PROMOTION OF NATIONAL UNITY AND RECONCILIATION ACT
1995
[Act 95-34, 26 July 1995]
OFFICE OF THE PRESIDENT
No. 1111.
26 July 1995
NO. 34 OF 1995: PROMOTION OF NATIONAL UNITY AND RECONCILIATION ACT, 1995.
It is hereby notified that the President has assented to the following Act
which is hereby published for general information:-
ACT
To provide for the investigation and the establishment of as complete a picture
aspossible 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 all
the relevant facts relating to 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 fights 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;
(English text signed by the President.)
(Assented to 19 July 1995.)
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 20(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, stored or transcribed; (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 7(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
in terms of the Constitution as 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 under section 40;
(xviii)
(xiii) "President" means the President of the Republic; (xi)
(xiv) "reparation" includes any form of compensation, ex gratia payment,
restitution, rehabilitation 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 any full-time or part-time-
(a) 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) 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(c); (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;
(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 10(1), (2) and (3) and II 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,
vice-chairperson or a member of a committee or subcommittee, as the case may be.
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 I March 1960 to the cut-off
date, including the antecedents, circumstances, factors and context
of such violations, as well as the perspectives of the victims and
the motives and perspectives of the persons responsible for the
commission of the violations, by conducting investigations and
holding hearings;
(b) facilitating the granting of amnesty to persons who make full
disclosure of all the relevant facts relating to acts associated
with a political objective and comply with the requirements of this
Act;
(c) establishing and making known the fate or whereabouts of victims
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, as contemplated in
Chapter 3, shall deal, among other things, with matters pertaining
to investigations of gross violations of human rights;
(b) the Committee on Amnesty, as contemplated in Chapter 4, shall deal
with matters relating to amnesty;
(c) the Committee on Reparation and Rehabilitation, as contemplated in
Chapter 5, shall deal with matters referred to it relating to
reparations;
(d) the investigating unit referred to in section 5(d) shall perform
the investigations contemplated in section 28(4)(a); and
(e) the subcommittees shall exercise, perform and 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 achieve its objectives, and
to that end 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,
context, motives and perspectives which led to such violations;
(iii) the identity of all persons, authorities, institutions 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
relating to such acts, 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 Minister with regard to the development of
a limited witness protection programme for the purposes of this Act;
(h) 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. In order to achieve its objectives and to perform its functions the
Commission shall have the power to-
(a) determine the seat, if any, of every committee;
(b) establish such offices as it may deem necessary for the performance of
its functions;
(c) establish subcommittees to exercise, carry out or perform any of the
powers, duties and functions assigned to them by the Commission;
(d) conduct any investigation or hold any hearing it may deem necessary
and establish the investigating unit referred to in section 28;
(e) refer specific or general matters to, give guidance and instructions
to, orreview the decisions of, any committee or subcommittee or the
investigating unit with regard to the exercise of its powers, the
performance of its functions and the carrying out of its duties, the
working procedures which should be followed and the divisions which
should be set up by any committee in order to deal effectively with
the work of the committee: Provided that no decision, or the process
of arriving at such a decision, of the Committee on Amnesty regarding
any application for amnesty shall be reviewed by the Commission;
direct any committee or subcommittee to make information which it has
in its possession available to any other committee or subcommittee;
(g) direct the submission of and receive reports or interim reports from
any committee or subcommittee;
(h) have the administrative and incidental work connected with the
exercise of its powers, the execution of its duties or the
performance of its functions carried out by persons-
(i) employed or appointed by it;
(ii) seconded to its service by any department of State at the
request of the Commission and after consultation with the
Public Service Commission;
(iii) appointed by it for the performance of specified tasks;
(i) in consultation with the Minister and through diplomatic channels,
obtain permission from the relevant authority of a foreign country to
receive evidence or gather information in that country;
(j) 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 of the facilities, equipment or personnel belonging to or
under the control or in the employment of such person or department;
(k) recommend to the President that steps be taken to obtain an order
declaring a person to be dead;
(l) hold meetings at any place within or outside the Republic;
(m) on its own initiative or at the request of any interested person
inquire or investigate into any matter, including the disappearance
of any person or group of persons.
Certain powers shall be exercised in consultation with Minister
6. Subject to the provisions of section 45, any power referred to in section
5(a), (b) and (c), and, if it is to be exercised outside the Republic, any
power referred to in sections 5(d) and (1), 10(1) and 29(1), shall be exercised
in consultation with the Minister.
Constitution of Commission
7. (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 fit and proper persons who are impartial and
who do not have a high political profile: Provided that not more than two
persons who are not South African citizens may be appointed as commissioners.
