Simelane v Minister of Justice (2938/01) [2006] ZAWCHC 15; 2010 (1) SACR 32 (C) ; 2009 (5) SA 485 (C) (13 April 2006)

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[2006] ZAWCHC 15
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Simelane v Minister of Justice (2938/01) [2006] ZAWCHC 15; 2010 (1) SACR 32 (C) ; 2009 (5) SA 485 (C) (13 April 2006)

IN THE HIGH COURT OF SOUTH AFRICA
(CAPE OF GOODHOPE PROVINCIAL
DIVISION)
CASE NO: 2938/01
In the matter between:
SIMELANE, BEKUMDENI QEDUSIZI
Applicant
and
THE MINISTER OF JUSTICE
Respondent
AND CONSTITUTIONAL DEVELOPMENT
_______________________________________________________________
THIS JUDGEMENT DELIVERED ON THE
13
TH
DAY OF APRIL 2006
_______________________________________________________________
NDITA J:
Introduction
[1] This is an application for the
review, setting aside and substitution of an in-chambers
administrative decision of the Amnesty
Committee of the Truth and
Reconciliation Commission refusing to grant amnesty to the applicant.
The application is unopposed. The
applicant, a former attorney and
currently a colonel in the South African National Defence Force
(“SANDF”), submitted an application
for amnesty to the Amnesty
Committee in terms of section 18(1) of the Promotion of National
Unity and Reconciliation Act 34 of 1995
(“the Act”). Section
18(1) of the Act provides as follows:
“
Any person who wishes to apply
for amnesty in respect of any act, omission or offence on the grounds
that it is an act associated
with a political objective, shall ...
submit the application to the Commission on a prescribed form”.
[2] The particular acts, omissions or
offences in respect of which the applicant sought amnesty, were the
following:
a) Receipt of the amount of R50 000-00
from the Motor Vehicle Accident Fund (“MVA Fund”) purportedly in
settlement of a claim
by a client, and the utilization of that money
to further military and intelligence activities of the Azanian
People’s Liberation
Army (“APLA”).
b) Any civil liability that might
ensue as result of the aforementioned.
Factual Background
[3] The essential facts which underpin
the applicant’s submissions to the Amnesty Committee can be briefly
summarized as follows:
In support of his application, the applicant
stated that he joined the Pan Africanist Congress (“PAC”), which
was one of the
major liberation movements against apartheid in the
1960’s. He thereafter joined the military wing of the PAC, commonly
known as
Azanian People’s Liberation Army (“APLA”). After
receiving military training in 1962, he progressed to the rank of
Natal Regional
Commander of APLA and held that post until he was
exiled in 1984.
[4] In his capacity as regional
commander of APLA, under orders from the APLA High Command in Exile,
he was responsible for coordinating
underground military intelligence
operations against the apartheid government. The applicant provided
logistical support to APLA
operatives, which included money,
transport and military intelligence operations. APLA was regarded as
a “terrorist” organization
and he was obliged to perform his
military duties clandestinely. Membership of APLA was illegal under
the apartheid laws and constituted
an act of treason.
[5] To fulfill his role as Regional
Commander of APLA, the applicant established financing operations
that could not be easily infiltrated
or discovered by the security
police of the state. In this regard, he began an organization called
the African World Foundation (”AWF”).
The AWF had the trappings
of a legitimate organization, but, in fact, was a financing vehicle
for APLA and its activities against
the government. This finance
scheme, if discovered by the security branch of the South African
Police, was in itself an act of treason.
Essentially, the applicant
and his underground colleagues used the savings account to finance
the military, political and intelligence
operations of the PAC. The
details of this “APLA account” were held with the Barclays
National Bank at the corner of Smith and
Field Streets in Durban.
[6] While providing this logistical
support to APLA, he was admitted and legally enrolled as an attorney
of the High Court of South
Africa. In the 1980’s he conducted his
business under a firm of attorneys called Simelane & Simelane Inc
in Durban. It was
in this capacity that he committed fraud involving
R50 000-00 on behalf of the APLA wing of the PAC, consequently
violating the rules
of the Natal Law Society and the Attorneys Act.
