Promotion of National Unity and Reconciliation Act

4. The functions of the Commission shall be to achieve its objectives, and to that end the Commission shall- · · (a) facilitate, and where necessary initiate or coordinate, inquiries into-' a systematic pattern of abuse; · (i) ·gross violations of human rights, including violations which were part of · (ii) the nature, causes and extent of gross violations of human rights, including the antecedents, circumstances, factors, context, motives and perspectives which led to such violations; · · · (iii) the identity of all persons, authorities, institutions and organisations involved in such violations; . 5 10 15 20 (iv) the question whether such violations were the result of deliberate planning on the part of the State or a former state or any of their organs, or of any political organisation, liberation movement or other group or individual; and (v) accountability, political or otherwise, for any such violation; 25 (b) facilitate, and initiate or coordinate, the gathering of information and the receiving of evidence from any person, including persons claiming to be victims of such violations or the representatives of such victims, which establish the identity of victims of such violations, . their fate or present whereabouts and the nature and extent of the harm suffered by such victims; 30 (c). facilitate and promote the granting of amnesty in respect of acts associated with political objectives, by receiving from persons desiring to make a full disclosure of all the relevant facts relating to such acts, applications for the granting of amnesty in respect of such acts, and transmitting such applications to the Committee on Amnesty for its decision, and by'{mblishing decisions 35 granting amnesty, in the . Gazette; (d) · determine what articles have been destroyed by any person in order to conceal violations of human rights or acts associated with a political objective; (e) prepare a comprehensive report which sets out its activities and findings, based on factual and objective information and evidence collected or received 40 by it or placed at its disposal; · (f) make recommendations to the President with regard to- (i) the policy which should be followed or measures which should be taken with regard to the granting of reparation to victims or the taking of other measures aimed at rehabilitating and restoring the human and civil 45 dignity of victims; . (ii) measures which should be taken to grant urgent interim reparation to · · victims; ' · · · · · · · (g) make recommendations to the Minister with regard to the development of a limited witness protection programme for the purposes of this Act; (h) ·make recommendations to. the President with regard to· the creation of institutions conducive to a stable and fair society and the institutional, administrative and legislative measures which should be taken or jntroduced in order to prevent the commission of violations of human rights. ' . . . . . . ·so 10 No. 16579 GOVERNMENT GAZETTE, 26 JULY 199.5 Act No. 34, 1995 PROMOTION OF NATIONAL UNITY AND RECONCILIATION ACT, 1995 Powers of Commission '

5. In order to achieve its objectives and to perform its functions the Commission shall have the power to- (a) determine the seat, if any, of every committee; . . .- (b) 'establish such offices as it may deem necessary _for. the performance of its 5 · functions; . . (c) establish subcommittees to exercise, carry out or perform any of the powers, duties and functions assigned to them by the Commission; (d) conduct any investigation or hold any hearing it may deem necessary and (e) . , ' establish the investigating unit referred to in section 28; ... refer specific or general matters to, give guidance and instructions to, or review the decisions of, any committee or subcommitte~ or the investigating unit with regard to the exercise of its powers, the performance of its functions and the carrying.out of its duties, the working procedures .which should be followed and the divisions which should be set up by any committee in order 15 to deal effectively with the work of the committee: Provided that no decision, or the pro~ess of arriving at such a decision, of the Committee on Amnesty regarding any application for amnesty shall be reviewed by the Commission; .. (f) direct any committee or subcommittee to make information which it has in its lO . possession available to any other committee or subcommittee; committee or subcommittee; (g) direct the submission of and. receive reports or interim reports from any ' (h) have the administrative and incidental work connected with the exercise of its powers, the execution of its duties or the perform'ance of its functions carried out by persons- (i) employed or appointed by it; (ii) seconded to its service by any department of State at the request of the Commission and after consultation with the Public Service Commission; . . . · . ' 20 25 · (i) (iii) appointed by it for the performance of speCified tasks; in consultation with the Minister and through diplomatic channels, obtain 30 permission from the relevant authority of a foreign country to receive evidence or gather information in that country; ·' · (j) enter into an agreement with any person, including any department of State, in terms of which the Commission will be authorized to make use of any of the facilities, equipment or personnel belonging to or under the control or in the 35 employment of such person or department; recommend to the President that steps be taken to obtain an order declaring a person to be dead; · ., (k) (I) hold meetings at any place within or outside the Republic; (m) on its own initiative or at the request of any interested person inquire or 40 investigate into any matter, including the disappearance of any person or group of persons .. Certain powers shall be exercised in c.o.ns:ultation with Minister . · 6. Subject to the provisions of section 45, any po~er referr~d to i~ section 5(a), (b) and (c), and, if it is to be exercised outside the Republic, any power referred to in 45 sections 5(d) and (l), 10(1) arid 29(1), shall be exercised in consultation with the Minister. · · . ,. · · · · · , .