(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
8. 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
9. (1) The persons appointed or employed by the Commission who are not
officials of the State, shall receive such remuneration, allowances and other
employment benefits and shall be appointed or employed on such terms and
conditions and for such periods as the Commission with the approval of the
Minister, granted in concurrence with the Minister of Finance, 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.
Meetings, procedure at and quorum for meetings of Commission and recording of
proceedings
10. (1) A meeting of the Commission shall be held at a time and place
determined by the Chairperson of the Commission or, in the absence or inability
of such Chairperson, by the Vice-Chairperson of the Commission or, in the
absence or inability of both such Chairperson and Vice-Chairperson, by the
Acting Chairperson of the Commission.
(2) Subject to section 40, the Commission shall have the power to determine
the procedure for its meetings, including the manner in which decisions shall
be taken.
(3) The Commission shall cause a record to be kept of its proceedings.
(4) 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
11. When dealing with victims the actions of the Commission shall be guided
by the following principles:
(a) Victims shall be treated with compassion and respect for their
dignity;
(b) victims shall be treated equally and without discrimination of any
kind, including 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 and, 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 any procedure provided for by customary
law and practice shall be applied, where appropriate, to facilitate
reconciliation and redress for victims.
CHAPTER 3
Investigation of Human Rights Violations
Committee on Human Rights Violations
12. There is hereby established a committee to be known as the Committee on
Human Rights Violations, which shall in this Chapter be referred to as the
Committee.
Constitution of Committee
13. (1) The Committee shall consist of-
(a) (i) a Chairperson; and
(ii) two Vice-Chairpersons, who shall be commissioners designated by
the Commission;
(b) such other commissioners as may be appointed by the Commission; and
(c) not more than three other members.
(2) The Commission shall appoint, as the members referred to in subsection
(1)(c), 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
14. (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), (g) or (h);
(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) submit to the Commission interim reports indicating the progress
made by the Committee with its activities or with regard to any
other particular matter;
(v) exercise the powers referred to in 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
15. (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 26.
(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
16. There is hereby established a committee to be known as the Committee on
Amnesty, which shall in this Chapter be referred to as the Committee.
Constitution of Committee
17. (1) The Committee shall consist of a Chairperson, a Vice-Chairperson and
three other members who are fit and proper persons, appropriately qualified,
South African citizens and broadly representative of the South African
community.
(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.
(4) Any vacancies in the Committee shall be filled in accordance with this
section.
Applications for granting of amnesty
18. (1) Any person who wishes to apply for amnesty in respect of any act,
omission or offence on the grounds that it is an act associated with a
political objective, shall within 12 months from the date of the proclamation
referred to in section 7(3), or such extended period as may be prescribed,
submit such an application to the Commission in the prescribed form.
(2) The Committee shall give priority to applications of persons in custody
and shall prescribe measures in respect of such applications after consultation
with the Minister and the Minister of Correctional Services.
Committee shall consider applications for amnesty
19. (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 make such enquiries
as it may deem necessary: Provided that the provisions of section 30(2) shall,
with the necessary changes, apply in respect of such investigation.
(3) After such investigation, the Committee may-
(a) (i) inform the applicant that the application, judged on the
particulars or further particulars contained in the application or
provided by the applicant or revealed as a result of enquiries made by
the Committee, if any, does not relate to an act associated with a
political objective;
(ii) afford the applicant the opportunity to make a further
submission; and
(iii) decide whether the application, judged on the particulars
referred to in subparagraph (i), and in such further
submission, relates to such an act associated with a
political objective, and if it is satisfied that the
application does not relate to such an act, in the
absence of the applicant and without holding a hearing
refuse the application and inform the applicant
accordingly; or
(b) if it is satisfied that-
(i) the requirements mentioned in section 20(i) have been
complied with;
(ii) there is no need for a hearing; and
(iii) the act, omission or offence to which the application
relates, does not constitute a gross violation of human
rights, in the absence of the applicant and without
holding a hearing, grant amnesty and inform the applicant
accordingly.
(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 33-
(a) in the prescibed manner, notify the applicant and any victim or
person implicated, or having an interest in the application, of
the place where and the time when the application will be heard
and considered;
(b) inform the persons referred to in paragraph (a) of their 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 20 or 21 by granting
or refusing amnesty.
(5) (a) 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 5(l) and (m) and Chapters 6 and
7.
(b) Notwithstanding the provisions of section 18(1), the Committee may
consider jointly the individual applications in respect of any particular act,
omission or offence to which such applications relate.
