Du Toit v Minister for Safety and Security and Another (CCT91/08) [2009] ZACC 22; 2010 (1) SACR 1 (CC) ; 2009 (12) BCLR 1171 (CC) ; (2009) 30 ILJ 2601 (CC) (18 August 2009)

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[2009] ZACC 22
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Du Toit v Minister for Safety and Security and Another (CCT91/08) [2009] ZACC 22; 2010 (1) SACR 1 (CC) ; 2009 (12) BCLR 1171 (CC) ; (2009) 30 ILJ 2601 (CC) (18 August 2009)

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CONSTITUTIONAL
COURT OF SOUTH AFRICA
Case CCT
91/08
2009 ZACC 22
WYBRAND
ANDREAS LODEWICUS DU TOIT
Applicant
versus
MINISTER
FOR SAFETY AND SECURITY OF THE REPUBLIC OF SOUTH AFRICA
First
Respondent
NATIONAL
COMMISSIONER OF THE SOUTH AFRICAN POLICE SERVICE
Second
Respondent
Heard on : 24 February 2009
Decided
on : 18 August 2009
JUDGMENT
LANGA CJ:
Introduction
This matter concerns the
reach of amnesty granted under the provisions of the Promotion of
National Unity and Reconciliation Act
34 of 1995 (Reconciliation
Act). The issue raised is the effect of amnesty on consequences
flowing from a criminal conviction
and sentence. In the particular
circumstances of this case, the question is how the amnesty
provisions relate to other legislation
governing the employment of
members of the South African Police Service (SAPS).
The
Court is required to consider one of the initial and most profound
challenges to our democracy, namely,
the
granting of amnesty to the perpetrators of crime committed with a
political purpose during the dark days of apartheid. As
it has done
once before,
1
the Court has to grapple with the question of how to balance the
varying interests involved in this difficult area of the law.
Parties
The applicant is Mr
Wybrand Andreas Lodewicus du Toit, formerly employed as the National
Commanding Officer, Technical Support
Services in the SAPS with the
rank of Director. The first respondent is the Minister for Safety
and Security, cited in his capacity
as the minister in charge of the
SAPS. The second respondent is the National Commissioner of the
SAPS (National Commissioner),
appointed in terms of section 207 of
the Constitution, and charged with the control and management of the
SAPS.
Background
The applicant, while in
the employ of the SAPS, was convicted on four counts of murder in
the Eastern Cape High Court, Port Elizabeth
and was sentenced to 15
years’ imprisonment on 27 June 1996. The murder of the four
deceased, otherwise collectively known
as the “Motherwell Four”,
was politically motivated. A consequence of the conviction and the
sentence on the four counts
was that in terms of the provisions of
section 36(1)
of the
South African Police Service Act 68 of 1995
(SAPS Act), Mr du Toit was deemed to have been discharged from his
employment with the SAPS, effective from the date following
the date
of sentence. Section 36 reads as follows:
“
(1) A
member who is convicted of an offence and is sentenced to a term of
imprisonment without the option of a fine, shall be
deemed to have
been discharged from the Service with effect from the date following
the date of such sentence: Provided that,
if such term of
imprisonment is wholly suspended, the member concerned shall not be
deemed to have been so discharged.
(2) A person
referred to in subsection (1), whose—
(a)
conviction
is set aside following an appeal or review and is not replaced by a
conviction for another offence;
(b)
conviction
is set aside on appeal or review, but is replaced by a conviction
for another offence, whether by the court of appeal
or review or the
court of first instance, and a sentence to a term of imprisonment
without the option of a fine is not imposed
upon him or her
following on the conviction for such other offence; or
(c)
sentence
to a term of imprisonment without the option of a fine is set aside
following an appeal or review and is replaced with
a sentence other
than a sentence to a term of imprisonment without the option of a
fine,
may, within a
period of 30 days after his or her conviction has been set aside or
his or her sentence has been replaced by a sentence
other than a
sentence to a term of imprisonment without the option of a fine,
apply to the National Commissioner to be reinstated
as a member.
(3) In the
event of an application by a person whose conviction has been set
aside as contemplated in subsection (2)(
a
),
the National Commissioner shall reinstate such person as a member
with effect from the date upon which he or she is deemed
to have
been so discharged.
(4) In the
event of any application by a person whose conviction has been set
aside or whose sentence has been replaced as contemplated
in
subsection (2)
(b)
and
(c)
,
the National Commissioner may—
(a)
reinstate
such person as a member with effect from the date upon which he or
she is deemed to have been so discharged; or
(b)
cause
an inquiry to be instituted in accordance with section 34 into the
suitability of reinstating such person as a member.
(5) For the purposes of
this section, a sentence to imprisonment until the rising of the
court shall not be deemed to be a sentence
to imprisonment without
the option of a fine.
(6) This
section shall not be construed as precluding any administrative
action, investigation or inquiry in terms of any other
provision of
this Act with respect to the member concerned, and any lawful
decision or action taken in consequence thereof.”
The applicant appealed
against his conviction to the Supreme Court of Appeal. The matter
was postponed pending finalisation of
his application for amnesty,
which he had lodged in the interim with the Committee on Amnesty, a
body established under section
16 of the Reconciliation Act. The
application for amnesty was refused, but the decision of the
Committee on Amnesty was subsequently
set aside on review by the
Western Cape High Court, Cape Town. The applicant was later granted
amnesty in respect of all four
counts of murder. Mr du Toit was
informed of the success of his application on 23 December 2005.
Before amnesty was
granted, the applicant wrote to the National Commissioner of the
SAPS to ask whether, if his application was
successful, he would be
reinstated to his position in the SAPS. This enquiry, to which the
National Commissioner responded in
the affirmative on 29 December
1999, was based on the applicant’s interpretation of section
20(10) of the Reconciliation Act,
which 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 g
ranted
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.”
On 23
December 2005 the applicant informed the National Commissioner that
he had been granted amnesty and that he was seeking
to be
reinstated. The Chief of Staff of the SAPS refused to reinstate the
applicant, contending that his situation was not contemplated
in
section 36(2) of the SAPS Act and that section 20 of the
Reconciliation Act did not provide for reinstatement of employees

