National Assembly - 14 August 2002
WEDNESDAY, 14 AUGUST 2002 __
PROCEEDINGS OF THE NATIONAL ASSEMBLY
____
The House met at 15:03.
The Deputy Speaker took the Chair and requested members to observe a moment of silence for prayers or meditation.
ANNOUNCEMENTS, TABLINGS AND COMMITTEE REPORTS - see col 000.
The DEPUTY SPEAKER: Order! Hon members, I have pleasure in announcing that the Commissioner of the SA Revenue Service has offered to assist members with the completion of their income tax returns. A pamphlet is to be made available to all members and a table will be set up within Parliament from tomorrow until Monday, staffed by experienced members of Sars to assist members of Parliament with any queries they may have. [Applause.] Hon members, the first item on the Order Paper is questions to Ministers in the peace and security cluster. May I request members to please take their seats? The first question which has been asked by the hon Ferreira to the Minister of Safety and Security refers to the special pardons granted by the President. As a debate on this issue will be held later today, I will allow the Minister to answer the question but will, in view of the rule of anticipation, not allow supplementary questions. I just thought that it is important to explain this up front. I will now call upon the hon Minister of Safety and Security to answer the question.
NOTICES OF MOTION
Mr S D MONTSITSI: Madam Speaker, I give notice that on the next sitting day of the House I shall move on behalf of the ANC:
That the House -
(1) notes that the study commissioned by the Gauteng health department through the Centre for Health Policy, based of the University of the Witwatersrand, on progress made with primary health care service, revealed that -
(a) 26 000 people were treated for TB in the year 2001 and as a
result, TB cure rates improved;
(b) HIV tests became available to all clinics from 1997, and that 1
000 counsellors were trained in the year 2000;
(c) 55 new home-based care services run by NGOs were funded by the
Gauteng health department in the year 2001 and that they
currently provide care to 13 000 people with severe illnesses;
and
(d) services to prevent mother-to-child transmission were extended
to 90% of hospitals and clinics; and
(2) believes that the result of this study reflects the commitment of the ANC-led Government to fighting the scourge of HIV/Aids and opportunistic diseases.
[Applause.]
The SPEAKER: Hon member, you are giving notice of a motion. Am I correct?
Mr S D MONTSITSI: Yes, Madam Speaker.
The SPEAKER: So, you will move the motion on another day.
Let us now proceed to the DP.
Mr R S NTULI: Madam Speaker, I hereby give notice that on the next sitting day of the House I shall move:
That the House -
(1) expresses its concern about the fact that the hon Minister of Education appears to be increasingly involved in controversial statements, actions and draft legislation, many of which do not promote the interests of our children or stability in education; and
(2) believes that -
(a) decisions about the curricula are taken haphazardly and without
adequate planning with serious, negative implications for
learners and teachers; and
(b) the decision about the placement of newly qualified teachers
suggests that the Minister is determined to limit freedom of
choice in favour of central planning and control, with himself
as chief controller.
[Interjections.] [Applause.]
Mr E T FERREIRA: I hereby give notice that on the next sitting day of the House I shall move on behalf of the IFP:
That the House -
(1) notes that a man was almost killed when six shots were fired at him inside the Wynberg regional court building in Gauteng;
(2) further notes that there have been other incidents, within the past few weeks, where prisoners standing trial have escaped due to the absence of security at this court;
(3) realises that the security at this court was sponsored until the sponsorship expired a few months ago; and
(4) urges the relevant authorities to take the necessary steps so as to ensure that this, and other court buildings throughout South Africa, have the adequate security to ensure the safety of all in the buildings.
Mr N E MAGUBANE: Madam Speaker, I hereby give notice that on the next sitting day of the House I shall move on behalf of the ANC: That the House -
(1) notes that the newly established KwaZulu-Natal Public Transport Enforcement Unit had impounded more than 110 minibus taxis and 19 buses by the end of 12 August 2002;
(2) believes that this reflects the commitment of the ANC Government to end road carnage and unnecessary loss of life resulting from unroadworthy vehicles which are utilised largely by the poor;
(3) commends the KwaZulu-Natal department of transport for setting up the Public Transport Enforcement Unit and for the sterling work it has done; and
(4) calls on other provinces to emulate this shining example.
[Applause.]
Mr J DURAND: Madam Speaker, I hereby give notice that on the next sitting day of the House I shall move on behalf of the New NP:
That the House -
(1) encourages the Department of Trade and Industry’s effort to promote foreign markets as accessible trading areas via exports;
(2) notes that -
(a) South Africa is constantly accused of intellectual piracy,
robbing developed countries of irreplaceable intellectual
capital and an honest living; and
(b) certain financially and economically powerful countries infringe
on the intellectual capacity of South Africa at free will,
irrespective of the consequences; and
(3) calls on the Department of Trade and Industry to assist the rooibos farmers in the fight for the use of property rights in the United States in the same way that European farmers fought for the exclusive use of property rights for indigenous agricultural trademarks.
Dr G W KOORNHOF: Madam Speaker, I hereby give notice that I will move on behalf of the UDM at the next sitting:
That the House -
(1) acknowledges that the social and economic infrastructure is the backbone of a successful society, and that without it the Bill of Rights can never be realised for every South African;
(2) notes that the UDM has consistently campaigned for infrastructure development that will uplift the poor, create jobs, and encourage local and foreign businesses to invest in our country;
(3) welcomes the fact that the majority party, in documents released yesterday, has acknowledged the importance of infrastructure development, and has admitted that the current infrastructure backlog amounts to R170 billion;
(4) appeals to the Government to dramatically speed up its investment in infrastructure maintenance and development, in accordance with UDM policy proposals.
Mr S A MSHUDULU: Madam Speaker, I hereby give notice that on the next sitting day of the House I shall move on behalf of the ANC:
That the House -
(1) notes that -
(a) inspectors from the Department of Labour ordered Arrow Trading,
a factory that produces linen, to close down in Fordsburg,
Johannesburg, on 12 August 2002 because of unsafe working
conditions in the factory; and
(b) Medal Plants in Johannesburg was also closed down for failing to
comply with the health and safety standards;
(2) believes that the move by the Department of Labour reflects the commitment of the ANC-led Government to protect the basic rights of vulnerable workers and to act decisively against bosses who put profit before human lives;
(3) commends the work done by the Department of Labour to act against factories which do not comply with the law; and
(4) calls on workers to report workplaces which do not conform to the health and safety standards as embodied in the laws of the country.
[Applause.]
The SPEAKER: Hon members, I want to make a request, please. There are once more far too many meetings going on in this House. There is too much noise. Please will you conduct your meetings outside the Chamber.
Dr P W A MULDER: Mev die Speaker, hiermee gee ek kennis dat ek namens die VF op die volgende sitting van die Raad sal voorstel:
Dat die Huis daarvan kennis neem dat -
(1) hierdie week Taalweek in Suid-Afrika is en vandag, 14 Augustus, Taaldag is waartydens Afrikaans se ``verjaardag’’ gevier word;
(2) die Vryheidsfront Afrikaans, saam met alle ander inheemse tale, ‘n blink toekoms en groei in die jaar wat voorlê, toewens; (3) die Regering versoek word om meer taalsensitief te wees, om alle inheemse tale te bevorder en om veeltaligheid uit te bou deur weg te beweeg van Engelse taalimperialisme, wat tans al die inheemse tale, waaronder Afrikaans, verskraal ten gunste van ‘n eentalige Engelse gemeenskap; en
(4) dit vir die VF belangrik is om ook Afrikaans as ‘n inheemse taal van Suid-Afrika positief te bemark en ons daarom by hierdie geleentheid graag aan elke parlementslid ‘n geskenk met ‘n kaartjie wil uitdeel. (Translation of Afrikaans motion follows.)
[Dr P W A MULDER: Madam Speaker, I hereby give notice that on the next sitting day of the House I shall move on behalf of the FF:
That the House notes that -
(1) this week is Language Week in South Africa and today, 14 August, is Language Day, on which the ``birthday’’ of Afrikaans is celebrated;
(2) the Freedom Front wishes Afrikaans, together with all the other indigenous languages, a bright future and growth in the year ahead;
(3) the Government is requested to be more sensitive to languages, to promote all indigenous languages and to develop multilinguism by moving away from English language imperialism, which is currently diminishing all the indigenous languages, among them Afrikaans, in favour of a unilingual English community; and
(4) it is important to the FF that Afrikaans is also positively promoted as an indigenous language of South Africa and that on this occasion we therefore would like to present every Member of Parliament with a gift and a card.]
Re gopola maleme a rona. [We remember our languages.]
The SPEAKER: I wish to thank the FF for the token of friendship that members will all either be receiving or have received. We thank you. Those who have not received them, can wait.
Mrs C DUDLEY: Madam Speaker, I hereby give notice that on the next sitting day of the House I shall move on behalf of the ACDP:
That the House -
(1) is appalled at the way the Government has connived to take control of United Nations potential funding of R700 million for the fight against HIV/Aids in KwaZulu-Natal;
(2) commends KwaZulu-Natal on their practical proposal which includes funds for antiretrovirals to TB patients, pregnant women and health care workers; shelters for orphans; training for health care workers to provide triple therapy; and expanding HIV counselling and testing services;
(3) notes that the national Department of Health’s proposal provides primarily for more funding for Aids education programmes, including the immoral Lovelife campaign, with little practical assistance for those who are so desperately in need;
(4) further notes that Lovelife, an offshoot of the most profitable of ``non-profit’’ oganisations, Planned Parenthood, which is responsible for the stupendous growth of the profitable condom and abortion industries around the world, especially in impoverished areas, already receives millions of rands from the Government; and
(5) calls on the Government to abandon their inadequate proposal and direct the hijacked global funding to where it is so desperately needed and provide practical treatment and care along with sound pro- family HIV/Aids education that teaches the truth about love life and sex.
Ms N D NGCENGWANE: Madam Speaker, I hereby give notice that on the next sitting day of the House I shall move on behalf of the ANC:
That the House -
(1) notes that -
(a) the MEC of health in Gauteng, Dr Gwen Ramokgopa, announced that
her department will spend more than R2,2 million to renovate
Mamelodi Hospital near Pretoria; and
(b) Dr Gwen Ramokgopa further announced that working hours at Stanza
Bopape, Skinner Street and Ladium clinics will be extended to 7
pm to improve community access to health services;
(2) believes that this indicates in a practical way initiatives by the ANC-led Government to improve the quality of life of our people through the provision of quality and accessible health care services; and
(3) welcomes the announcement made by the MEC of health in Gauteng, Dr Ramokgopa, to make health care services accessible to the people of Mamelodi, Pretoria, and the surrounding areas.
