) Such a disclosure and the decision taken by the remaining commissioners

shall be entered on the record of the proceedings.

 

(4) If a commissioner fails to disclose any conflict of interest as

required by subsection (3) and is present at a meeting of the Commission or

in any manner participates in the proceedings, such proceedings in relation

to the relevant matter shall, as soon as such non-disclosure is discovered,

be reviewed and be varied or set aside by the Commission without the

participation of the commissioner concerned.

 

(5) Every commissioner and member of a committee shall-

 

(a) notwithstanding any personal opinion, preference or party affiliation,

serve impartially and independently and perform his or her duties in good

faith and without fear, favour, bias or prejudice;

 

(b) serve in a full-time capacity to the exclusion of any other duty or

obligation arising out of any other employment or occupation or the holding

of another office: Provided that the Commission may exempt a commissioner

from the provisions of this paragraph.

 

(6) No commissioner or member of a committee shall-

 

(a) by his or her membership of the Commission, association, statement,

conduct or in any other manner jeopardize his or her independence or in any

other manner harm the credibility, impartiality or integrity of the

Commission;

 

(b) make private use of or profit from any confidential information gained

as a result of his or her membership of the Commission or a committee; or

 

(c) divulge any such information to any other person except in the course

of the performance of his or her functions as such a commissioner or member

of a committee.

 

Commission to decide on disclosure of identity of applicants and witnesses

 

38. Subject to the provisions of sections 21(6), 34 and 36 the Commission

shall, with due regard to the purposes of this Act and the objectives and

functions of the Commission, decide to what extent, if at all, the identity

of any person who made an application under this Act or gave evidence at

the hearing of such application or at any other inquiry or investigation

under this Act may be disclosed in any report of the Commission.

 

Confidentiality of matters and information

 

39. (1) Every commissioner and every member of the staff of the Commission

shall, with regard to any matter dealt with by him or her, or information

which comes to his or her knowledge in the exercise, performance or

carrying out of his or her powers, functions or duties as such a

commissioner or member, preserve and assist in the preservation of those

matters which are confidential in terms of the provisions of this Act or

which have been declared confidential by the Commission.

 

(2) (a) Every commissioner and every member of the staff of the Commission

shall, upon taking office, take an oath or make an affirmation in the form

specified in subsection (6).

 

(b) A commissioner shall take the oath or make the affirmation referred to

in paragraph (a) before the Chairperson of the Commission or, in the case

of the Chairperson, before the Vice-Chairperson.

 

(c) A member of the staff of the Commission shall take the oath or make the

affirmation referred to in paragraph (a) before a commissioner.

 

(3) No commissioner shall, except for the purpose of the exercise of his or

her powers, the performance of his or her functions or the carrying out of

his or her duties or when required by a court of law to do so, or under any

law, disclose to any person any information acquired by him or her as such

a commissioner or while attending any meeting of the Commission.

 

(4) Subject to the provisions of subsection (3) and sections 21(6) and 34,

no person shall disclose or make known any information which is

confidential by virtue of any provision of this Act.

 

(5) No person who is not authorized thereto by the Commission shall have

access to any information which is confidential by virtue of any provision

of this Act.

 

(6) For the purposes of this section the oath or affirmation shall be in

the following form:

 

"I, A B, hereby declare under oath/solemnly affirm that I shall honour the

obligation of confidentiality imposed upon me by any provision of the

Promotion of National Unity and Reconciliation Act, 1995, and shall not act

in contravention thereof.".

 

Offences and penalties

 

40. Any person who-

 

(a) anticipates any finding of the Commission regarding an investigation in

a manner calculated to influence its proceedings or such findings;

 

(b) does anything calculated improperly to influence the Commission in

respect of any matter being or to be considered by the Commission in

connection with an investigation;

 

(c) does anything in relation to the Commission which, if done in relation

to a court of law, would constitute contempt of court;

 

(d) (i) hinders the Commission, any commissioner or member of the staff of

the Commission in the exercise, performance or carrying out of its, his or

her powers, functions or duties under this Act;

 

(ii) wilfully furnishes the Commission, any such commissioner or member

with any information which is false or misleading;