[7] The applicant was publicly known
as an attorney of the High Court but, secretly, as the Regional
Commander of APLA. Stated differently,
he was an attorney by day and
an APLA operative who directed military, political and intelligence
operations against the apartheid
government by night. In those two
capacities he started drawing a significant amount of attention from
the security police.
[8] During May/June 1984 he received
an amount of R50 000-00 in respect of his motor vehicle accident
client, Martha Mandlovu Mkhize,
from the former attorneys C M Luthuli
& Co. This money was accepted by his client’s erstwhile
attorneys as settlement for damages.
Instead of handing over the
money to the client, the applicant deposited it into the account of
the AWF, also known as the APLA account.
He was aware that this was
fraudulent and in order to mislead the MVA Fund, he covered it up
with an incorrect reference number.
The fraud was committed to boost
his underground activities and to provide APLA resources to avoid
detection by the government of
the day, and to pursue its activities.
The applicant averred that, during the time of the fraudulent act, he
had been informed by
one of the state’s informers that he was under
close and increased surveillance from the security police.
[9] An investigation against his
practice was instituted by the Natal Law Society, which included,
amongst other things, the R50 000-00
that he had deposited into the
APLA account. When questioned by Messrs Farleigh and Chetwyn-Palmer
of the Natal Law Society, who
had been tasked with investigating his
practice, the applicant did not disclose where the money was
deposited. He claims that, had
he disclosed what he had done with the
money, he would have compromised the entire financing operations of
the PAC and APLA’s underground
military and political work.
Subsequent to the investigation, he was struck off the attorneys’
roll.
Standard of review
[10] The South African courts have
long accepted that a review envisaged in these proceedings under this
Act is the “third type
review”, identified more than a hundred
years ago in
Johannesburg Consolidated Investment Co v
Johannesburg City Council
1903 (TS) 111, i.e. where Parliament
confers statutory powers of review. Innes CJ, with reference to this
kind of review, stated that
a court could:
“…
enter upon and decide the
matter de novo. It possesses not only the powers of a court of review
in the legal sense, but it has the
functions of a Court of appeal
with additional privileges of being able, after setting aside the
decision arrived at…, to deal
with the matter upon fresh evidence.”
The test to be employed in reviewing
the substance of a decision of the committee is an enquiry into the
presence of rational connection
between the decision taken and the
facts on which the decision is based, as well as the reasoning for
the decision. (See
Niewoudt v Chairman, Amnesty Committee, Truth
and Reconciliation Commission
2002(3) SA 143 (C).)
[11] Section 6(2)(f) of the Promotion
of Administrative Justice Act recognizes an absence of rationality as
one of a number of bases
upon which administrative action may be
assailed by means of judicial review. The applicant’s main grounds
for attacking the decision
of the Amnesty Committee appear to be the
following:
That the Committee erred in refusing
the applicant amnesty if due regard is given to the relevant facts
of the applicant’s submissions
in support of his application for
amnesty.
That the Committee did not apply its
mind to the application, and had it applied its mind to the
application, it would have granted
him amnesty.
That the Committee failed to exercise
a proper discretion and as such violated the applicant’s
constitutional right to a fair
decision.
The Application for Amnesty
[12] The salient and relevant facts in
the amnesty application are central to this review application and to
the grounds on which
it is submitted that the Committee did not apply
its mind to the issues before it, and therefore acted unlawfully,
unreasonably and
unfairly. One of the pillars of the applicant’s
submissions is that the decision of the Committee fails the test of
rationality
if due regard is given to the relevant facts of the
applicant’s submissions. Before examining the decision of the
Committee, one
needs to determine what it is that the applicant made
the amnesty application for.
[13] In an affidavit dated 27
th
April 1997, the applicant set out the background to the fraud and
prayed for the following relief:
“
I was cleared by the Republic
of South Africa according to a letter dated the 6
th
of April 1992 addressed to me by the UNHCR as per item [B] 30 above
and that I could return to South Africa. Notwithstanding this
letter
the lawyers I instructed in Durban confirmed that there was a warrant
for my arrest at the offices of the Attorney-General
in
Pietermaritzburg.