[Applause.]
Mr V C GORE: Madam Speaker, I hereby give notice that on the next sitting day of the House I shall move -
That the House -
(1) notes with concern -
(a) the Government's attempts to severely limit the SABC's ``freedom
of expression and journalistic, creative and programming
independence'' as outlined in the current Broadcasting Act; and
(b) that the proposed amending Bill will effectively force the SABC
to seek the Government's approval of its editorial policies; and
(2) further notes that -
(a) media freedom is enshrined in our Constitution;
(b) editorial independence, fairness and impartiality is guaranteed
in the Code of Conduct for broadcasters in the IBA Act;
(c) these are not clichés, as suggested by SABC board member Thami
Mazwai, but are fundamentals of journalism, democracy and
therefore freedom; and
(d) the Government's proposed plans will transform the SABC from a
public broadcaster into a state broadcaster.
[Applause.]
Mr J H VAN DER MERWE: Madam Speaker, may I move two motions at the same time? [Interjections.]
The SPEAKER: Within the 60 seconds.
Mr J H VAN DER MERWE: The first one is to congratulate Mrs Seaton on her birthday, but can I move the second one.
Madam Speaker, I hereby give notice that on the next sitting day of the House I will move:
That the House -
(1) takes note of the forthcoming World Conference on Sustainable Development;
(2) urges all South Africans to unite in the struggle against poverty, unemployment, Aids, lack of education and similar monsters confronting the world; and
(3) wishes all those well who are to participate in the conference.
Mr H P CHAUKE: Madam Speaker, I hereby give notice that on the next sitting day of the House I will move on behalf of the ANC:
That the House -
(1) notes -
(a) the appointment of the Committee of Inquiry by the Minister of
Sport and Recreation, hon Ngconde Balfour, to investigate the
progress made with regard to the transformation of cricket
throughout the country; and
(b) that the terms of reference of the committee include inquiring
into the basis for the claim made by the United Cricket Board of
South Africa (UCBSA) that South African Cricket has grown beyond
its own expectations with regard to transformation targets;
(2) believes that the UCBSA should be accountable for the implementation and achievement of its transformation targets and its three-year plan as envisioned in its transformation charter and vision statement as well as the performance agreement signed with the Minister; and
(3) commends the Minister for appointing the committee and expresses its full support for the inquiry.
Mr J W LE ROUX: Speaker, hiermee gee ek kennis dat ek op die volgende sitting van de Raad sal voorstel:
Die Huis kennis neem dat -
(1) die Nuwe NP sy dank uitspreek teenoor Minister Valli Moosa en die Departement vir hul besondere poging om van die Wêreldberaad oor Volhoubare Benutting ‘n sukses te maak;
(2) die Nuwe NP vertrou dat die 100 staatshoofde en 60 000 besoekers sal vind dat Suid-Afrika en sy mense besonder gasvry en vriendelik is en dat ons ‘n toeristebestemming van wêreldgehalte is;
(3) die beraad fokus op armoedebekamping en volhoubare benutting en ons vertrou dat die ontwikkelde wêreld hierdie geleentheid sal aangryp om Suid-Afrika te help in sy poging om Afrika sy potensiaal te laat verwesenlik; en
(4) die Nuwe NP vertrou dat die Wêreldberaad ‘n reuse-sukses sal wees en die sindroom van Afrika-pessimisme eens en vir altyd sal verdwyn. (Translation of Afrikaans motion follows.)
[Mr J W LE ROUX: Madam Speaker, I hereby give notice that on the next sitting day of the House I shall move -
That the House takes note that -
(1) the New NP expresses its thanks to Minister Valli Moosa and the department for their exceptional effort to make the World Summit on Sustainable Development a success;
(2) the New NP trusts that the 100 heads of state and 60 000 visitors will find that South Africa and its people are particularly hospitable and friendly and that we are a world class tourist destination;
(3) the summit focuses on poverty alleviation and sustainable development and we trust that the developed world will grasp this opportunity to help South Africa in its effort to make Africa realise its potential; and (4) the New NP trusts that the World Summit will be a huge success and that the syndrome of Africa pessimism will disappear once and for all.]
CONDOLENCES ON DEATH OF MR K G P K NWAKO, FORMER SPEAKER OF PARLIAMENT OF BOTSWANA
(Draft Resolution)
The CHIEF WHIP OF THE MAJORITY PARTY: Madam Speaker, I move without notice:
That the House -
(1) notes with sadness the death of Mr K G P K Nwako, the former Speaker of the National Assembly of the Parliament of Botswana;
(2) believes that the death of former Speaker Nwako is a loss that will be felt by the parliamentary community throughout the world; and
(3) offers its heartfelt condolences to his family and loved ones and to the Parliament and the people of Botswana, whom the late Mr Nwako served unstintingly.
Agreed to.
GOOD WISHES TO SA GOLFERS COMPETING IN US PGA TOURNAMENT
(Draft Resolution)
Mr D H M GIBSON: Madam Speaker, I hereby move without notice:
That the House -
(1) notes that the last of this year’s major golf tournaments, the US PGA, begins on the Hazeltine course in Minnesota tomorrow;
(2) wishes Ernie Els, Retief Goosen, Rory Sabbatini and Tim Clark good luck in the tournament; and (3) looks forward to a South African victory.
Agreed to.
SUSPENSION OF RULE 253(1)
(Draft Resolution)
The DEPUTY CHIEF WHIP OF THE MAJORITY PARTY: Madam Speaker, I move without notice:
That Rule 253(1) be suspended for the purposes of conducting the Second Reading debate on the Export Credit and Foreign Investments Insurance Amendment Bill [B 29B - 2002] (National Assembly - sec 75).
Agreed to.
The SPEAKER: Order! Before I call on the first speaker, I wish to alert hon members again that there should be no reference to any pardon or release that refers to any charges in any case now before the courts. The subject for discussion, in terms of Rule 103, is in the name of the Leader of the Opposition and it is The Impact of Presidential Pardons on the Crime Rate, the Community and the Truth and Reconciliation Commission Process.
THE IMPACT OF PRESIDENTIAL PARDONS ON THE CRIME RATE, THE COMMUNITY AND THE TRUTH AND RECONCILIATION COMMISSION PROCESS
(Subject for Discussion)
The LEADER OF THE OPPOSITION: Madam Speaker, colleagues, presidential pardons are no longer subject to the exclusive prerogative power of the supreme executive. That has become settled law since the case of President of the RSA v Hugo, 1997 (4) SA 1 (CC). And that means that the grant of a pardon by the President is reviewable by the courts, that the royal prerogative has not survived our current Constitution and that a pardon might be overturned should it be established that it was based on, or constitutes an irrational act, was based on caprice, disabling bias or on a violation of the Bill of Rights itself. But we meet today, obviously, not as a court of law, but as the cockpit of public opinion. And across South Africa this afternoon, I believe, there is a sense of concern, outrage and even anger at the conferment of presidential pardons on 33 hardened criminals. There is fear about the consequences of their release in the community. There is unease about the prospect of another 20 or more murderers or violent criminals being spilled onto the streets of the townships and suburbs of South Africa.
There are critical issues and key principles which this unhappy incident and, I submit, bad chapter of presidential lawmaking highlights. These include, firstly, undermining the rule of law; secondly, the lack of candour and transparency on the part of the President and the Minister of Justice over this issue; the abuse of power and the misuse of office and the unravelling of the TRC process.
Let me start with the lack of transparency. On or about 12 May 2002,
Government released the pardoned 33, most of whom had been refused
amnesties by the TRC despite the generous provisions of the enabling
legislation. It is worth recording that Government did not initially
release the names, nor furnish the reasons for their release. Only under
pressure, in the media and here, on 15 May 2002, were the names published.
But I might add that there was an immediate and fundamental contradiction
in public between the President, on the one hand, and the hon Minister of
Justice on the other. President Mbeki announced that the prisoners were
released on the basis that they were involved in the struggle''. Yet on
the same day right here in Parliament the hon the Minister of Justice
announced,You will never find in our document a suggestion that they
were pardoned because they were part of the struggle’’.
From this confusion, contradiction and lack of candour we proceed to the second premise. That is that the Government, or the President, seemingly did not apply their mind properly to the matter. The evidence available leads to this unfortunate conclusion.
For example, in the case of the pardoned prisoner Dumisani Ncamazana, the President chose to pardon someone who had escaped from prison as recently as 1999. Furthermore, in the case of the same release, the prisoner concerned is in fact subject to a criminal case which may not be discussed in this debate. But the fact is that the consequence of any presidential pardon is to expunge the criminal record of an accused. So anyone, for example, who had committed murder or rape or anything else, who subsequently is charged, may never have those charges put before the court when that person is applying for bail. This is actually a fundamental undermining of the very bail-tightening legislation which this Parliament so commendably enacted just a few years ago.
As a further example, let us consider the case of prisoner Nzimeni Danster, who was also denied a pardon - apparently one of the very few applicants to be denied a pardon by the President. In February 1987 Danster and one Monwabisi Khundulu, and another, broke into an Eastern Cape farmhouse where deaf pensioner Matheus Palvie and his wife Jeanette lived. When the couple returned, interrupting the robbery, the housebreakers beat them to death with a hammer and made off with certain personal items, including a pink pillowcase and four Ritmeester cigars.
Khundulu was sentenced to death, which was later commuted to life imprisonment. He told the Truth and Reconciliation Commission that the political objective of the robbery was to disarm the unfortunate Palvie and that this decision had been taken by the Cradock youth organisation. Amnesty was refused by the Truth and Reconciliation Commission when the judge presiding found that the murder of Mrs Palvie, at least, was disproportionate to any objective, such as stealing weapons. He also added that the killer had blown any chance of amnesty when, after a horrific crime, ``he started grabbing articles like the cigars for personal gain and pleasure’’.
Now, unfazed by that admonition, President Mbeki and, presumably, the Minister of Justice have pardoned and released Khundulu. When the news was heard by the top investigating officer at the time of the murder, he roared, ``That crime was not political. Is this a joke?’’ But it is not a laughing matter for the co-accused, because the person who had equally been involved in the crime, someone called Danster, wrote to our office. He appears to have no political label and no political affiliations. He is incensed that he was refused a presidential pardon for the same crime, while serving the same sentence as the now released Khundulu. Hence the allegation of presidential-style apartheid - and those are the words that prisoner Danster uses, not me - treating the same class of people, or prisoners, or criminals, in startlingly different and disadvantageous ways.