· • · · · Constitution of Commission ' ; ; < ~ 7. (1) The Commission shall consist of not fewer than 11 arid not more than 17 commissioners, as may be determined by the President in consultation with the Cabinet. 50 · (2) (a) The President shall appoint the 'commissioners in · consultation with the Cabinet. · · . · . · · (b) The commissioners shall be fit and proper persons who are impartial'and who do not have a high political profile: Provided that not more than two persons who are not South African citizens may be appointed as commissioners. . · · · .. 1 · • · • :· ·.·, · ' · · · (3) ·The . President shall make the appointment of the commissioners • known by proclamation in the Gazette. . . . . . , 55 12 No. 16579 GOVERNMENT GAZETIE, 26 JULY 1995 Act No. 34, 1995 PROMOTION OF NATIONAL UNITY AND RECONCILIATION ACf, 1995 (4) The President shall designate one of the commissioners as the Chairperson, and another as the Vice-Chairperson, of the Commission. (5) A commissioner appointed in terms of subsection (2)(a) shall, subject to. the provisions of subsections (6) and (7), hold office for the duration of the Commission. (6) A commissioner may at any time resign as commissioner by tendering his or her 5 resignation in writing to the President. (7) The President may remove a commissioner from . office on the grounds of misbehaviour, incapacity or incompetence, as determined by the joint committee and upon receipt of an address from the National Assembly and an address from the Senate. . . . . (8) If any commissioner tenders his or her resignation under subsection (6), or is 10 removed from office under subsection (7), or dies, the President in consultation with the Cabinet, may fill the vacancy by appointing a person for the unexpired portion of the term of office of his or her predecessor or may allow the seat vacated as a result of a resignation, removal from office or death to remain vacant.. . . . . . . . . . . . ' ' - Acting Chairperson of Commission · · · · · ·;' } .. .. ! . 15 S.lf both the Chairperson and Vice-Chairperson are absent or unable to perform their duties, the other ·commissioners shall from among their number nominate an Acting Chairperson for the duration of such absence or incapacity. · · · '' : ... Conditions of service, remuneration, allowances and other benefits of staff of Commission .. · 20 9. ( 1) The persons appointed or employed by the Commission who are not officials of the:State,.shall receive such remuneration, allowances and other employment benefits and shall be appointed or employed on such terms and .conditions and for such periods . as the Commission with the approval o_f the Minister, granted in concurrence with the Minister of Finance, may determine. . . . . . · 25 (2) (a) A document setting out the reiJ1unerati<m, ~l_lowances and other conditions of employment determined by the Cm;nmissiop in terms of subsection (1), shall be tabled in Parliament withiriJ4 days aftereach such· determination. . . . (b) If Parliament disapproves of any deterniination, such determination shall cease to be of force to the· eic.t€mt to wh~ch it is so disapproved. : , . . .· · ... · 30 (c) If a determination ceases to be of force as contemplated in paragraph (b)- . (i) · anything done in terms of such determination. up to the date on which' such · determination ceases' to b~ of force shall be ·deemed to have been validly done; and (ii) any right, privilege, obligation or liability acq'uired, accrued or incurred up to · · ·· · · the said date under and by virtue of such determination, shall lapse upon the 35 said date. ' . · · · · · . · · · ' : Meetings, procedure at and quorum for meetings of Commission and recording of · proceedings ; ' . ... ' ··to. (I) A meeting of the Commission shall be hdd at a time and place determined by the Chairperson of the Commission or, in the absence or inability of such Chairperson, 40 by the Vice-Chairperson of the Commission or, in the absence or inability of both such Chairperson and Vice-Chairperson, by the Acting Chairperson of the Commission. · · · · ·' · · · · . . . · ' (2) Subject to section 40, the Commission shall have the power to determine the procedure for its meetings, including the manner in which decisions shall b~ taken. (3) The Commission shall cause a record to be kept of its proceedings. . ( 4) The quorum for the first meeting of the Commission shall be two less than the total · · number of the Commission. · ' Principles to govern actions of Commission when dealing'with victims . 