I was also indemnified in 1994 by
the Department of Justice, Office for Indemnity, Immunity and
Release. Notwithstanding this indemnity
the Director-General for
Justice declined to appoint me as an official in his department as
more fully set out in item [B] 40 above.
Consequently I kindly
request that this matter be considered and to grant me amnesty in all
liabilities that my conduct as herein
outlined could have resulted
in. I also request for amnesty that may be necessary as a result of
the judgment by Mr Justice Howard
herein. I submit that my conduct
throughout was politically motivated. I was a soldier in the
non-statutory forces since 1962 as
more fully set out in my
certificate of service in the non-statutory forces as per item [B] 44
above”.
[14] Given the factual background
earlier referred to, this statement leaves no doubt in my mind that
the applicant was in fact seeking
amnesty for the criminal offence of
fraud and any civil liability he might have incurred as a result
thereof.
[15] However, in response to the above
submissions, the Committee advised the applicant on 30 June 1997, by
facsimile transmission,
that his application was not in the
prescribed format and forwarded the appropriate forms to him for
completion. By the time he completed
and submitted the forms, the
Committee had already given its decision on 07 April 1998, declining
the applicant amnesty. Therefore,
it is clear that the decision could
not have been based on the second affidavit, which was then in the
prescribed format. I, however,
deem it necessary to refer to the
second affidavit which re-iterates what the applicant sought amnesty
for. It states as follows:
“
As Regional Commander of APLA in
Kwa-Zulu Natal and an Attorney of the law firm Simelane &
Simelane I transferred R50 000, 00
(fifty thousand) from the law firm
books into an Apla account in the name of the African World
Foundation without the authority of
the Natal Law Society or the MVA
Fund and for which I was charged with theft and struck of the roll by
the Natal Law Society during
March/April 1994”.
[16] In my view, it seems that the
only reasonable inference that could be drawn is that the applicant
sought amnesty for fraud and
any subsequent civil litigation arising
from that. This much should have been clear to the Committee from
the reading of the first
submission. It is regrettable that the
application was considered in this fashion, because the next step
would have been to consider
whether the act was associated with a
political objective and whether a full disclosure was made.
The Decision of the Amnesty
Committee
[17] The Amnesty Committee refused the
applicant’s application for amnesty in a decision dated 7 April
1998, which reads as follows:
“
Having read the submission made
by the applicant and having perused the documents referred to in the
submission, the committee finds
that:
The application does not relate to
any act, omission or offence committed by the applicant as envisaged
in section 20 of the Act;
instead it relates to the application by
the Natal Law Society and the subsequent decision of the Natal
Provincial Division of
the High Court of South Africa in terms of
which the applicant’s name was struck off the roll of practising
attorneys. The applicant
submits that the said application was and
decision was politically motivated and in
fraudem legis
as he
was a member of the PAC and subsequently ANC and that he was not
properly served with the application to remove his name from
the
roll of practising attorneys.
The applicant submits that he
conducted a lucrative attorneys practice and he suffered damages as
a result of the striking of his
name off the roll of practising
attorneys; Thus incapacitating him from practising his legal
profession.
After considering the application
for amnesty, the committee decides that:
The application for amnesty is
refused;
The application for reparation is
hereby referred to the Human Rights Violations Committee for its
consideration and decision.”
[18] After the Committee had informed
him of their decision, the applicant continued to submit further
papers in support of his application
to it. The Committee advised
him that it could not revisit his application, because it had become
functus officio
.
[19] In order to ascertain whether the
decision of the Committee meets the rationality test, it is important
to look at what informed
the decision and whether the Act was
interpreted in a manner that advanced its objectives.
[20] Mr. Ntsebeza, who represented the
applicant, submitted that the grounds on which the decision of the
Amnesty Committee was made
are divorced from the relevant facts of
the application for amnesty. Furthermore, the Committee’s decision
that the application
did not relate to an act, omission or offence
associated with a political objective, gives a reasonable impression
that the Committee
did not in fact apply its mind to the application.