(6) If the act or omission which is the subject of an application under
section 18 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 18 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 33, 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 33, shall be confidential.
(b) Subject to the provisions of section 33, 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
20. (1) If the Committee, after considering an application for amnesty, is
satisfied that-
(a) the application complies with the requirements of this Act;
(b) the act, omission or offence to which the application relates is an
act associated with a political objective committed in the course
of the conflicts of the past in accordance with the provisions of
subsections (2) and (3); and
(c) the applicant has made a full disclosure of all relevant facts, it
shall grant amnesty in respect of that act, omission or offence.
(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 I 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' etat to take over the
government of any former state, or in any attempt thereto;
(f) any person referred to in paragraphs (a), (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 48.
(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 forthwith 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, omission or offence 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.
(c) No person, organisation or state shall be civilly or vicariously liable
for an act, omission or offence committed between 1 March 1960 and the cut-off
date by a person who is deceased, unless amnesty could not have been granted in
terms of this Act in respect of such an act, omission or offence.
(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
21. (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
22. (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 26.
(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 26.
CHAPTER 5
Reparation and rehabilitation of victims
Committee on Reparation and Rehabilitation
23. There is hereby established a committee to be known as the Committee on
Reparation and Rehabilitation, which shall in this Chapter be referred to as the
Committee.
Constitution of Committee
24. (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
25. (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(e);
(bb) the Committee on Human Rights Violations in terms of
section 15(1); and
(cc) the Committee on Amnesty in terms of section 22(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)(ii), as to appropriate measures
of reparation to victims;
(ii) make recommendations referred to in section 4(h);
(iii) prepare and submit to the Commission interim reports in
connection with its activities;
(iv) may exercise the powers referred to in section 5(l) and (m) 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
26. (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.
(2) (a) The Committee shall consider an application contemplated in
subsection (1) and may exercise any of the powers conferred upon it by section
25.
(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 14.
(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 25(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
27. (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 and conditions upon which reparation shall
be granted;
(ii) deter-mine 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
Commission may establish investigating unit
28. (1) The Commission may establish an investigating unit which shall
consist of such persons, including one or more commissioners, as may be
determined by the Commission.
(2) The period of appointment of such members shall be determined by the
Commission at the time of appointment, but such period may be extended or
curtailed by the Commission.
(3) The Commission shall appoint a commissioner as the head of the
investigating unit.
(4) (a) The investigating unit shall investigate any matter failing within
the scope of the Commission's powers, functions and duties, subject to the
directions of the Commission, and shall at the request of a committee
investigate any matter failing within the scope of the powers, functions and
duties of that committee, subject to the directions of the committee.
(b) The investigating unit shall in the performance of its functions follow
such procedure as may be determined by the Commission or the committee
concerned, as the case may be.
(5) Subject to section 33, no article or information obtained by the
investigating unit shall be made public, and no person except a member of the
investigating unit, the Commission, the committee concerned or a member of the
staff of the Commission shall have access to such article or information until
such time as the Commission or the committee determines that it may be made
public or until the commencement of any hearing in terms of this Act which is
not held behind closed doors.
Powers of Commission with regard to investigations and hearings
29. (1) The Commission may for the purposes of or in connection with the
conduct of an investigation or the holding of a hearing, as the case may be-
(a) at any time before the commencement or in the course of such
investigation or hearing conduct an inspection in loco;
(b) by notice in writing call upon any person who is in possession of or
has the custody of or control over any article or other thing which
in the opinion of the Commission is relevant to the subject matter of
the investigation or hearing to produce such article or thing to the
Commission, and the Commission may inspect and, subject to subsection
(3), retain any article or other thing so produced for a reasonable
time;
(c) by notice in writing call upon any person to appear before the
Commission and to give evidence or to answer questions relevant to
the subject matter of the hearing;
(d) in accordance with section 32 seize any article or thing referred to
in paragraph (b) which is relevant to the subject matter of the
investigation or hearing.
(2) A notice referred to in subsection (1) shall specify the time when and
the place where the person to whom it is directed shall appear, shall be signed
by a commissioner, shall be served by a member of the staff of the Commission
or by a sheriff, by delivering a copy thereof to the person concerned or by
leaving it at such person's last known place of residence or business, and
shall specify the reason why the article is to be produced or the evidence is
to be given.
(3) If the Commission is of the opinion that the production of any article
in the possesion or custody or under the control of the State, any department
of State, the Auditor-General or any Attorney-General may adversely affect any
intended or pending judicial proceedings or the conduct of any investigation
carried out with a view to the institution of judicial proceedings, the
Commission shall take steps aimed at the prevention of any undue delay in or
the disruption of such investigation or proceedings.
