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Prof Botha case summaries

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This document contains four case summaries applicable to Prof Botha's part of the work: AZAPO v President of RSA First Certification Judgement New National Party of SA Pharmaceutical Manufacturers

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  • October 31, 2017
  • 9
  • 2017/2018
  • Case
  • Unknown
  • Case summaries

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Contents:

AZAPO v President of RSA

First Certification Judgement

New National Party of SA v Government of SA

Pharmaceutical Manufacturers

AZAPO v President of the RSA 1996 (4) SA 671 (CC)

 Interim Constitution: committed to transition to a more just, defensible and democratic
political order based on protection of fundamental HRs
 This could not be achieved without a proper commitment to reconciliation and national
unity
 Epilogue to Constitution: “in order to facilitate reconciliation, amnesty shall be granted in
respect of acts, omissions and offences associated with political objectives. Parliament
under this Constitution shall adopt a law providing for the mechanisms, criteria and
procedures, including tribunals, through which such amnesty shall be dealt with”
o In 1995 Parliament enacted Promotion of National Unity and Reconciliation Act
(“Truth and Reconciliation Act”); Act established TRC
o Objective of TRC: promote national unity and reconciliation; create a complete as
possible picture of the causes, nature and extent of HR violations; take into account
perspective of victims and persons responsible
o TRC (Committee on Amnesty) gave amnesty to those who made full disclosure of all
the relevant facts relating to acts committed with a political objective
 S 20(7) of the Act: no person who has been granted amnesty in respect of an act, omission
or offence shall be criminally or civilly liable, and neither the State nor any
body/organisation will be vicariously liable
o Constitutionality of s 20(7) is at issue in this case: its consequences are not
authorised by the Constitution
o S 20(7) is in conflict with s 22 of the Constitution: “right to have justiciable disputes
settled by a court of law, or another independent or impartial forum”
o Applicants: Amnesty Committee ≠ ‘court of law’ or ‘independent or impartial forum’;
not authorised to settle ‘justiciable disputes’ – all that it could decide was whether
amnesty should be granted
 Effect of amnesty: impacts upon fundamental rights (right to obtain redress when rights are
invaded; guilty persons are answerable before the courts)
 Legal question: does the Constitution permit the violation of s 22 by s 20(7) of the Act?
o Is there a provision in the Constitution which permits a limitation on s 22, or if not,
can a limitation on s 22 be justified i.t.o. s 33(1)?
 Respondents argued that epilogue of Constitution is the provision which authorises any law
conferring amnesty
 Necessary to deal with constitutional status of the epilogue (is it a “provision” of the
Constitution?)
o S 232(4) of the Constitution: a provision in any Schedule to this Constitution shall not
by reason only of the fact that it is contained in a Schedule, have a lesser status than
any other provision of this Constitution

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