I agree. It is abundantly clear from the applicant’s first
submission that he
sought amnesty for fraud involving R50 000-00
tendered by the MVA Fund as settlement against a claim for damages,
an amount which
applicant used to finance APLA operations. Again, it
is patently clear that the application for amnesty does not relate to
the application
for striking off the applicant’s name from the roll
of attorneys. In my view, the applicant demonstrated facts and
evidence of
an act, omission or offence, which might have been
associated with a political objective. Whether that entitles him to
amnesty is
another question altogether.
[21] The decision of the Committee
shows no analysis, whatsoever, of how it came to the conclusion that
the applicant’s application
does not relate to an act, omission or
offence associated with a political objective. It is on this basis,
the applicant contends,
that the Committee did not consider the
merits of the application before deciding it. It seems the decision
to refuse amnesty was
made on the recommendations of Tania Hoskin and
Robin Brink in accordance with a hand-written memorandum dated 7
October 1997 addressed
to Martin Coetzee. In this memorandum, the
subject matter is “
Correspondence in respect of amnesty
applicant: Bhekumndeni Qedusizi Penuell Simelane AM 6291/97
”.
It is necessary to quote the full memorandum. It stated:
“Upon perusal of the file the
following information has come to light
the applicant was an attorney,
who was struck off the roll for misconduct unbecoming of a member
of this profession- misappropriation
of funds
He was a member- of the ANC-
He alleges his being struck off
the roll (sic) was politically motivated- according to applicant Mr
Farleigh and Mr Chetwynd-Palmer
(investigating his practice) were
acting on orders of the security police.
He seeks reparation for the loss
of his attorney’s license.
He alleges that he was assaulted
and disgraced and humiliated by the security police.
I asked Robin Brink to have a
look at the file. He did so. We can therefore conclude that the
application has no merit for the
granting of Amnesty. It is only on
the basis of his membership with the ANC and his fabulous
allegations of people being co-conspirators
in the apartheid regime
that he alleges his being struck of roll was politically motivated.
We do not agree. We can find no evidence
that the act was conducted
with a political objective. Furthermore, he was struck off the
roll, not charged with fraud. We therefore
recommend a refusal of
amnesty code N.”
[22] I have perused the record of the
amnesty application and it is not clear how the Committee was
constituted or what deliberations
were held, either by a committee or
a subcommittee. It is also unclear in what capacity Tania Hoskin and
Robin Brink considered the
application and made the recommendations
contained in the internal memorandum. The result is that I remain
unsure of what informed
the decision to refuse amnesty. The only
inference I can draw is that the source of the Committee’s decision
is not an independent
analysis of the facts in the applicant’s
submissions, but rather the submissions by Tania Hoskin and Robin
Brink.
[23] When an administrative authority
has not applied its mind in making a particular decision, it is hard
to imagine how that decision
can pass the rationality test. The
outcome of not applying one’s mind is irrationality of the
subsequent decision. Even if one
were to assume that the submissions
by the applicant were unclear or drafted in a manner that required
the Committee to read carefully
on what basis the amnesty was being
sought, that still would not justify the decision. Section 19
provided the Committee with a discretionary
mechanism to achieve the
objectives of granting amnesty to credible applicants. It states as
follows:
“
Upon receipt of any application
from amnesty, the committee may return the application to the
applicant and give such directions in
respect of the completion and
submission of the application as may be necessary or request the
applicant to provide such further
particulars as it may deem
necessary.”
[24] Similarly, even if the
application had been incomplete, defective, unintelligible or
incoherent, the Committee could have invoked
this section and given
directions necessary for the proper hearing of the application. All
that the Committee had to do in order
to achieve the objectives of
the Act was to return the application to the applicant and request
further particulars or clarification
on exactly what basis the
applicant was seeking amnesty. Consequently, in my view, there is no
rational objective basis on which
the Committee’s the refusal to
grant amnesty could be justified. The Committee’s decision should
have been premised on the material
facts before it, mainly that the
applicant’s application for amnesty related to the offence of fraud
allegedly committed to further
political activities against the
apartheid government. It is my view that the Committee did not apply
its mind to the merits of the
application. Had it applied its mind,
it would not have come to the conclusion that the application for
amnesty related to the applicant’s
striking off the attorney’s
roll.