(4) The Commission may require any person who in compliance with a
requirement in terms of this section appears before it, to take the oath or to
make an affirmation and may through the Chairperson or any member of the staff
of the Commission administer the oath to or accept an affirmation from such
person.
(5) No person other than a member of the staff of the Commission or any
person required to produce any article or to give evidence shall be entitled or
be permitted to attend any investigation conducted in terms of this section,
and the Commission may, having due regard to the principles of openness and
transparency, declare that any article produced or information submitted at
such investigation shall not be made public until the Commission determines
otherwise or, in the absence of such a determination, until the article is
produced at a hearing in terms of this Act, or at any proceedings in any court
of law.
Procedure to be followed at investigations and hearings of Commission,
committees and subcommittees
30. (1) The Commission and any committee or subcommittee shall in any
investigation or hearing follow the prescribed procedure or, if no procedure
has been prescribed, the procedure determined by the Commission, or, in the
absence of such a determination, in the case of a committee or subcommittee the
procedure determined by the committee or subcommittee, as the case may be.
(2) If during any investigation by or any hearing before the Commission-
(a) any person is implicated in a manner which may be to his detriment;
(b) the Commission contemplates making a decision which may be to the
detriment of a person who has been so implicated;
(c) it appears that any person may have suffered harm as a result of a
gross violation of human rights, the Commission shall, if such
person is available, afford him or her an opportunity to submit
representations to the Commission within a specified time with
regard to the matter under consideration or to give evidence at a
hearing of the Commission.
Compellability of witnesses and inadmissibility of incriminating evidence given
before Commission
31. (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
39(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.
Entry upon premises, search for and seizure and removal of certain articles or
other things
32. (1) Any commissioner, member of the staff of the Commission or police
officer authorized thereto by a commissioner may on the authority of an entry
warrant, issued in terms of subsection (2), enter upon any premises in or upon
which any article or thing-
(a) which is concerned with or is upon reasonable grounds suspected to be
concerned with any matter which is the subject of any
investigation in terms of this Act;
(b) which contains, or is upon reasonable grounds suspected to contain,
information with regard to any such matter, is or is upon
reasonable grounds suspected to be, and may on the authority of a
search warrant, issued in terms of subsection (2)-
(i) inspect and search such premises and there make such inquiries
as he or she may deem necessary;
(ii) examine any article or thing found in or upon such premises;
(iii) request from the person who is in control of such premises
or in whose possession or under whose control any article or
thing is when it is found, or who is upon reasonable grounds
believed to have information with regard to any article or
thing, an explanation or information;
(iv) make copies of or extracts from any such article found upon
or in such premises;
(v) seize any article or thing found upon or in such premises
which he or she upon reasonable grounds suspects to be an
article or thing mentioned in paragraph (a) or (b);
(vi) after having issued a receipt in respect thereof remove any
article or thing found on such premises and suspected upon
reasonable grounds to be an article or thing mentioned in
paragraph (a) or (b), and retain such article or thing for a
reasonable period for the purpose of further examination or,
in the case of such article, the making of copies thereof or
extracts therefrom: Provided that any article or thing that
has been so removed, shall be returned as soon as possible
after the purpose of such removal has been accomplished.
(2) An entry or search warrant referred to in subsection (1) shall be issued
by a judge of the Supreme Court or by a magistrate who has jurisdiction in the
area where the premises in question are situated, and shall only be issued if
it appears to the judge or magistrate from information on oath that there are
reasonable grounds for believing that an article or thing mentioned in
paragraph (a) or (b) of subsection (I) is upon or in such premises, and shall
specify which of the acts mentioned in paragraph (b)(i) to (vi) of that
subsection may be performed thereunder by the person to whom it is issued.
(3) A warrant issued in terms this section shall be executed by day unless
the person who issues the warrant authorizes the execution thereof by night at
times which shall be reasonable, and any entry upon or search of any premises
order, including-
(a) a person's right to, respect for and the protection of his or her
dignity;
(b) the right of a person to freedom and security; and
(c) the right of a person to his or her personal privacy.
(4) Any person executing a warrant in terms of this section shall
immediately before commencing with the execution-
(a) identify himself or herself to the person in control of the premises,
if such person is present, and hand to such person a copy of the
warrant or, if such person is not present, affix such copy to a
prominent place on the premises;
(b) supply such person at his or her request with particulars regarding
his or her authority to execute such a warrant.
