Joint Sitting - 21 November 2007



Members of the National Council of Provinces and the National Assembly met in the Chamber of the National Assembly at 14:04.

The Speaker took the Chair and requested members to observe a moment of silence for prayers or meditation.



The SPEAKER: Order! The President has called a Joint Sitting of the National Assembly and the National Council of Provinces in terms of Section 84(2)(d) of the Constitution of the Republic of South Africa, read with Joint Rule 71(a), to make an announcement regarding a process for consideration of presidential pardons for persons who have committed what are alleged to be political offences.

I now invite the hon President to address the Joint Sitting. The PRESIDENT OF THE REPUBLIC: Madam Speaker and Deputy Speaker of the National Assembly, Chairperson and Deputy Chairperson of the NCOP, leaders of our political parties, hon Ministers, Deputy Ministers and Premiers, hon members, distinguished guests and ladies and gentlemen, I would like to thank the presiding officers of both Houses of Parliament for acceding to my request to make this short address to this Joint Sitting so as to make a particular announcement that I hope will contribute to our continuing efforts towards national reconciliation and nation-building.

It is indeed an indication of the deep scars inflicted by our painful past that, 13 years after the attainment of our freedom, we still have to grapple with matters of persons who committed offences that might be categorised as political, creating the possibility that we can be accused of having political prisoners.

This day, 21 November, holds some special and tragic memories for a number of families in our country, especially those of Mamelodi in the Tshwane Metropolitan City. On this day in 1985 a protest demonstration of thousands of local residents was brutally ended by police bullets and teargas, leaving 13 people dead and many others maimed for life.

We would like to assure the families that were so tragically affected that as they remember their loved ones, the government and the people of South Africa stand together with them. Our abiding prayer is that as we engage in various programmes to heal our nation, our efforts will also assuage the pain of the families, throughout our country and region, which lost some of their kith and kin as a result of apartheid oppression and aggression.

Yesterday one of our daily newspapers, the Johannesburg Star, carried a chilling story of how four suspected ANC guerrillas were abducted in July 1987 by the then Northern Transvaal Security Branch. The security police first took two of the suspects, Andrew Makupe and Jackson Maake, to a farm in Pienaars River. After beating them for hours, the apartheid unit made Makupe phone his friend, Harold Sefolo, pretending he wanted to see him.

They then picked up Sefolo and, finding it difficult to extract information from him, they wired Makupe to a portable generator and electrocuted him in front of Sefolo. They did the same to Maake and told Sefolo that he was also going to be electrocuted. He asked to make a final request, and his torturers agreed. He then gave a short speech and sang Nkosi Sikelel’ iAfrika. When he finished he too was electrocuted to death.

The fourth victim, Justice Mbizana, was arrested and taken to a farm in Hammanskraal where he was tortured and bludgeoned to death. The police then tried to destroy the bodies of the deceased with explosives to ensure that the stories, the fate and destiny of those who had been murdered, would never be known. However, the critical work that the Truth and Reconciliation Commission, the TRC, did, ensured that the nation got to know what happened to these and many others who died so that we can enjoy the freedom on which we pride ourselves today. Furthermore, the sterling work of the Missing Persons Task Team of the National Prosecuting Authority, the NPA, has found the remains of patriots featured in the story in the Star in a grave in the Winterveld outside Tshwane and, through DNA tests, was able to identify the deceased.

As far as we know, there are families and indeed the families of the many who died in similarly horrible circumstances who have not asked for vengeance, but have insisted on a process of healing. They have not asked for retribution. Rather they have requested that all of us should sustain the memory of the heroes and heroines in everything we do.

Accordingly, when we speak of our continuing efforts towards national reconciliation and nation-building, and when we take additional steps in this direction, as we are doing today, we do so with the memory of all these martyrs fresh in our minds.

Hon members, conscious of the horrors that were done to perpetuate white minority rule, many have hailed South Africa’s relatively smooth and peaceful transition as one of the most outstanding achievements among modern political transitions.

While our freedom and democracy represent the most profound and indestructible reparation for all the people of South Africa, we recognise that individuals and communities affected by specific acts of gross human rights violations deserved and still deserve specific attention.

We also agree that those who perpetrated acts of gross human rights violations needed to come clean, to admit to their actions and apologise to those who had been harmed. We also recognise that some of the acts perpetrated by certain individuals were politically motivated and thus needed to be taken into consideration by the Truth and Reconciliation Commission’s amnesty process.

The Post-amble of South Africa’s interim Constitution placed emphasis on reconciliation and the reconstruction of a post-conflict South African society. It said, and I quote:

In order to advance such reconciliation and reconstruction, amnesty shall be granted in respect of acts, omissions and offences associated with political objectives and committed in the course of the conflicts of the past. To this end Parliament, under this Constitution, shall adopt a law determining a firm cut-off date which shall be a date after 8 October 1990 and before 6 December 1993, providing for the mechanisms, criteria and procedures, including tribunals, if any, through which such amnesty shall be dealt with at any time after the law has been passed …

This Post-amble set the stage for the adoption of the Promotion of National Unity and Reconciliation Act, the TRC Act, of 1995. Among other things, the TRC Act created the political and moral climate for the consolidation of our democracy and the fostering of a culture of human rights. It provided for the establishment of the TRC with the specific purpose of promoting national unity, reconciliation and healing in a spirit of forgiveness, compassion and understanding.