 

(e) (i) having been subpoenaed in terms of this Act, without sufficient

cause fails to attend at the time and place specified in the subpoena, or

fails to remain in attendance until the conclusion of the meeting in

question or until excused from further attendance by the person presiding

at that meeting, or fails to produce any article in his or her possession

or custody or under his or her control;

 

(ii) having been subpoenaed in terms of this Act, without sufficient cause

refuses to be sworn or to make affirmation as a witness or fails or refuses

to answer fully and satisfactorily to the best of his or her knowledge and

belief any question lawfully put to him or her;

 

(f) fails to perform any act as required in terms of sections 37(6) and 39;

 

(g) discloses any confidential information in contravention of any

provision of this Act;

 

(h) destroys any article relating to or in anticipation of any

investigation or proceedings in terms of this Act,

 

shall be guilty of an offence and liable on conviction to a fine, or to

imprisonment for a period not exceeding two years or to both such fine and

such imprisonment.

 

Regulations

 

41. (1) The President may make regulations-

 

(a) prescribing anything required to be prescribed for the proper

application of this Act;

 

(b) prescribing the remuneration and allowances and other benefits, if any,

of commissioners: Provided that such remuneration shall not be less than

that of a judge of the Supreme Court of South Africa;

 

(c) determining the persons who shall for the purposes of this Act be

regarded as the dependants or relatives of victims;

 

(d) providing, in the case of interim measures for urgent reparation

payable over a period of time, for the revision, and, in appropriate cases,

for the discontinuance or reduction of any reparation so paid;

 

(e) prohibiting the cession, attachment or assignment of any such

reparation so granted;

 

(f) determining that any such reparation received in terms of a

recommendation shall not form part of the estate of the recipient, should

such estate be sequestrated;

 

(g) providing for the payment or reimbursement of expenses incurred in

respect of travel and accommodation by persons attending any hearing of the

Commission in compliance with a subpoena issued in terms of this Act;

 

(h) with regard to any matter relating to the affairs of the Fund,

established in terms of section 43;

 

(i) with regard to any matter which the President deems necessary or

expedient to prescribe in order to achieve the objects of this Act.

 

(2) Any regulation made in terms of subsection (1) which may result in the

expenditure of State money shall be made in consultation with the Minister

and the Minister of Finance.

 

Liability of Commission, commissioners and members of staff

 

42. (1) Subject to the provisions of subsection (2), the State Liability

Act, 1957 (Act No. 20 of 1957), shall apply mutatis mutandis in respect of

the Commission, a member of its staff and a commissioner, and in such

application a reference in that Act to "the State" shall be construed as a

reference to "the Commission", and a reference to "the Minister of the

department concerned" shall be construed as a reference to the Chairperson

of the Commission.

 

(2) No-

 

(a) commissioner;

 

(b) member of the staff of the Commission; or

 

(c) person who performs any task on behalf of the Commission,

 

shall be liable in respect of anything reflected in any report, finding,

point of view or recommendation made or expressed in good faith and

submitted or made known in terms of this Act.

 

President's Fund

 

43. (1) The President may, in such manner as he or she may deem fit, in

consultation with the Minister and the Minister of Finance, establish a

Fund into which shall be paid-

 

(a) all money appropriated by Parliament for the purposes of the Fund; and

 

(b) all money donated or contributed to the Fund or accruing to the Fund

from any source.

 

(2) There shall be paid from the Fund all amounts payable to victims by way

of reparation in terms of regulations made by the President.

 

(3) Any money of the Fund which is not required for immediate use may be

invested with a financial institution approved by the Minister of Finance

and may be withdrawn when required.

 

(4) Any unexpended balance of the money of the Fund at the end of a

financial year, shall be carried forward as a credit to the Fund for the

next financial year.

 

(5) The administrative work, including the receipt of money appropriated by

Parliament for, or donated for the purposes of, the Fund or accruing to the

Fund from any source, and the making of payments from the Fund in

compliance with a recommendation in terms of this Act, shall be performed

by officers in the Public Service designated by the Minister.

 

(6) The Minister shall appoint an officer designated under subsection (5)

as accounting officer in respect of the Fund.