11. When dealing with victims the a~iions of the -Commission shall be guided by the following principles: . . · · ·. ' . · : · · · ' ' ' (a) Victims shall be treated with compassion and respect for their dignity; : ~· ·· (b) victims shall be treated equally and witpoui · disc~mination of any kind, 45 50 14 No. 16579 GOVERNMENT GAZETIE, 26 JULY 1995 Act No. 34, 1995 PROMOTION OF NATIONAL UNITY AND RECONCILIATION ACT, 1995 including race, colour, gender, sex, sexual orientation, age, language, religion, nationality, political or other opinion, cultural beliefs or practices, property, birth or family status, ethnic or social origin or disability; (c) · procedures for dealing with applications by victims shall be expeditious, fair, inexpensive and accessible; . (d) victims shall be informed through the press and any other medium of their rights in seeking redress through the Commission, including information of (i) . the role of the Commission and the scope of its activities; , . (ii) the right of victims to have their views and submissions presented and considered at appropriate stages of the inquiry; (e) appropriate measures shall be taken in order to minimize inconvenience to victims and, when necessary, to protect their privacy, to ensure their safety as well as that of their families and of witnesses testifying on their behalf, and to protect them from intimidation; 5 10 (j) · appropriate_ measures shall be taken to allow victims to communicate in the 15 (g) language of their choice; informal mechanisms for the resolution of disputes, including mediation, arbitration and any procedure provided for by customary law and practice shall be applied, where appropriate, to facilitate reconciliation and redress for victims. , . 20 J T i CHAPTER3 Investigation of Human Rights Violations Committee on Human Rights Violations

12. There is hereby established a committee to be known as the Committee on Human Rights Violations, which shall in this Chapter be referred to as the Committee. 25 Constitution of Committee · .. ' 13. (1) The Committee shall consist of- (i) a Chairperson; and· ( a) · · · · · (ii) . :two Vice-Chairpersons, · · · · who shall be commissioners designated by the Commission; · · . , · 30 ·(b). ·such other commissioners as may be appointed by the Commission; and •, (c) . not more than three other members. (2) The Commission shall appoint, as the members referred to in subsection (1)(c), South African citizens who are fit and proper persons and broadly representative of the South African community and shall, when making such appointments, give preference 35 to persons possessing knowledge of the content and application of human rights or of investigative or fact-finding procedures. . · Powers, duties and functions of Committee 14. (1) In addition to the powers, duties and functions conferred on, imposed upon and assigned to it in this Act, and for the purpose of achieving the objectives of the 40 Commission, referred to.insection 3(1)(a), (c) and (d)-:- : (a) the Committee shan-· (i) (ii) gather the information and receive the evidence referred to' in section institute the inquiries referred to in section 4( a);, , ·'' 4(b); .. ' (iii) determine the facts contemplated in section 4( d); (iv) take into account the gross violations of human rights for- which indemnity has been granted during the period between 1 March 1960 and , . the date of commencement of this Act or for which prisoners were 45 released or had their sentences remitted for the sake of reconciliation and 50 · for the finding of peaceful solutions during that period; · (v) · record allegations and complaints of gross violations of human rights; the Committee may- (b) 16 No. 16579 GOVERNMENT GAZETIE, 26 JULY 1995 Act No. 34; 1995 PROMOTION OF NATIONAL UNITY AND RECONCILIATION ACI', 1995 (i) collect or receive from any organisation, commission or person, articles relating to gross violations of human rights; · (ii) make recommendations to the Commission with regard to the matters referred to in section 4(j), (g) or (h); (iii) make information which is in itspossession available to a committee referred to in Chapter 4 or 5, a subcommittee or the investigating unit; (iv) · submit to the Commission interim reports indicating the progress made by the Committee with its activities or with regard to any other particular matter; ( v) · exercise the powers referred to in Chapters 6 and 7. ·. 5 10 (2) The Committee shall at the conclusion of its functions submit to the Commission a comprehensive report· of all its activities and ·findings in connection with the performance of its functions and the carrying out of its duties in terms of this Act. Referrals to Committee on Reparation and Rehabilitation · ' · · .: .. : ' 15. (I) When the Committee finds that a gros.s•violation ofhuman rights has been 15 committed and if the Committee is of the opinion that a person is a victim of such violation, it shall refer the matter to the Committee on Reparation· and Rehabilitation for . , its consideration in terms of section 26. '. 'l ' . ' •' I (2) After a referral to the Committee on Reparation and Rehabilitation ha's been made by the Committee in terms of subsection ( 1 ), it shall, at the request of the Committee on 20 Reparation and Rehabilitation, furnish that Committee with all the evidence and other information relating to the victim concerned 'or conduct such further investigation or hearing as the said Committee may require. r ' • · '· • CHAPTER4 -; . . Amnesty mechanisms and procedur~s ''; . ' ' " .. . ~ 25 Committee on Amnesty ... •.