There are numerous other examples, but I think the point is well made. This then leads to the third aspect of this sorry chapter. The pardons are being used, with respect, as a sort of back-door amnesty, the effect of which is to subvert or unravel the TRC process and imperil the rule of law.
Despite its numerous controversies, many - and the DA and, I am sure, the majority of members of the ANC - believe that the TRC was a success. The granted amnesty required the full disclosure of criminal conduct. But it required that the crime committed be proportionate to the political object pursued; and let me say that my colleague Dene Smuts will deal with this matter more fully. But I think it is interesting that Prof David Unterhalter, Director of the Mandela Institute at Wits University, wrote the following:
What the recent pardons cast open is a different kind of amnesty, based upon political favours or debts. Quite soon …
he writes -
… every common criminal who can dredge up some claim to struggle credentials will be importuning the President for a pardon. And the President will find himself in an impossible position: criticised for partiality if the pardons are restricted to those with ANC affiliations, or castigated for an abuse of power and the rule of law if all those who can conjure some political affiliation are pardoned en masse. The TRC was not a trial-run for some greater act of political largesse. It was a unique compact that should be respected.
I believe that those wise words should be heeded. The potential power abuse involved in this is well highlighted. But I think there is a fundamental point here, and that is that there is a section of the governing party, of which the President is very much a leading part, which at best is lukewarm about the TRC and, at worst, actively hostile to the climate it created. It is worth remembering that in March 1999 the TRC refused a blanket amnesty request by then Deputy President Mbeki and numerous others, on the grounds that the application failed to disclose a specific offence.
Furthermore, the hon the President tried and failed, when he was Deputy President, to stop the publication of the TRC report. He attacked its conclusions on the basis of what he termed ``its erroneous determination of various actions of our liberation movement as gross violations of human rights’’. One is left with a very unsettling conclusion that President Mbeki is giving the TRC and its amnesty process what he perceives to be their come-uppance.
I believe we can talk about the victims, and that will be discussed later today, but there are some unanswered and unsettling questions which I hope the hon the Minister will reply to. Firstly, did the Government at any stage consult the victims or their families about any of the releases or any of the pardons? Secondly, did they consider the safety and security of the community into which the prisoners were being released on an unconditional basis? Thirdly, did the Minister at any stage contact the director of public prosecutions in the Eastern Cape to find out whether the director of public prosecutions in that province approved or disapproved of the pardons? Fourthly, what role did the Premier of the Eastern Cape play in this process, and was there any quid pro quo sought from the prisoners released? Fifthly, did … [Interjections.]
No doubt Harksen will be released or pardoned as well quite soon, when he does some damage to another party.
Fifthly, did the Minister of Justice, or indeed the President, at any stage consider that the prisoners released would recommit serious offences? Sixthly, of the next batch of prisoners to be pardoned - the hon the Minister drew attention to 20 the other day - how many failed in their amnesty applications before the TRC? I believe that there should be full disclosure on these issues.
I also believe that we must disabuse ourselves of something else. It is worth reminding those who suggest - and I believe the PAC and the UDM are among them - that questioning the history of these pardons is somehow actuated by a racial motive. But I think you should bear in mind that the crimes committed by 21 of the 33 pardoned prisoners, about whom information is available, include the murder of at least 6 black people, 3 Iranians and the attempted murder of another 3 black people. It is not an issue about black and white. It is transcendingly an issue about right and wrong. It is a question of selective favouritism and the sweeping overreach of the Presidency. It is about undermining the power of Parliament and the effective legislation that we have passed.
The hon the President is not the first president to have embroiled himself in pardon controversies. President Clinton, and before him President Ford, were involved in similar matters and all landed up with deep distress. But I do believe that we should have a moratorium pending a fresh approach to pardons. We need transparency, we need consultation with all stakeholders and we need to remember and recommit ourselves to the rule of law and to justice, not to undermine and diminish them or the safety of our community. [Applause.]
Mr M T MASUTHA: Madam Speaker and hon members, colleagues and comrades, allow me to start by making it categorically clear that the ANC, which I am honoured to represent in this debate today, views the matter before us in a very serious light. Contrary to what the Leader of the Opposition would like the public to believe, we are committed to the war against crime and to ensuring that people with abhorrent criminal behaviour are put behind bars, so as to protect society against their evil ways.
Having said that, however, I must say that it is hardly surprising - despite the fact that hardly three months have elapsed since the Leader of the Opposition, the hon Leon, posed a question to the Minister for Justice and Constitutional Development, Comrade Maduna, concerning presidential pardons, and despite the elaborate response from the Minister - that we are being called upon once again to revisit the matter. [Interjections.] It is not because the Opposition has any new substance to put before us. On the contrary, it is merely because the Opposition, as usual, sees an opportunity to play to the gallery over an issue … [Interjections]
Mr H P CHAUKE: Madam Speaker, I seek the Chair’s ruling. When it is the disabled hon member of the Opposition’s turn to speak, not one of us will interject. That hon member of the Opposition has actually just spoken, when he was reading a motion. We were all listening, because he had to put a lot of concentration into what he was reading. Now the hon Masutha is using braille and he has to apply a lot of concentration to be able to deliver his speech. I want to appeal to all hon members of this House, please accord him that respect.
The SPEAKER: Order! The point is well taken. Hon members should deal with this matter with some sort of consideration.
The MINISTER OF HOME AFFAIRS: Madam Speaker, I concur. If the ANC had done the same thing, we would not have heard that speech coming from the Opposition. [Interjections.]
Mr M T MASUTHA: If I may proceed, Madam Speaker … [Interjections.]
The MINISTER FOR JUSTICE AND CONSTITUTIONAL DEVELOPMENT: [Inaudible.] [Interjections.]
The SPEAKER: Order! [Interjections.] Order! All hon members, please. [Interjections.] Hon Ministers and Leader of the Opposition! Order! Hon Minister, you are … [Interjections.] hon Minister, you are not immune from a request that you do not shout across the Chamber and allow people to speak. [Interjections.] Please proceed, hon member. [Interjections.] Order!
Mr M T MASUTHA: It is not because the Opposition has any new substance to put before us. On the contrary, it is merely because the Opposition, as usual, sees an opportunity to play to the gallery over an issue which is neither new nor as controversial as they would have us believe.
In his reply to the aforementioned question on 22 May 2002, the hon Minister of Justice was quite comprehensive and crystal clear. However, for the benefit of those in this House who may be suffering from memory loss, particularly when it comes to issues they would rather not recall, allow me to reiterate some of the facts which the hon the Minister put before this House, amongst which he mentioned the following:
In terms of section 84(2) of the Constitution, the President is responsible for pardoning or reprieving offenders and remitting any fines, penalties or forfeitures. On the basis of this provision of the Constitution I advised the President that public opinion favoured the granting of pardon in the above cases.
He then proceeded as follows:
In making the recommendations, I took various factors into account. Some of the factors were the interests of society, the interests of the applicants themselves, the degree of remorse shown by the applicants, the impact of the decision on the administration of justice, and often, not all the factors can be considered or will apply, although all applicants are considered on their merit and all relevant information is taken into account.
It is clear from this explanation that due diligence is taken to ensure that only the most deserving prisoners are pardoned or reprieved. Only God, and perhaps the Opposition, can predict as to whether a reprieved offender will persist in his criminal behaviour after his release. If the Opposition does indeed have such powers to predict the future, it might be useful to share them with the President when he considers future applications for reprieve. [Interjections.]
However, until then we have no other option but to accept the reality of the inherent risk that in certain highly exceptional cases pardoned offenders may, upon their release, revert to their evil ways of the past, in which case the law, of course, will take its course and in addition to reincarceration such offenders will be faced with even harsher sentences upon conviction.
In reviewing the applicable jurisprudence in this regard, the Minister cited, amongst others, the judgment in the case of the President of the Republic of South Africa & Another v Hugo, 1997, which the hon Leon has alluded to and in which the Constitutional Court had the following to say:
The power to pardon duly convicted prisoners in terms of which the President acted is conferred upon him by the interim Constitution.
In this case, it would be the current Constitution.
The power of pardon is one which is recognised in many democratic countries. In terms of the interim Constitution the power is not subject to Cabinet concurrence or to legislative control, but is conferred upon the President directly by the interim Constitution. Although the historical roots of the pardoning power may lie in the royal prerogative, it is clearly a power which the drafters of the interim Constitution considered appropriate within a constitutional democracy.
Needless to say, for all intents and purposes this Constitutional Court ruling is just as valid today as it was when the interim Constitution was in force.
Turning to the history of presidential pardons in this country, I was privileged to obtain an article published by one among us, the hon Comrade Mewa Ramgobin, in the Sunday Tribune of March 1971 when he was awaiting trial on a high treason charge. The hon member was making a case for the release of leaders of the struggle against apartheid, including our own illustrious Utata Madiba.
In that article he quoted a National Party MP who, in a similar parliamentary debate on 9 September 1948, had said:
I have stood up here and begged the Government not to treat the political prisoners as criminals, but as gentlemen … in those days people were driven to grave acts for the sake of their convictions.
The article proceeds to quote the then Minister of Justice, C R Swart, who later became the first President under National Party rule, which took over shortly thereafter and retained power for the next nearly half a century, before the ushering in of democratic rule in South Africa. Swart, during the same parliamentary debate, had the following to say:
There were thousands of people who begged me to release the political prisoners …
The political prisoners Swart was referring to at the time were Robbie Leibrandt and others who were members of the Ossewa Brandwag, which was organised along military lines and led by General Van Rensburg. Leibrandt, the article proceeds to state, was a South African who received military training in Germany and returned to South Africa to subvert the war effort in which South Africa was fighting alongside the Allied Forces during the Second World War. Leibrandt and his companions had exploded bombs in Johannesburg, killing an innocent bystander, blew up dynamite outside a Pretoria hotel, blew up power lines and telephone lines, bombed the offices of a newspaper called Bantu World and raised about £200 000 through armed robberies.
They were arrested by the government of General Smuts, who was President of the United Party government at the time, and sentenced to death for high treason. The Appeal Court confirmed their conviction and sentence, but the then government commuted their death sentence to life imprisonment. The article states that, in its first administrative act when it took power thereafter, the National Party government released Leibrandt and his two cohorts after they had barely served six years in jail.
