Special Hearings — Chemical And Biological Warfare Hearings — 1998-06-08

MR VALLY: Yes I do. Actually I do not. I can give you the case number. We had the original judgment I am afraid I do not have the. But I can give you a copy of this. We have lots of copies.

CHAIRPERSON: Proceed.

MR VALLY: I am referring to paragraph 9 on page 11 of my copy.
"The effect of an amnesty undoubtedly impacts upon very fundamental rights."
I am quoting Justice, at the time deputy president Mohammed, now Chief Justice, Deputy President of the Constitutional Court. Let me go on. Paragraph 9:
"The effect of an amnesty undoubtedly impacts upon very fundamental rights. All persons are entitled to the protection of the law against unlawful invasion of their right to life. Their right to respect for and protection of dignity and their right not to be subject to torture of any kind. When those rights are invaded those aggrieved by such invasion have the right to obtain redress in the ordinary  courts of law. And those guilty of perpetrating such violations are answerable  before such courts both civilly and criminally. And amnesty to the wrong-doer effectively obliterates such rights. There  would therefore be very considerable force in the submission that Section 20 subsection 7 of the Act constitutes a violation of Section 22  of the Constitution. If there was nothing in the Constitution itself,"
20 subsection of the Act is referring to our Act - Promotion of National Unity and Reconciliation Act, Act 34 of 1995. Section 22 of the interim Constitution refers to the right to have justiciable issues decided by courts. 
"If there was nothing in the Constitution itself which permitted and authorised such violation the crucial issue therefore which needs to be determined is whether the Constitution indeed permits such a cause.
Section 33 subsection 2 of the Constitution provides that, same as provided for in subsection 1 
"or any other provision of this Constitution no law whether rule of common law, customary law or legislation may limit any right entrenched in this chapter.
Two questions arise from the provisions of this subsection. The first question is whether there is any other provision in this Constitution which permits a limitation of the right in Section 22. And secondly if there is not whether any violation of Section 22 is a limitation which can be justified in terms of Section 33(1) of the Constitution which reads as follows,"
and it has got the limitation clause of the interim Constitution set out therein. He deals with some of the arguments and he says: -
"The status is determined by Section 2 (32)(4) of the interim Constitution which provides as follows,"
and in that section it says that the very fact that the post-amble is in the schedule means that it does not have any lesser status than any other provision of the Constitution. The difference in the final Constitution is as I quoted just now the post-amble itself says it is part of the Constitution. It says so expressly.
 The epilogue therefore has no lesser status than any other part of the Constitution. As far as Section 22 is concerned it therefore would have the same effect if the provision was in Section 22 itself which enacted that and I quote: -
"Nothing contained in this subsection shall preclude parliament from adopting a law providing for amnesty to be granted in respect of acts, omissions and offences."
He is deciding to make law in that respect. But what he in fact says is this is how you read it. The post-amble relating to the genesis of our Act is part of the Constitution.

CHAIRPERSON: What point turns on that Mr Vally?