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In the Constitutional Court of South Africa
Case no CCT 91/08
SCA Case No: 467/07
In the matter between:
W A L Du Toit Applicant
and
The Minister for Safety & Security 1st Respondent National Commissioner of the SAPS 2nd Respondent
Application for Leave to Appeal: Respondents’ Affidavit I, the undersigned
Timothy Charles Williams
do hereby make oath and say that:
1. I am the acting National Commissioner of the South African Police Service
2. I am duly authorized to oppose the application for leave to appeal and to depose to this affidavit on behalf of both respondents.
3. The facts deposed to in this affidavit are within my personal knowledge and belief (except where the contrary appears from the affidavit) and they are true and correct.
The deponent and applicant Ad paragraphs 1 & 2
2 4. These allegations are admitted.
The dispute, factual background, judgment and application Ad paragraphs 3 ‐ 7
5. The question decided by the SCA was this. Does s20(10) of the PNUR Act1 have retrospective effect? Section 20(10) provides as follows:
“Where any person has been convicted of any offence constituted by an act or omission associated with a political objective in respect of which amnesty has been granted in terms of this Act, any entry or record of the conviction shall be deemed to be expunged from all official documents or records and the conviction shall for all purposes, including the application of any Act of Parliament or any other law, be deemed not to have taken place: Provided that the Committee may recommend to the authority concerned the taking of such measures as it may deem necessary for the protection of the safety of the public.”
6. This question came before the SCA in the following circumstances. On 14 June 1996, applicant was convicted (along with three others) of the murder of three police officers and another person from Motherwell in the Eastern Cape – referred to as the ‘Motherwell Four’. On 27 June 1996 he was sentenced to fifteen years’ imprisonment (without the option of a fine) for the murder of the Motherwell Four.
7. On 8 July 1996 he was given written notice of the deemed termination of his employment contract with the South African Police Service (SAPS) with effect from 28 June 1996.2 Notice was given in terms of s36 of the SAPS Act.3 In terms of s36(1) an employee of the SAPS who is convicted of an offence and sentenced to imprisonment without the option of a fine, ‘shall be deemed to have been discharged’ from the SAPS ‘with effect from the date following the date’ of sentence.
1 Promotion of National Unity and Reconciliation Act 34 of 1995
2 Appeal Record, Vol 1 pp 26‐27, Annexure W1
3 South African Police Service Act 58 of 1995
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8. Du Toit appealed against his conviction and sentence to the SCA. His appeal was postponed pending his application for amnesty in terms of the Amnesty Act4 for the murder of the Motherwell Four. Initially amnesty was not granted. Applicant successfully reviewed the refusal to grant him amnesty. On 29 August 2005 amnesty was granted by the Amnesty Committee. The Amnesty Report was published on 21 December 2005. He was informed that he had been given amnesty on 23 December 2005. On that date he applied to the National Commissioner to negotiate his reinstatement in terms of s36 of the SAPS Act and s20 of the Amnesty Act.
9. Du Toit was not reinstated. He applied to the High Court5 for declaratory relief including reinstatement in the employ of the SAPS. He sought a declarator reinstating his employment contract with the SAPS in terms of the s20 of the Amnesty Act. Alternatively he sought a declarator reinstating his employment with the SAPS in terms of s36 of the SAPS. Further alternatively, he sought a declarator reinstating his employment contract with the SAPS in terms of an alleged undertaking dated 29 December 1999 by Commissioner Fivaz, the then National Commissioner. Reinstatement was sought with effect from 28 June 1996; i.e. the date of termination of his employment contract.
10. On 21 June 2007 Mynhardt J dismissed his application on the following grounds:
10.1. Section 20(10) of the Amnesty Act does not give rise to a claim for reinstatement where a police officer’s employment was lawfully terminated under s36 of the SAPS Act. It extends only to expunging Du Toit’s conviction from any official records and to deeming the conviction not to have taken place. It does not extend to a right to reinstatement under s36.6 The consequence of any legal disqualification (such as dismissal as provided for in s36) that took effect in law before amnesty was granted, stands and is not extinguished. Amnesty has the effect of extinguishing future disqualification, not past legal consequences;7
10.2. Section 36 gives rise to a right to reinstatement upon the successful appeal against or review of the conviction and sentence. Amnesty is not an appeal or
4 The Promotion of National Unity and Reconciliation Act 34 of 1995
5 Transvaal Provincial Division
6 Appeal Record, TPD Judgment, Vol 2 p114‐5
7 Appeal Record, TPD Judgment, Vol 2 p120 & 123
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review but an administrative process. Du Toit is not entitled to reinstatement under s36;8
10.3. The undertaking by Commissioner Fivaz is no more than a view based on legal advice that turned out to be wrong. If he purported to give an undertaking it is untenable in law. In any event, Du Toit did not contend that the respondents are bound by the undertaking.9
11. On appeal to the SCA, applicant contended that the words in s20(10) reading ‐ ‘... the conviction shall for all purposes, including the application of any Act of Parliament or any other law, be deemed not to have taken place’ ‐ mean the following. His employment contract was validly deemed to be terminated with effect from 28 June 1995 in terms of s36(1) of Act 58 of 1995.10 That is because he was convicted and sentenced to imprisonment without the option of a fine. However, upon the publication of his amnesty notice in the Gazette on 21 December 2005 his conviction is deemed not to have taken place. That is because s20(10) operates retrospectively. It undoes the deemed termination of his employment contract, so that the deemed termination is also deemed not to have taken place.