Turning to experiences elsewhere, and the hon Leon also alluded to this, one is reminded of the highly publicised incident of the last-minute presidential pardons granted by former President Bill Clinton to nearly 200 prisoners, shortly before he vacated his office as US president. In this regard, allow me to quote from an article in a US publication called Valley News of 24 February 2001. This article …
The SPEAKER: Order! Hon member, would you please draw your comments to a close. You are reaching the end of your time.
Mr M T MASUTHA: Madam Speaker, this article dealt with the controversial pardoning by former President Clinton of, amongst others, a fugitive financier who fled to Switzerland many years ago, as well as the high- dollar drug dealer who landed in jail, both of whom were directly or indirectly connected to large cash donations in support of political interests of the former president, so it was alleged, and both of whom received his pardon.
I wish to conclude by stating that, as far as we in the ANC are concerned, we understand the powers of pardon of the President as being clearly distinct from the role of the TRC, which had a timeframe within which to complete a specific task. We actually thank the TRC for the contribution that it has made towards the advancement of our democracy, but we want to state that that role cannot be confused with the role of the presidential pardon, which has a separate history and a particular legal context. [Applause.]
The SPEAKER: Order! Hon members, earlier on I had cautioned against references. That was not limited to references in speeches, but also in heckling. I heard comments earlier on - I did not wish to interrupt the speaker - from the heckling, which referred to cases that are now before the court. I appeal to hon members to desist from that. It does not further or extend the points you wish to make.
Mr J H VAN DER MERWE: Madam Speaker, I am sure hon members will agree that Mr Masutha gave us a very interesting historic overview on the question of pardons, for which we thank him.
We in the IFP support the principle of pardoning or reprieving offenders. However, we have strong reservations which I will briefly summarise. Pardoning or reprieving effectively means that the executive interferes in the domain of the judiciary, which interference is normally not allowed by our Constitution. Our Constitution provides for the separation of the legislative, executive and judicial powers. The IFP therefore feels that the presidential pardon should be used only in the most exceptional cases and that it should be used sparingly and certainly not for dangerous individuals.
Presidential pardons should certainly not be available for ordinary criminals. There are other mechanisms available to them, such as parole. Therefore, persons who have robbed, who have committed theft, murder or rape or are of a violent character, cannot qualify for pardons or reprieves. One cannot steal for yourself or rape a woman with a political motive. Pardoning such persons would seriously damage the judiciary and the image of our country. It would also serve as an open invitation to others to rape, rob, steal and murder, and expect a pardon just because they belong to a certain group or party. We in the IFP regard the struggle of the past as an exceptional ground upon which the President is justified to grant pardons in certain circumstances.
As far as the Truth and Reconciliation Commission is concerned, many persons have not received amnesty from the TRC. Some have not applied, for a number of reasons. I have personal experience of persons who, at the time, refused to apply for amnesty to the TRC, because they said they had no faith in the process and regarded the TRC as an instrument of the ANC. Some other persons have applied, but their applications were unsuccessful, because of technical reasons, such as a lack of proper advice on the completion of the forms, distrust in the process, failing to satisfy the TRC requirements and so forth. These people now face long prison sentences and we refer to them as the unfortunates, as they have to remain in prison unnecessarily. It is this particular group of people that we feel should apply for presidential pardons. There are supporters of many political parties amongst those unfortunates.
It is also of the utmost importance that specific and clear guidelines are in place to guide the authorities in their pardon recommendations to the President. The Minister has already, on 22 May, in answer to a question, mentioned some criteria which could be applied when pardons are considered. He mentioned public opinion, the interests of society, of the applicant and of the victims, the degree of remorse shown by the applicant, and the impact on the administration of justice. We wish to stress that the grounds for amnesty as applied by the TRC form a good departure point for pardons. There should at least have been a political motive.
We suggest that the hon the Minister of Justice, who will be preparing the applications for consideration by the hon President, make use of the services of retired judges to scrutinise the various applications. We also call on the hon President to make the process one of transparency.
Coming to the wording of the subject for discussion, we do not believe that pardons for bona fide politically motivated crimes arising from the struggle of the past would negatively impact on the crime rate. They would also not negatively impact on the community, as pardons are intended to be a part of the process of reconciliation. Neither do we think that pardons would negatively affect the TRC process, as pardoning persons would, to a large extent, merely supplement the TRC process. It would give those unfortunates that I have described, who missed the TRC bus, a second chance to apply for freedom.
In the circumstances, we in the IFP take the following stand: We support the current process of limited presidential pardons. We plead for a very strict and fair process of evaluation of the applications. We respectfully insist that the process be transparent and that full details of successful applicants be made available where possible. We encourage the hon President to expedite the pardoning process. We do not believe that properly managed pardons would have any negative impact on the crime rate, the community and the TRC process. And lastly, we support a proper judicial screening by retired judges, prior to pardons being granted.
Mrs S M CAMERER: Deputy Chair, the presidential pardons granted in May this year are coming back to haunt the Government and may well continue to do so. These were the first batch of presidential pardons to be granted after the TRC had completed its work - 33 in all - and the New NP has made its position clear, namely that the President does have the power in terms of the Constitution to grant pardons and it should always be the prerogative of the head of state to show mercy and extend clemency in deserving cases, each to be judged on its own merits.
Our position on the TRC process is that we have never been against amnesty or indemnity for those who committed crimes in the pre-democratic era with a political motive. We have always considered this to be one of the building blocks for a new era of national reconciliation. The New NP also believes that the TRC process was flawed. If there are outstanding deserving cases from whatever part of the political spectrum, we have no objection to these being reconsidered. But in such cases political motive should remain the criterion.
What shocked us about these pardons is that perpetrators of cold-blooded and brutal murders with no redeeming features and no discernible political motive, such as those responsible for the murder of the Palvie couple and even the Highgate Hotel massacre, were among the 33 pardoned.
Sadly, what has happened subsequently - particularly in the case of Dumisani Ncamazana - has vindicated our dismay and concern at the pardons and the way in which they were granted. In May we asked the Minister why such criminals were pardoned. We are still waiting for a comprehensive answer.
I want to point out to the Minister that in his reply to my question I placed on the Order Paper in May, he listed the names of 26 recipients of presidential pardons under this batch whose applications for amnesty were turned down or partially turned down by the TRC. The name of Dumisani Ncamazana was not included among the names in his reply, although according to the TRC records his application for amnesty in respect of a murder and an attempted murder was turned down because of a lack of political motive. Could the Minister explain the reason for this omission and why we were actually given an incorrect answer in Parliament?
We believe the decision to grant such pardons should be able to survive the process of a judicial review. It should also be able to stand up to public scrutiny. We must insist that in recommending these pardons the Minister of Justice acts transparently. He should not shy away from stating clearly the grounds on which such pardons are motivated and recommended to the President.
However, when the pardons were announced without explanation or clarification, there was confusion and there were contradictory statements coming from the Department of Justice. The Government started by saying that releasing their names could jeopardise the safety of the recipients of the pardons. But four days later the Department caved in under the pressure of public outrage and, in fact, released the names. Then Minister Maduna told the media that he had not considered a particular category of persons for pardoning and that he had made a bare recommendation, as he put it, to the President. A week later he admitted, following what the President said, that the recipients were indeed mostly PAC and ANC members involved in the struggle.
In May, under pressure, Minister Maduna is reported to have said he would unveil a new policy on pardons for political offenders after the TRC handed its final report to the President. This is indeed also what the New NP has asked for. And I ask the Minister today, will this policy be forthcoming soon, and could he indicate when?
In reply to a question in Parliament at the end of May, Minister Maduna quoted the Constitutional Court on the granting of pardons, saying that the single most important factor to be considered was the public interest and, of course, he also added, the interests of the victims. According to the Minister, he told the President that the pardons would be supported by public opinion. But subsequent to Dumisani Ncamazana’s arrest it appears that both public opinion and the victims are outraged by the pardon. Again this underlines the need for a transparent process.
Undeterred by the scandal associated with the first batch of pardons, the Minister seems set to do it again. According to reports in the media the name of Allan Boesak is on a list of new candidates for pardon put forward by the Minister to the President.[Time expired.]
Mr W G MAKANDA: Chairperson, the power of the President to pardon convicted persons is conferred by the Constitution of the Republic of South Africa, Act 108 of 1996, section 84(2)(j), which states, and I quote:
The President is responsible for pardoning or reprieving offenders and remitting any fines, penalties or forfeitures.
This power of the President to pardon has been upheld by the Constitutional Court. In the case of The President of the Republic of South Africa & Another v Hugo, the Constitutional Court stated that the power to pardon duly convicted prisoners is conferred upon the President by the interim Constitution.
The court states that the power to pardon is one which is recognised in many democracies. According to the Constitutional Court, pardons should be granted by the President when, in his view, this will be in the interests of the public. In the words of the court, power should be granted to the President to determine when, in his view, the public welfare will be better served by granting a remission of sentence or some other form of pardon.
The Constitutional Court outlines two instances in which the power to pardon may serve the interests and welfare of the public. These are to correct mistaken convictions, or excessive sentences, or to confer mercy on individuals or groups of convicted prisoners when the President thinks it will be to the public benefit for this to happen.
Accordingly, the Minister for Justice and Constitutional Development said this was the basis for his decision to recommend the release of the 33 prisoners. I will not go on to list the factors that were taken into account because this has been mentioned already. However, I want to say that there are advantages as well as disadvantages in granting pardons. The advantages are that the power to pardon can be used to rectify mistakes in the criminal justice system. Some people may be wrongly convicted and excessively sentenced. This is probably the most important function as a constitutional safeguard against mistakes. It acknowledges that the system of justice is occasionally flawed.
The power to pardon can be used to release individuals or groups of prisoners when the President believes that it is in the public’s interest to do so. The presidential pardoning power serves as an important role in the system of checks and balances. The pardoning power functions to check the juridical power. It does this by allowing the President to overturn juridical decisions to afford relief from undue harshness, to avoid particular criminal judgment. [Time expired.]
Nksz M SOTYU: Mhlalingaphambili, mandiqale ngokudlula ekwenzeni imbeko kumalungu onke eNdlu yoWiso-Mthetho nakuluntu luphela.
Xa siza kuthetha ngenxaxheba yamapolisa ekwakheni umntu ofumane uxolelo lwamatyala akhe ukuze abe nakho ukwamkeleka kuluntu luphela nakwizalamane zakhe, ze sikhumbule kaloku ukuba uMongameli akaveli athabathe izigqibo zokuxolela ibanjwa kungakhange kubekho miqathango ilandelwayo. Eminye yemiqathango esinokuthi siyikhankanye ngamaphulo okanye uhlenga-hlengiso athi umbanjwa anxulunyaniswe nalo esesentolongweni ukumlungiselela ukubuyela uluntwini.