whose employment had been terminated in term
s of section 36.
The
North Gauteng High Court, Pretoria, refused Mr du Toit’s
application to compel the SAPS to reinstate him, and his subsequent

appeal to the Supreme Court of Appeal was dismissed with costs on 30
September 2008. The applicant now seeks the leave of this
Court to
appeal against the judgment of the Supreme Court of Appeal.
2
The respondents jointly oppose the application.
Issues
The applicant’s case is
based on three contentions which also formed the main thrust of his
submissions before the North Gauteng
High Court and the Supreme
Court of Appeal. The contentions may be summarised as follows:
Section 20(10) of the
Reconciliation Act is remedial in nature and should be given a
wide and generous interpretation. It
has a retrospective effect
not only on the applicant’s conviction and sentence, but also on
their consequences. In the
context of the Reconciliation Act and
the constitutional provision for national unity, amnesty is
all-encompassing, and has
the effect of nullifying the applicant’s
discharge from the SAPS as a result of his conviction and
sentence. The applicant
relied on this Court’s judgment in
AZAPO
in which Mahomed DP interpreted the meaning of
amnesty to be necessarily wide and, in that case, to include
indemnity from
civil claims for damages.
3
He contended that section 20(9), which specifically excludes the
undoing of civil judgments, is an indication of the purpose
of the
legislation to exclude retrospectivity only when this is
specifically indicated. On that reasoning, the applicant
argued
that he is entitled to be reinstated with effect from the date of
his discharge on 28 June 1996.
The applicant argued
that reference to “appeal or review” in section 36(2) of the
SAPS Act should be read to include a
successful application for
amnesty. He contended that there should be no difference between
the consequences of the grant
of amnesty and those that follow a
successful appeal or review. In this case, the effect must be the
reversal of the applicant’s
discharge from his position in the
SAPS. He submitted that the failure to equate appeal or review
with amnesty in this case
would mean that the applicant is in a
worse position than if he had elected to continue with his
application for appeal,
which result cannot be sanctioned by the
Reconciliation Act.
The
applicant’s third and final contention concerned the agreement
by the National Commissioner, by letter, that the applicant
would
be reinstated to his position in the SAPS should amnesty be
granted. The Chief of Staff of the SAPS then refused to
reinstate
the applicant. The applicant contended that the agreement by the
National Commissioner is binding on the SAPS.
The
respondents argued firstly that the appeal does not raise a
constitutional matter because none of the questions before the

Supreme Court of Appeal involved constitutional issues. The appeal
concerns common law principles of statutory interpretation,
contract
and the principle that remedial statutes be construed generously.
4
Second, the respondents
supported the finding of the Supreme Court of Appeal that section
20(10) of the Reconciliation Act does
not operate retrospectively,
because of the effect of the common law presumption against
retrospectivity. The purpose of the
legislation is not to allow
persons guilty of crimes and human rights abuses to escape the
consequences of their conduct arising
before amnesty was granted.
The Reconciliation Act has a limited purpose which, in the case of
Mr du Toit, has already been
achieved. The civil consequences of
the conviction and sentence, such as contractual termination under
section 36 of the SAPS
Act, are not affected.
Third, the respondents
challenged the contention whereby the applicant
seeks to equate the consequences of amnesty with those of an appeal
or review
in section 36(2) of the SAPS Act since the granting of
amnesty is an administrative process whereas appeal and review are
judicial
processes. Their requirements differ, as do their tests.
Substantively, success on appeal or review presupposes innocence or

an inability to prove guilt while the grant of amnesty presupposes
guilt. Fourth, the respondents pointed to the significance
of the
failure of the legislature, when enacting the SAPS Act, to include
the grant of amnesty when it made provision for appeal
and review.
They argued that this is an indication that amnesty was not meant to
be treated in the same manner as an appeal
or review.
Finally, the respondents
argued that the
agreement by the National
Commissioner that the applicant would be reinstated is not binding
on the SAPS. When the undertaking
was made, the National
Commissioner was in no position to exercise the discretion conferred
on him by section 36(4):
5
the trigger in section 36(2) had not been activated and thus none of
the requisite jurisdictional facts existed.
Is a constitutional
issue raised?
Despite the respondents’
contention to the contrary, I am of the view that the proper
interpretation of the amnesty provisions
does raise a constitutional
issue. The Reconciliation Act gives effect to the epilogue to the
interim Constitution, which is
reproduced in Schedule 6 to the
Constitution.
6
The concerns of amnesty, reconciliation and national unity were
germane to the constitutional arrangements underlying the inception

of the new constitutional order. The proper interpretation of the
Reconciliation Act accordingly does give rise to a constitutional

matter. The proper interpretation of section 36 is, at the very
least, a matter connected with a decision on a constitutional
matter
and is therefore within the jurisdiction of this Court.
The interests of
justice
The
period in which the Committee on Amnesty operated has now passed.
The question arises then whether it is in the interests
of justice
to deal, years later, with the issues raised. The issues are not
only complex but are very close to our constitutional
project. The
process of national reconciliation is ongoing and will be with us
for many years to come. Accordingly, and in
the light of the
historical and constitutional context of amnesty set out below, I am
convinced that the interests of justice
dictate that this Court
should resolve the dispute.
Amnesty in its
constitutional and historical context
An assessment of the reach
of amnesty requires the Court to consider the founding principles of
our constitutional order, which
include the rule of law.
The
South African nation was, for decades, a deeply divided society
characterised by gross violations of fundamental human rights.

