Du Toit v The Minister of Safety and Security

The appellant was the National Commanding Officer: Technical Support Services with the rank of Director in the South African Police Services (SAPS). On 14 June 1996 he was convicted on four charges of murder and on 27 June 1996 sentenced to 15 years' imprisonment. As a result, he was deemed to have been discharged from the SAPS with effect from the date following the sentence in terms of section 36(1) of the South African Police Service Act 68 of 1995. The appellant appealed against his conviction, but the appeal was postponed pending the finalisation of his application for amnesty in terms of the Promotion of National Unity and Reconciliation Act 34 of 1995. The appellant's application for amnesty was ultimately successful and amnesty was granted and proclaimed on 23 December 2005. The National Commissioner had previously written to the appellant on 29 December 1999 stating that if his review application succeeded, he would be deemed never to have been found guilty and his position would be retrospectively restored. After receiving amnesty, the appellant applied for reinstatement, but this was refused. He then applied to the Pretoria High Court for an order declaring that he was entitled to be reinstated, which application was dismissed.

• Whether section 20(10) of the Promotion of National Unity and Reconciliation Act 34 of 1995 operates retrospectively to undo the consequences of a conviction that occurred before amnesty was granted
• Whether section 36(2) of the South African Police Service Act 68 of 1995 entitles a person who has been granted amnesty to be reinstated in the SAPS
• Whether the National Commissioner's letter of 29 December 1999 constituted a binding contractual agreement to reinstate the appellant

The appeal was dismissed with costs, including the costs of two counsel.

Section 20(10) of the Promotion of National Unity and Reconciliation Act 34 of 1995 does not operate retrospectively to undo consequences that came into effect before the granting of amnesty. The deemed discharge of a SAPS member under section 36(1) of the South African Police Service Act 68 of 1995 as a result of conviction and sentence to imprisonment is not reversed by the subsequent granting of amnesty. Section 36(2) of the SAPS Act, which provides for reinstatement where a conviction is set aside 'following an appeal or review', does not apply to cases where amnesty has been granted, because appeal and review proceedings are judicial in nature and focus on whether the conviction was proper, whereas amnesty proceedings are administrative in nature and focus on promoting reconciliation. There is a presumption that legislation operates prospectively and not retrospectively, which can only be rebutted by express provisions or necessary implication in the enactment.

The court observed that interpreting section 20(10) to operate retrospectively would have far-reaching financial and other effects, such as affecting contracts and statutory relationships to the potential detriment of people who had not committed any wrong. The court noted that it seems highly unlikely that the legislature intended such a result in legislation aimed at improving future relationships. The court also noted that the appellant had not been wronged by having been convicted and discharged from the SAPS as a result of the conviction, and therefore reinstating him could make no contribution to the object of the Amnesty Act, namely to achieve reconciliation. The court emphasized that the intention of the legislature was to provide a mechanism for forgiving transgressors for what they had done in the past, not to undo what had happened in the past.

This case is significant in South African jurisprudence for clarifying the operation of section 20(10) of the Promotion of National Unity and Reconciliation Act 34 of 1995 (the Amnesty Act). It establishes that the deemed expungement of convictions for which amnesty has been granted does not operate retrospectively to undo consequences that had already materialized before the granting of amnesty. The case also clarifies that section 36(2) of the South African Police Service Act 68 of 1995, which provides for reinstatement following the setting aside of a conviction on appeal or review, does not apply to cases where amnesty has been granted, because amnesty proceedings are fundamentally different in nature and purpose from judicial appeal and review proceedings. This case reinforces the principle of statutory interpretation that legislation is presumed to operate prospectively unless there is clear indication of a contrary legislative intent, and it distinguishes between the effects of judicial processes that determine guilt or innocence and administrative processes that grant amnesty for purposes of reconciliation.