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NPA Prosecution Policy for Apartheid Crimes: State's application for leave to appeal dismissed

The application by the National Director of Public Prosecutions (NDPP) and the Minister of Justice for leave to appeal was dismissed with costs this morning by Legodi J in the North Gauteng High Court, Pretoria.

The National Prosecution Authority's amended Prosecution Policy that effectively provided a second amnesty for apartheid perpetrators was struck down by the High Court in Pretoria on 12 December 2008. That judgment is now back in full force and effect. Prosecutors are now obliged to take up cases arising from the conflicts from the past, particularly those matters in which amnesty was refused.

The court challenge against the Prosecution Policy amendments was launched in 2007 by the widows of the "Cradock Four" and the sister of Nokuthula Simelane , supported by three civil society organisations, the Khulumani Support Group, the International Center for Transitional Justice (ICTJ), and the Centre for the Study of Violence and Reconciliation (CSVR). The applicants were represented by the Legal Resources Centre.

The applicants argued that the amended prosecution policy allowed the National Prosecution Authority to "re-run" the Truth and Reconciliation Commission amnesty process and grant effective indemnities from prosecution to those who had been refused or failed to apply for amnesty from the TRC. According to the applicants this undermined the integrity of the TRC process which was based on the principle that those who did not obtain amnesty would be prosecuted. The applicants also argued that the amended policy violated the rule of law and undermined the independence of prosecutors by requiring them to apply irrelevant and highly inappropriate criteria in their prosecutorial decisions. In addition, it infringed the human rights of the victims, including their rights to life, dignity, freedom and security of the person and equality.

The criteria to be applied under the erstwhile amendments, in deciding whether to prosecute or not, were substantially similar to those applied during the TRC amnesty process. The criteria included whether the perpetrator had made full disclosure; his attitude towards reconciliation; the degree of indoctrination to which the perpetrator had been subjected; a showing of remorse and a "willingness to abide by the Constitution". Prosecutors were also required to descend into matters of high political policy and determine whether a prosecution would contribute to "nation-building through transformation, reconciliation, development and reconstruction within and of" South African society. Following the dismissal of the NDPP's application for leave to appeal, prosecutors may not have any reference to such criteria in their future decisions whether to prosecute or not.

The dismissal of the State's application for leave to appeal comes hard on the heels of last week's Pretoria High Court's decision to interdict the President from granting pardons under the special dispensation for political pardons. In that judgment the court agreed with the argument advanced by the civil society coalition that the special dispensation, which also employed the same amnesty criteria as the TRC and which excluded victim participation, amounted to a denial of the rights of victims".

In dismissing the State's leave for appeal the court effectively found that no other court could have reasonably come to a different conclusion.

For more information, please contact:

Marje Jobson, Khulumani Support Group, 27-82 268 0223; Hugo van der Merwe, CSVR 27-82-570-0744; and Comfort Ero, ICTJ, 27-82-927-8203


Background

The prosecution policy amendments were adopted in 2005 in order to address some of the "unfinished business" of the TRC. At the time of the announcement of the amendments, the President claimed that the new policy would not be a re-run of the TRC truth-for-amnesty process, but would instead be a way for those who did not participate in the TRC process to ‘cooperate in unearthing the truth' in exchange for prosecutorial leniency. The policy amendments not only allowed for the non-prosecution of those who met the TRC requirements for amnesty (full disclosure of crimes committed for a political objective before 11 May 1994), but also provided additional open-ended criteria under which the NDPP could decline to prosecute, even where there was enough evidence to secure a conviction. Moreover, the policy did not allow victims to see the ‘truth' disclosed by perpetrators as the whole process was to occur behind closed doors.

The court found that the policy amendments amounted to a "copy or duplication" or "copy-cat" of the TRC amnesty process. The court further found that "many of the criteria ... [were] not relevant in deciding whether or not to prosecute" In addition, the court found that the policy amendments were "a recipe for conflict and absurdity".

The court found that the amended policy was unconstitutional irrespective of the intention of the current NDPP who claimed that regardless of the contents of the amended policy he would prosecute where there was a strong case and adequate evidence. The court held that there was a "real threat to the applicants' constitutional rights" which could not "be sidestepped by an undertaking that it will not happen...for as long as the respondents insist that it will enforce the policy amendments, the applicants should be entitled to have [them] impugned on the ground that [they are] unconstitutional."

The court rejected the respondents' submissions that the policy amendments did not allow for an indemnity because perpetrators could still be privately prosecuted. According to the court, "crimes are not investigated by victims; it is the responsibility of the police and prosecution authority to ensure that cases are properly investigated and prosecuted". The TRC handed over a list of more than 300 names to the National Prosecuting Authority (NPA) for further investigation and prosecution. These were cases where the TRC felt there were grounds for possible prosecution, and where the suspected perpetrators did not apply for amnesty or were refused amnesty. The victims who participated in the court challenge represent cases where the state has evidence to pursue prosecution, but is failing to act.

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