Undoubtedly, the TRC was an important process which, while confronting our ugly past, sought to help us to advance beyond the very conflicts and divisions that had brought pain and suffering among many of our compatriots.

The final act of the commission, as it concluded its important work, was to make recommendations to the President in respect of reparations to the victims of those human rights violations.

Hon members, the drafters of the interim Constitution also saw amnesty as an essential element of the quest to advance reconciliation and national unity. The amnesty process of the TRC was, therefore, a massive undertaking in terms of building bridges across the great divides caused by racial conflict and repression. The cut-off date relating to offences that could be considered by the TRC’s Amnesty Committee was initially set by the Post- amble of our Constitution to be before 6 December 1993.

However, following requests from various political formations, especially those organisations whose members were incarcerated for offences committed just before the 1994 elections, and because of our relentless pursuit of the objective of national reconciliation, we all agreed to an extension of the cut-off date to 10 May 1994 – the day of the inauguration of the new democratically-elected President of the Republic.

While this new date served to accommodate the concerns of various individuals, members and supporters of various political organisations and thus further promoted national reconciliation in the run-up to our country’s first-ever democratic elections in 1994, this date did not take into consideration the fact that political violence in this country, especially in certain areas such as KwaZulu-Natal, persisted well beyond that cut-off date.

Therefore, once the TRC had finished its business, we still had a number of issues, such as the question of amnesty for many South Africans who had not participated in the TRC process for a number of reasons, which had to be finalised. It thus became clear that the so-called “unfinished business” of the TRC would have to be finished in one way or another. When I was privileged to address a Joint Sitting such as this one, on 15 April 2003, tabling the Final Report of the Truth and Reconciliation Commission, I referred to one element of this “unfinished business”. I said:

Yet we also have to deal with the reality that many of the participants in the conflict of the past did not take part in the TRC process. Among these are individuals who were misled by their leadership to treat the process with disdain. Others themselves calculated that they would not be found out, either due to poor TRC investigations or what they believed and still believe is too complex a web of concealment for anyone to unravel. Yet, other operatives expected the political leadership of the state institutions to which they belonged to provide the overall context against which they could present their cases: and this was not to be. This reality cannot be avoided.

I went on to say that:

Government is of the firm conviction that we cannot resolve this matter by setting up yet another amnesty process, which in effect would mean suspending the constitutional rights of those who were at the receiving end of gross human rights violations. We have, therefore, left this matter in the hands of the National Directorate of Public Prosecutions, the NDPP, for it to pursue any cases that, as is normal practice, it believes deserve prosecution and can be prosecuted. This work is continuing.

I then said:

However, as part of this process and in the national interest, the National Directorate of Public Prosecutions, working with our intelligence agencies, will leave its doors open for those who are prepared to divulge information at their disposal and to co-operate in unearthing the truth, for them to enter into arrangements that are standard in the normal execution of justice, and which are accommodated in our legislation.

To facilitate this process, the authorised Ministerial Committee has, since this statement was made, developed the required guidelines to assist the National Directorate of Public Prosecutions to do its work.

This means that those who committed offences of the kind that was considered by the TRC Amnesty Committee, who did not apply for amnesty and have not been convicted of any offences they may have committed, are free to approach the National Director of Public Prosecutions and engage in the processes we have described.

For some time since the year 2000, the government has been seized with the challenge to bring to a close the vexing matter of those prisoners serving sentences for what might be considered to be politically motivated crimes of the kind that fell within the brief of the Amnesty Committee of the TRC. In dealing with the challenges I have outlined, we have had to proceed with care, with sensitivity to the legacy of the TRC.

With regard to these matters, it is important that our actions do not, in any way, undermine or suggest that any attempt is being made to undermine the TRC process and its outcomes.

From as early as the year 2000, after the mechanisms put in place by the TRC Act had fulfilled their statutory mandates, we have with ever- increasing regularity received requests for pardon from various political parties, organizations, and individuals in respect of individuals who have been sentenced by our courts for serious offences both before and after the 10 May 1994 TRC cut-off date, allegedly in furtherance of political objectives or aims, arising out of conflicts of the past.

Currently government is in possession of at least 1 062 applications for presidential pardons by people who have been found guilty of offences which were allegedly committed with a political motive arising from the conflicts of the past.

In the past few years, both prior to the commencement of the new constitutional dispensation and thereafter, amnesty and indemnity laws were enacted and utilised to extinguish criminal – and, in some instances, civil

  • liability, and/or expunge criminal convictions and criminal records of persons who committed offences with a political objective during the conflicts of the past.

The lifespan of all these pieces of legislation, namely the Indemnity Act of 1990, the Further Indemnity Act of 1992, the last being the Promotion of National Unity and Reconciliation Act of 1995, “the TRC Act”, has expired and can no longer be utilised. We have also considered other statutory provisions, such as section 82 and other measures in the Correctional Services Act of 1998, and those in the Criminal Procedure Act of 1977. I have not found any of the existing measures suitable to deal with the specific matters at hand, those to which I have referred, in a flexible, decisive and speedy manner.

As a way forward and in the interests of nation-building, of national reconciliation and the further enhancement of national cohesion, and in order to make a further break with matters which arise from the conflicts of the past, consideration has therefore been given to the use of the presidential pardon to deal with this “unfinished business”.