Did the Amnesty Committee comply
with the provisions of the Act?
[25] Mr. Ntsebeza submitted that the
failure by the Committee to investigate was unlawful and accordingly
a violation of the principle
of legality. In order to adjudicate this
review, it is necessary to examine whether the Committee committed an
illegality by refusing
amnesty to the applicant. I have already
pointed out that the Committee, in refusing the applicant amnesty,
stated that the application
did not relate to any act, omission or
offence envisaged in section 20 without any enquiry or investigation.
It is trite that procedural
requirements and formalities laid down in
an enabling statute have to be complied with. Section 19 regulates
the manner in which
applications for amnesty should have been dealt
with and section 19(1) provides as follows:
“
Upon receipt of any application
for amnesty, the Committee may return the application to the
applicant and give such directions in
respect of the completion and
submission of the application as may be necessary or request the
applicant to provide such further
particulars as it may deem
necessary.“
[26] Section 19(2) on the other hand
provides that the Committee shall investigate the application and
make enquiries as it may deem
necessary, provided that the provisions
of section 30(2) shall, with the necessary changes, apply in respect
of the investigations.
[27] Section 19(3) states that:
“
After making investigation, the
committee may-
(a) (i) inform the applicant that
the application judged on the particulars or further particulars
contained in the application or
provided by the applicant or revealed
as a result of enquiries made by the committee, if any, does not
relate to an act associated
with a political objective.
(ii) Afford the applicant the
opportunity to make further submissions; and decide whether the
application judged on the particulars
referred to in subparagraph
(i), and in such further submission, relates to such an act
associated with a political objective, and
if satisfied that the
application does not relate to an act, in the absence of the
applicant and without holding a hearing, grant
amnesty and inform
applicant accordingly
.”
[28] The use of the word “
shall”
’
in section 19(2), in my view, means that the requirement to
investigate before making a decision to refuse amnesty is peremptory
not permissive. Stated differently, because the structure of section
19 creates a condition precedent for any decision that the Committee
may take in the words “
after investigating…
”, the
requirement to investigate is a procedural jurisdictional fact for
the Committee’s decision making process. It is trite
law that
mandatory provisions are usually signaled by the use of peremptory
language such as “
shall
”, “
must
”, and the use
of negative language such as “
no person shall
” and the
presence of a sanction for non-compliance.
[29] My view is that it is only after
the Committee had investigated, could it decide to grant or reject
the application or afford
any sort of hearing. Clearly, the textual
force of section 19(2) and (3) reinforces the submission that the
mere receipt of the application
for amnesty triggers an obligation on
the Committee to investigate. In respect of the former, the Committee
is obliged to conduct
an investigation as soon as it receives an
application for amnesty. In respect of the latter the Committee has
a discretion whether
to conduct enquiries where it is deemed
necessary. How the Committee is to conduct the investigation is
purely discretionary. The
Concise Oxford Dictionary defines
investigate as
“
carry out a systematic or formal
inquiry into (an incident or allegation) so as to establish the
truth, carry out a search into (a
subject), make a search or
systematic enquiry
”.
[30] Earlier on, in this judgment, I
indicated that the Committee acted unfairly by not asking for more
information from the applicant
when it was unclear about the purpose
of the application. Now I am looking at the legality of the failure
of the Committee to act
in accordance with the enabling provisions.
The investigative procedural requirement serves not only as a
formality, but is a necessary
substantive requirement for fair
procedure in accordance with the principle of administrative justice.
Ultimately, the Committee,
as an administrative body, was bound by
the considerations of fairness, equity and the objectives of the Act.
(See
Du Preez & Another v Truth and Reconciliation Commission
[1997] ZASCA 2
;
1997 (3) SA 204
(SCA).)
[31] The applicant was entitled to
expect, as a matter of right, that the Committee conducts an
investigation before coming to a decision.