Abukho ubungqina obugqibeleleyo obuxhasa intetho ethi amabanjwa, akhululwe entolongweni ngoxolelo phambi kokuba agqibe izigwebo zawo, anempembelelo kulwaphulo-mthetho ngaphandle. (Translation of Xhosa paragraphs follows.)
[Ms M SOTYU: Chairperson, I would like to begin by showing respect to hon members of the National Assembly and the public.
When we are going to be talking about the role that the police play in rehabilitating a person who has been given parole so that he could be accepted by the general community and his or her relatives, we should remember that the President does not just take decisions without certain conditions. Some of the conditions followed that we can mention are rehabilitation programmes that the prisoner undergoes before he or she can go back to the community. There is no evidence supporting the allegation that the crime rate escalates when prisoners are released on parole.
There is no full proof that indicates that prisoners released on amnesty before completing their prison terms are instigators of crime in general.]
Ke tshepa hore puo eo ha se ho leka ho nyenyefatsa, ho tella kapa hona ho nyatsa ditokelo tseo Mopresidente wa naha a nang le tsona, ka ho latela Molaotheo wa naha. [I hope that the speech is not trying to belittle, show disrespect for or undermine the rights of the President in terms of the Constitution of our country.]
Unfortunately, no one, not even the Opposition, could predict that a prisoner, after having been screened and pardoned by the President or after he or she had served their full sentence, would soon commit another crime. The SA Police Service are there to safeguard, protect and prevent the escalation of any form of crime.
Ze sikhumbule kaloku ukuba amapolisa asebenzisana nama-CPF phaya ngaphandle xa umntu sele ekhululwe engaphandle. [We should remember that police work together with CPFs when a person has been released.]
There are some programmes.
Naye lo mntu, xa efika phakathi koluntu, uza enezakhono azifumene kwiSebe leeNkonzo zoLuleko, ze azisebenzise phaya ngaphandle ukuncedisana nokuphucula ubomi bakhe nobosapho lwakhe.
Xa sithetha ngamabanjwa axolelwayo, sithetha ngabantu abanikwa ithuba lokuphinda bakhe ngokutsha ubomi babo. Ngubani obesazi ukuba siya kube sisithi indoda emhlophe yasePitoli yavuka ekuseni, intloko iqaqamba, yaya esitratweni, yafika yadubula abantu abantu abasixhenxe bafa? Kambe ke kuye kwafunyaniswa ukuba inelungelo lokuba ixolelwe.
Ukuxolelwa asiyonto siqala ukuva ngayo namhlanje xa isenziwa nguZizi. Thina aba saxolelwa ukuze sibe negunya lokuphila namhlanje. Kutsho incwadi engcwele. Ndiyaqonda ukuba ningamaKristu nonke apha, nizibiza ngelithi ningamaKristu. Kwafuneka sixolelwe ukuze nathi sixolele abo basonayo. Ndiyakholwa ukuba sonke apha siyathandaza, kwaye into yokuqala esiyifundayo emakhaya xa sikhulayo nguBawo wethu oseZulwini, kodwa sithi kuZizi, ``Hayi Zizi, musa ukubaxolela.’’ (Translation of Xhosa paragraphs follows.)
[When this person (that has been released) joins other members of the community he or she brings along skills that he or she would have acquired through the Department of Correctional Services and uses them to assist and develop his or her life and that of his or her family.
When we speak about prisoners that are released on parole, we speak about people that are being given another chance to change their lives for the better. Who knew that the white man who woke up one day and went on a rampage and shot and killed seven people would today be released on parole?
Presidential pardon is not something new just because Zizi granted it. Some of us here were granted amnesty and were given another chance to live. So says the Holy Book. I think all of you here are Christians. You refer to yourselves as Christians. We had to be pardoned so we could pardon others. I trust that all of us here do pray and the first thing we learn at our homes when we grow up is The Lord’s Prayer, but then we contradict ourselves when we say to Zizi, ``No Zizi, do not forgive them.’’]
Ya ka sehloohong, ke hopola hantle ha ke ntse ke etla ke hola mane dipolasing, rona batho ba holetseng dipolasing. E ne e re ha le fihla letsatsi la 31 Mmesa, dikolo di kwetswe re sa ya sekolong, e ne e eba nyakallo, e eba mokete. Ke hopola hantle, re ne re palama diloring tsa base, base a kganna lori, re iswa seteisheneng ho thwe re ilo bona blue train. Re tseba hore ha blue train e qeta ho fihla ho tla be ho thwe … (Translation of Sotho paragraph follows)
[Madam Speaker, I remember when I was still young, being raised on the farm. Every time that 31 April came round, it would be a holiday for us, and the school would close. I still remember well, we would be taken on a tour in our master’s truck, and the master would be driving the truck, taking us to the station to see the blue train. We would know that when the blue train arrived they would say …]
… amabanjwa akhutshiwe entolongweni ngowe-31 kuMeyi. [… prisoners were released on 31 May 2002.]
Empa, ka hobane re ne re kwetswe melomo, re sa kgone ho botsa mabaka, re sa kgone ho botsa criteria, re sa kgone ho botsa letho, re ne re itumella feela ha re ba bona ba le teng ka hare ho rona. Re ne re se na ditokelo tsa hore re ka botsa hore batho bao ba lokolotswe jwang na.
Re fumane monyetla wa hore Mmuso wa ANC ebe hona jwale o re file ditokelo tsa hore re kgone ho botsa mabaka a etsang hore ebe batho ba lokolotswe diteronkong. (Translation of Sotho paragraphs follows.)
[Because we could not speak, we could not ask reasons, we could not ask the criteria, we could not ask anything, we would just be happy to see them among us. We had no right to ask how they were released.
We now have an opportunity because the ANC Government has given us the right to ask for the reasons for the release of the prisoners.]
Masingafani namalulwane, sifune ukwenza ngathi ukuxolelwa kwamabanjwa yinto entsha. Siyayazi ukuba nakwamanye amazwe yinto eyabakho kwakudala, kwaye aba bantu, beze nale ngxoxo-mpikiswano apha, bayazi kakuhle ukuba yinto eyenziwayo nakwamanye amazwe. Ngoku, ngenxa yokuba ingulo Rhulumente ukhoyo we-ANC, kufuneka size kuma apha sicacise ukuba yiyiphi na le miqathango siye sayilandela ekwenzeni le nto. Kunjalo nje, lo Mgaqo-siseko siwunonelelayo sasivumelene ngawo sonke apha, singamalungu ePalamente. Masingatyholi ulwaphulo-mthetho xa sifuna ukuwudelela uMgaqo-siseko. Maze bakhumbule intetho ethi, ``Ongenasono apha phakathi kwenu, makathabathe ilitye amxulube umfazi onesono.’’ [Kwaqhwatywa] (Translation of Xhosa paragraphs follows.) [We should not be like bats and pretend, as if releasing prisoners on parole is a new event. We know that it is a very old tradition and the people who brought this debate up know very well that it is done in other countries. Now, because it is the ANC-led Government, we have to stand here and justify our decisions and explain the conditions we followed in doing this.
At the same time it should be clear that the Constitution we are boasting about was agreed upon by all of us here as members of Parliament. Let us not use crime as a scapegoat when we do not want to abide by the Constitution. They should remember the saying, ``He that is without sin among you, let him first cast a stone at her.’’ [Applause.]]
Rev K R J MESHOE: Chairperson, in an interview published in the Sunday Independent on 19 May 2002, former TRC head Archbishop Desmond Tutu complained that the unfortunate pardons granted by the President would undermine the work of the TRC.
An international human rights organisation, Human Rights Watch, said of the TRC process:
Repeated amnesties will reinforce the culture of impunity which is one of the most serious obstacles to achieving an end to violence today.
Yet the President has gone against their advice and has given pardon to people whose appearance before the TRC did not qualify them for amnesty. The President did this without making the public aware of their background or the crimes that they had committed. He also did not shed any light on what criteria were used in selecting these specific criminals and why they, who were denied amnesty in the first place, were favoured above victims who are still awaiting reparations.
The ACDP believes that family members of victims of crime must have an important say in the pardoning of any criminal. Their feelings and rights have to be given priority whenever such considerations are taking place. If they approve of such pardons, the process may then be taken forward, but if they oppose such pardons, then their wish must be respected by turning down the request or recommendation of anyone to be pardoned.
We in the ACDP believe that anyone found guilty of crimes such as murder, rape, armed robbery and hijacking should not receive any presidential pardon. Obviously, this excludes those who murdered while defending themselves or members of their families.
Let me conclude by reminding this House that it is wrong to pardon anyone against the wishes of those whom they have wronged. Victims and their families, and not members of Government, feel the pain and trauma that results from crime. In a country where levels of crime are so high, Government, especially the President, must show concern about the suffering experienced by all victims, and then find ways of saying to them, ``I care about you.’’ [Applause.] [Time expired.]
Dr C P MULDER: Chairperson, the pardoning or reprieving competence of the President is something that one will find in most modern constitutions in the world. As such there is nothing strange or wrong with that - but we have a problem here.
Here we have a situation where a convicted murderer, also for deeds clearly without any political motive, was sent to jail for 51 years. However, on the advice of the Minister for Justice and Constitutional Development, the President has now pardoned this person and within two weeks of being allowed out of jail, this person allegedly committed another crime. The President, when granting these 33 pardons, said that their acts were clearly political. It is also clear that all their acts were not political.
Section 84 of the Constitution deals with the powers and functions of the President and in 84(2)(j) the pardoning or reprieving of offenders is stipulated as a specific function and responsibility of the President.
The current events are a huge embarrassment to the President and South Africa. Why is the President in this intolerable situation today? We are in this situation because we have not finally dealt with the conflicts of the past. There are people across the political spectrum in jail today who clearly should have received amnesty, but for various reasons they did not. I can give the House the names of 38 Afrikaners who are still in jail and who should have been released. We cannot close the books of the past as long as this is the case.
In order to conclude this, we now need action; either by an Act of Parliament to grant a general amnesty with regard to those cases with political motives that are still outstanding, or by way of a presidential pardoning process after applying the correct, strict criteria. It is no use to shy away from this and to draw the President into this situation by using his general presidential competence to pardon and reprieve in the wrong way as has happened now.