 

(7) The Auditor-General shall audit the Fund and all financial statements

relating thereto, and the provisions of section 6 of the Auditor-General

Act, 1989 (Act No. 52 of 1989), shall apply in respect of any such audit.

 

Completion of report by Commission and dissolution of Commission

 

44. (1) Subject to the provisions of subsection (2), the Commission shall

within a period of 18 months from its constitution or the further period,

not exceeding six months, as the President may determine, complete its

work.

 

(2) The Commission shall within three months, from the date contemplated in

subsection (1), complete its final report.

 

(3) The Commission shall be dissolved on a date determined by the President

by proclamation in the Gazette.

 

Publication of final report of Commission

 

45. The President shall, in such manner as he or she may deem fit, bring

the final report of the Commission to the notice of the Nation, inter alia,

by laying such report, within two months after having received it, upon the

Table in Parliament.

 

Approach to and review by joint committee of, and reports to, Parliament

 

46. (1) (a) The Commission may, at any time, approach the joint committee

with regard to any matter pertaining to the functions and powers of the

Commission.

 

(b) The Minister may at any time approach the joint committee with regard

to any matter pertaining to functions and powers which may be performed or

exercised by him or her in terms of this Act.

 

(c) The joint committee may at any time review any regulation made under

section 41 and request the President to amend certain regulations or to

make further regulations in terms of that section.

 

(2) The Commission shall submit to Parliament half-yearly financial

reports: Provided that the Commission may, at any time, submit a financial

report to Parliament on specific or general matters if-

 

(a) it deems it necessary;

 

(b) it deems it in the public interest;

 

(c) it requires the urgent attention of, or an intervention by, Parliament;

 

(d) it is requested to do so by the Speaker of the National Assembly or the

President of the Senate.

 

Chief executive officer, secretaries, expenditure and estimates of

Commission

 

47. (1) The Commission shall appoint in its service a person as the chief

executive officer of the Commission and four other persons as secretaries

to the Commission, the Committee on Human Rights Violations, the Committee

on Amnesty and the Committee on Reparation and Rehabilitation,

respectively.

 

(2) The chief executive officer-

 

(a) shall for the purposes of section 15 of the Exchequer Act, 1975 (Act

No. 66 of 1975), be the accounting officer in respect of all State moneys

received in respect of and paid out of the account of the Commission

referred to in subsection (4), and shall keep proper accounting records of

all financial transactions of the Commission;

 

(b) shall carry out such duties and perform such functions as the

Commission may from time to time impose upon or assign to him or her in

order to achieve the objectives of the Commission.

 

(3) The expenses in connection with the exercise of the powers, the

performance of the functions and the carrying out of the duties of the

Commission shall be defrayed out of money appropriated by Parliament for

that purpose.

 

(4) The Commission shall, in consultation with the Minister of Finance,

open an account with a banking institution, into which shall be deposited

all moneys appropriated as mentioned in subsection (3) and from which all

money required to pay for the expenses so mentioned shall be paid.

 

(5) (a) The Commission shall within three months from the date referred to

in section 8(3), for the first financial year, in a format determined by

the Audit Commission established by section 2 of the Audit Arrangements

Act, 1992 (Act No. 122 of 1992), prepare the necessary estimate of revenue

and expenditure of the Commission, which shall, after consultation with the

said Audit Commission, be tabled in Parliament for its consideration in

terms of subsection (3): Provided that the initial estimate of revenue and

expenditure of the Commission shall, in order to establish the bodies

contemplated in this Act and to enable the Commission to begin exercising

its powers and performing its functions in terms of this Act, be prepared

by the Minister and tabled in Parliament for its consideration in terms of

subsection (3).

 

(b) After the first financial year referred to in paragraph (a), the

Commission shall in the same manner as provided for in paragraph (a) for

each ensuing financial year, if necessary, prepare an estimate of revenue

and expenditure of the Commission.

 

(6) As from the date on which the Commission is dissolved in terms of

section 44(3) and after all the expenses referred to in subsection (3) have

been paid, the account opened in terms of subsection (4) shall be closed

and the balance of the moneys deposited into that account, if any, shall be

transferred to the fiscus.