In my view, therefore, the
Committee acted not only unlawfully by not conducting an
investigation, but also unreasonably in failing
to exercise a
discretion where the circumstances of the application called for one.
The result is that non-compliance with mandatory
provisions leads to
the invalidity of the decision of the Committee. In
Minister of
Public Works and Others v Kylami Ridge Environmental Association and
Other
2001 (3) SA 1151
(CC) Chaskalson P stated that:
“
The doctrine of legality
applies to the exercise of all public power
”.
Did the Application comply with
section 20 of the Act?
[32] It has been submitted, on behalf
of the applicant, that the Committee completely misinterpreted its
mandate and failed to apply
its mind to the requirements of the Act
for the granting amnesty in the light of the facts before it. More
specifically, the Committee
erred in holding that the application for
amnesty does not comply with section 20 of the Act. Section 20
provides as follows:
“
(1)
If the committee, after
considering an application for amnesty, is satisfied that-
the application complies with the
requirements of this Act;
the act, omission or offence to
which the application relates is an act associated with a political
objective committed in the course
of the conflicts of the past in
accordance with the provisions of subsection (2) and (3); and
the applicant has made a full
disclosure of relevant facts, it shall grant amnesty in respect of
that act, omission or offence.
In this Act , unless the context
otherwise indicates, ‘
act associated with a political
objective
’ means any act or omission which constitutes an
offence or delict which, according to the criteria in subsection
(3), is associated
with a political objective, and which was
advised, planned, directed, commanded, ordered, or committed within
or outside the
Republic during the period 1 March 1960 to the
cut-off date, by-
any member or supporter of a
publicly known political organizations or liberation movement on
behalf of or in support of such
organization or movement, bona
fidei in furtherance of a political struggle waged by such
organization or movement against the
State or any former state or
another publicly known political organization or movement; …
”
[33] The Committee found in its
decision that the amnesty application does not relate to any act,
omission, or offence committed by
the applicant, as envisaged in
section 20. In this judgment, I have already indicated that the
decision has no rational connection
with facts on which it was based.
I therefore do not intend to deal with the question whether the act,
omission or offence was committed
with political objectives within
the ordinary meaning of that expression. To do so in the
circumstances of this case would be to
pre-empt or influence the
decision of a Committee that might need to be established, as this
court has already made a finding on
the legality of the decision of
the Committee.
The Impact of the Indemnity granted
in terms of the Indemnity Act
[34] One of the arguments raised by
the applicant is that he has been granted indemnity from prosecution
in terms of the Indemnity
Act. Therefore, this court should declare
that the applicant is to be granted amnesty by virtue of the
indemnity granted to him.
I deem this submission unpersuasive. The
purpose of the indemnity issued under the Indemnity Act was to
indemnify anyone from prosecution
for offences committed during the
years of conflict against the apartheid regime. The effect of
indemnity could never amount to amnesty.
The Act specifically sets
out what should be considered by the Committee when dealing with
amnesty applications. Had the legislature
intended that persons who
had been indemnified from prosecution in respect of any offences be
automatically considered as having
been granted amnesty, then it
would have inserted a provision to that effect. That the applicant
applied for amnesty whilst having
been granted indemnity from
prosecution, is clearly recognition of that fact. Furthermore, the
applicant, in his own words, states
in his second submission that he
is seeking amnesty from civil liability that might ensue from his
criminal conduct. In any event,
my view is that this court would not
be competent to make such an order.
Substitution of the decision of the
amnesty committee
[35] Various further submissions in
support of the application for amnesty were forwarded to the
Committee after it had already made
its decision on 7 April 1998.
These submissions were not considered by the Committee, as it
considered itself to be
functus officio.
Having held that the
decision of the Committee is not rationally connected to the facts on
which the decision is based, it follows
that the next question to
consider is whether this court should step into the shoes of the
Amnesty Committee and consider whether,
on the facts and evidence
before it, the applicant is entitled to amnesty.