12. For this contention, appellant relies principally upon the following:
12.1. Act 34 of 1995 is a remedial statute and should be construed generously;11
12.2. The words ‘for all purposes’ in s20(10) is an indication that the legislature intended s20(10) to operate retrospectively, because ‘all purposes’ means past and future purposes;12
8 Appeal Record, TPD Judgment, Vol 2 p127‐130
9 Appeal Record, Judgment, Vol 2 p131‐ 134
10 South African Police Service Act 58 of 1995
11 Applicant’s Supplementary SCA Heads paras 8 ‐ 10
12 Applicant’s Supplementary SCA Heads para 14.1
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12.3. Section 20(9) providing that civil judgments delivered before amnesty are not affected by the granting of amnesty, implies that the legislature intended s20(10) to operate retrospectively;13
12.4. Section 20(10) is superfluous if it is not retrospective, because sections 20(7) and 20(8) provide for the future;14
12.5. If s20(10) did not operate retrospectively that would be absurd because appellant would be saddled with the negative results of a conviction that is deemed not to exist.15
13. The SCA dismissed applicant’s appeal on the following grounds:
13.1. In a unanimous judgment, the SCA found that there is a statutory presumption against retrospectivity. That presumption was not rebutted expressly or by necessary implication by the provisions of the PNUR.16 The words ‘for all purposes’ in s20(10) do not mean past and future purposes, but only future purposes. That is the result of the application of the presumption against retrospectivity and the absence of any provision in the PNUR that expressly or by necessary implication rebuts the presumption against retrospectivity;17
13.2. Section 20(9) provides for the continued operation of civil judgments. It is not an indication that the legislature intended the deemed extinction of criminal convictions to operate retrospectively;18
13 Applicant’s Supplementary SCA Heads para 14.2
14 Applicant’s Supplementary SCA Heads para 14.3
15 Applicant’s Supplementary SCA Heads para 15
16 SCA Judgment at [10]
17 SCA Judgment at [11] & [12]
18 SCA Judgment at [13]
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13.3. Section 20(10) is not remedial in nature. It was not enacted to correct inequitable or harsh results but to promote national unity and reconciliation. Consequently, the generous interpretation contended for does not apply;19
13.4. It was not absurd to saddle applicant with consequences of his conviction and sentence under the SAPS Act. The intention of the PNUR Act is to provide a mechanism to forgive past transgressions, not to undo the consequences of the past.20
13.5. Amnesty is not analogous to appeal or review. One of the consequences of amnesty is that a conviction is deemed not to have taken place. But that is not because an accused should not have been convicted – which is the case with appeal or review. It is to achieve a future objective, namely forgiving transgressions and transgressors – which is not the case with appeal or review.
There is no basis for finding that appeal or review in s36 of the SAPS Act, includes amnesty;21
13.6. The letter by the then National Commissioner written on 29 December 1999 was written in response to the letter by applicant dated 23 December 1999. In his letter the National Commissioner replied that like applicant, he had received advice that if the review of the initial refusal to grant amnesty succeeded, he would be reinstated. The National Commissioner did not more than say what he understood the legal position to be. He was not asked to bind himself contractually. He did not bind himself to any offer or undertaking. That is apparent from the purported letter of acceptance written by applicant some six years later in which he did not claim to reinstatement in terms of an agreement
19 SCA Judgment at [14]
20 SCA Judgment at [15] – [16]
21 SCA Judgment at [19]
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with the National Commissioner but in terms of s36 of the SAPS Act and s20 of the PNUR.22
14. Except for the above, these allegations are denied.
Did applicant’s appeal involve a constitutional matter?
Ad paragraphs 9 & 10
15. There were three questions on appeal. They were the following. Does s20(10) operate retrospectively? Does appeal or review in s36 incorporate amnesty? Was there an agreement to reinstate applicant?