Mohamed DP described the period as follows:
“
Most
of the acts of brutality and torture which have taken place have
occurred during an era in which neither the laws which permitted
the
incarceration of persons or the investigation of crimes, nor the
methods and the culture which informed such investigations,
were
easily open to public investigation, verification and correction.
Much of what transpired in this shameful period is shrouded
in
secrecy and not easily capable of objective demonstration and proof.
Loved ones have disappeared, sometimes mysteriously
and most of
them no longer survive to tell their tales. Others have had their
freedom invaded, their dignity assaulted or their
reputations
tarnished by grossly unfair imputations hurled in the fire and the
cross-fire of a deep and wounding conflict. The
wicked and the
innocent have often both been victims. Secrecy and authoritarianism
have concealed the truth in little crevices
of obscurity in our
history. Records are not easily accessible, witnesses are often
unknown, dead, unavailable or unwilling.
All that often effectively
remains is the truth of wounded memories of loved ones sharing
instinctive suspicions, deep and traumatising
to the survivors but
otherwise incapable of translating themselves into objective and
corroborative evidence which could survive
the rigours of the law.”
7
What
followed was a negotiated transition premised on the need for the
transformation of society and the building of bridges across
racial,
gender, class and ideological divides. The epilogue to the interim
Constitution identifies it as an “historic bridge
between the past
of a deeply divided society characterised by strife, conflict,
untold suffering and injustice, and a future
founded on the
recognition of human rights, democracy and peaceful co-existence”.
It goes on to state that, “[t]he pursuit
of national unity, the
well-being of all South African citizens and peace require
reconciliation between the people of South
Africa and the
reconstruction of society.” By adopting that Constitution, the
nation signalled its commitment to reconciliation
and national
unity, and its realisation that many of the unjust consequences of
the past can never be fully reversed but that
it would nevertheless
be necessary to “close the book” on the past.
8
The
Reconciliation Act was enacted pursuant to these sentiments. The
objective was to facilitate the establishment of as complete
a
picture as possible of the causes, nature and extent of the gross
violations of human rights. In order to achieve this, the

Reconciliation Act provides that amnesty would be granted to
perpetrators who make full disclosure of the facts relating to acts

committed with a political purpose during the period identified.
The
grant of amnesty was, to a certain extent, a means to an end.
Truth-telling is central to the development of a collective
memory
and in order for that truth to be told, amnesty was granted to those
making disclosures about offences that they had committed.
The
amnesty process was an important mechanism that allowed those who
otherwise would have had to deal with their convictions
or secret
guilt to come clean and be allowed to start their lives anew. The
process was a necessary tool in a larger scheme
of things.
Amnesty
in terms of the Reconciliation Act requires broad consideration, for
it is part of a restorative and prospective process
of transitional
justice, heralding the coming-of-age of the proper rule of law in a
society emerging from conflict. Judicial
action, truth-telling,
reparations and institutional reform are each inadequate on their
own to apprehend the past, and too narrow
to advance the goals of
the future. Used in intelligent unison, they may achieve the
delicate balance needed to afford solace
to those who have suffered,
whilst simultaneously strengthening peace, democracy and justice for
the future. Though the amnesty
process may appear to be a device to
facilitate forgiveness, closing the door on the past and moving on,
it is also a pragmatic
venture. It is often resorted to in the face
of a political impasse that bears neither hope of certain resolution
nor the avoidance
of visceral strife. So it was with South Africa.
The purpose of the amnesty
proceedings was to bring closure and understanding. South Africans
were to get together, listen and
share interpretations of history,
and then walk away to exorcise their inner demons. To each was
afforded the possibility of
solace, the knowledge of truth and the
cleansing of conscience.
While
all this may be necessary for the reconciliation of a nation, the
promise not to punish those who have flagrantly violated
the law
seems to be at odds with one of the basic features of the South
African constitutional order: namely, the rule of law.
Amnesty and
its consequences are thus bound to be a source of contention.
Our constitutional
democracy is founded on the supremacy of the Constitution and the
rule of law.
9
The rule of law requires, among other things, that the law should
punish those guilty in terms of the law and absolve those
who are
not. This principle not only protects against the arbitrary
exercise of public power, but also points to the correct
way to
treat those who act contrary to the law.
10
The rule of law requires accessibility, precision and general
application of the law.
11
As this Court held in
De
Lange v Smuts NO and Others
,
12
“citizens as well as non-citizens are entitled to rely upon the
State for the protection and enforcement of their rights.
The State
therefore assumes the obligation of assisting such persons to
enforce their rights . . . .”
13
The effect of the underlying principle on the right of access to
court, as provided in section 34 of the Constitution, is that
any
constraint on these rights must be interpreted restrictively.
14
An amnesty process
naturally runs contrary to the usual approach to crime in general,
and human rights violations in particular.
Ordinarily, when good
order is achieved after an intense period of national turmoil,
punishment of the worst offenders offers
catharsis for those whose
rights have been grossly violated. It has rightly been observed
that what makes amnesty controversial
is the fact that it operates
at odds with what has been referred to as the “standard justice
script”, in terms of which a
call to account, a recognition of
wrongdoing, and a retributive response are required.
15
This sentiment understandably enjoys substantial support in
democratic settings. But amnesty is different.
Indeed, in
AZAPO
,
this Court held that amnesty impacts upon fundamental rights. Every
person is entitled to protection from unlawful invasions
of his or
her rights to life, security of the person and dignity, and, when
those rights are infringed, to be able to approach
a court for
relief. The granting of amnesty takes away this entitlement.
16
This
limitation is permitted by the Constitution itself, and to that
extent there is an adjustment to what in fact constitutes
“the
rule of law”.
In
AZAPO
,
the Court found that the ultimate aim of the truth and
reconciliation process
justifies
the
severe limitation on rights that it causes.
17
This was an extraordinary time and extraordinary measures had to be
taken.
The
process of reconciliation is an agonising one which requires give
and take from all sides. The victim or family of the victim
is able
to hear the truth about the motives of the act and circumstances
surrounding their suffering, and in return must accept
that no
criminal sanction will be forthcoming. At the same time, the
perpetrator comes face to face with his or her conscience,
and with
the victim, and has to make a full disclosure. In return, the
weight of the commission of the offence is lifted from
the
perpetrator’s shoulders with a guarantee of immunity from
prosecution, a clean criminal record, and the assurance that
never
again can the conviction be counted against him or her.
18
This interplay of benefit
and disadvantage is essential to the process and to the desired
result, namely, the emergence of objectives
fundamental to the ethos
of the constitutional order. Both at the level of the individuals
involved, and of the nation as a
whole, it is this interplay that
lends acceptability to the amnesty process, despite the tensions and
strains it imposes on the
rule of law.
What
is important is the delicate, constitutionally required balance that
is implicit in the legislation and that must be achieved
by its
implementation. This is, after all, a project directed at national
unity and reconciliation and to grant disproportionate
benefit to
one party at the expense of the other would be unjust and would
strike at the equilibrium envisaged by the Constitution.
The
realisation of a balanced and equitable final result must lie at the
core of a constitutionally appropriate interpretation
of the
relevant section of the Reconciliation Act. This then is the
context in which the appropriate reach of amnesty in the
statute
must be determined.
The interpretation of
section 20(10)
The interpretation of
section 20(10) of the Reconciliation Act
19
is the central issue in this case. The section is couched in very
broad terms and appears capable of the widest possible
interpretation.
A purely literal and de-contextualised reading
might suggest that the grant of amnesty has the effect of expunging
not only
the record of the conviction and sentence imposed on the
perpetrator, but also all consequences that follow that conviction
and
sentence, past, present and future. There are, however, serious
difficulties with that interpretation.
Read in its context, it is
inconceivable that the purpose of section 20(10) of the
Reconciliation Act could be the undoing of
the past to a limitless
degree. Not even the applicant contends for unrestricted
retrospectivity. For, indeed, factual events
that occurred in the
past cannot be undone. It is accordingly necessary to determine the
limits of the reach of section 20(10).
The Supreme Court of
Appeal relied on the presumption against retrospectivity to reject
the applicant’s broad reading of section
20(10) that would result
in the retrospective application of that section to the consequences
of the conviction and sentence.
It held that, because of the
presumption, the consequences of the conviction and sentence were
not affected by the grant of
amnesty. This seems to me to afford
too much weight to the presumption against retrospectivity in a
matter like the present.
In particular, it fails to give sufficient
weight to the fine distinction between the broad concept of
retrospectivity and the
distinctive notion of retroactivity. A
retrospective provision operates for the future only but imposes new
results in respect
of past events. A retroactive provision operates
as of a time prior to the enactment of the provision itself and
changes the
law applicable with effect from a past date.
20
The
effect of section 20(10) is, in my view, unavoidably retrospective.
The legislation reaches into the past in that it refers
to acts
committed before the enactment of the statute and seeks to expunge
the record of such acts. The purpose of the legislation
is to
provide for retrospective application. The question is where the
boundaries of such retrospective application lie. The
presumption
does not fully answer this question.
A
provision that has retrospective operation must, in terms of the
general approach to retrospectivity, be
interpreted
restrictively,
21
so that the extent of retrospective operation is limited.
Retrospectivity is a concept that includes a range of time-related

