Critique on: AZAPO v President of South Africa
Context
This case, adjudicated in the Constitutional Court, pertains to the establishment of the TRC,
more particularly, the granting of amnesty for perpetrators of gross human rights violations,
and the granting of reparation for victims of gross human rights violations under the
apartheid regime. The epilogue of the interim constitution made provision for amnesty to
be granted to perpetrators and for reparation to be granted to victims. Subsequently, the
Promotion of National Unity and Reconciliation Act 34 of 1994 (“the Act” henceforth) was
enacted by Parliament to give effect to the aforementioned provision for amnesty and
reparation.
AZAPO challenged the constitutionality of s 20(7) of the Act on four grounds. First, it
contended that s 20(7) of the Act was inconsistent with chapter 22 of the interim
constitution. Second, it contended that international law placed an obligation on the state
to prosecute perpetrators of gross human rights violations, and therefore s 20(7) of the Act
breached international law. Third, it conceded that the postamble’s provision of amnesty
may have granted perpetrators immunity from criminal prosecution but contended that it
did not grant them immunity from civil liability. And finally, it contended that the enactment
of the Act, particularly s 20(7) of the Act by Parliament constituted the state indemnifying
itself from civil liability, therefore making s 20(7) of the Act unconstitutional.
Significance
Surely there is nothing closer to the hearts of the majority of (non-white) South Africans
than obtaining social justice. The case does point to the fact that disadvantaged groups
within South Africa want retributive justice regarding the crimes of perpetrators under
apartheid, but more than that, it points to the fact that social justice is more important
(restitution or reparation). Surely, we’ve managed to dismantle ‘political apartheid’, but we
are still in an ongoing struggle against ‘economic apartheid’. Therefore, this case is
significant in that it addresses the issue of social justice within South Africa more than
anything else.
Context
This case, adjudicated in the Constitutional Court, pertains to the establishment of the TRC,
more particularly, the granting of amnesty for perpetrators of gross human rights violations,
and the granting of reparation for victims of gross human rights violations under the
apartheid regime. The epilogue of the interim constitution made provision for amnesty to
be granted to perpetrators and for reparation to be granted to victims. Subsequently, the
Promotion of National Unity and Reconciliation Act 34 of 1994 (“the Act” henceforth) was
enacted by Parliament to give effect to the aforementioned provision for amnesty and
reparation.
AZAPO challenged the constitutionality of s 20(7) of the Act on four grounds. First, it
contended that s 20(7) of the Act was inconsistent with chapter 22 of the interim
constitution. Second, it contended that international law placed an obligation on the state
to prosecute perpetrators of gross human rights violations, and therefore s 20(7) of the Act
breached international law. Third, it conceded that the postamble’s provision of amnesty
may have granted perpetrators immunity from criminal prosecution but contended that it
did not grant them immunity from civil liability. And finally, it contended that the enactment
of the Act, particularly s 20(7) of the Act by Parliament constituted the state indemnifying
itself from civil liability, therefore making s 20(7) of the Act unconstitutional.
Significance
Surely there is nothing closer to the hearts of the majority of (non-white) South Africans
than obtaining social justice. The case does point to the fact that disadvantaged groups
within South Africa want retributive justice regarding the crimes of perpetrators under
apartheid, but more than that, it points to the fact that social justice is more important
(restitution or reparation). Surely, we’ve managed to dismantle ‘political apartheid’, but we
are still in an ongoing struggle against ‘economic apartheid’. Therefore, this case is
significant in that it addresses the issue of social justice within South Africa more than
anything else.