 

Consequences of dissolution

 

48. (1) As from the date on which the Commission is dissolved in terms of

section 44(3), all the funds and property which vested in the President's

Fund immediately prior to that date shall be transferred to the Disaster

Relief Fund referred to in Chapter II of the Fund-raising Act, 1978 (Act

No. 107 of 1978), and shall vest in the Disaster Relief Fund.

 

(2) After the date referred to in subsection (1), all the funds and

property which would have accrued to the President's Fund, if the

Commission had not been dissolved, shall vest in the Disaster Relief Fund.

 

(3) Any funds or property which, by trust, donation or bequest were vested

in, or would have accrued to, the President's Fund, and which vest in the

Disaster Relief Fund in terms of subsection (1), shall be dealt with by the

board of the Disaster Relief Fund in accordance with the conditions of such

trust, donation or bequest. (4) As from the date referred to in subsection

(1) the liabilities incurred by the Commission or the President's Fund in

terms of this Act, shall pass to the Disaster Relief Fund: Provided that

such a liability shall be defrayed only from funds or property which vest

in the Disaster Relief Fund in terms of this section.

 

(5) No transfer duty, stamp duty or registration fees shall be payable in

respect of the acquisition of any funds or property in terms of this

section.

 

Acts repealed

 

49. (1) The Indemnity Act, 1990 (Act No. 35 of 1990), the Indemnity

Amendment Act, 1992 (Act No. 124 of 1992), and the Further Indemnity Act,

1992 (Act No. 151 of 1992), are hereby repealed.

 

(2) Any indemnity granted under the provisions of the Indemnity Act, 1990,

the Indemnity Amendment Act, 1992, or the Further Indemnity Act, 1992,

shall remain in force notwithstanding the repeal of those Acts.

 

(3) Any temporary immunity or indemnity granted under an Act repealed in

terms of subsection (1) shall remain in force for a period of 12 months

after the constitution of the Commission notwithstanding the repeal of that

Act.

 

Short title and commencement

 

50. This Act shall be called the Promotion of National Unity and

Reconciliation Act, 1995, and shall come into operation on a date fixed by

the President by proclamation in the Gazette.

 

MEMORANDUM ON THE OBJECTS OF THE NATIONAL UNITY AND RECONCILIATION BILL,

1995

 

The provisions of the Constitution of the Republic of South Africa, 1993

(Act No. 200 of 1993), set out under the heading "National Unity and

Reconciliation", hereinafter referred to as the "Unity and Reconciliation

Clause", provide that in order to advance national unity and the

reconstruction of the society "amnesty shall be granted in respect of acts,

omissions and offences associated with political objectives and committed

in the course of the conflicts of the past". Parliament is to that end

enjoined to adopt "a law determining a firm cut-off date which shall be a

date after 8 October 1990 and before 6 December 1993, and providing for

mechanisms, criteria and procedures, including tribunals, if necessary,

through which such amnesty shall be dealt with at any time after such law

has been passed". In terms of section 232(4) of the Constitution the

provisions of the "Unity and Reconciliation Clause" have the same legal

status as that of any other provision of the Constitution. According to the

said clause the divisions and strife of the past have generated the

commission of gross violations of human rights, and the legal institution

of amnesty is in terms of the said clause to be invoked as a method of

reuniting the South African people who were deeply divided as a result of

the commission of such violations. As will appear from the provisions of

the laws of twenty or more countries the legal institution of amnesty has

in recent years been invoked by the countries concerned for differing

reasons. The objective of this Bill is the promotion of national unity and

reconciliation and the granting of amnesty to be provided for in terms of

this Bill, is directed at the achievement of this objective. The granting

of amnesty per se cannot, however, have a reconciliatory effect and could

in fact lead to a perpetuation of existing divisions, unless it is granted

with due regard to certain requirements and principles.