effects, the result being that there are degrees of
retrospectivity.
22
Retroactivity is the interpretation advocated for by the
applicant.
In
this case, therefore, and in accordance with the general rule that a
statute does not strike at acts and transactions that
have already
been completed before the statute was enacted,
23
the effect of the granting of amnesty does not necessarily, by
virtue of the sweeping language used, extend to all of the
consequences
of the conviction and sentence and alter these
consequences from a time prior to the granting of amnesty, or from
the granting
of amnesty itself. An indication of retrospectivity,
without more, is not sufficient to determine its scope and it is
necessary
to ascertain the meaning of the section in question, and
the extent of its retrospective effect, by considering its context
and
purpose.
Context,
purpose and object
As far back as 1950,
Schreiner JA in his minority judgment in
Jaga v Dönges NO and
Another; Bhana v Dönges
NO and Another
24
set out the relationship between ‘text’ and ‘context’ thus:
“
Certainly
no less important than the oft repeated statement that the words and
expressions used in a statute must be interpreted
according to their
ordinary meaning is the statement that they must be interpreted in
light of their context. But it may be
useful to stress two points
in relation to the application of this principle. The first is that
‘the context’, as here used,
is not limited to the language of
the rest of the statute regarded as throwing light of a dictionary
kind on the part to be interpreted.
Often of more importance is the
matter of the statute, its apparent scope and purpose, and, within
limits, its background.
The second point is that the approach to
the work of interpreting may be along either of two lines. Either
one may split the
inquiry into two parts and concentrate, in the
first instance, on finding out whether the language to be
interpreted has or appears
to have one clear ordinary meaning,
confining a consideration of the context only to cases where the
language appears to admit
of more than one meaning. . . The second
line of approach appears from what was said by Lord Greene, then
Master of the Rolls
in
Re Bidie
. . .
‘
Few
words in the English language have a natural or ordinary meaning
in the sense that their meaning is entirely independent
of their
context.’” (Footnotes omitted.)
25
In
Bato Star Fishing
(Pty) Ltd v Minister of Environmental Affairs and Others
26
this Court, per Ngcobo J, held that, “[t]he emerging trend in
statutory construction is to have regard to the context in which
the
words occur, even where the words to be construed are clear and
unambiguous.”
27
This has been the consistent approach of this Court when
interpreting statutes. The move away from the “plain words” of

