# Azapo v President of RSA 1996 (8) BCLR 1015 (CC) PDF

Preview

Summary

# AZAPO v President of RSA 1996 (8) BCLR 1015 (CC...

Description

Azanian Peoples Organization (AZAPO) v President of RSA 1996 (8) BCLR 1015 (CC)

Mahomed DP:



The legitimacy of law itself was deeply wounded in Apartheid



During the 80s, those who controlled the levers of state power began to negotiate a different future with those who had been imprisoned, silenced, or driven to exile in the realization that the country was at the brink of disaster.



Those negotiations resulted in the Interim Constitution committed to a transition towards a more just, defensible and democratic political order based on the protection of human rights.



It was widely appreciated by those involved in the preceding negotiations that the task of building such a new democratic order was a very difficult task because of the history and deep emotions and indefensible inequalities it had generated; and that this could not be achieved without a firm and generous commitment to reconciliation and national unity. o

Recognition that the injustices of the past could never be fully reversed.



“…there is a need for understanding but not for vengeance, a need for reparation but not retaliation, a need for ubuntu but not for victimization.” Epilogue of the Constitution.



The Promotion of National Unity and reconciliation Act 34 of 1995, establishes a Truth and Reconciliation Committee with three ‘sub’ committees: (1)Committee on human Rights Violations : conducted enquiries pertaining to gross violations during the prescribed period, with extensive powers to gather and receive evidence and information. (2)Committee on Reparation and Rehabilitation: Similar powers as above said. Ultimately, they have the power to recommend to the president suitable reparation for victims of gross violations of human rights. (3)Committee on Amnesty: This is the most relevant committee in respect of the case. This committee must consist of five people, of which one must be a Judge. The commission has powers to grant amnesty in respect of any act, omission or offence to which the particular application for amnesty

relates, on condition that the person made a Full Disclosure of all the facts. Furthermore, the act must have been done with a political objective. The Case: The applicants sought to attack the constitutionality of section 20 (7) on the grounds that its consequences are not authorized by the constitution. 1.Amnesty in respect of Criminal Liability

-

Much of what happened in Apartheid is shrouded in secrecy and not easily capable of objective demonstration and proof.

-

Records are not easily accessible; witnesses are often unknown, dead, unavailable or unwilling.

-

All that remains are wounded memories of loved ones and instinctive suspicions- that often cannot be turned into objective and corroborative evidence, which could not survive the rigours of law.

-

The aim of the TRC is for the victims and the wounded to receive collective recognition of a new nation that they were wronged, and crucially, to help them discover the truth about what happened to their loved ones- something that would not be possible or as forthcoming in a criminal/ civil lawsuit

-

People are more empowered through truth

-

Through

this process the country and begin to heal,

a process of

“reconciliation and reconstruction” -

Without the truth this would only perpetuate their legitimate sense of resentment and grief and correspondingly to allow the culprits of such deeds to remain perhaps physically free but inhibited in their capacity to become active, full and creative members of the new order by a menacing confusion of guilt and fear.

-

For a successfully negotiated transition, the terms of the transition required not only the agreements of those victimized by abuse but also those threatened by the transition to a democratic society based on freedom and equality.

2. Amnesty in respect of Civil Liability (applicable to States and Organizations)

-

The applicants argued that the constitution could not justifiably authorize any law, which has the effect of indemnifying the state itself against civil claims made by those wronged by criminal and delictual acts perpetrated by wrongdoers who worked for the state.

-

They argued that S20 (7) of the Act did this, and indeed that effect was unconstitutional to that extent.

-

However, if the wrongdoer in the employment of the state is not personally indemnified the truth might never be told.

-

Furthermore, if the state were not indemnified vicariously, the employers of the state would be intimidated and worried about their positions and employment with the state and this could hinder the truth telling process that forms an integral part of the reconciliation process that is outlined in the Constitution.

-

Furthermore, if this was allowed, the pertinent question of distribution of scarce resources becomes contentious due to the following conclusion: If the state is saddled with massive settlements brought unto it if found liable, this would hinder the urgent need for a government that needed to address the problems of scarce resources and funds in a post-apartheid system, which now left the majority of people in dire straits

-

This resource should rather be accurately calculated by a committee formed to deal with the reparations, which would be distributed equally among the victims than a Judge handing out judgment amounts to the value deemed correct by him.

-

The book will never be closed while litigation against the state and organization alike is being pursued around the country for years after democracy has taken form....