16. There is hereby established a committee tobe knownas the Committee on Amnesty, which shall in this Chapter be referred to as the Committee. · Constitution of Committee 17. (1) The Committee shall consist of a Chairperso~.· a Vi~e-Chairi>erson and ·three 30 other members who are fit and proper persons, 'appropriately qualified, South African citizens and broadly representative of the South African community.:, ·. · • . ·; . . . ~ (2) The President shall appoint the Chairl>ers'on, the Vice~Chairi>erson, f:ine other person and, after consultation with the Commission, two commissioners as members of · the Committee. · · · ' · · · · (3)TheChairpersonoftheCommitteeshallbe- . (a) a judge as defined in section 1(1) of the Judges' Remuneration and Conditions of Employment Act, 1989 (Act No .. 88 of 1989); or . . . , (b) a judge who has been discharged from active service in terms of section 3 of the said Act. , . , - - 40 (4) Any vacancies in the Committee shall be filled in accordance with this section. Applications for granting of amnesty . 18. (1) Any person who wishes to apply for amnesty in respect of any act, omission or offence on the grounds that it is an act associated with a political objective, shall within 12 months from the date of the proclamation referred to in section 7(3), or such 45 extended period as may be prescribed, submit such an application to the Commission in the prescribed form. . · . . .. . (2) The Committee shall give priority to applications of persons in custody and shall prescribe measures in respect of such applications after consultation with the Minister and the Minister of Correctional Services. 50 · · ,. ,. · ,, - · · ' '·· ··· ., . . , 35 IS No. 16579 GOVERNMENT GAZETIE, 26 JULY 1995 Act No. 34, 1995 PROMOTION OF NATIONAL UNITY AND RECONCILIATION ACT, 1995 Committee shall consider applications for amnesty 19. (I) Upon receipt of any application for amnesty, the Committee may return the application to the applicant and give such directions in respect of the completion and submission of the application as may, be necessary or request the applicant to provide such further particulars as it may deem necessary. ... (2) The Committee shall investigate the application and make such enquiries as it may deem necessary: Provided thatthe provisions of section 30(2) shall, with the necessary changes, apply in respect of such investigation. · · · 5 (3) After such investigation, the Committee may- . . . (a) . (i). inform the applicant that the application, judged on the particulars or 10 . further particulars contained in the application or provided by the applicant or revealed as a' result of enquiries made by the Cofiunittee, if any, does not relate to an act associated with a political objective; ' (ii) afford the applicant the opportunity to make a further submission; and (iii) decide whether the application, judged on the particulars referred to in 15 subparagraph (i);· and in such further 'submission, relates to such ·an act associated with a political objective, . . . . ·' · . . ' .. . and if it is satisfied that the application does not relate to such an act, in the absence of the applicant and without holding a hearing refuse the application · and inform the applicant accordii1gly; or .; : . · ·· . · : ... ·' · . .. . '(i) ·. the requirements mentioned in section 20(1) have been complied with; (b) if it is satisfied that- .. . · · : · · · . · : · . ' · . . · · .. . . . . . . I there is no need for a hearing; and : . (ii) · ·(iii) ··the · act: omission or offence to which · the · application relates, does· not . . ! . . . : . ' •. · • . . 0 ; " 0 constitute a gross violation of human rights, I .• • . • • ' ' ' . • in the absence of the applicant and without holding· a hearing, grant amnesty and inform the applicant accordingly. 20 25 (4) If an application has not been dealt with in terms of subsection (3), the Committee shall conduct a hearing as contemplated in Chapter 6 and shall, subject to the provisions of section 33- (a) · · ''· '· in the prescibed manner, notify the applicant and any victim or person implicated, or having an interest in the application, of the place where and the time when the application will be heard and considered; inform the persons referred to in paragraph (a) of their right to be present' at the hearing and to testify, adduce evidence and submit any article to be taken 35 into consideration; . ' (b) ,• . · 30 (c) deal with the application in tern1s of section 20 or 21 by granting or refusing amnesty. ,. (5) (a) The Committee shall, for the purpose of considenng.and deciding upon· an application referred to in subsection (1), have the same powers as those conferred upon 40 the Commission insection 5(1) and (m) and Chapters 6 and 7. (b) Notwithstanding' the provisions of section 18(1)/the Committee inay 'consider jointly the individual applications in respect of any particular act, omission or offence to which such applications relate: . . . . . . ' ' i .: ; . , . . ' ' . ( 6) If the act' or 'omission which is the subject of an application under 'section ' t8 45 constitutes the ground of any claim in civilproceedings instituted against the person who submitted that application, the court hearing that Claim may'at the requ!!st of such person, if it is satisfied that the other parties to such proceedings have been informed of the' request 'and ·'afforded the . opportunity to address the court or . to. make. further submissions in this regard, suspend those proceedings pending the consideration and 50 disposal of the application. · · · · · · . · (7) If the person who submitted an application under section 18 is charged with 'any offence constituted by the act or omission to which the application relates, or is standing trial upon a charge of having committed such an offence, the Coiiunittee niay request the appropriate authority to postpone the proceedings pending the consideration and 55 disposal of theapplicationf()r airiiies'ty. ,. ' (8) (a) Subject1 to the provisions of section 33, the applications; documentation in connection therewith, further information and evidence obtained before and during an investigation by the 'Commission; the deliberations conducted in order to come to a decision or to conduct a hearing contemplated in section 33, shall be.confidential.