the statute is necessitated by the fact that the text of the
Constitution and the legislation giving effect to its provisions
is
value-laden and “value can hardly be expressed in clear and
unambiguous language.”
28
Two
contexts are relevant here. First there is the historical context:
the purpose of the legislation and the social and historical
need it
was designed to address. This is the broad context in which the
Reconciliation Act operates and is discussed above in
the section
entitled “
Amnesty in its constitutional and historical
context
”.
29
But there is also the narrow statutory context of section 20(10)
provided by the rest of the Reconciliation Act and, in particular,

the other sections of the Act that deal with the consequences of
amnesty. The meaning of a particular section within an Act
may be
ascertained by examining the scheme established by the Act. That
scheme emerges from the provisions of section 20(7)
to (9).
Section 20(7)
30
provides that a person who has been granted amnesty shall not be
civilly or criminally
liable in respect of acts for which he
or she was granted amnesty. This means that once amnesty is
granted, no civil or criminal
liability can be imposed for the past
acts. Section 20(7) thus changes the legal consequences of the acts
for which amnesty
was granted, for the future, from the date on
which amnesty was granted. It is retrospective but not retroactive
in effect and
applies both in respect of civil and criminal
liability.
Section
20(8)
31
provides that if a person is standing trial for the relevant
offences at the time amnesty is granted, or has been convicted and

is waiting for the passing of sentence, the
criminal proceedings
shall forthwith become void. If a person has been sentenced and is
serving a period of imprisonment when amnesty is granted,
the
sentence so imposed, upon publication of the notice granting
amnesty, shall lapse and the person shall forthwith be released.

What is clear from this provision is that the consequences of
amnesty in this respect affect the future only, that is, the period

that follows
after
the grant of amnesty, and affect only
criminal proceedings. The proceedings “forthwith” become void
and the sentence “forthwith”
lapses. Again, the effect is
retrospective but not retroactive. Thus, any sentence served will
not have been rendered unlawful,
but the rest of an uncompleted
sentence lapses.
Section
20(9)
32
continues this theme by making clear that where a
civil
judgment
has been granted in respect of the relevant act
before
the
grant of amnesty, the operation of the judgment shall not be
affected by the grant of amnesty. It is clear that this provision

too does not seek to affect the past but preserves the legal
consequences that have happened before the grant of amnesty. If
a
judgment has been satisfied, section 20(9) has no effect. If the
judgment is outstanding, section 20(9) preserves the effectiveness

of that judgment. This section has no retrospective effect.
Thus
from the date on which amnesty is granted, the direct legal
consequences of the criminal conduct for which amnesty was granted

will no longer obtain. The provisions do not render steps lawfully
taken before amnesty was granted unlawful. Nor do they undo
certain
legal consequences which were already complete by the time amnesty
was granted. So, if a civil judgment has been granted,
it will
remain in force. If a portion of a sentence has been served, the
sentence will lapse from the date of amnesty and will
not be set
aside from the date upon which the sentence was imposed.
The
provisions also draw a distinction, in relation to pending
proceedings and past liability, between criminal liability on the

one hand, and civil liability on the other.
The effect of
amnesty on criminal liability is both prospective and retrospective:
criminal liability in respect of the acts for
which amnesty is
granted is extinguished and where there has been a conviction it is
deemed not to have taken place. By contrast,
the effect of granting
amnesty on civil liability that has already been determined is
prospective only. This shows that the
granting of amnesty does not
obliterate all the direct legal consequences of conduct in respect
of which amnesty is granted.
There
is good reason for this. The consequences of a prior conviction are
primarily limited to an entry in official documents
or records and
the sentence that the person is serving. Undoing the conviction and
sentence principally affects these records
and the sentence to be
served in the future: it does not and cannot undo the time already
served. Expunging the conviction means
that a person no longer has
a previous conviction: he or she is eligible, for instance, to
become a member of the National Assembly.
33
On
the other hand, undoing a civil judgment or an administrative
decision taken pursuant to conduct that later gives rise to amnesty

may have far-reaching consequences for private individuals and
bodies. Decisions taken may have been acted upon and
decision-makers
may have organised their affairs in accordance with
the decision already taken. In the case of discharge or dismissal,
someone
may have been employed in the position of the dismissed or
discharged employee. Undoing civil judgments or administrative
decisions
already lawfully taken would therefore have disruptive
consequences and result in uncertainty for individuals outside of
the
amnesty procedure.
In
determining whether section 20(10) has the effect of cancelling the
discharge of Mr du Toit as a past consequence of the conviction
and
sentence, it is important to note that the provisions of section
20(7), (8) and (9) do not seek to undo direct legal consequences