As hon members know, our Constitution says that the President is responsible for “pardoning or reprieving offenders and remitting any fines, penalties or forfeitures”. Hon members will also remember the 1997 ruling of the Constitutional Court in the matter of The President of the Republic of South Africa vs Hugo. The Court said:

Pardoning a sentenced person is not a private act of grace in the sense that the pardoning power in a monarchy may be. It is recognition in the interim Constitution that a 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 also said:

No prisoner has a right to be pardoned, to be reprieved or to have a sentence remitted. The interim Constitution places such matters within the powers of the President.

I believe that the sum total of all this is that the President has an obligation to consider all requests made to him or her to pardon or reprieve offenders and remit any fines, penalties or forfeitures. At the same time, having thus applied his or her mind, the President is under no obligation to accede to the requests made to him or her, provided that she or he proceeds in a rational manner.

I requested the convening of this Joint Sitting to inform hon members that, considering what the nation sought to achieve through the TRC process, I have decided to institute a special process to assist me as I discharge my constitutional obligation to consider the requests for pardon by people who have already been convicted do offences they claim belong among the category of offences that were considered by the TRC Amnesty Committee.

This process will cover the requests for pardon of those people convicted of offences, as I have just said, which they claim were politically motivated, and who were not denied amnesty by the TRC. Further to entrench the practice the nation has sought to act in unity as it addresses the crimes of the past, I would like the political parties represented in our Parliament to assist me properly to discharge my constitutional responsibility to consider the requests made to the President to pardon those who have been convicted in the context of the circumstances I have mentioned.

I therefore take this opportunity to request the political parties represented in this Parliament each to appoint a representative who will serve in a reference group that will consider each of the requests for pardon which the President will refer to the group, and then make its considered recommendations to the President.

Needless to say, this will not in any way subtract from the obligation placed by the Constitution on the President, and described by the Constitutional Court, for the President to grant pardons, etc. In other words, the constitutional task to grant pardons and so on will remain with the President. However, the President would seriously take into account the recommendations made by the reference group, respecting the effort the nation has made to unite behind the objective of responding to the conflicts of the past, in the interests of promoting the critical objectives of national reconciliation and nation-building.

The process we are proposing will be of limited duration. It will have to be strictly managed in terms of the mechanisms and procedures which are to be put in place to ensure that the requests for pardon for the category of persons we have mentioned are dealt with in an open and transparent manner, uniformly and in strict compliance with determined procedures and criteria.

In this regard, among other things, we will have to act in a manner that respects the observation made in 1996 by the Constitutional Court in the matter of The Azanian People’s Organisation, Azapo, and others vs The President of the Republic of South Africa and others. I refer here to the following determination made by the Court:

The amnesty contemplated is not a blanket amnesty against criminal prosecution for all and sundry, granted automatically as a uniform act of compulsory statutory amnesia. It is specifically authorised for the purpose of effecting a constructive transition towards a democratic order. It is only available where there is a full disclosure of all facts to the Amnesty Committee and where it is clear that the particular transgression was perpetrated during the prescribed period and with a political objective committed in the course of the conflicts of the past. That objective has to be evaluated having regard to the careful criteria listed in section 20(3) of the Act, including the very important relationship which the act perpetrated bears in proportion to the object pursued.

During a three-month “window of opportunity”, covering the period 15 January to 15 April 2008, persons who were convicted of offences they believe were of the nature of the offences considered by the TRC during the period up to 16 June 1999 will have the opportunity to apply for a presidential pardon in the prescribed manner, if they have not already done so.

Applicants who were convicted for involvement in any offence of a sexual nature, or any act of a domestic violence nature, or any offence referred to in section 13 of the Drugs and Drug Trafficking Act of 1992, which relates to the manufacture and supply of scheduled substances, the use and possession of drugs and dealing in drugs will not qualify for consideration. [Applause.]

In order to ensure that we do not undermine the work of the TRC, applicants who had applied to the Amnesty Committee established under the TRC Act and whose applications for amnesty were refused, will not be considered for this presidential pardon process. [Applause.] The President will make his decision whether to refuse or grant pardon on each application placed before him on an individual basis.

Furthermore, the President will, with regard to each application placed before him, seriously consider the recommendations made to him by the reference group; form an independent opinion on the basis of the facts or information placed before him to arrive at a decision whether to grant or refuse pardon; and, in so doing, the President will be guided by the principles and values which underpin the Constitution, including the principles and objectives of nation-building and national reconciliation; and, uphold and be guided by the principles, criteria and spirit that inspired and underpinned the process of the Truth and Reconciliation Commission, especially as they relate to the amnesty process.

The Presidency and the Department of Justice and Constitutional Development will announce further details about this process. These will include a description of the support mechanisms we will need to support the reference group; specific terms of reference for this group; and the timeframes for the completion of its work, which obviously will, in part, be determined by the number of applications for pardon that are received during the window of opportunity we have mentioned.

I trust that all political parties represented in our Parliament will respond positively to our invitation and request to them to appoint a representative to serve in the reference group. Such representatives need not be Members of Parliament. Naturally, there is also no obligation on any political party to agree to be represented in the reference group.

Perhaps, only as a matter of detail, I should request that those parties ready and willing to serve in the reference group should communicate the names and details of their nominees to the Director-General in the Presidency, Rev Frank Chikane, by 10 December. This will enable us to constitute the reference group without unnecessary delay and also give us a possibility to consult it about all relevant matters prior to the opening of the window of opportunity on 15 January 2008.