[36] The guidelines on how this court
should deal with a successful review application are set out by
O’Regan J
in Premier Mpumalanga v Association of Estate Agents
School
1999 (2) (CC) 113 at para 50. The general principle under
common law is that a court is reluctant to substitute its decision
for
that of the original decision-maker, but there are circumstances
where it would be appropriate for a court to do so. Quoting from
Lord
Hailsham in
Chief Constable of the North of Wales Police v Evans
[1982] UKHL 10
;
[1982] 3 ALL ER 141
(HL) at 143 H-J, she elaborated upon the grounds
on which it would be appropriate for a court to step in the shoes of
the decision
maker. The general principle is that a review court,
when setting aside the decision of an administrative authority, will
not substitute
its own decision for that of the administrative
authority unless exceptional circumstances exist. This is clearly set
out in
Masamba v Chairperson, Western Cape Regional Committee,
Immigrants Selection Board and Others
2001 (12) (BCLR) (C) at
1259 E:
“
The purpose of judicial review
is to scrutinize the lawfulness of administrative action in order to
ensure that the limits to the
exercise of public power are not
transgressed, not to give the courts the power to perform the
relevant function themselves. As a
general principle, a Review Court,
when setting aside a decision of an administrative authority, will
not substitute its own decision
for that of the administrative
authority, but will refer the matter back to the authority for a
fresh decision…
[37] But, Malan J went further to
determine the exceptional circumstances under which a court is
competent to substitute the decision
of an administrative body under
review. The test is ultimately one of fairness. On these facts, and
applying the legal principle,
should this court substitute the
decision of the Committee and grant amnesty to the applicant?
[38] Commenting on the power to
substitute its own decision for that of a functionary under an Act in
University of the Western Cape and Others v Member of the
Executive Committee for Health and Social Services and Others
1998 (3) SA 124
(C) Hlophe J (as he then was) stated:
“
Where the end result is in any
event a foregone conclusion and it would merely be a waste of time to
order the tribunal or functionary
to reconsider the matter, the
courts have not hesitated to substitute their own decision for that
of the functionary… The courts
have also not hesitated to
substitute their own decision for that of the functionary where undue
delay would cause unjustifiable
prejudice to the applicant… our
courts have further recognized that they will substitute a decision
of a functionary where the
functionary or tribunal has exhibited bias
incompetence to such a degree that it would be unfair to require the
applicant to submit
to the same jurisdiction again… It would also
seem that our courts are willing to interfere, thereby substituting
their own decision
for that of a functionary where the court is in a
good position to make the decision itself as qualified should take
the decision
of the administrator’s powers or functions. In some
cases however, fairness to the applicant may demand the court should
take such
a view”.
(at 131 D-H)
[39] Mr. Ntsebeza submitted that,
given the fact that this court has all the relevant facts and
evidence to make a decision to grant
amnesty, there is no reason why
the court should not substitute the decision of the Committee and
grant amnesty to the applicant.
Admittedly, there has been
considerable delay which may have caused undue prejudice to the
applicant, but whether this court should
intervene depends on the
particular statutory provisions concerned and the nature and extent
of the functions entrusted to the body
making the decision under
review. Recently, in the Supreme Court of Appeal, in
Nel and
Another NNO v The Master (ABSA Bank Ltd and Others intervening)
2005 (1) SA 276
(SCA) at 286 para 23 Van Heerden JA, in approving the
above dictum of Innes CJ (as he then was) held that:
“
Thus when engaged in this third
kind of review, the Court has powers of both appeal and review, with
the additional power, if required,
of receiving new evidence and of
entering into and deciding the whole matter afresh. It is not
restricted in exercising its powers
to cases where some irregularity
or illegality has occurred. However, while it is sometimes stated
that the Court’s powers under
this kind of review are ‘unlimited’
or ‘unrestricted’, this is not entirely correct. The precise
extent of any ‘statutory
review type power’ must always depend on
the particular statutory provision concerned and the nature and
extent of the functions
entrusted to the person or body making the
decision under review. A statutory power of review may be wider than
the ‘ordinary’
judicial review of administrative action (the
‘second type of review’ identified by Innes CJ in the
Johannesburg Consolidated
Investment Co case), so that it combines
aspects of both review and appeal, but it may also be narrower, with
the court being confined
to particular grounds of review or
particular remedies”.