that flowed from the commission of the offence which were complete
before the date on which amnesty was granted. Nor do they
seek to
affect the civil and administrative consequences of conviction and
sentence.
There are three possible
interpretations of section 20(10), each of which was raised at the
hearing. The first, advanced by the
applicant, suggests that
amnesty extinguishes the conviction and sentence, as well as the
consequence of that conviction, being
discharge, as from the date of
the conviction itself, thus retroactively. The second, raised by
the respondents, is that amnesty
serves to extinguish the conviction
but does not affect the direct legal consequences that flowed from
that conviction. The
third, which during argument was accepted by
the applicant as alternative relief, is that while the
Reconciliation Act cannot
retroactively reinstate the applicant, it
may be that as at the date of the granting of amnesty, the applicant
was entitled to
reinstatement.
These three
interpretations arise out of the lack of clarity in the section
itself. In essence, each requires some degree of
“reading-in”
to make the intended meaning clear. The applicant would read the
section, “ . . . the conviction shall for
all purposes,
before
and after the granting of amnesty
, including the application,
before and after the granting of amnesty
, of any Act of
Parliament or any other law, be deemed not to have taken place.”
According to the respondents, the provision
would read, “ . . .
the conviction shall for all purposes,
with effect from the
granting of amnesty
, including the application of any Act of
Parliament or any other law, be deemed not to have taken place.”
Finally, under the
third interpretation, the section would read, “
. . . the conviction shall for all purposes,
with effect from the
granting of amnesty
, including the application,
before or
after the granting of amnesty
, of any Act of Parliament or any
other law, be deemed not to have taken place.” No single reading
emerges without anomaly.
In ascertaining which of
these constitutes the correct interpretation of section 20(10), the
Court has to determine which of them
is properly in line with the
scheme laid out in the Reconciliation Act, and which best achieves
the goal of reconciliation and
national unity. That would be the
interpretation that achieves the most appropriate balance between
the parties, that fits most
comfortably into the constitutional and
statutory framework, and that requires the least intrusive addition
to the text.
While the Reconciliation
Act seeks to advance reconciliation and national unity, it cannot
undo what has happened in the past.
Just as the aim of the
legislation is not to restore to the victims what they have lost –
an impossible task – it is not
(as we have seen from the analysis
of the provisions above) to restore the perpetrator, in every
respect, to his or her position
prior to the commission of the
offence. To seek to undo all the consequences of the conviction
would be an endless task and
would place an undue burden on the
state and third parties.
Section 20(7) to (10) of
the Reconciliation Act demonstrates that the legislature was alive
to this concern when the Act was passed.
It does not undo the
direct legal consequences of the conviction and sentence beyond the
public consequences such as the removal
of the record of conviction
and sentence from official documents and the voiding of sentences
still to be served. Even in respect
of public consequences, it is
not sought to undo ordinary legal consequences already complete by
the time amnesty was granted.
In this manner, section 20(7) to (10)
pays due regard to the interplay of benefit and disadvantage so
important to the process
of national reconciliation.
The
textual clues afforded by the provisions in the Reconciliation Act
concerning the reach of amnesty therefore bolster this
understanding
of the historical context in which the Act was passed. It was
important at the time that those coming forward
to the Truth and
Reconciliation Commission and admitting to wrongs they had committed
did not receive the lion’s share of benefits
from the process.
The Reconciliation Act carefully ensures this.
The applicant invoked the
fact that the statute is remedial legislation, the purpose of which
is to “express the values of the
Constitution and to remedy the
failure to respect such values in the past”.
34
He relied on
Goedgelegen Tropical Fruits
, where this Court
held that the Constitution and remedial legislation “umbilically
linked to the Constitution” ought to be
interpreted in context and
by offering a “generous construction over a merely technical or
linguistic one”.
35
The Reconciliation Act
was, to a certain extent, enacted in order to remedy the failures of
the past, but the primary aim of the
Act was to use the closure
acquired as a stepping stone to reconciliation for the future.
Amnesty was an important tool in this
process and one without which
the process would not have been agreed to by all parties, and could
not have taken place. However,
it cannot be correct to say that the
Reconciliation Act was enacted in order to ameliorate hardship for
the perpetrators of human
rights abuses and to provide these
perpetrators with remedies. The applicant cannot, for this reason,
rely on the usual rule
of the generous interpretation of remedial
statutes to persuade this Court that he ought to be reinstated. To
interpret the
Reconciliation Act in this way would not be to ensure
that it achieves its aims but would, in fact, be flouting those aims
by
extending too far the already delicate and difficult issue of
amnesty.
The conscious decision by
the legislature was that amnesty would allow people not to be
trapped in the painful past, but to be
given a pardoned freedom to
go forth and contribute to society. Amnesty may forgive the past,
but in South Africa it is intended
to have the inherently
prospective effect of national reconciliation and nation-building,
for the past can never be undone.
Only the future may be forged as
desired.
Alternative
argument based on reinstatement from the date of the grant of
amnesty
As an alternative to the
relief requested by the applicant, the possibility of reinstatement
as from the proclamation of the granting
of amnesty was suggested at
the hearing and adopted by the applicant. This is based on the
reasoning that while the consequence
of the conviction cannot be
deemed not to have occurred retrospectively, at the date of the
proclamation, there is no reason
for refusing to reinstate the
applicant, given that his conviction is void.
This argument too depends
on the proper interpretation of section 20(10). Given the
conclusion I have reached (that properly
interpreted the provision
does not seek to undo direct legal consequences that were completed
by the time amnesty was granted),
this argument too must fail. The
discharge of the applicant under section 36 of the SAPS Act was
lawfully effected by the time
amnesty was granted and cannot be
undone.
Section
36(2): should amnesty be equated to appeal or review?
Both
the High Court and the Supreme Court of Appeal rejected the argument
that amnesty should be equated to “appeal or review”
in section
36(2) of the SAPS Act.
36
I am not persuaded that this Court should come to a different
conclusion. Had the legislature intended to include in the ambit
of
section 36(2) the granting of amnesty it would have done so, given
the time when the SAPS Act was enacted, and specifically
the fact
that this Act followed shortly after the Reconciliation Act.
Further, appeal and review processes are judicial processes,
whereas
amnesty is an administrative process. The former are designed to
determine guilt or innocence; the latter is premised
on the guilt of
the perpetrator and its purpose is to advance national
reconciliation and reconstruction.
The
applicant contended that he was potentially worse off, having
obtained amnesty, than he would have been had he continued with
his
appeal. This assumes that his appeal would have succeeded: a matter
on which we need not speculate. The fact is that the
applicant made
a choice. The premise on which he applied for amnesty was that he
had committed a gross human rights violation.
It cannot be said
that the consequences of his election to pursue amnesty are unjust
or unfair.
It was submitted that
other members of the SAPS are still employed, having been granted
amnesty before their conviction. This
does not help the applicant.
Section 36 clearly differentiates between those who have been
convicted and sentenced and those
who have not. This
differentiation is reasonable and necessary for the functioning of
the section and, while it is unfortunate
for Mr du Toit, it is not
the cause of any unjust result.
While there may well be
many who were granted amnesty for gross human rights violations who
are still employed by the SAPS and
other state entities, this cannot
be a justification for restoring Mr du Toit to his position. His
discharge occurred because
he was convicted of committing a crime
before being granted amnesty. The Reconciliation Act does not undo
that consequence.
His reinstatement is not being refused by this
Court on the basis that he should not be allowed to serve as a
member of the
SAPS, but on an interpretation of the law in the light
of its context.
Contract between the
National Commissioner and the applicant
The applicant contended
that the letter he received from the National Commissioner
constituted an agreement to reinstate him.
However, as the Supreme
Court of Appeal found, the letter was not intended to be and did not
constitute a contract. First,
it did not purport to be a binding
contract. Second, the National Commissioner could not bind the SAPS
to his interpretation
of the relevant provisions. Accordingly, for
the reasons set out in the judgment of the Supreme Court of Appeal,
37
this argument too must fail.
Conclusion and costs
The application before
this Court falls to be dismissed. It is appropriate that there be
no order as to costs against the applicant.
Mr du Toit is
litigating against the state, based on legislation that needed
clarification. He has raised important and complex
issues of
statutory and constitutional interpretation. He should not be
burdened with costs even though he has been unsuccessful.
38
The principle was not given adequate consideration in the High
Court and the Supreme Court of Appeal and it is just to set aside