As I have said earlier, all of us have a responsibility to help our country to advance further away from the conflicts of the past to working together for a shared future that is free of violence, bitterness, prejudice and the albatross of the past, a future of harmony, respect for the Constitution and the law, peace and prosperity for all our citizens.

When I had the privilege to address the Joint Sitting of our Houses of Parliament on 15 April 2003, to which I have referred, I said:

In the larger sense, we were all victims of the system of apartheid, both black and white. Some among us suffered because of oppression, exploitation, repression and exclusion. Others among us suffered because we were imprisoned behind prison walls of fear, paralysed by inhuman beliefs in our racial superiority, and called upon to despise and abuse other human beings. Those who do such things cannot but diminish their own humanity.

To be true to ourselves as human beings demands that we act together to overcome the legacy of this common and terrible past. It demands that we do indeed enter into a people’s contract for a better tomorrow.

Together we must confront the challenges of steering through a complex transition that demands that we manage the historical fault lines, without papering over the cracks, moved by new and common patriotism.

It says to all of us that we must honour those who shed their blood so that we can sit together in this Chamber by doing all the things that will make it possible for us to say that this South Africa that we have rebuilt together truly belongs to all who live in it.

Once more, let me express my sincere thanks to you, the elected representatives of our people, for convening this Joint Sitting of the Houses of Parliament to enable the President of the Republic to communicate to you, hon members, the decisions I have taken to deal with a matter that is of great concern to all of us as South Africans who, I trust, are indeed moved by a new and common patriotism.

Once again, as the late Nkosi Albert Luthuli, South Africa’s first Nobel Peace Prize Laureate, once said in different circumstances.

We continue to knock at the door of all our compatriots humbly requesting that we act in concert to pursue what must clearly be a shared and a noble goal.

Finally, Madam Speaker, let me wish all hon members and our guests a peaceful and Merry Christmas and a Happy New Year, as well as a deserved rest during the period between the adjournment of Parliament this week and the opening of its next session early in 2008. I thank you very much for your attention. [Applause.]

Dr J T DELPORT: Madam Speaker, Mr President, the DA will support and actively take part in the process which the President broadly outlined. We realise the need to move towards closure on the conflicts of the past.

When negotiations started in 1990, all parties realised the need for some form of indemnity for crimes committed in the course of the political conflict. The De Klerk government favoured the Norgaard Principles, which required not only amnesty for all those who had committed offences in the pursuit of political objectives, but also that the violence used was not disproportionate. The ANC, at the time, held that the political motive should be the only test and persuaded the then government to pass the Further Indemnity Act of 1992 in terms of which more than 2000 prisoners, mostly ANC followers, were released.

Although no comprehensive agreement on amnesty was reached before 1994, the agreement reached was such that the 1993 constitution did state clearly, without qualification, that amnesty shall be granted in respects of acts, omissions and offences associated with political objectives and committed in the course of the conflicts of the past. However, the 1996 TRC Act added a further requirement, namely full disclosure of all the relevant facts. This qualification led to extremely uneven and unjust results. In some instances applications were rejected on these grounds while in the majority of cases full disclosure was not even canvassed, let alone required.

We must bear in mind that many perpetrators of horrendous crimes were never prosecuted. The hon President referred to one instance. We can also refer to the more than 500 victims of the horrendous crime of necklacing who were killed, and many of those perpetrators were never prosecuted. [Interjections.]

The DA will lend its support to the President’s initiative. I suggest, however, that the broad objectives which we will support must include that the criteria for pardon be clearly set out and that meaningful multiparticipation be a key element of the process.

But furthermore, hon President, even-handedness must be restored. Therefore, first of all, a way must be found, and I do not suggest which way, but a way must be found to deal comprehensively, not only with convicted prisoners, but also with those still involved in amnesty applications.

Secondly, a way must be found to close the book on further prosecutions by setting a final cut-off date for such prosecutions. The DA wants to assist in taking South Africa out of its sad history of violence, conflict and shame, and into a peaceful and prosperous future. To achieve this, justice must be done and must be seen to be done. Suid-Afrika is ons almal se vaderland. Ek dank u. [South Africa is the fatherland of all of us. Thank you.]

Mr J H VAN DER MERWE: Madam Speaker, yes, Mr President, we have to move away from the atrocities of the past, but we must also remember that thousands of IFP members were murdered in the province, that many hundreds of people died because of brutal necklace murders and in the infamous Quatro camps. We must also remember that.

The IFP has mixed feelings about the hon President’s announcements. One the one hand, of course, we are delighted and we will … [Interjections.] … who cares? You should care, because there are hundreds of people in prison unnecessarily because of the delay of that Minister. We are delighted and we will obviously co-operate, but we deplore the fact that it took seven years to devise this framework to consider political pardons for politically motivated crimes.

Why then do prisoners have to languish in jail waiting for seven years or more before the Minister finally devises a framework? The excuse offered is that there is no framework, but that is not true and it is misleading. The Justice department explained on 19 May 2002 that 33 prisoners, of whom many were ANC supporters, received presidential pardons. They then also admitted that the procedure was in fact in place. So what did we already have five years ago? We had a framework in place in terms whereof ANC supporters received presidential pardons for politically motivated crimes, but for IFP supporters there’s no framework in place and there has never been any consideration of their applications for four long years. In addition, because of this huge delay, the Human Rights Commission, yes, Mr De Lange, the full Human Rights Commission, has already found that the human rights of the IFP prisoners were violated. What a scandal! [Interjections.] In further addition, a High Court case is pending against the President and the Minister of Justice which will be heard on 30 January.