~; · · · • 60 ·. (b) Subjeci'tothe provisions of section 33, the confidentiality referred to in paragraph . . · · ' • · · · : · · ' i , J • • : , . • . - · • . ...... :.! .:·_, ;_ : ' · -::: . ; ·' 20 No. 16579 GOVERNMENT GAZETTE, 26 JULY 1995 Act No. 34, 1995 PROMOTION OF NATIONAL UNITY AND RECONCILIATION ACf, 1995 (a) shall lapse when !he Commission decides to release such information or when !he hearing commences. . . i ~ . Granting of amnesty and effect thereof • . ' • ; ,' ! : ' ' ; ' • ' J' _! '- - '. • • 20. (1) If !he Committee, after considering an application for amnesty, is satisfied that-., (a)'., the. ~pplicatlon complies wilh !he requi~ements of !his Act; (b) !he act, omission or offence to which !he application relates is. an act associated wilh a political objective committed in !he course of !he conflicts of 5 . (c) . . !he past in acco~dance wilh !he provisions of subsections (2) and (3)i and . . 10 the. applicant has made a: full disclosure of all. relevant facts,. · · . it· shall grant ·amnesty i~ respect of !hat a~t, omission or offence. · · (2) In !his Act, unless !he context otherwise indicates, "act associated wilh a political objective" means any act or 'omission which 'c(lns'titutes all offence or delict which, according to the criteria in subsection (3), is associated wilh a political objective, and which wa~ advised, plamied, directed, commanded, ordered or committed within or 15 outside the Republic during the period 1 March 1960 to the cut~off date, by- . (a) . any member 0~ supporter of a publicly known political organisation or liberation movement on behalf of or in support of such organisation or . .. movement, bona jidli in furtherance of a political struggle waged by such ' ·· • organisation ·or movement against !he State or' any former state or another 20 · publicly known political 'organisation or liberation movement; • . . (b) any employee of the State or any former state or any member of !he security forces of the State or any .former' state in !he course and scope of his or her duties and wilhin the scope of his or her express or implied aulhority directed · against a publicly: known political 'organisation or liberation movement 25 engaged in a political struggle against the State or a former state or against any .. members. or' supporters of such organisation 'or movement, and. which was committed bona fide 'wilh the object of countering or' olherwise resisting the said struggle; . · · . · . · · . ·. . . · · · · . . · · · ' · · · · (c) any employee of !he State or any former 'state or any member of !he security 30 forces of !he State or any former state in the course .and scope of his or her duties ·arid wilhiri !he scope of his or her express or implied aulhority directed- (i) (ii) . whilst engaged in a political struggle against each other' or against any employee of the State or such former state, as the case may be, and which was committed bonafide wilh the object of countering'or olhe~ise resisting the said struggle; in !he case of !he State: against imy former state; or in the case of a former state; against the State or any other former· state, 35 ·' . · . . . · (d) any employee or member of. a publicly known political organisation or 40 liberation movement in the course and scope of his or her duties and wilhin !he . SCOP!! of his or her express or imp\iedauthority dire,cte,d against !he' State or · _any former state or any publicly known political organisation or liberation . : ' movement engaged in a political strUggle against !hat political organisationor ,.,, liberation movement or against members of !he security forces of !he State or 45 any former state or members or supporters of such publicly known political organisation or liberation movement,' and which was committed bonafide in furtherance of !he said struggle; · · · · • · · · · · · ' ·· · · · · any former state, or in any attempt !hereto;·· ' . (e).' any person in !he performance of a coup d'etat to ,take over the government of ' ' '<ir any person referred to in paragraph's (a), (b), (c) arid (d), who on reasonable grounds believed that he. or she was acting in th~ course arid scope of his or her .· ·.duties arid wilhin the scope of his ,or her, express. or impljed a~;~thority; . • : ·. (g) any person who associated himself or herself wilh any act or omission .. · ·. · · · . · " -- ' · . 50 committed for !he purposes referiedto in panlgraphs (a), (b),:(c), (d), (e) and 55 (f).·.. ,' .. '·_:._;,_ ~.-.1- ·,_J_ . • ·;_,·: ....... · '.' .r __ .,... ,,;, ;: ; ' . . . •\".'