 

International experience has shown that in order to achieve a lasting unity

and a morally acceptable reconciliation it is necessary that the following

requirements be complied with: First, that the truth about gross violations

of human rights (hereinafter referred to as "gross violations") be

established by official investigations which are conducted with due

observance of fair procedures, secondly, that the truth about gross

violations be fully and unreservedly acknowledged by those responsible for

the commission thereof and, thirdly, that the truth about such violations,

and the identity of the planners or perpetrators and the victims of such

violations be made publicly known. International human rights norms

accordingly today demand of any newly established Government to deal with

gross violations of the past by adopting measures that will ensure that the

requirements of investigation, acknowledgement (of guilt or participation)

and publication is fully complied with. (See "State Crimes: Punishment or

Pardon, Papers and Report of the Conference, November 4-6, 1988", p. 30 et

seq.). The Bill provides for the establishment of bodies and the

introduction of procedures aimed at a full and complete compliance with the

said requirements.

 

Clause 2 of the Bill provides for the establishment of a commission to be

known as the Truth and Reconciliation Commission. In clause 3 the

objectives of the Commission are stated in that section to be as follows:

To promote national unity and reconciliation in a spirit of understanding

which transcends the divisions of the past by-

 

(a) establishing as complete a picture as possible of the causes, nature

and extent of the gross violations of human rights which were committed

during the period from 1 March 1960 to the cut-off date;

 

(b) the granting of amnesty to persons who make a full disclosure of facts

associated with a political objective and who comply with the other

requirements of this Act;

 

establishing and making known the fate or whereabouts of the victims of

gross violations and by restoring the human and civil dignity of such

victims, by granting them an opportunity to relate the violations of which

they are the victims and by recommending reparation measures in respect of

them and

 

(d) by compiling a report providing as comprehensive a report as possible

of the activities of the Commission to the said matters, and which contains

recommen-dations of measures aimed at the prevention of the future

commission of human rights violations.

 

In order to achieve the said objectives various powers, functions and

duties are conferred upon, assigned to or imposed upon the Commission

(clauses 4, 5, 6 and 7 of the bill).

 

The Commission will consist of between 11 and 17 members, as may be

determined by the President of the Republic in consultation with the

Cabinet, and such members will be required to be impartial and respected

South African citizens. Persons who have a high political profile will,

however, be disqualified from being members of the Commission. By this

requirement an attempt is being made to ensure that persons who are

appointed as members of the Commission will be persons who from a position

of political neutrality will be well placed to take objective decisions

with regard to acts claimed to have been inspired by political objectives

or motives.

 

The Commission will be assisted in the performance of its functions by

three Committees, to each of which will be allotted a specified portion of

the field of activities of the Commission, referred to above. The

committees are the working arms of the Commission. The Commission will also

be granted the power to establish subcommittees which will be entitled and

obliged to exercise, perform or carry out such of the Commission's powers,

functions and duties as are assigned to them. Provision is also made for an

investigation unit to assist the committees. The Commission will in this

way be enabled to carry on its activities in different localities

simultaneously and it is expected that the Commission will thereby be

enabled to complete its task expeditiously and within the time-limit

envisaged by clause 44 of the Bill.

 

Clause 13 of the Bill establishes a committee to be known as the Committee

on Human Rights Violations. This Committee will be charged with the duty of

establishing the identity of the victims of gross violations and of

recording all allegations of gross violations committed in or outside the

Republic during the period from 1 March 1960 to the cut-off date, and made

by "victims" (as defined in the Bill) or by other persons professing to

have personal knowledge or reliable information of such violations. The

Committee will be charged and authorised to perform in relation to gross

violations such functions and powers as will enable it to carry out its

duties. The Committee will be obliged to submit to the Commission, at the

conclusion of the Committee's investigations, a report containing

particulars of all gross violations investigated by it, the names and other

particulars establishing the identity of the victims of such violations, as

well as their fate or their present whereabouts. This report will,

eventually, in terms of clause 45 of the Bill, as part of the report of the

President, be brought to the notice and knowledge of the entire South

African nation.