(5) (a) Any commissioner, or any member of the staff of the Commission or
police officer at the request of a commissioner, may without a warrant enter
upon any premises, other than a private dwelling, and search for, seize and
remove any article or thing referred to in subsection (1)-
(i) if the person who is competent to do so consents to such entry,
search, seizure and removal; or
(ii) if he or she upon reasonable grounds believes that-
(aa) the required warrant will be issued to him or her in terms of
subsection (2) if he or she were to apply for such warrant; and
(bb) the delay caused by the obtaining of any such warrant would
defeat the object of the entry, search, seizure and removal.
(b) Any entry and search in terms of paragraph (a) shall be executed by day,
unless the execution thereof by night is justifiable and necessary.
(6) (a) Any person who may on the authority of a warrant issued in terms of
subsection (2), or under the provisions of subsection (5), enter upon and
search any premises, may use such force as may be reasonably necessary to
overcome resistance to such entry or search.
(b) No person may enter upon or search any premises unless he or she has
audibly demanded admission to the premises and has notified the purpose of his
or her entry, unless such person is upon reasonable grounds of the opinion that
any article or thing may be destroyed if such admission is first demanded and
such purpose is first notified.
(7) If during the execution of a warrant or the conducting of a 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 conducting the
search shall, if he or she is of the opinion that the article contains
information which is relevant to the investigation and that such information is
necessary for the investigation or hearing, request the registrar of the
Supreme Court which has jurisdiction or his or her delegate, to seize 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.
(8) A warrant issued in terms of this section may be issued on any day and
shall be of force until-
(a) it is executed; or
(b) it is cancelled by the person who issued it or, if such person is not
available, by any person with like authority; or
(c) the expiry of one month from the day of its issue; or
(d) the purpose for the issuing of the warrant has lapsed, whichever may
occur first.
Hearings of Commission to be open to public
33. (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 20(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
34. (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
ofwitnesses or any address to the Commission.
(3) The Commission may appoint a legal representative to appear 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.
Limited witness protection programme
35. (1) The Minister shall, in consultation with the Commission, promote the
establishment of a witness protection programme in order to provide for the
protection and safety of witnesses in any manner when necessary.
(2) The witness protection programme contemplated in subsection (1) shall be
prescribed by the President as soon as possible after the date referred to in
section 7(3).
(3) The regulations providing for a witness protection programme shall-
(a) provide for, among others, the appointment of a private person or the
secondment of an official or employee of any department of State in
terms of the Public Service Act, 1994 (Proclamation No. 103 of
1994), to act as the witness protector; and
(b) be Tabled in Parliament for approval.
(4) (a) Until such time as the witness protection programme has been
established the President may, in consultation with the Minister and the
Commission, prescribe interim measures to be followed in order to provide for
the protection and the safety of a witness:
Provided that the provisions of section 185A of the Criminal Procedure Act,
1977 (Act No. 51 of 1977), shall, with the necessary changes, apply in the
absence of such interim measures.
(b) The interim measures contemplated in paragraph (a) shall be Tabled in
Parliament for approval.
(5) In this section"witness" means a person who wishes to give evidence,
gives evidence or gave evidence for the purposes of this Act and includes
any member of his or her family
or household whose safety is being threatened by any person or group of
persons, whether known to him or her or not, as a result thereof.
CHAPTER 7
General provisions
Independence of Commission
36. (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
37. Subject to the provisions of sections 20(6), 33 and 35 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
38. (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 20(6) and 33,
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:
" 1, A B, hereby declare under oath/solemnly affirm that I understand
and 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
39. 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;
fails to perform any act as required in terms of sections
36(6) and 38;
(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
40. (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; 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 42;
(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
41. (1) Subject to the provisions of subsection (2), the State Liability Act,
1957 (Act No. 20 of 1957), shall apply, with the necessary changes, 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
42. (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
43. (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
44. 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, among others, 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
45. (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 40 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
46. (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 7(3), for the first financial year, and thereafter in each financial
year for the following 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 submitted to the Minister for his or her approval, granted in concurrence
with the Minister of Finance, for furtherance in terms of subsection (3).
(b) The Commission shall not incur any expenditure which exceeds the total
amount approved in terms of paragraph (a).
(6) As from the date on which the Commission is dissolved in terms of
section 43(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
47. (1) As from the date on which the Commission is dissolved in terms of
section 43(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 11 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, orwould 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
48. (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 date referred to in section 7(3) notwithstanding the repeal of that Act.
Short title and commencement
49. 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.
SOUTH AFRICAN INTELLIGENCE