·,' ; ... I~·' / l; 22 No. 16579 GOVERNMENT GAZETIE, 26 JULY 1995 Act No. 34, 1995 PROMOTION OF NATIONAL UNITY AND RECONCILIATION ACT, 1995 (3) Whether a particular act, omission or offence contemplated in subsection (2) is an act associated with a political objective, shall be decided with reference to the following criteria: (a) The motive of the person who committed the act, omission or offence; ... (b) the context in which the act, omission or offence took place, and in particular 5 .. , . , · . whether the act, omission or offence was committed in the course of or as part (c) (d) of a political uprising, disturbance or event, or in reaction thereto; the legal and factual nature of the act, omission or offence, including the gravity of the act, omission or offence; · . the object or objective ofthe act, omission or offence, and in particular 10 . whether the act; omission or offence was primarily directed at a political . opponent or State property or personnel or against private property or individuals; · · · . . · . ·. (e) whether the act, omission 0~ offence ~as com~itted in the exec~tion of an (f) order of, or on behalf of, or with the approv'al of, the organisation, institution, 15 · liberation movement or body of which the person who committed the act was · a member, an agent or a supporter; and the relationship . between' the act, omission or offence and . the political objective pursued,· and in' particular the directness and proximity of the relationship' imd th'e proportionality ··of the act, ·omission or offence to the 20 objective pursued, · · · · · · ' · .. · · · . · · but does not include any act, omission or offence committed by any person referred to in subsection (2) who acted- . · · . · (i) · for personal gain: Providedthat an act, omission or offence by any person who · acted and received money or anything of value as an informer of the State or 25 . a former state, political organisation or liberation movement, shall not be excluded only on the grounds of that person having received money or anything of value for his or her information; or · · • ' . (ii) out of personal malice, ill~'will or spite, directed against the victim of the acts comnlitted " ' . ' ' : . '. . : . ' ' ; . ' ' 30 (4) In applying th~ criteria coriteinplated in subsection (3), the Committee shall take into account the criteria' appiied in the Acts repealed by section 48. (5) The Commission shall inform the person 'concerned and; if possible, any victim, of the decision of the Committee to grant amnesty to such person in respect of a specified act, omission or offence and the-Committee shall submit to the ·commission a record of 35 the proceedings, which may, subject to the provisions of this Act, be used by the · Commission. ' (6) The Committee shall forthwith by proclamation in the Gazette make known the full names of any person to whom amnesty has been granted, together with sufficient information to identify the act, omission or offence in respect of which amnesty has been 40 granted: ' ' · · · ·' '· :. · · ' · · · · · · · : .. .· · · · · · · ' ·. -' (7) (a) No person who has been granted amnesty in respect of an act, ommission or offence shall be criminally or Civilly liable in respect of such act,' omission or offence and no body or· organisation _or the State, shill! be liable;. and no· person shall be vicariously liable, for any such'act, omission or offence. ' . . ' - 45 (b) Where amnesty is granted to any person in respect of any act, omission or offence, such amnesty shall have no influence upon the· criminal liabilitY of any other person contingent upon the liability of the first-mentioned 'person. . . ··'(C) No person, organisation or state shall be civilly or vicariously liable for an act, omission or offence committed between 1 March 1960 and the cut-off date by a person 50 who' is deceased,:unless iimnesty 'could not have been granted in'terms of this Act in respect of such an' act, omission or offence. . . - . ' ' ·. (8) Ifariy person_;,; -- · . · · (a) has been charged with and is standing trial in respect of an offence constituted by the act or omission in respect of which amnesty is-granted in terms of this 55 section; or ' ' · · · · . · (b) has been convicted of, and is awaiting the passing of sentence in respect of, or is in custody for the purpose of serving a sentence'imposed in respect of, an 'offence constituted by the act or omission in respect of which amnesty is so granted, ' · ' ' ' · · · '· ' · ' ' 60 the criminal proceedings shall forthwith upon publication of the proclamation referred ' I .. ' ' ''-, · / ·• , I ' ' , ' ' 24 No. 16579 GOVERNMENT GAZETIE, 26 JULY 1995 Act No. 34, 1995 PROMOTION OF NATIONAL UNITY AND RECONClLlATION ACT, 1995 to in subsection (6) become void or the sentence so imposed shall upon such publication lapse and the person so in custody shall forthwith be released. (9) If any person has been granted amnesty in respect of any act or omission which formed the ground of·a civil judgment which was delivered at any time before the granting of the amnesty, the publication of the proclamation in terms of subsection (6) shall not affect the operation of the judgment in so far as it applies to that person. 5 (10) Where any person has been convicted of any offence constituted by an act or omission associated with a political objective in respect of which amnesty has been granted in terms of this Act, any entry or record of the conviction shall be deemed to be expunged from all official documents or records_ and the conviction shall for all 10 purposes, including the application of any Act of Parliament or any other law, be deemed not to have taken place: Provided that the Committee may recommend to the authority concerned the taking of such measures as it may deem necessary for the protection of the safety of the public. · Refusal of amnestr and effect thereof ' ' 21. (1) If the Committee has refused any application for amnesty, it shall as soon as practicable notify:__;, · · the person who applied for amnesty; (a) (b) any person who is iri relation 'to the act, omission or offence concerned, a victim; and the Commission,' (c) · · · ",., · '- · - · '' in writing of its decision'and the reasons for its refusal. · · . '(2) (a) If any criminal or civil proceedings were suspended pending a decision on an application for amnesty, and such application is refused, the court concern~d shall be notified accordingly. '" · ·· '' · · • · · ' · ' . 