16. It is apparent from the judgment and from the record of appeal that none of these questions involved a constitutional matter.
17. Whether s20(10) operates retrospectively required the application of the statutory presumption against retrospectivity to s20(10). That in turn required the application of the common law principles of statutory interpretation. Applicant did not, for example, argue that the presumption itself is unconstitutional. He contended for retrospectivity based on a linguistic and contextual analysis of s20(10). Neither involves a constitutional principle.
18. He also argued that s20(10) or the PNUR is remedial. The PNUR was found not to be a remedial statute. Even if it were, that would not turn the appeal into a constitutional one.
The requirement that remedial statutes require a generous interpretation is not a constitutional requirement. It is a pre‐constitution requirement of our common law that continues to exist in the constitutional dispensation.
22 SCA Judgment at [22]
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19. Whether appeal or review in s36o the SAPS Act incorporates amnesty, similarly depended on a linguistic and contextual analysis of s36 by applying the common law principles of statutory interpretation; i.e. it did not involve constitutional principle.
20. Whether there was an agreement to reinstate applicant if he were granted amnesty depended on the application of the principles of offer and acceptance to the correspondence between the then National Commissioner and applicant; i.e. it involved the common law principles applicable to the interpretation of contracts, not constitutional principle.
21. Except for the above, these allegations are denied.
Reasonable prospects of success Ad paragraphs 11 ‐ 15
22. Whether there are reasonable prospects of success depends on whether another Court might find that the SCA judgment is wrong in fact or law. The judgment is a careful consideration of the record and all the arguments put up by applicant. He was allowed to file additional heads of argument on the retrospectivity question.
23. The judgment is not wrong in fact. That much is clear from the application for leave. The facts were largely undisputed. The SCA judgment did not turn on any disputed facts. The thrust of the judgment is that the PNUR does not operate retrospectively. It is submitted that the judgment is not wrong in law. Applicant does not contend that under our new constitutional dispensation the presumption against retrospectivity does not apply. On the contrary, his application for leave turns on the application of the principle against retrospectivity to s20 of the PNUR. The restatement by the SCA of the legal principles applicable to the presumption against retrospectivity is correct. Again, applicant does not appear to say that the restatement of the principles applicable is wrong.
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24. It is submitted that the application of the restated principle is not wrong. The presumption operates unless the PNUR expressly or by necessary implication provides for the retrospective operation of the PNUR.
25. It could never have been the intention of the drafters of our Constitution that persons guilty of crimes and human rights abuses, should escape the consequences of their conduct before compliance with the requirements for amnesty and before amnesty is granted. That would undo the legal relief and redress that the public and victims of human rights abuses enjoyed before the PNUR took effect. That is not the purpose of the PNUR. In addition, there is nothing in the PNUR to suggest that its drafters intended to take away legal relief and redress already enjoyed by victims of human rights abuses. Its purpose is to provide for redress which would otherwise not be enjoyed by victims of human rights abuses. That is tied to amnesty for those who make full disclosure of human rights abuses that would otherwise not have been disclosed.
26. The remaining aspects of the judgment are equally beyond criticism. The SCA found that as a matter of law, the purpose of the PNUR is not remedial. That must be correct. The purpose of PNUR is not to ameliorate hardship, particularly not for the perpetrators of human rights abuses. Its purpose is to forgive perpetrators, not to provide them with remedies. But even if it were remedial, that does not assist applicant. The presumption of retrospectivity would still operate. The PNUR does not contain provisions that expressly or by necessary implication negative the presumption.
27. Applicant does not argue that the application of the legal principles applicable to offer and acceptance are unconstitutional or that they do not apply to the correspondence between him and Commissioner Fivaz. His argument is that the application of the principles should result in a finding that there was an agreement between him and Commissioner Fivaz that he would be reinstated upon the grant of amnesty. The correspondence does not establish that. Applicant’s purported acceptance of the offer some six years later, in its own terms, is not acceptance of an offer of reinstatement by Commissioner Fivaz. It is notice of his invoking s36 of the SAPS Act as a result of the grant of amnesty.
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Conclusion
28. In the circumstances, it is submitted that applicant is not entitled to leave to appeal. He has not satisfied the requirements of an application for leave to appeal to the Constitutional Court. His application ought to be dismissed with costs.
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TC WILLIAMS
Signed and sworn to before me at Pretoria on 3 November 2008, by the deponent who acknowledges that he knows and understands the contents of this affidavit, that he has no objection to taking the prescribed oath and considers the prescribed oath to be binding on his conscience.
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