 

Chapter 4 of the Bill sets out the "amnesty mechanisms and procedures". The

provisions of this Chapter constitute an attempt to comply with the

requirements of the Unity and Reconciliation clause, which, as will have

been observed from its provisions quoted above, envisages and compels the

granting of amnesty "through mechanisms, criteria and procedures". A

committee to be known as the "Committee on Amnesty" is established by

clause 17 of the Bill. The chairperson of the Committee shall be a Judge or

a former Judge of the Supreme Court of South Africa (clause 18(3)). In

terms of clause 19 of the Bill provision is being made for the submission

of an application for the granting of amnesty in respect of any act,

omission or offence on the ground that it is an "act associated with a

political objective", as defined in clause 1 of the Bill. In terms of the

said clause any such application will be required to be submitted within a

period of twelve months from the date on which the appointment of the

commissioners is made known by the President by proclamation in the

Gazette. It is considered necessary that the entire process of making

application for and of granting amnesty should be completed as soon as

possible so as to finally close this chapter of South Africa's history.

 

In terms of clause 21 the Committee shall grant amnesty to an applicant if

it is satisfied that the act to which the application relates is an act

associated with a political objective committed in the course of the

conflicts of the past, as defined in the Bill, and that the applicant has

made a full disclosure of all the relevant facts. The hearing of

applications for amnesty will in terms of clause 20 of the Bill be

conducted along formal lines. The applicant is to be informed of the place

where and the time when his or her application is to be heard and of his or

her right to be present and to be represented thereat. In terms of clause

20(5) it is proposed to confer upon the Committee, for the purpose of

considering and deciding upon applications, the same powers as those

conferred upon the Commission by clause 6 and Chapters 6 and 7, i.e. the

power to carry out investigations, to convene meetings at any place within

or outside the Republic for the purpose of hearing evidence with regard to

applications, to carry out local inspections ("inspections in loco"),

within or outside the Republic, to subpoena persons, i.e. private

individuals as well as persons in the employment of the State, the

Auditor-General or any Attorney-General, to give evidence before the

Committee or to produce to it any book, document, file, writing, etc., and

to cause to be seized any book, etc. relating to the subject-matter of the

application. The act, omission or offence in respect of which amnesty may

be granted is required to have been performed during the period from 1

March 1960 to the cut-off date. No act, omission or offence performed or

committed after the cut-off date (or prior to 1 March 1960) can in terms of

the Bill, as envisaged and required by the Constitution, therefore be the

subject of an application for amnesty. The provisions of the Constitution

in this regard are clear and are of a peremptory nature and cannot,

therefore, be deviated from. The said provisions, which entrust the power

to grant amnesty to a decision-making body, properly constituted, acting

without any bias and independently from any party or government (see the

provisions of clause 37(1)) and which is to decide with due observance of

specified principles (clause 21(3)), should be seen as an attempt to

satisfy the mandatory legal principles applying in the case a

constitutional state ("regstaat") such as the Republic. The arbitrary

granting of amnesty to persons, generally, or to categories of persons

("amnesty per category"), and without the proper consideration of all the

relevant facts of each case, would be in direct conflict with the said

principles: See: "Anmerkungen zum Begnadigungsrecht, MDR2/1991 p. 102: "The

former view that a person gifted with a charismatic personality (God-given

qualities) may in his discretion extend an act of mercy (such as amnesty)

is in conflict with the Constitution . . . which provides for the

separation of powers". As far as the Republic of South Africa is concerned,

see the relevant provisions of the Constitution, and compare

"constitutional principle VI", contained in Schedule 4 to the Constitution.

 

Clause 21 requires, as already mentioned, a full disclosure by the

applicant of all the relevant facts of the act in question. Such a

disclosure is not only required in terms of the relevant provisions of the

International Law, but is a necessity brought about by the relevant

provisions of the Constitution itself which demand an enquiry into a

subjective or personal element viz. the state of mind of the person who

performed or committed the act in question. Such person's state of mind can

be explained and told only by the person himself. The Committee on Amnesty

will be able to pass a judgment on the existence, at the critical stage

when the act was committed, of political objectives only if the person

concerned makes a full disclosure of all the facts surrounding the

commission of the act. Clause 21 consequently makes a full disclosure of

such facts by such person a condition precedent to the granting of amnesty.