15 20 25 (b) No adverse inference shall be drawn by the court concerned from the fact that the proceedings which were' suspended pending adecision on an application for amnesty, are subsequently resumed. ·. ' · · · · Referrals to Committee on· Reparation and Rehabilitation • ! ! '-' ' • . ; • - :_. : ' •. ' . ' f ~ • ' • • -• ' ; • ' ' ' ' • • ; ; '(1,;. '.·: '' 22. (I) Where amnesty'is granted to any person in respect of any act; omission or 30 offence and the Committee is of the opinion that a person is a victim in relation to that act, omission or offence; it shall refer the matter to the Committee on Reparation and Rehabilitation for its consideration in terms of section 26. · ' · · · · (2) Where amnesty is refused by the Committee and if it is of the opinion that___.:. ~· •:/?) :.t?e act, omission or offence concerne.d co~stitutes a gross' violation. ofhu~an 35 · · · "' ' nghts; and • · · .. 1 • •·· · '· • ·' . ' - · (b) a person is a victim in the matter, • ' ' · it· shall refer the• matter' to the Committee on Reparation and Rehabilitation for consideration in terms ofsectim1 26. · i · · ,. \.; _.I.; .:: ·.; :- __ .; ,, ' :;·:: . CHAPTER 5 ' 40 ·- · · Reparation and rehabilitaiion ·of victims Committee on Repa~ation and' Rehabiiitation. .• -' -.. • _r.' : . : • , ' , . . .• ·-;,, ' " 23: 'There is. her'eby e~tl:ibllshed· a tom~ittee to be ki1own as the com~ittee on Reparation and Rehabilitation; whicli'shall in this Chapter be referred to as the Committee. 45 :'1; Constitution of Committee'' ·• ,; 24. (l)The Committee ·shall consist of_;. . . _(a). ·a cpai,rperson; .~, (b) ·a Vice-Chairperson; (c) not more than five other members; and (d). in addiiiori to the commissioners referred to' in subse~tion '(:2),' such other .1• ... ' . ,-I •' I commissioners as may be appointed to the Committee by the Commission. 50 26 No. 16579 GOVERNMENT GAZETIE, 26 JULY 1995 Act No.' 34, 1995 PROMOTION OF NATIONAL UNITY AND RECONCILIATION ACT, 1995 · (2)' Commissioners designated. by the Commission shall be the Chairperson and Vice-Chairperson of the Committee . . (3).The Commission shall for the purpose of subsection (1)( c) appoint as members of the Committee fit and proper persons who are suitably qualified, South African citizens and broadly representative of the South African community. · Powers, duties mid functions of Committee ; . , 25. ( 1) In additio11. to the powers; duties and functions in this Act and for the purpose of achievi11g tlle ,Co~ssion 's_ object~ves referred to in section}( 1)( c) fin? (d)- . (a) )heCom~ittee shall- · · .· .; . (i) consider matters reterred to.itby----c . . . ( aa),the 'commission in terms of section '5( e); (bf;) the. coffimittee on Human RightS Violatiolls in, terms of section .. 15(1); and ' ' . ( cc) the Committee on Amnesty in terms of section 22(1 ); (b) (ii) gather the evidence referredto in section .4(b); . the Committee may- (i) . make recommendations which. may. include urgent interim measures as contemplated in section 4(f)(ii), as to appropriate measures of reparation to victims; : · . - . ·· ·· 5 10 15 (ii) make recommendations referred to in section 4(h); (iii) prepare and submit to the Commission interim reports in coimection with ;20 its activities; (iv) may exercise the powers refe~ed to in section 5(1) and (f!!) and Chapters · - 6 and 7. (2) The Committee shall submit to the Commission a final comprehensive report on 25 its activities, findings and recommendations. Applications for reparation 26. ( 1) Any person who is of the opinion that he or she has suffered harm as a result of a gross violation of human rights may apply to the Committee for. reparation in the prescribed form. ; (2) (a) The Committee shall consider an application contemplated in subsection (1) and may exercise any of the powers conferred upon it by section 25: •. ·. ~- (b) In any matter referred to the Committee, and in respect of which a finding as to whether an act, omission or: offence constitutes a gross violation of human rights is required, the Committee shall refer the matter to the Committee on Human Rights 35 Violations to deal with the matter in terms of section .14; · .' · . · 30 (3) If upon consideration of any matter or application submitted to it under subsection (1) and any evidence received or obtained by it concerning such matter or application, the Committee is of the opinion that the applicant is a victim, it shall, having regard to criteria as prescribed. make recommendations as contemplated in section 25(1)(b)(i) in 40 an endeavour to restore the human and civil dignity of such victim. Parliament to consider recommendations with regard to reparation of victims 27. (1) The recommendations referred to in section 4Cf)(i) shall be considered by the President with a view to making recommendations to Parliament and making regulations. (2) The recommendations referred to in subsection ( 1) shall be considered by the joint committee and the · decisions of the said joint committee shall; when approved by Parliament, be implemented by the President by making regulations. (3) The regulations referred to in subsection (2)- (a) shall- (i) determine the basis and conditions upon which reparation shall be granted; (ii) determine the authority responsible for the application of the regulations; and (b) may- · 45 50 55 (i) provide for the revision aild, in appropriate cases, the discontinuance or reduction of any reparation;'. · 28 No. 16579 Act No. 34, 1995 PROMOTION OF NATIONAL UNITY AND RECONCIUATION ACT, 1995 . ' GOVERNMENT GAZETTE, 26 JULY 1995 (ii) prohibit the cession, assignment or attachment of any reparation in terms of the regulations, or the right to any such reparation; (iii) determine that any reparation received in terms of the regulations shall · . not form part of the estate of the recipient should such· estate . be · (iv) provide for any other matter which the President may deem fino sequestrated; and . · · · · · ..