The painful matter is that the buck unfortunately stops with the hon President, who has been seriously let down by his Justice ministry for doing nothing for seven years. Therefore, Mr President, with the greatest of respect, it is unfortunately you who has been humiliated for not doing your work. It is, with due respect, sir, you who have egg on your face today; you who are responsible for the violation of human rights of prisoners, you who are the one who is seen as discriminating against IFP prisoners, and there is only one way, Mr President, that you can cleanse yourself of this scandal and that is to make the real guilty parties pay for the inhuman delays. Heads must roll. The Minister of Justice and some of her senior officials who caused this scandal must go. [Applause.]

The MINISTER FOR JUSTICE AND CONSTITUTIONAL DEVELOPMENT: Hon President, Deputy President, Madam Speaker, Chairperson of the National Council of Provinces, hon Ministers, hon members, comrades and friends, I would like to begin by acknowledging the presence, in the public gallery, of a delegation of parliamentarians from the United Kingdom led by Mr Andrew Dismore, a Member of Parliament of the British House of Commons and chair of the Select Committee on Human Rights as well as members of this committee who are visiting South Africa to share our experience on constitutionalism. You are welcome. [Applause.]

Thank you, Mr President for giving us an opportunity to gather here today and consider an important national matter relating to the conflict of the past. Today’s deliberations afford an opportunity to work towards national consensus on this matter. On this occasion, we need to unanimously support the President’s proposal as it will allow us, as members from different parties represented in this House, an opportunity to dialogue and explore important issues of principle which will invariably arise, such as justice, equity and fairness. It provides us with an opportunity beyond just considering lists of names, but an opportunity to talk to one another. An endorsement of this process by all parties will send a positive message to society at large that we are continuing to talk about the values that anchor our society.

It is, indeed, very important that we take this opportunity to reflect on our past history and consider all these issues that still haunt us and have remained fresh in our memories. The pain and suffering that our people had to endure during the struggle against apartheid will take many years and even generations to heal. The advent of the democratic dispensation gave us all an opportunity to begin the process of healing, as said by the President. Let us all rise to the occasion.

The work of the Truth and Reconciliation Commission gave us hope that true healing can be achieved if we confront our past with a common vision to build our nation. We are gathered in this House today to support the President’s call for us to meet this challenge and continue to deal with our past. Our nation-building and reconciliation objectives require that the issue of the so-called prisoners perceived to be political prisoners and those convicted as such, require and are requesting presidential pardon.

When we consider this, we must always be guided by our aspiration to build a nonracial and democratic society. Many of our people want to go on with their lives and want their records expunged, especially those who were caught up in the conflict of the past. This does afford them the opportunity to come forward and to be heard.

Kwa bokhutlong jwa puo ya me ke rata gore ke re re na le kitso; re na le bokgoni jwa go nna ngata e le nngwe fa re rarabolola mathata a rona. Ke na le tshepo ya gore re le Maaforika Borwa mo Ntlong e, re le baeteledipele ba batho, re ka se swabise setšhaba. Re tla dira ka tsela e e siameng gore re kgotsofatse batho ba ba re romileng fa. Re tla kgona go rarabolola bothata jo bo fa pele ga rona jo. Ke a kopa tsweetswee gore re tiise go aga setšhaba sa rona. Mmuso wa rona o a kgona. A re o tshegetseng. Ke a leboga. [Legofi.] (Translation of Setswana paragraph follows.)

[I would like to conclude my speech by saying that we are knowledgeable, we are capable of tackling our problems in unison. I believe that, as South Africans in this House, leaders of the nation, we cannot disappoint our nation. We will do our best to satisfy those who gave us the mandate to be here. We will be able to solve this problem at hand. I urge you: Let us work hard to unite our nation. Our government is capable. Let’s support it. Thank you. [Applause.]]

Mr G T MADIKIZA: Madam Speaker, hon President, hon Ministers and hon members of this House, at the outset allow me to put on record that the UDM president, hon B H Holomisa, is currently attending the second World Renewable Energy Assembly, WREA, in Germany and was not able to deal directly, on such short notice, with this important matter before the House today.

Allow me also to thank the Presidency for taking us into their confidence prior to the commencement of this debate. Such an approach is much more likely to lead to consensus-building and a culture of openness, both of which are vital to democracy.

As far as the proposed process is concerned, as regards considering applications for presidential pardons, we welcome the fact that, finally, there are moves afoot to address this matter. It has been an issue that has refused to go away for many, many years and any effort, therefore, to finally put it to rest should be applauded.

As far as the particular principles that need to be applied are concerned, we will have to determine that as the process unfolds. It is worth noting though that a balance must be found between the national imperative for nation-building and reconciliation on the one hand and on the other the national imperative for the public to feel safe and not threatened by the actions of the state, such as pardoning and releasing violent prisoners. The UDM, therefore, supports the amnesty process proposed by the hon President of the Republic of South Africa. [Applause.]

