Hendrik Gerber v Die Voorsitter: Komitee oor Amnestie van die Kommissie vir Waarheid en Versoening

On 21 May 1991, the appellant and two accomplices tortured and killed Samuel Kganakga. The appellant, a former member of the South African Police who was then working for Fidelity Guards in Johannesburg, received information from an informant that the deceased was involved in a robbery of R4.2 million on 27 March 1991. The deceased was taken to the appellant's office and later to a remote area outside Johannesburg where he was subjected to extreme torture including being hung upside down from a tree, electrocuted, and exposed to smoke. When the deceased attempted to flee, the appellant shot and killed him. The appellant was convicted of murder in 1993 and sentenced to 20 years imprisonment. Following the enactment of the Promotion of National Unity and Reconciliation Act 34 of 1995, the appellant applied for amnesty, claiming the murder was associated with a political objective as his informant had allegedly told him the deceased had contact with the PAC. The Amnesty Committee rejected his application. The appellant's subsequent review application to the Transvaal Provincial Division was also unsuccessful, and he appealed to the Supreme Court of Appeal.

• Whether the Amnesty Committee unlawfully discriminated against the appellant in violation of section 9 of the Constitution (right to equal protection and benefit of the law)
• Whether the Amnesty Committee erred in finding that the murder was not associated with a political objective as required by section 20 of the Promotion of National Unity and Reconciliation Act 34 of 1995
• Whether the court a quo had the power to interfere with the Amnesty Committee's credibility findings in a review application based on an alleged constitutional rights violation
• Whether the Amnesty Committee was entitled to reject the appellant's evidence based on his failure to mention political motivation during his criminal trial

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

Where an amnesty applicant alleges unfair discrimination based on differential treatment compared to another case, no discrimination occurs if the different outcomes flow from different factual findings regarding whether the offense was associated with a political objective as required by section 20 of the Promotion of National Unity and Reconciliation Act 34 of 1995. A finding by the Amnesty Committee that an offense was not associated with a political objective is fatal to an amnesty application, as the Committee has no power to grant amnesty without such a finding. Courts will not interfere with credibility findings made by the Amnesty Committee in properly conducted hearings unless there is a clear basis for doing so. The Amnesty Committee is entitled to test the credibility of an applicant's claim of political motivation by reference to the applicant's failure to raise such motivation in prior proceedings (such as a criminal trial) where it would have been relevant and beneficial to do so, and by reference to objective facts such as whether political issues were actually raised during the commission of the offense.

The Court noted, without definitively deciding, that where a review application is based on an alleged violation of constitutional rights, a court may have wider powers of review than the traditional limitations applicable to administrative decisions under common law principles. The Court accepted this proposition arguendo for purposes of the appeal but did not need to finally determine its validity. The Court also observed that while one of the objectives of the Act was to encourage truth-telling by amnesty applicants despite previous false statements, this does not mean that an applicant's previous inconsistent statements are irrelevant to assessing credibility, particularly where the truth as now claimed would have been advantageous to disclose in earlier proceedings.

This case is significant in South African law as it clarifies the scope of judicial review of decisions by the Truth and Reconciliation Commission's Amnesty Committee. It establishes that: (1) Different outcomes in amnesty applications do not constitute unfair discrimination where they are based on different factual findings regarding political motivation, as required by the statute; (2) Courts will not lightly interfere with credibility findings made by the Amnesty Committee, even in review applications alleging constitutional rights violations; (3) The Amnesty Committee is entitled to consider an applicant's previous inconsistent statements (such as failure to mention political motivation in a criminal trial) when assessing credibility, despite the TRC's objective of encouraging truth-telling; and (4) The requirement of a political objective under section 20 of the Act is essential and cannot be waived - without such a finding, the Committee has no power to grant amnesty regardless of other considerations. The case demonstrates the high threshold for successfully challenging Amnesty Committee decisions and the deference courts accord to the Committee's fact-finding role in the transitional justice context.