Mr I S MFUNDISI: Chairperson, the truth of the saying that ``uneasy lies the head that wears the crown’’, is borne out by a debate like this. The President as head of state, according to section 84(2)(j) of the Constitution, has responsibility for pardoning or reprieving offenders and remitting any fines, penalties or forfeitures. There is no qualification of which offenders may be pardoned or reprieved. The President has to do this in the best national interest.
If he decides not to pardon, he is looked upon as being cold and insensitive in some quarters. If he pardons, some feel he has not done enough, because some offenders who deserve pardon have been left languishing in jail, while others would argue that he has opened the sluicegates, as is the case in this debate.
It is possible that innocent people may be in jail because of sloppy investigations, prosecutions and judicial processes. It is also possible that unrepentant and unrehabilitated criminals may be pardoned because of human error in the justice and correctional services, as these are institutions that make recommendations. In extreme cases politics come to bear and it is from such representations that some undeserving offenders are let free.
We maintain that people who have been incarcerated for crimes such as murder, rape and robbery are undeserving of pardon. The example of Barend Strydom comes to mind. He remains unrepentant after having mowed down blacks in downtown Pretoria. We in the UCDP view him as a danger to society, especially after his pledge of support to Kritzinger on Monday.
In certifying the current Constitution, the Constitutional Court stated in paragraph 116 of Certification Judgment I that:
Any exercise of the power to pardon that undermines any provision of the Constitution will be reviewable.
This indicates that pardons may be revoked if the pardoned people conduct themselves in a wayward manner on their release.
While we appreciate the presidential prerogative to pardon offenders, we maintain that it should be done with circumspection and regard for the interests of the community. [Time expired.]
Dr M S MOGOBA: Chairperson, the TRC had a mammoth assignment of building a bridge across the walls of racial hostility and conflict. When the final draft report was given it was clear that the unfinished business would be the responsibility of the President under presidential pardon, as is the case in all democracies of the world. I have supported the granting of presidential pardon in all the debates on this matter.
Let me say outright that soldiers in a liberation struggle are of two kinds
- those who fight against oppression and those who defend oppression. The PAC condemns murder, including that of Martin Whitaker who was allegedly killed by Dumisani Ncamazana soon after he received presidential pardon.
The PAC extends heartfelt condolences to the Whitaker family and Mr Whitaker’s next of kin. Crime is crime and should be condemned.
This calls for tougher sentences for those who misuse the presidential pardon, and therefore prejudice the chances of many innocent and justified applicants for pardon. It also calls for improvement of our prisons.
It is therefore not right to call into question the validity of the principle of presidential pardon. Pardon is not the same as acquittal in a court of law. Pardon, like forgiveness, depends on the thinking, conscience and wisdom of the one who gives it.
We can give our opinion and even be critical of the pardon but we must be careful not to sound disrespectful to the President of the time or to suggest that the President should reflect our viewpoints or our sentiments as a collective. [Applause.]
Mr J P I BLANCHÉ: Chairperson, may I at the outset say that the DA convey their condolences to the families and friends of those who died at the hands of those who were pardoned by the President.
Why is it that day after day, week after week, month after month, year after year, items appear on the political agenda for which South Africans have to pardon ANC Ministers or the President for making a wrong statement, like the antiretroviral treatment; or a wrong decision, like that of the Sarafina play that went wild? Or today, a pardon for a pardon of criminals? May we ask: Do these items appear on the political agenda because of the ``zanufication’’ process that member Cronin warned South Africa about?
When the President and his Cabinet were sworn in, they took an oath to uphold the Constitution, which in turn is supposed to be a guarantee to protect the people of South Africa against violent criminals. They were supposed to make South Africa a safe country to live in.
What do we experience since the ANC Government took office? Violent criminals whom the TRC did not want to be released into society - murderers whom Bishop Tutu said should not be allowed outside maximum security prisons - were pardoned by the President and the Minister.
The perception exists that the ANC membership card proved to be their licence to be let free. When clergy and followers of the Christian faith warned the President and the Minister not to release these criminals, what did they do? In no uncertain terms, they belittled those people. [Time expired.]
The DEPUTY CHAIRPERSON OF COMMITTEES: Hon member, before you leave, I think the Speaker made it quite clear that one needed to advance the debate and the argument related to the topic. I have a problem with the hon member at the podium when he used the words, `` at the hands of those who the President pardoned’’. That implies that all those who were pardoned were so involved in the commission of crime. I would like you to be careful in the manner in which you phrase that, in order that we can allow for the debate to go forward without exaggerating it as the hon member did. [Interjections.]
Mr J P I BLANCHÉ: Thank you, Chairperson. I meant at the hand of one of those pardoned. [Interjections.] The ANC ignored the TRC … [Time expired.]
The DEPUTY CHAIRPERSON OF COMMITTEES: Hon members, I think the Speaker laid down the parameters within which this debate should go. Some of the members have been transgressing slightly. It makes it difficult for the Chair to actually interrupt people, especially when you have very limited time. May I once again appeal to members to follow the guidelines that were laid down by the Speaker at the beginning of the debate.
Mnr C AUCAMP: Voorsitter, die beginsel van presidensiële begenadiging soos vervat in artikel 84(j) van die Grondwet is so oud soos die beskawing self. Ons vind selfs iets daarvan terug in Levitikus met die instelling van die jubeljaar waartydens gevangenes vrygelaat is. Die bekendste voorbeeld is met die verhoor van Christus, as Pilatus volgens die gebruik op die Paasfees, vir Barrabas vir die volk loslaat. [Tussenwerpsels.]
Die beginsel is dat genade betoon mag word, selfs daar waar die reg nie kan bykom nie; dat genade, versoening en herstel, naas die regsproses van straf en vergelding, ook ‘n gemeenskap kan heelmaak.
Daarom is dit gebiedend noodsaaklik dat dit so toegepas word dat dit nie die teenoorgestelde effek bereik nie, soos ons pas beleef het met die begenadigdes, wat kort daarna aangekla is van ernstige misdrywe. Die feit dat van hulle nog kort vantevore probeer ontsnap het, is verswarende omstandighede vir die gebrek aan oordeel wat aan die dag gelê is, en waarvoor die President verantwoordelikheid moet aanvaar.
In die besondere omstandighede in Suid-Afrika kan presidensiële begenadiging, indien reg en konsekwent toegepas, ook ‘n helende rol speel. Teen die agtergrond van die jarelange stryd en konflik kan dit daartoe bydra dat die boeke van die verlede toegemaak word ten opsigte van politieke gevangenes aan beide kante van die spektrum. Die WVK was ‘n instrument vir ‘n bepaalde tyd, maar is nie die alfa en die omega nie - en nihileer nie artikel 84(j) van die Grondwet nie.
Daar is egter belangrike voorwaardes. Die profiel, gedrag en rehabilitasie van die gevangene moet in ag geneem word. Dit kan slegs op individuele meriete geskied en nie in die bondel soos met die Oos-Kaap 33 nie. Aan watter kant van die stryd die gevangene deelgeneem het, mag nie ‘n faktor wees nie.
Onderskeid moet gemaak word tussen bona fide politieke oortreders en kriminele booswigte wat die politieke stryd as dekmantel gebruik het. Die kriteria moet bekend gemaak word en die proses moet deursigtig wees.
Die AEB ondersteun die beginsel van presidensiële begenadiging, maar ongelukkig, soos in die geval van Pilatus en Barrabas, is die verkeerde gevangene vrygelaat - dalk met tragiese gevolge. Niemand kan waarborg wat gaan gebeur nie. [Tyd verstreke.] (Translation of Afrikaans speech follows.)
[Mr C AUCAMP: Chairperson, the principle of presidential pardoning, as contained in section 84(j) of the Constitution, is as old as civilisation itself. We even find something similar as far back as in Leviticus, when the jubilee year was instituted, during which prisoners were set free. The most well-known example is that of the trial of Christ, when, according to the custom during the Easter festival, Pilate set Barrabas free at the request of the people. [Interjections.]
The principle is that mercy may be shown, even where the law cannot reach, that a community can also be restored by means of mercy, reconciliation and restoration, alongside the legal process of punishment and retribution.
It is therefore vitally important that this principle is applied in such a way that it does not have the opposite effect, as was recently experienced with those to whom a reprieve had been granted, who were accused of serious offences shortly afterwards. The fact that they had tried to escape shortly before that is tantamount to aggravating circumstances in the lack of judgment shown, something for which the President must accept responsibility.
In the particular circumstances in South Africa presidential pardoning, if it is applied correctly and consistently, can also play a healing role. Against the background of struggle and conflict which prevailed for many years it can contribute to closing the books of the past in respect of political prisoners on both sides of the spectrum. The TRC was an instrument for a specific time, but not the alpha and the omega, and it did not nullify section 84(j) of the Constitution.
However, there are important conditions. The profile, behaviour and rehabilitation of the prisoner must be taken into account. This can be done only on individual merit and not in batches as in the case of the Eastern Cape 33. The side of the battle on which the prisoner participated cannot be a factor.
A distinction must be made between bona fide political offenders and criminals who use the political struggle as a cover-up. The criteria should be made known and the process should be transparent.
The AEB supports the principle of presidential pardoning, but unfortunately, as in the case of Pilate and Barrabas, the wrong prisoner has been released - perhaps with tragic consequences. No one can guarantee what is going to happen. [Time expired.]]
Mr P J NEFOLOVHODWE: Chairperson, AZAPO supports the process of pardoning people as prescribed in the Constitution and other mechanisms that put that into effect.
We must realise that pardons by themselves are of the nature that one pardons people who have done something wrong. Otherwise, there would be no reason why one should pardon anybody.
As a result, the arguments that they should not have been pardoned could be addressed by those who should address the criteria which were used to pardon. It cannot be an argument to say that they should not have been pardoned, when there is a mechanism for doing so.
If one checks the statistics in respect of the one person who after being pardoned, went to commit crime and one reduces that to statistical data, it is insignificant. The argument that this will perturb the population will not hold water. [Interjections.] Every process of pardoning has criteria. Every process, whether one is in church and is forgiven, has processes to do so. Therefore it cannot hold water that we must be critical of the process that has been set in place.
AZAPO will go even further to say that there is nothing wrong if the President applies the criteria that those who fought against evil must be pardoned. [Interjections.] Those who fought against and not for evil. We will not have a problem in supporting a move that those who fought for equality, justice and against evil should be pardoned. [Time expired.] [Applause.]
Mr J N MASHIMBYE: Chairperson, sitting in my bench, not only as any other MP, but as an African MP, one had to recall a song sung by Miriam Makeba. One had to recall that song because of the nature and manner in which other people wish to handle this debate. The title of the song is This is the story of how we begin to remember. With apologies to Miriam Makeba, I wish to add to those lyrics. This is not only the story of how we begin to remember, but a story of how we begin to remember for we have not forgotten, but we have forgiven.