Mrs P DE LILLE: Madam Speaker, hon President, hon Deputy President, the ID fully supports this initiative. We acknowledge that our nation has emerged from a very sad past, where violence on the side of the apartheid regime was resisted through peaceful and violent means. We opted for a negotiated settlement precisely because we realised that our nation was faced with violence that threatened to escalate into a bloody civil war. During the negotiations both sides made compromises to bring an end to our violent past. Having said that, most of the perpetrators on the side of the apartheid regime are walking freely on our streets, while some freedom fighters are still languishing in jail.

The TRC Act, which treated those who fought against apartheid the same as those who fought in defence of apartheid has always been a serious compromise for the sake of reconciliation and nation-building. We welcome the President’s decision to start a process for the consideration of presidential pardons for persons who have allegedly committed political offences. The ID also sincerely hopes that the President will deal with the outstanding prima facie gross human rights violations that were not reviewed by the TRC process or for which no prosecution followed. In the same manner, Mr President, because the NPA’s Priority Crimes Litigation Unit is not adequately resourced to deal with the thousands of people who have ignored the TRC process, I now ask, Mr President: How long will it take to close this chapter of our history, so that we can finally begin in earnest with nation-building and reconciliation? I thank you. [Applause.]

Rev K R J MESHOE: Madam Speaker, hon President, the establishment of a multiparty forum to look at new mechanisms aimed at resolving outstanding decisions over what is referred to as political crimes may be a good idea but it leaves us with many unanswered questions. We want to know whether the opinions of victims of such crimes will be solicited or not. If they are approached, but oppose the applications, would they be ignored or not?

The ACDP will hesitate to support these pardons for people who refused to appear before the TRC to apply for amnesty, thereby refusing to apologise for their crimes; or those who intentionally killed others after the May 1994 cut-off date, no matter what their motivation may have been. We will, however, participate in the process as long as full criteria are set out and there is an even-handed approach across party-political lines. As a way forward and in the interests of nation-building and national reconciliation, to deal with what the hon President referred to as “unfinished business”, we will support the initiative.

As far as crime is concerned in general, I want to raise a few issues. [Interjections.] This morning, around 7:00, my international guests were ambushed by armed robbers and robbed of their possessions as they arrived at their residence from O R Tambo International Airport. This is a great concern to us, Mr President, and government needs to be seen to be doing something actively and decisively to ensure that our guests are safe and we as South Africans are safe.

The MINISTER OF DEFENCE: Madam Speaker, I thought that the hon member was out of order.

The SPEAKER: He has finished his speech.

Dr P W A MULDER: Mevrou die Speaker, die De Nyschen- en Van Eck-families kuier in Desember 1985 bymekaar op n plaas naby Messina. Die Sondagoggend gaan ry die familie n entjie en op die plaaspad trap hulle bakkie n ANC- landmyn af. Die vroue en kinders word in die bome ingeskiet en is almal dood. Die tweejarige Ignatius van Eck kan moeilik begrawe word, omdat daar niks van hom oor is om te begrawe nie. Hierdie familie was gewone burgerlikes en nie n militêre teiken nie. Mnre Mncube en Nondula is later skuldig bevind dat dit hulle was wat die myne op hierdie plaas geplant het.

In 1992 staak mnr Mandela die onderhandelinge. Hy is nie bereid om voort te gaan voordat Mncube en Nondula, die Messina-bomplanters, vrygelaat word nie. Die NP-leiers stem hiertoe in. Hulle was twee van meer as 20 000 ANC- gevangenes wat van 1990-92 as `n ANC-voorvereiste vir onderhandeling vrygelaat is. Meeste van hierdie persone het nooit voor die WVK verskyn nie. Dit is eers na 1994 ingestel. (Translation of Afrikaans paragraphs follows.)

[Dr P W A MULDER: Madam Speaker, the De Nyschen and Van Eck families socialised together in December 1985 on a farm near Messina. The Sunday morning the families went for a drive and on the farm road their bakkie set off an ANC landmine. The women and children were shot into the trees and all died. The 2-year-old Ignatius van Eck could not be buried properly, because there was nothing left of him to bury. This family was ordinary civilians and not a military target. Messrs Mncube and Nondula were later found guilty of planting the mine on this farm.

In 1992 Mr Mandela halted negotiations. He was not prepared to continue unless Mnube and Nondula, the Messina bombers, were released. The NP leaders agreed to this. They were two of more than 20 000 ANC prisoners who were released from 1990-1992 as an ANC demand. Most of these people never appeared before the TRC. That was only instituted after 1994.]

Sir, this announcement does not help to solve the conflicts of the past. The preconditions set today exclude persons that went to the TRC and did not get amnesty. Therefore, this process will not assist to bring the conflicts of the past to a final end. What it does is to try and address on a selective basis conflicts of the present that happened after the adoption of the current Constitution.

Sir, I was present during the 1993 negotiations. The TRC report reads as follows:

In order to advance such reconciliation and reconstruction, amnesty shall be granted in respect of acts, omissions and offences associated with political objectives.

Die werklikheid is dat mnr McBride, mnr Mncube en mnr Nondula op die oomblik as vry mense kan rondloop. Verskeie Afrikaners, wie se name ek aan die President gestuur het en wat betrokke was by politieke misdade, sit ná 14 jaar steeds in die tronk. Hulle het misdade gepleeg en die motiewe was politiek van aard, soos in die geval van McBride en Nondula. Die eensydige WVK-proses het nie aan hulle amnestie gegee nie en omdat hulle na die WVK gegaan het, word hulle nou benadeel en moet hulle in die tronk bly.

