By Beauregard Tromp
Former president Thabo Mbeki has effectively prevented President Jacob Zuma from unilaterally pardoning a number of racist, religious and political killers.
At least, not without consulting their victims.
This was the unanimous decision of the Constitutional Court, which was faced with the president, ministers and Afrikaner Weerstandsbeweging (AWB) on one side and the victims and NGOs on the other.
The case stems from former president Thabo Mbeki's attempt to conclude the business of the Truth and Reconciliation Commission (TRC), using the principals of that body.
An advisory group representing the political spectrum was formed and tasked with whittling down a list of nearly 2 000 names to 121 recommended for pardons under this special dispensation.
Since then, presidents Kgalema Motlanthe and Jacob Zuma have been prevented from issuing pardons, with victims arguing that they had a right to be heard, if the process was to follow the spirit of the TRC.
Among those who applied for pardons were AWB members Ryan Albutt, Gerhardus Taljaard, Alexander Whitehead, Arend de Waal, Willem Jacobs, Hans Wessels, and Ryno Rossouw, who attacked black workers in Kuruman in 1995.
The court at the time described their attack as "unashamedly racist".
Others hoping to receive a pardon were members of the right-wing fundamentalist Israel Vision group, who planted a bomb under a Christmas tree in a Worcester shopping mall on Christmas Eve, 1996.
With the list never made public and the Presidential Reference Group refusing to hear representation from victims, it was feared that those who eventually made the list would be as a result of political horse-trading with scant regard for victims.
The final list included AWB, PAC, IFP and ANC members, many of whom were mass murderers or convicted of attempted murder.
Yesterday the Constitutional Court found that the president would be acting outside the constraints placed upon the office by Mbeki should he fail to hear victims.
"It is difficult to fathom how the president can establish the truth about the motive with which a crime was committed without hearing the victim of that crime," noted Judge President Sandile Ngcobo.
"To do otherwise is to undermine the TRC process and is contrary to the objective of promoting national unity and national reconciliation. In these circumstances, the requirement to afford the victims a hearing is implicit, if not explicit, in the very specific features of the special dispensation process," he said.
NGOs representing victims of the attacks were "ecstatic" at the judgment yesterday.
"This is a victory for the rights of victims and an affirmation of the gains of the truth commission in promoting responsibility and accountability for apartheid abuses," said Hugo van der Merwe, of the Centre for the Study of Violence and Reconciliation.
"The business of the TRC is not over and it won't be for at least another generation," he said.
The judgment was also welcomed by the DA, which said the cases of convicted fraudster Schabir Shaik and convicted police hit squad commander Eugene de Kock were not at issue.
In IOL.
CSVR is a multi-disciplinary institute that seeks to understand and prevent violence, heal its effects and build sustainable peace at the community, national and regional levels.