I am proud to be born of a people, an African people, who chose to forgive the sinners, mass killers and mass murderers. We chose to forgive because we know that it is the responsibility of us, the oppressed, to build and reconcile a deeply divided society. [Applause.] We do, however, invite all South Africans to join us in this responsibility of reconciling our nation. But reconciliation is not a one-way street. There are those who will choose to have it as a one-way street. The silliness, the arrogance and the self- seeking individuals and groupings that we find in this country, self- seeking individuals of no consequence like the hon Tony Leon, will never at any stage let us be cowed in our responsibilities to build this country. We will invite them to join us in the process of reconciliation; their silliness will not deter us.
The laws of this country do define the powers of the President. As with all citizens of this country, he enjoys no rights or privileges that are not accorded to him by the laws of the state, the Constitution. The power to pardon convicted prisoners, in terms of which the President acted, is conferred upon him by the Constitution. This power to pardon convicted prisoners is not specific to South Africa alone. It is one which is recognised in many democratic countries.
The level of crime in this country is obviously a matter of grave concern to the public. It is, therefore, understandable that there may be anxiety, confusion and strong reactions about the release of persons who have not completed their sentences. Most notable have been the vociferous reactions to the presidential pardons in the country of 33 African long-term political prisoners. The fact that most of the 33 prisoners were affiliated to the liberatory forces and had had their amnesty request rejected by the TRC has unleashed the predictable outpouring of criticism and condemnation.
The excellent work accomplished thus far by the TRC has been portrayed by others as being in jeopardy. Nothing could be further from the truth. But what all this does is to show us that eight years after our first democratic elections the country still has not healed from the wounds of our past. While the backlash against these pardons remains unabated, many former freedom fighters and supporters of the national liberation struggle are applauding the presidential pardons. Many of them remember that during the TRC amnesty process former members of the repressive apartheid security forces who received amnesty enjoyed the best available legal assistance, whilst former freedom fighters applying for amnesty received comparatively minimal legal aid. This gross injustice and discrepancy was even noted by the Truth and Reconciliation Commission itself.
The President’s decision to pardon has also gone a long way towards restoring the morale and confidence of many veterans of the freedom struggle who have noted and, consequently, become angered by the generous amnesties granted by the TRC to several high-profile former members of the apartheid security forces. Many of these security force members were involved in state-sponsored terrorism, torture and death squad activities. Here again, by putting the concept of reconciliation before the people of this country, and hoping for a positive outcome, we are, by all accounts, further testing their limits of forgiveness.
The people’s tolerance levels were again tested when former SA Army chemical and biological warfare expert, Wouter Basson, was recently acquitted. Many, in particular the freedom fighters, regarded this as a travesty of justice.
Other interested parties that have recently met with Minister Maduna to discuss amnesty were the IFP and a group of other generals. The IFP favours a form of amnesty by means of presidential pardons based on the recommendations of a justice panel. The apartheid generals have stated their need for amnesty for apartheid soldiers. It has been confirmed that the generals have been negotiating and that they and the ruling party have sent the Government consolidated proposals on the general amnesty. The PAC’s president, president Mogoba, who has consistently called for the release of jailed members of his party and Azanla, welcomed the pardons and thanked the President for having used his constitutional prerogative.
Let us also take cognisance of the tragic death of Martin Whitaker at the hands of Dumisani Ncamazana, one of those who were pardoned. It is abhorrent and tragic and we extend our condolences to the Whitaker family and friends. Granting a pardon does not allow one to guarantee that the individual pardoned will not commit further misdemeanours, and unforeseen circumstances should not encourage paranoia. Ncamazana has sealed his fate. By blatantly flouting his second chance to be a free South African citizen, he chose to deny that gift to another, and he has to face the consequence of his heinous deed. I am proud …
The DEPUTY CHAIRPERSON OF COMMITTEES: Order! Hon member, again you are now transgressing. I think, on that issue, let us leave it to the courts to make a pronouncement.
Mr J N MASHIMBYE: Thank you, Chairperson. I do wish to refer again to Miriam Makeba’s song This is the story of how we begin to remember. Those who want to remind us of the evilness and heinous deeds and doings will not deter us from our march and movement forward to build and reconcile this country, not even silly people like Tony Leon. [Applause.]
The DEPUTY CHAIRPERSON OF COMMITTEES: Order! Hon member, before you leave the podium …
Mr J N MASHIMBYE: Chairperson, I was referring to the hon Tony Leon. I know that it is wrong to insult arrogant people like him.
Mr D H M GIBSON: Chairperson, on a point of order: The Chair instructed the hon member to come back here. He has disregarded that and has shown disrespect to the Chair. Before dealing with other points of order, I think he should be instructed to come back here. [Interjections.]
The DEPUTY CHAIRPERSON OF COMMITTEES: Order! Hon members, yes, I did. The hon member might not have heard me. He did come back, but … [Interjections.] Order! Hon members, when you make an apology, make it in good faith. Let it be a genuine apology. But if you withdraw part of it by substituting additional comments, then the apology does not become an apology.
And we have a convention in this House that all members are honourable and that must be understood, both in the letter and in the spirit. And therefore I would like to request you to uphold that, because in doing so you are upholding one of the most fundamental conventions of this House. This is the kind of role model that we expect our members of Parliament to be and the precedent that you should be setting for future parliamentarians. So I would like you please to understand that in that spirit; and if in that spirit, once again, you wish to refer to the hon member as ``hon member’’ without supplementing it, I would appreciate it.
Mr J N MASHIMBYE: Chairperson, I submit unconditionally to the appropriate conventions of Parliament.
The CHAIRPERSON OF COMMITTEES: Thank you, hon member.
Ms M SMUTS: Chairperson, it is as well that the hon Mashimbye, amongst his other remarks, extended condolences to the survivors of Mr Martin Whitaker, since Ms Liesl De Villiers and her son have been with us in the gallery during this debate this afternoon.
I doubt that the Government fully understands the sense of shock induced by the manner and the scale of the presidential pardons, and it would serve a purpose if all of Parliament would convey that shock to Government, because further ill-advised and one-sided pardons will destroy the truth process with possible consequential effects on the rest of the unique compact - which has been here described - of the transition.
The fact is that this Government has seldom shown an understanding of the centrality of the victims and survivors to the truth process, and to the morality and constitutionality of its act. This has been demonstrated repeatedly in respect of the reparations.
The Government has seldom shown a sense of obligation to honour the difficult transitional agreement of 1993 that there would be amnesty based on such criteria as Parliament legislated. On the contrary, the hon the President and 36 other ANC leaders displayed disdain for the very terms and conditions of that law when they applied for a blanket indemnification in 1997 without disclosing how they had broken the law.
The Government has, in fact, seldom demonstrated the respect due to the TRC as an institution. On the contrary, the hon the present President resisted publication of its report in 1998 while the hon the Minister of Justice has been known to be rude to Archbishop Tutu.
For parliamentarians, it is a very different matter. May I say, amongst my colleagues, when reparations remain unpaid, I too feel that I have betrayed the victims. It is Government that is in dereliction of its duty to put a proposal before us, but it is we who redrafted and passed the law in a time when MPs, across party lines, legislated strictly under the Constitution. Now, in those days, we redrafted, notwithstanding resistance from the ruling parties, old and new - they were then in a Government of National Unity - and we did so on issues such as the holding of amnesty hearings behind closed doors. There are still many of us here - the hon Johnny de Lange and the hon Corné Mulder and me.
It was in order to meet the standards of the Constitution that we observed the victim’s right to know. That is the very right that was ignored in the case of the pardons. We changed the law, as it had been tabled, because we were convinced that victims’ right to information, to access to court, and to administrative justice were infringed by secrecy. We were also, the others may remember, reminded by Frank Kahn that common law and common sense dictate that openness discourages falsification and achieves public confidence.
Now, the public had lost confidence in the previous indemnity laws when we were legislating this one. I regret to say that I believe that the current crop of pardons is once again bringing the process into disrepute. Above all, my colleagues will remember, we decided in the justice committee then that it could not be correct or constitutional that victims should find out, after the fact, that someone had claimed and received an amnesty that they may have wished to dispute. Now, it is not so with the pardons, where the President relies on who-knows-what for facts, and who-knows-what for the evaluation.
he openness of the TRC hearings achieved many other results. A remarkable case of reconciliation was the one achieved at a fleeting meeting between the Apla cadres who killed a group of students in the Heidelberg Tavern in 1993, and the mother of one of those students, Mrs Ginn Fourie. She made it her mission to try to get counselling for perpetrators, because there was an expressed need and because it is not wise to unleash trained killers on society. It was on her behalf that I discussed her proposal with leaders of almost all of the parties here and with the TRC, which in fact included a recommendation to that effect in its report. Members will find it on page 310 of volume 5. Needless to say, nothing came of the idea of helping perpetrators, just as nothing has come of reparations to date.
Did the Minister for Justice and Constitutional Development and the President take into consideration the wisdom of unleashing killers into society? I think we know the answer.
The truth process, despite its very many shortcomings, has helped South Africans to achieve a kind of closure, but the pardons are unravelling the integrity of the process. If they become back-door amnesties, and we appeal to the Minister to take care, or even a de facto blanket amnesty, then the Government is in fact tearing up the law on the promotion of national unity and reconciliation. Perhaps that is exactly what it wants - I do not know - but we plead with them and implore them that the stakes are too high. What we have achieved in our country is too important to be threatened by ill- advised and, especially, one-sided pardons. [Applause.] The DEPUTY CHAIRPERSON OF COMMITTEES: Hon Smuts, if you would come back here again.
I think, in the early part of your speech, you made a reference that this Parliament once made laws strictly under the Constitution. The implication, as I understand it, being that laws subsequently made are not strictly under the Constitution. [Interjections.]
Order! This is a very important and material point because we in this Parliament are meant to uphold the Constitution. We have taken an oath to do so. If there is an inference that the laws that are being made are not strictly under the Constitution, then it goes to a very significant and central point regarding the upholding of the Constitution.
So, I would like you to clarify that in order that no such inference can be drawn.
Hon Smuts, if you would take your seat.
Mr D H M GIBSON: Chairperson, often in this House the allegation has been made that legislation which was being considered and which the Government wished to pass was unconstitutional, and would be found to be so. At the moment, the Constitutional Court is considering amendments to the Constitution which we passed, and legislation which we passed. [Interjections.]