Ek is bevrees dat as die proses eensydig blyk te wees, gaan dit nie ons probleme oplos nie. Ek wil dit baie graag steun. My party sal daarna kyk, maar eensydigheid gaan nie die verlede afhandel nie. Dit sal jammer wees as ons nie die verlede finaal kan afhandel nie. Baie dankie. (Translation of Afrikaans paragraphs follows.)

[The truth is that Mr McBride, Mr Mncube and Mr Nondula can go about as free people at the moment. Many Afrikaners, whose names I sent to the President and who were involved in political crimes, are still in prison after 14 years. They committed crimes and the motives were political by nature, as is the case with McBride and Nondula. The one-sided TRC process did not give them amnesty and because they had gone to the TRC, they are disadvantaged and must remain in prison. I am afraid that if this process proves to be one-sided, it is not going to solve our problems. I would really like to support it. My party will look at it, but one-sidedness is not going to deal with the past. It would be a pity if we could not finally deal with the past. Thank you.]

Mr M V NGEMA: Madam Speaker, the issue of the presidential pardons for politically motivated crimes has been long-standing and then there has been the issue of discontent for a while in our young democracy.

The TRC was tasked with investigating and recording incidents of gross human rights violations that occurred during the apartheid past, as well as granting amnesty to perpetrators. It sought to bring to light the atrocities committed by agents of the state against the people of this country. The TRC did not address the conflicts and political differences of the black communities towards each other.

Madam Speaker, closure is needed by the prisoners and by the people of this country. However, although closure is needed, it is important to note that our approach and expectation should be clear. Pardons should help resolve that which the amnesty process could not.

Madam Speaker, while Nadeco supports the President’s initiative and it is willing to serve in the proposed committee, we would have wished for a process of public participation in the arrival of the Presidential decision. I thank you.

Mr I S MFUNDISI: Madam Speaker, President and hon members, there has always been talk to the effect that justice delayed is justice denied and in the same breath we would also say whilst we would subscribe to that, we accept that it is similarly better late than never.

Therefore, we accept the proposal as brought by the President and we concur with that. We also support the feeling that those people who were not given amnesty by the TRC should remain there, because that would, in itself, be undermining the work of the TRC.

In terms of what is going on right now, we have to accept that a fresh start has to be made. Let us forget about the past and go where the President has asked us to go so that we can go on and participate in this reference group that he has referred to, and also take delight in the sense that the period of grace has been extended to 16 June 1999.

We, therefore, say we, as the UCDP, are ready. We will nominate somebody to serve on the committee and all the nitty-gritty as to how it will work I am sure that will be worked out when the committee sits. We thank you very much.

Mr R B BHOOLA: Madam Speaker, as a democracy it is important that no matter by what status we reside in government, the primary institute is to adhere to the national Constitution as supreme law of South Africa.

This Constitution that is endorsed by the people for the people of South Africa is in the heart of our nation and the order in terms of which our democracy is moulded. Similarly, the structures and spheres of government, including all portfolios of these spheres, is administered by the Constitution.

In view of this and the affairs of our state, the MF applauds the executive, legislature and judiciary of all spheres for upholding and securing firm adherence to constitutional governance. In view of the presidential pardon, the MF holds a similar view that as long as this process adheres to the democratic values and principles of the national Constitution, it shall be instituted effectively and efficiently. The MF has great confidence in our hon President and his determination to serve the best interests of South Africa. In the light of this, we are certain that the hon President shall engage in decision-making that purports the values, principles and standards of our state. Our challenges we may overcome today or maybe tomorrow, but our confidence in our hon President shall ensure that our challenges shall be overcome.

The MF has no doubt, hon President, it is you who can live with losing a good fight, but could never live without fighting it. It is you who can deliver our people from the injustices and inequalities of the past. The MF would undoubtedly participate in this process. I thank you. [Applause.]

Mr N T GODI: Madam Speaker, I rise on behalf of the African People’s Convention to endorse and applaud this initiative by the President of the Republic. [Interjections.]

Our transition from settler colonial rule to democracy has had a number of challenges that required efforts and initiatives beyond the ordinary. A good number of them have been surmounted successfully whilst others have not. Some other issues that have remained as legacies of the past have been the post-TRC issues, as well as the issue of prisoners arising out of the conflict of the past.

It is important that these issues are resolved so that, as a nation, we can heal and move forward. It has always pained those of us who took part in the liberation struggle to see some of our comrades in incarceration a decade into the democracy they sacrificed themselves for.

It is on this basis that we welcome this Presidential initiative, appreciating that it seeks to bring to closure a page in our history that is painful. We sincerely appreciate the fact that although the President has the legal powers to grant or refuse amnesty, he has seen it fit to involve the political parties represented in Parliament. As patriots and progressives, I believe the APC will definitely participate in the process. I thank you.

Dr S E M PHEKO: Madam Speaker, Mr President, Madam Deputy President, I’m already participating. [Laughter.]

The announcement the President has made in this Parliament today is the best I have heard since I became a member here in June 1999. It is the voice of reason. It is a demand for justice. It is the recognition of the truth that should not have taken over 10 years to prevail.

For many years, at the United Nations and other international fora, I, on behalf of the PAC, consistently and endlessly called for the release of political prisoners such as Sobukwe, Mandela, Mothopeng, Sisulu, Govan Mbeki, Nyati Pokela, Masemola and all other prisoners in apartheid South Africa. I never knew that I would come back from exile and, again, call for the release of imprisoned freedom fighters under Mr Mandela’s government and yours, Mr President.