Subclause (7)(a) of clause 21 states the legal effect of the granting of

amnesty as follows:

 

"No person who has been granted amnesty in respect of an act or omission

shall be criminally or civilly liable in respect of such act or omission

and no body or organisation or the State shall be liable, and no person

shall be vicariously liable for any such act or omission.".

 

Chapter 5 of the Bill deals with the granting of reparation in respect of

the harm suffered by, the rehabilitation of, and the restoration of the

human and civil dignity of the victims of gross violations. Clause 24 to

that end establishes a committee to be known as the Committee on Reparation

and Rehabilitation. The members of the Committee are to be appointed by the

Commission. A member of the Commission is required to be the Chairperson of

the Committee. The Committee is required to receive, consider and make

recommendations with regard to applications for reparation submitted to it

by victims (as defined in the Bill). The Committee will for the purpose of

investigating and deciding upon any such application have the same powers

as those conferred upon the Commission in respect of its functions, i.e.

the power to carry out investigations, to appoint researchers and experts

to assist it, to hold meetings at any place within or outside the Republic,

to carry out local inspections, etc. In terms of clause 12 of the Bill the

Committee will be obliged to observe certain principles designed, inter

alia, to protect the dignity and personal values, beliefs and convictions

of the victims, and the Committee will furthermore be obliged to apply

procedures which are fair, inexpensive and accessible. Clause 27 extends

the right to any person who as the result of the commission of any gross

violation of human rights, or of an act associated with a political

objective has suffered loss, to submit to the Committee an application for

the granting of reparation, and the Committee will be empowered, if it is

of the opinion that the applicant has indeed suffered any such loss, to

make a recommendation to the Commission for the taking of such steps as are

necessary to grant restitution or make reparation to the applicant. Clause

28(1) provides that the President shall consider the recommendations of the

Commission with respect to reparation and rehabilitation with a view to

prescribing recommendations to Parliament and the making of regulations.

 

The International Law relating to the payment of compensation in respect of

losses suffered as a result of the commission of gross violations is in a

state of development and uncertainty and it was therefore considered

advisable to enable a joint Committee of Parliament to consider the matter.

Clause 43 makes provision for the establishment of a Fund to be known as

the President's Fund, which will largely be funded by means of

appropriations by Parliament for the said purpose, and out of which funds

necessary for the implementation of such recommendations will be made

available. Private contributions to this Fund may also be accepted.

 

Chapter 6 of the Bill contains provisions relating to general and diverse

matters such as the appointment of a chief executive officer and other

staff of the Commission and the committees. In terms of section 47(4) the

Commission will be required to open an account with a banking institution,

in consultation with the Minister of Finance. Clause 36 makes provision for

the protection of persons who gave evidence before the Commission, any

subcommittee or committee. In terms of that clause the Commission is to

decide to what extent, if at all, the identity of such persons may be

disclosed in any report of the Commission, any subcommittee or committee.

Provision is made for the preservation of secrecy, and the compellability

of persons to give evidence before the Commission, a subcommittee or a

committee.

 

Clause 40 prohibits, on pains of substantial penalties, the performance of

any act which may prejudicially affect the proper functioning of the

Commission, any subcommittee or committee.

 

In clause 45 the President is charged with the duty of bringing the final

report of the Commission, which is required to contain certain details of

all gross violations during the period in question committed in the

Republic or elsewhere, and of the victims and perpetrators of such

violations, to the knowledge of the South African Nation. In this way it is

intended to satisfy a principle which has been internationally recognised

and accepted, viz. that the truth about such violations, victims and

perpetrators be publicly revealed (see "State Crimes," op. cit., p 5, and

compare "Normative Frame Work for a Policy on Past Human Rights

Violations", p 31).

 

The intended effect of the Bill could be described as an attempt to make a

contribution towards the recognition of human rights and the establishment

and development of a human rights culture which may be the best possible

safeguard against the future commission of gross violations of human

rights. To this end the Portfolio Committee on Justice has afforded a broad

spectrum of individuals, experts, organisations, bodies institutions, and

government institutions the opportunity to make written submissions or

bring oral evidence for the improvement of the Bill. All submissions

received were, and all the evidence heard was, taken into account in the

deliberations of the Committee.