There is absolutely nothing unparliamentary about alleging that actions by the President might well be unconstitutional, and that measures passed by Parliament might well be unconstitutional.
What the hon Ms Smuts said, I submit to you, is not unparliamentary at all. [Interjections.]
Ms M SMUTS: May I be allowed to …
The DEPUTY CHAIRPERSON OF COMMITTEES: Hon member, if the inference is made
- and this is what I would like the hon member at the podium to clear up - that a substantial body of the law made by this House and passed by this House does not conform strictly to the Constitution … [Interjections.] Because she said … [Interjections.] The point I would like to make, and the words she used were that the laws made since then are not made strictly under the Constitution.
Now, there is a very clear inference then to the lack of the unconstitutionality of a large body of the law. I would like the hon member to clarify that. If not, then I would like to look at the matter again, and come back and rule on that.
Ms M SMUTS: Chairperson, thank you for your further guidance. What I said was the following: That, in my experience in the previous Parliament, it was first and foremost the desire of MPs, from whichever party, to achieve constitutionality in what we did. It follows from that that what I am suggesting is that what is tabled by the executive is often a matter of discussion or dispute, but is sometimes not constitutional. What I am suggesting is that, in this Parliament, it is sometimes the case that members of a certain party will not, in fact, go against the Bill as tabled. I am, after all, publicly on record as suggesting that the Electronic Transactions Bill, just signed, is in fact not constitutional. [Interjections.]
The DEPUTY CHAIRPERSON OF COMMITTEES: Hon member, the Chair reserves the right to look at the Hansard and to look at this matter further. [Interjections.]
The MINISTER FOR JUSTICE AND CONSTITUTIONAL DEVELOPMENT: Mr Chairperson, I should like to start by extending the Government’s and my condolences to the Whitaker family and their loved ones. [Interjections.] The family should accept that, in our culture, the death of a person is never celebrated, no matter the cause thereof. We will never celebrate the death of a person at the hands of another.
Having said so, we are here to address this issue once again. I must say that I have not come across anything new that was not canvassed in the debate when the hon the Leader of the Opposition tabled a question. The issue for me is indeed a very important one. It is governed solely by the Constitution, and the Constitutional Court has said as much. The Constitutional Court has said, in paragraph 10 on page 715 of the BCLR Report that, unlike the other powers of the President, the power to pardon does not derive its authority from and is not dependent upon legislative enactment.
I have heard hon members suggest that the President has undermined the work of the TRC. It is useful to remember that the TRC was established and functioned under a law. When one says that someone has undermined something that was happening under a law by acting under the Constitution, one is short of stating something that is very crazy, namely that the Constitution is subject to that law. [Interjections.] Those hon members should please listen.
There is no way one can actually exercise a power in the Constitution correctly, and yet act unconstitutionally in relation to a law, because what one is saying then is that, in that respect, the Constitution is subject to that law. It is not. [Interjections.]
Secondly, … [Interjections.] The hon member did not have to say it. That is the inference we drew from what the hon member said.
Secondly, this is not the only mode through which prisoners can be released. It is not. There are many others. We have in excess of 7 000 people who are under correctional supervision today. We have them. [Interjections.] We have many people who have been released on parole or whose sentences have been reduced under the law, which is the remission of sentences. [Interjections.]
One cannot say, when one is exercising these powers under the law and the Constitution, that one will indulge in gazing into a crystal ball and say that this person may commit a crime, and therefore, the person cannot be released. One cannot do that. No system does this, and this one will never be able to do so. The best and the most that we guarantee is that once a person, whoever the person is, has committed an offence, we set the hounds of the law upon them. We unleash the hounds upon them. That is it. [Interjections.]
The hon member says there is a lack of transparency in the process. [Interjections.] There is not a lack of transparency. We do this work openly in the department. We do not sit at bus ranks or railway stations when doing this work. [Interjections.] If by transparency the hon member means that we must actually stand on the rooftops and scream that we are about to exercise this power, and that people should be careful, we will not do that.
The hon Tony Leon says that there was an apparent contradiction between what I said and what the President subsequently said. If he can read, he will read this document, which I sent to the President. It does not say anywhere that the President must pardon these 33 people, or any one of them, for political reasons.
I said openly that the President is entitled when exercising this power - and he is the only authority in this country that exercises this power, under the Constitution. When exercising this power, the President is entitled to look at anything. He is not confined to what the Minister for Justice and Constitutional Development places before him.
When the President says that he took into account the fact that they were also freedom fighters, there is no contradiction between what I have said, and what he said. Hon members should please accept that.
Then, regarding the Danster case, I want to state categorically that we have searched the records. We are not aware of any such application. If the hon member has the application somewhere, he should give it to us. We will subject it to the same degree of scrutiny that we did with respect to the others.
The hon member suggested that there is back-door amnesty. For God’s sake, there is no back-door amnesty. This is solely in accordance with the Constitution, and is accepted by our highest court, the Constitutional Court. [Interjections.]
There was reference to collective ANC applications for amnesty. I want to say that there is an element of mischief there, or a tendency to forget what was happening. Unless one knows of a crime that was committed by anyone who was on that list, they should accept what I am going to say. We never applied for amnesty because we wanted to hide what we had done. We are very proud of having fought apartheid, while those hon members sat here and supported it. [Interjections.] We are very proud. [Applause.] We shall not apologise to anybody for that!
What we sought to do and what we stated explicitly was to encourage other parties also to come forward and state what had been done under the auspices of their leadership, in order to encourage people who might have, in the process, committed gross violations of human rights and other crimes to also come forward. That was the sole intention. We encouraged members of the ANC and, in particular, uMkhonto weSizwe, to come forward and appear before the TRC, by doing it that way. It was a very difficult task to perform, because some of them were saying: ``Should we apologise for fighting apartheid?’’ We said to them that that was not what was happening. We were promoting the process. Those who know of any crime that was committed by my President right down to myself, the little armour-bearer, can go to the nearest police station now and lay a charge. [Interjections.] Otherwise, shut up! [Interjections.]
We have been asked whether we are going to consult anybody. Imagine, dear sirs and madams, that we say that we are here to consult Limpho Hani and her children about the application for amnesty by those who killed Chris Hani, and then expect them to say: ``Please pardon them’’.
Rev Meshoe, in particular, will remember that people, in the days of yore, were screaming for the crucifixion of an innocent person, Jesus Christ. They were saying ``Sikhululele uBarabasi.’’ [Release our Barabbas.]
Lastly … No, this is not the last point. It cannot be, because I still have a few seconds. It is useful to remember that there was never any snap debate in the apartheid parliament on the release of Barend Strydom. [Interjections.] Let me tell the hon member that we know of no protest now against what he is doing. They are so quiet when he overtly supports a person who allegedly committed the same crime that he committed, because the victims, once again, of the attack on the bus were black. [Interjections.]
The last point I want to make is meant for Koos van der Merwe. One cannot interfere with court processes when the courts are, in what is called in legal terms functus officio, which means that they have concluded their work. Pardons, in this instance, kicked in when the courts had concluded their work. So, one could not interfere with the process. One could not go in and say: ``I am Thabo Mbeki. I am here to pardon so-and-so. Therefore, stop the trial’’.
That is not what happened here. [Interjections.] No, but that is what was implied. Again, we cannot say, as this Parliament, that people must no longer apply for pardons. We cannot say so. [Time expired.] [Applause.]
Debate concluded.
The House adjourned at 19:02. ____
ANNOUNCEMENTS, TABLINGS AND COMMITTEE REPORTS
ANNOUNCEMENTS:
National Assembly and National Council of Provinces:
- The Speaker and the Chairperson:
(1) The following Bill was introduced by the Minister for Justice
and Constitutional Development in the National Assembly on 14
August 2002 and referred to the Joint Tagging Mechanism (JTM) for
classification in terms of Joint Rule 160:
(i) Constitution of the Republic of South Africa Third
Amendment Bill [B 33 - 2002] (National Assembly - sec 74)
[Bill and prior notice of its introduction published in
Government Gazette No 23604 of 5 July 2002.]
The Bill has been referred to the Portfolio Committee on Justice
and Constitutional Development of the National Assembly.
In terms of Joint Rule 154 written views on the classification of
the Bill may be submitted to the JTM within three parliamentary
working days.
(2) The Joint Tagging Mechanism (JTM) on 14 August 2002 in terms of
Joint Rule 160(6), classified the following Bills as section 75
Bills:
(i) Export Credit and Foreign Investments Insurance Amendment
Bill [B 29 - 2002] (National Assembly - sec 75).
(ii) Higher Education Amendment Bill [B 30 - 2002] (National
Assembly - sec 75).
(3) The Joint Tagging Mechanism (JTM) on 14 August 2002 in terms of
Joint Rule 160(6), classified the following Bill as a section 76
Bill:
(i) Education Laws Amendment Bill [B 31 - 2002] (National
Assembly - sec 76).
National Assembly:
- The Speaker:
(1) The vacancy which occurred owing to Mr V B Ndlovu vacating his
seat with effect from 12 August 2002, has been filled with effect
from 12 August 2002 by the nomination of Mr M V Ngema.
(2) The vacancy which occurred owing to Dr O S Baloyi vacating his
seat with effect from 12 August 2002, has been filled with effect
from 12 August 2002 by the nomination of Mr T E Vezi.
(3) The vacancy which occurred owing to Mr G B Bhengu vacating his
seat with effect from 12 August 2002, has been filled with effect
from 12 August 2002 by the nomination of Ms M Xulu.
TABLINGS:
National Assembly and National Council of Provinces: Papers:
- The Minister of Education:
(a) Annual Report and Financial Statements of the South African
Certification Council for 2001-2002.
(b) Revised National Curriculum Statement Grades R-9 (Schools)
Policy 2002:
(i) Languages Learning Area Home Language;
(ii) Languages Learning Area 1st Additional Language;
(iii) Languages Learning Area 2nd Additional Language.
COMMITTEE REPORTS:
National Assembly:
-
Report of the Portfolio Committee on Trade and Industry on the Export Credit and Foreign Investment Insurance Amendment Bill [B 29 - 2002] (National Assembly - sec 75), dated 13 August 2002:
The Portfolio Committee on Trade and Industry, having considered the subject of the Export Credit and Foreign Investment Insurance Amendment Bill [B 29 - 2002] (National Assembly - sec 75), referred to it and classified by the Joint Tagging Mechanism as a section 75 Bill, reports the Bill with amendments [B 29A - 2002].