The UN declared apartheid a crime against humanity. This crime is on par with genocide, war crimes and ethnic cleansing. How did those who fought the apartheid crime come to be paraded before the Truth and Reconciliation Commission to account for their armed anti-apartheid activities? Some people sitting at the TRC once called apartheid a theological heresy.

Mr President, what you have done today is an act of courage against the odds. Let it be noted, however, that many former members of Apla and other freedom fighters were entitled to demobilisation or integration, and were due to get special pensions. They lost all these rights when their anti- apartheid activities were criminalised.

Mr President, it is critical that the presidential pardon covers removal of their criminal records, criminal records that would hinder them from getting employment, business, credit facilities, the opportunity to practice their professions, and travelling to other countries. It is our great wish that this process of releasing, from our perspective, all political prisoners will not take long. I’ve already said that we will participate in this process, and we shall certainly nominate our representatives for this body. [Interjections.]

The SPEAKER: Hon Pheko, your time has expired.

Dr S E M PHEKO: Let me wish the President a Happy Christmas because of this! [Applause.]

Mr P J NEFOLOVHODWE: Madam Speaker and Mr President, on 17 May 2002, Azapo made a statement in this House after they had learnt that the President had made public a decision to pardon individuals whose activities were linked to liberating efforts and activities.

In that statement we specifically mentioned one of our leaders, the former Secretary-General of Azapo, Comrade George Wauchope, who is still living in exile. He was informed by the Attorney-General’s Office that if he sets foot in this country he would be arrested. These threats of arrests relate to activities that Comrade Wauchope engaged in to overthrow the racist apartheid regime, which came to an end in 1994.

To Azapo, Wauchope’s situation is an indictment of the so-called new South Africa. It is a well-known fact that Azapo did not participate in the Truth and Reconciliation Commission and, in fact, together with the Biko family, the Mxenge family and Ribiero family, Azapo took the TRC to the Constitutional Court. We did so, Comrade President, because we were convinced that apartheid was a crime against humanity.

We argued strongly there that apartheid was declared by the UN and the World Council of Churches as a crime against humanity, and that people who committed crimes in pursuance of this evil system were to be prosecuted. We argued further that freedom fighters, in particular those persons who fought against this evil system, were not to be put on a par with those who were defending this evil system.

Those who committed crimes against humanity should be prosecuted. Azapo welcomes this process announced today, and hopes that every political party which has members who should be considered for pardoning will use this process to heal the wounds of the past and, therefore, heal the nation. Whilst Azapo accepts this process, we wish to state that care must be taken not to fall into the temptation that will allow outright criminals to be considered for pardoning. Thank you. [Applause.]

Mr L M GREEN: Madam Speaker, Mr President, Ministers, and members, forgiveness, amnesty or pardoning is a biblical concept. God Himself is the father of forgiveness; forgiveness is not man’s idea, but God’s.

There is a beautiful example in the New Testament, when Jesus was facing a stone-throwing mob who intended to stone a woman to death. The woman was caught in the act of adultery and, according to the law of the day, she was to be stoned. Jesus came to her defence, embarrassed her accusers, pardoned her, and set the woman free with the words: ``Neither do I condemn you. Go and sin no more.’’

The Truth and Reconciliation Commission was a process which, although flawed, provided the legal and moral framework in which political offenders had the opportunity to receive amnesty and pardon. The TRC, at the time, followed a set of rules and procedures which formulated the details and timeframe to guide the process. The specified process helped in bringing closure to an unjust past, and the nation generally acceded that the completion of the TRC process brought to an end a past era, and provided the platform for the beginning of a new one.

Mr President, the FD respects the President’s powers and judgment in the revived attempt to pardon political offenders, and we support the initiative in the interests of national unity, reconciliation and the reconstruction of our society. We will participate in the process.

However, given that the TRC process was an opportune and significant event in the history of our nation, we hope that the pardons in 2008 will lead to the finality in the process. In supporting the President’s initiative, the FD also has to remind the House that we must not forget that our people still suffer as a result of insufficient economic reparations. Thank you.

Mr S SIMMONS: Madam Speaker, hon President, Deputy President and colleagues, the NA wishes to thank the hon President for this long-overdue course of action. The NA sees the initiative within the greater context of national reconciliation … [Interjections.]

The SPEAKER: Order, hon members!

Mr S SIMMONS: … and pleads for a process that would not just serve as a public relations exercise, but for one that would bring dignified closure to this matter.

In order to achieve the set goals, we trust that consideration will or has been given to an even-handed adjudication mechanism within this process, failing which will lead to unaffordable consequences. The NA has to point out that, given the unacceptable amount of time preceding this initiative, special care has to be taken to ensure that undesirable delays and prolonging of the process is prevented.

The NA wishes to commend the hon President for the foresight in including a reference group which should address the issues of ensuring an even-handed process. The NA sincerely hopes that this will fast-track the healing of those deep wounds of the past. Thank you. [Applause.]

Debate concluded.

The SPEAKER: Hon members, before I wrap up this session, I wish to recognise a delegation from the Zambian Parliament who has joined us to observe how we work in this Parliament. [Applause.]

The Speaker of the National Assembly adjourned the Joint Sitting at 15:15.