Special Hearings — Political Party Hearings — 1996-08-19

MR GREEN: To respond to the first part of your question with regards to the nature of justice or our understanding of justice, it is very clear in terms of our understanding of the word of God, the Bible which we understand to be the source of justice.  We understand that there is no person that understands justice better than God because God is a god of love but is also a god of justice. Now when we take the word of God and we study the word of God throughout particularly the Old Testament and particularly the first five books of Moses, we would find that many many nations and nations thousands of years ago had to deal with the issue of justice and our understanding of justice in terms of unfolding the word of God is that it is always a situation of where you would have equal playing fields, you would have a playing field where the person who is the perpetrator as well, particularly the society or the person who has suffered after the process has gone through, whatever the judgement might be, that there is an understanding that justice was done, that righteousness was done, and that is why in the word of God there is always, or consistently there is retribution as far as criminal acts are concerned because if there is no retribution and I think the New Testament is also an example, when God sent Christ to the cross, the kind of justice or the kind of forgiveness or reconciliation with God wasn't done at just a giving of amnesty to persons who did not declare that they were sinners of guilty, it was an act of love but there was a lot of suffering and somebody had to pay the price in order to take that upon himself.  And so when God showed us that example he actually says that when it comes to justice, justice doesn't come cheap.  Justice in terms of our understanding is that the perpetrator as well as the victim and particularly the victim, must feel that justice has been done.  In our society we have a situation where we do not have an appearance that justice has been done, even after the elections, we have situation where criminals are roaming the street and the kind of justice they understand is the justice that can be bought by money.  If they have clever lawyers, clever advocates and so on, that's justice.  In other words if they know how to get out of prison and how to argue very well then they know that the kind of justice they would get is that there in fact would not be any justice.  And that is why we are starting to think and we are starting to become very concerned about organisations and groups and vigilante groups like for instance in the Western Cape, Pagad and what is happening to our society. It's because the understanding, the drug lords, the persons involved with doing these things are not seen to be brought to justice. And that is a very important aspect I think of our understanding of justice, is that if a crime is committed it is important for society to see that the perpetrator will have to be punished by the state for perpetrating that crime.

CHAIRPERSON: Alright Dr Boraine and then Denzil Potgieter.

DR BORAINE: Chairperson if I can just respond very briefly to the Reverend Meshoe.  For the record I think it's important for me to say that their reason why amnesty has to take a certain process which goes beyond someone simply going to an individual is that you in your own submission have made it clear that the offending party is not only the  individual but also the State and why the Commission had to be set up indeed is that it recognises that you cannot simply go to the victim or the victim's family and say look I murdered your father, I'm very sorry and I'm really upset about it.  Let's call it a day. The State has to be involved directly and that is why we have argued that it ought to be public sop that the State can accept its responsibility and the public can see, and it's not done privately with some individual.  That's the only point I wanted to make.

CHAIRPERSON: Denzil Potgieter.

MR POTGIETER: Thank you Chairperson.  Could I perhaps just embroider a bit more on the issues of justice and amnesty that was debated with you?  There is clearly a tension between justice and amnesty as we have it particularly if you look at the consequences of granting amnesty, you wipe out criminal and civil liability, not only on the part of the perpetrator, the offender of it, also on the part of the State or on the part of the organisation which could perhaps or institution which could perhaps be held liable normally in law for the particular act and your emphasis on justice and it seems as if you have accepted in this process that justice has in fact been subjugated to, as you put it here, utilitarian pragmatism.  Because clearly amnesty and its consequences as we have it now could clearly not be in line with the concept of justice as you have it here.
 Should we not in an attempt to somehow comply with the requirement of justice look at tempering the consequences of amnesty.  For example apart from the issue of reparations, giving something to the victim, should we not take it a step further and temper the consequences of amnesty by for example looking at a situation where that particular perpetrator is in a position of authority where he or she could very well repeat the abuse in question in respect of which we have granted amnesty?  Would it help, would it go some way towards satisfying the requirement of justice if we were to look at that sort of situation as well where you have people still in authority but granted amnesty in respect of abuses that could very well be repeated?