[40] Mr. Ntsebeza urged this court to
exercise its judicial authority in the interest of justice and
substitute the decision of the
Committee by granting amnesty. To this
end, section 8(1)(c) of PAJA provides the courts with powers in
exceptional cases to substitute,
vary or correct a defect resulting
from administrative action. But the court’s power to impose its
own decision should be guided
by the dictates of justice, fairness
and whether a substitution would be constitutionally defensible.
Firstly, in the present matter,
I cannot say with certainty that it
is a foregone conclusion that amnesty should be granted. It must be
remembered that the basis
for the setting aside of the decision of
the Committee is that it was incorrectly based on the perception that
the application related
to the decision of the Natal Provincial
Division striking the applicant off the roll of attorneys.
[41] Secondly, even though there has
been a delay, I believe an appropriate order addressing the defect
could be made.
[42] Thirdly, the question which must
be squarely put and answered is whether it is fair and reasonable to
require the applicant to
submit its case
de novo
to the
Ministry of Justice even though the Committee of the Truth and
Reconciliation Commission has long disbanded. Before I answer
this
question, I propose to first deal with the nature and extent of the
functions entrusted on the Amnesty Committee. The preamble
to the
Act provides as follows:
“
And since the Constitution
provides that Parliament shall under the Constitution adopt a law
which determines a cut-off date, which
shall be a date after October
1990 and before the cut-off date envisaged in the Constitution, and
providing for mechanisms, criteria
and procedures, including
tribunals, if any, through which such amnesty shall be dealt with…”
[43] This provision, in my view, makes
it very clear that Parliament intended that the granting of amnesty
should vest solely in the
hands of the Committee, and not with the
courts. Moreover, if one looks at how the Committee is constituted,
this becomes self-evident.
Section 17(1) provides that the Committee
shall consist of a Chairperson, a Vice-Chairperson and three other
members who are fit
and proper persons, appropriately qualified South
African citizens and broadly representative of the South African
community. In
terms of section 17(3), only a judge can be appointed
as Chairperson. This constitution implies that the granting or
refusal of amnesty
lies in the hands of one judge with three other
members who need only be fit and proper persons. It seems to me that
the legislature
did not intend that questions of amnesty should lie
exclusively in the hands of a judge.
[44] Applying the dictum of Van
Heerden JA in
Nel and Another NNO
supra,
it is my view
that the very manner in which the Committee is constituted on its own
is an indication that this court should give
a considerable measure
of deference and be slow to substitute the decision of it. It has
long been recognized that the court’s
reluctance to substitute its
own decision for that of an administrative authority (but rather to
remit it to the authority concerned)
is in accordance with the
court’s understanding of the principle of separation of powers and
the distinction between appeal and
review. (See
Niewoudt v
Chairman Amnesty Sub-Committee, Truth and Reconciliation Commission
2002 (3) SA 149
; JR De Ville,
Judicial Review of Administrative
Action in South Africa
Lexis-Nexis, 2003 at page 335; and
Lawrence Baxter,
Administrative Law,
Juta & Co Ltd 1984
page 681).
[45] In answer to the third question
referred to earlier, in my view, it is fair and reasonable to refer
the matter back to the Committee
because in terms of the Act, it is
the forum with powers to grant or refuse amnesty.
[46] In the circumstances of this
case, an attempt by this court to substitute the decision of the
Committee “
would constitute an unwarranted usurpation of powers
entrusted to the public authority by the legislature”
’. (See
Baxter
supra.)
[47] In the result, I propose the
following order:
The decision of the Amnesty Committee
of the Truth and Reconciliation Commission refusing amnesty to the
applicant is hereby set
aside.
The Minister of Justice is directed
to establish an Amnesty Committee to consider the application of the
applicant for amnesty.
There is no order as to costs.
_______________
NDITA,
J
I agree and it is so ordered.
_______________
DESAI,
J
I agree.
_______________
HJ
ERASMUS, J
30