the cost orders in those courts.
Order
In the event, the
following order is made:
The application for
leave to appeal the judgment and order of the Supreme Court of
Appeal in case number 467/2007,
dated 30 September 2008, is
granted.
The appeal is
dismissed.
The orders for costs
made by the North Gauteng High Court, Pretoria in case number
40687/2006, dated 21 June 2007,
and by the Supreme Court of
Appeal, are set aside.
In their place is
substituted the following:
There
is no order for costs in the High Court and in the Supreme Court of
Appeal.
There is no order
for costs in this Court.
Moseneke DCJ, Cameron J,
Mokgoro J, Ngcobo J, Nkabinde J, O’Regan J, Sachs J, Skweyiya J,
van der Westhuizen J and Yacoob J
concur in the judgment of Langa
CJ.
Counsel
f
or the Applicant: Advocate JG Cilliers
SC and Advocate MD Du Preez instructed by Wagener Muller
Vermaak Attorneys.
Counsel
for the Respondents:
Advocate TJ Bruinders SC and
Advocate BL Makola instructed by the State
Attorney, Pretoria.
1
Azanian Peoples Organisation
(
AZAPO) and Others v
President of the Republic of South Africa and Others
[1996] ZACC
16
;
1996 (4) SA 671
(CC);
1996 (8) BCLR 1015
(CC).
2
Reported as
Du Toit v Minister of Safety and Security and Another
[2008] ZASCA 125
;
2009 (1) SA 176
(SCA).
3
Above n 1 at para 35.
4
The respondents argued that the principle that remedial
legislation be interpreted generously is pre-constitutional. For a
discussion
on the interpretation of remedial legislation in the
pre-constitutional era, see
Euromarine International of Mauren v
The Ship Berg and Others
1984 (4) SA 647
(N) at 663C–664A and
Jooste v Compensation Commissioner
1997 (1) SA 83
(C) at
88J–89A. The principle that remedial legislation ought to be
interpreted generously finds
favour
in the
constitutional framework in
Department of Land Affairs and Others
v Goedgelegen Tropical Fruits
[2007] ZACC 12
;
2007 (6) SA 199
(CC);
2007 (10) BCLR 1027
(CC) at paras 51–2.
5
Above at [4].
6
The epilogue to the interim
Constitution, under the title “National Unity and Reconciliation”,
provided that:
“
This
Constitution provides a historic bridge between the past of a
deeply divided society characterised by strife, conflict,
untold
suffering and injustice, and a future founded on the recognition of
human rights, democracy and peaceful co-existence
and development
opportunities for all South Africans, irrespective of colour, race,
class, belief or sex.
The pursuit of national
unity, the well-being of all South African citizens and peace
require reconciliation between the people
of South Africa and the
reconstruction of society.
The adoption of this
Constitution lays the secure foundation for the people of South
Africa to transcend the divisions and strife
of the past, which
generated gross violations of human rights, the transgression of
humanitarian principles in violent conflicts
and a legacy of
hatred, fear, guilt and revenge.
These
can now be addressed on the basis that there is a need for
understanding but not for vengeance, a need for reparation
but not
for retaliation, a need for
ubuntu
but not for
victimisation.
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, and 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.
With
this Constitution and these commitments we, the people of South
Africa, open a new chapter in the history of our country.”
Section
22(1) of Schedule 6 to the Constitution provides:
“
Notwithstanding
the other provisions of the new Constitution and despite the repeal
of the previous Constitution, all the provisions
relating to
amnesty contained in the previous Constitution under the heading
“National Unity and Reconciliation” are deemed
to be part of
the new Constitution for the purposes of the Promotion of National
Unity and Reconciliation Act, 1995 (Act 34
of 1995), as amended,
including for the purposes of its validity.”
7
Above n 1 at para 17.
8
Id at para 2.
9
Sections 1(c) and 2 of the Constitution.
10
Dicey
Introduction to the Study
of the Law of the Constitution
10
th
ed (Macmillan, London 1959) at 188, referred
to by this Court in
Chief Lesapo v North West Agricultural Bank
and Another
[1999] ZACC 16
;
2000 (1) SA 409
(CC);
1999 (12) BCLR
1420
(CC) at para 16.
11
President of the Republic of South Africa and Another v Hugo
[1997] ZACC 4
;
1997 (4) SA 1
(CC);
1997 (6) BCLR 708
(CC) at para
102.
12
De Lange v Smuts NO and Others
[1998] ZACC 6
;
1998 (3) SA 785
(CC);
1998 (7) BCLR 779
(CC).
13
Id
at para 31. (Footnotes omitted.)
14
As this Court held in
De Beer NO v North-Central Local Council
and South-Central Local Council and Others (Umhlatuzana Civic
Association Intervening)
[2001] ZACC 9
;
2002 (1) SA 429
(CC);
2001 (11) BCLR 1109
(CC) at para 11, “[t]his section 34 fair
hearing right affirms the rule of law which is a founding value of
our Constitution.
The right to a fair hearing before a court lies
at the heart of the rule of law.” (Footnote omitted.)
15
See Du Bois-Pedain
Transitional Amnesty in South Africa
(Cambridge University Press, United Kingdom 2007) at 258-9.
16
Above n 1 at para 9.
17
Id at para 21.
18
Id at para 7.
19
Above at [6].
20
Juratowitch
Retroactivity and the Common Law
(Hart
Publishing, Oxford 2008) at chapter 1.
21
Du Plessis
Re-Interpretation of Statutes
(Butterworths,
Durban 2002) at 183.
22
Id at 182.
23
The principle against interference with vested rights is a component
of the presumption against retrospectivity. No statute
is to be
construed as having retrospective operation which would have the
effect of altering rights acquired and transactions
completed under
existing laws, unless the legislature clearly intended the statute
to have that effect. This stems from the
belief that at some point
the state, the parties and third parties are entitled to rely on a
common understanding of the nature
of the rights acquired or
transactions completed. Compare
Wijesuriya v Amit
[1965] All
E.R 701
at 703, where the Privy Council held that–
“
[i]t
must be shown that the enacting words clearly cover the case to
which it is sought to apply them. The court will no doubt
prefer
an interpretation which gives effect to the [provision], rather
than one which denies it any efficacy, but it will not
strain the
language used, nor will it rewrite or adapt it to cover cases other
than those to which it clearly applies.”
A similar
approach has been adopted in
National Director of Public
Prosecutions v Basson
2002 (1) SA 419
(SCA); and
Bell v
Voorsitter van die Rasklassifikasieraad en Andere
1968 (2) SA
678
(A) at 683E-F.
24
Jaga v Dönges, NO and Another; Bhana v Dönges, NO and Another
1950 (4) SA 613
(A).
25
Id
at 662-3. See also
664E-F,
where
Schreiner JA went on to declare what amounted to an
endorsement of the role of the contextual approach:
“
Seldom
indeed is language so clear that the possibility of differences of
meaning is wholly excluded, but some language is much
clearer than
other language; the clearer the language the more it dominates over
context, and
vice
versa
, the
less clear it is the greater the part that is likely to be played
by the context.”
This
was perhaps the clearest and most coherent pre-constitutional
expression of the importance of context in interpretation,
and is
supported later in
University
of Cape Town v Cape Bar Council and Another
1986
(4) SA 903
(A) at 914D-E, in which the court held that despite
being clear and unambiguous, words in a statute should be read in
the light
of the subject matter with which they are concerned and
that it is only when that is done that the true meaning of the
legislation
can be discerned.
26
[2004] ZACC 15
;
2004 (4) SA 490
(CC);
2004 (7) BCLR 687
(CC).
27
Id at para 90.
28
25 LAWSA (reissue) at para 319. Most recently, in
Bertie Van Zyl
(Pty) Ltd and Another v Minister for Safety and Security and Others
[2009] ZACC 11
, Case No CCT 77/08, 7 May 2009, as yet
unreported, at para 21, the purpose and context of legislation were
held to play an important
role in clarifying the scope and extent of
that legislation. In
South African Police Service v Public
Servants Association
[2006] ZACC 18
;
2007 (3) SA 521
(CC) at
paras 19–20 this Court, per Sachs J, considered the importance of
interpretation in the context of a constitutional
democracy. This
importance stems from the fact that the Constitution must be
understood as responding to the country’s painful
past and laying
the foundations for a democratic and open society. Legislation must
then be read with a mind to the role that
such legislation should
play in the value system articulated by the Constitution.
29
Above at [16]–[30].
30
Section 20(7) provides:
“
(a) No
person who has been granted amnesty in respect of an act,
omission or offence shall be criminally or civilly liable
in
respect of such act, omission or offence and no body or
organisation or the State shall be liable, and no person shall
be
vicariously liable, for any such act, omission or offence.
(b) Where
amnesty is granted to any person in respect of any act, omission
or offence, such amnesty shall have no influence
upon the
criminal liability of any other person contingent upon the
liability of the first-mentioned person.
(c) No
person, organisation or state shall be civilly or vicariously
liable for an act, omission or offence committed between
1 March
1960 and the cut-off date by a person who is deceased, unless
amnesty could not have been granted in terms of this
Act in
respect of such an act, omission or offence.”
31
Section 20(8) provides:
“
If
any person
—
has
been charged with and is standing trial in respect of an offence
constituted by the act or omission in respect of which
amnesty is
granted in terms of this section; or
has
been convicted of, and is awaiting the passing of sentence in
respect of, or is in custody for the purpose of serving a
sentence
imposed in respect of, an offence constituted by the act or
omission in respect of which amnesty is so granted,
the
criminal proceedings shall forthwith upon publication of the
proclamation referred to in subsection (6) become void or the

sentence so imposed shall upon such publication lapse and the
person so in custody shall forthwith be released.”
32
Section 20(9) provides:
“
If
any person has been granted amnesty in respect of any act or
omission which formed the ground of a civil judgment which was

delivered at any time before the granting of the amnesty, the
publication of the proclamation in terms of subsection (6) shall

not affect the operation of the judgment in so far as it applies to
that person.”
33
In terms of section 47(1)(e) of the Constitution.
34
Goedgelegen
above n 4 at para 55.
35
Id at para 53.
36
Above at [4].
37
Above n 2 at paras 20-2.
38
See
Affordable Medicines Trust and Others v Minister of Health
and Another
[2005] ZACC 3
;
2006 (3) SA 247
(CC);
2005 (6) BCLR
529
(CC) at para 139; and
Biowatch Trust v Registrar Genetic
Resources and Others
[2009] ZACC 14
, Case No CCT 80/08, 3 June
2009, as yet unreported, at paras 22-4.