-: prescribe in order to ensure an efficient application of the regulations. (4) The joint committee rnay'also advise the President in respect of measures that should be taken to grant urgent interim reparation to victims. CHAPTER6 Investigations and hearings by Commission· Commission may establish investigati~g unit . · · 28. (1) The Commission may establish an investigating unit which shall consist of such. persons;· including one or more commissioners,' as may be determined by the Commission. · · (2) The period of appointment. of . such members shall be · determined by the Commission at the time of appointment; but such period may' be extended or curtailed by the Conirnission. . . (3) The Commission shall appoint a commissioner as the_ head of the investigating unit.' · ·· · · · · . · · · · : · · · · · · · · · · · · · · 5 10 15 20 ( 4) (a) The investigating unit shall investigate any matter falling within the scope of the Commission's powers, functions and ' duties, subject to the directions .of the Commission, and shall at the request of a committee investigate any· matter falling within the scope of the powers, functions and duties of that coq~mittee, . subject to. ~he directions of the committee. · · · · (b) The investigating unit shall in the performance of its functions follow such procedure as may· be deterniined by' the Commission or the committee concerned; as the case may be. · · . , · , ·, (5) Subject to section 33, no article or information obtained by the investigating. unit shall be made public, and no person except a niernber of the investigating unit; the 30 Commission, the committee concerned or a member of the staff of the Commission shall have access 'to such article or inforniation until such time· as the Commission or the com~~ttee deteimines' that it may be made public or until the co~encement.of ariy hearing in teiins of this Act which is not held behind closed doors. ·. '· .• ·. · · · · · · · · · · · · · 25 · . · · · · · · · · · · · ~ • . · , •• , • • ; , : ' . : ,I_ ~ ,~-. , : - •• - ; ' • • j . • - • ' • • 1 , , ~ • , , • .' /l ( . , I ) ·• : Powers of Commission with regard to investigations and heari~g~ .. _·, •. . _ _. .• ; . . ; . : . . • -· ' , , . . -·· _· . ' · ' ·· ._. _._ _ .; : ;; : 1 ; 35 ! . '.hearing conduct an inspection in loco; . . 29. (1 >'The commission may for the v~i11oses of or in connection with. the conduct of an investigation or the holding of a hearing, as the case may be_:_ , ' ' ' .· (a)·. at any time before the commencement or in the course of such investigation pr (b) by notice in writing call upon any person who is in possession of or has the 40 custody of or control over any article or other thing which in the opinion of the .· ' Cornrilission is rdevant t<i the subject' matter of the' investigation ·or heanng to produce such article or thing to the Commission,.and the Commission may inspect and, subject to subsection (3), retain any article or other thing so produced for a reasonable time;' · .. : : . · ' . : . 45 . . . . · · (c) .by notice in writing call upon any:person.to appear before theCommission · and to give evidence or to answer questions relevant to the subject matter of the hearing; in accordance with section 32 ~ seize any article or thing referred to , in paragraph (b J which is relevant to the subject matter of the· investigation or 50 hearing. .... ,_, .. :- · · .. : , .. 1· (d) .. .. ,, . . ' : '· (2) A notice referred to in subsection (1) shall specify the time when and the place where the person to whom it is directed shall appear, shall be signed by a commissioner, shall be served by a member of the staff of the Commission or by a sheriff, by delivering a copy thereofto the person concerned or by leaving it at such person's last known place 55 30 No. 16579 GOVERNMENT GAZETTE, 26 JULY 1995 Act No. 34, 1995 PROMOTION OF NATIONAL UNITY AND RECONClLIATION ACT, 1995 of residence or business, and shall specify !he reason why the article is to be produced or !he evidence is to be given .. (3) If !he Commission is of !he opinion !hat the production of any article in the possesion or custody or under !he. control of the. State, any department of State, the Auditor-General or any Attorney-General may adversely affect any intended or pending judicial proceedings or !he conduct of any investigation carried out with a view to the institution of. judicial, proceedings, the Commission shall take steps aimed at the prevention of any undue delay in or the disruption of such investigation or proceedings. (4) The Commission may require any person who in compliance wilh a requirement in terms of this section appears before it, to take the oath or to make an affirmation and 10 may through the Chairperson or any member of !he staff of the Commission administer the oath to or accept an affirmation from such person. 5 (5) No person oiher than a member of the staff of the Commission or any person required to produce any article or to give evidence shall be entitled or be permitted to attend any investigation conducted in terms, of this section, and the Commission may, 15 having due regard to !he principles of openness and transparency, declare !hat any article produced or information submitted at such investigation shall not be made public until the Commission determines otherwise or, in !he absence of such a determination, until the article is produced at a hearing in terms oftpis Act, or at any proceedings in any court ~~- w Procedure to be followed at investigations and hearings of Commission, commit· tees and subcommittees · 30. (1) The Commission and· any committee or subcommittee shall in any investigation or hearing follow !he prescribed procedure or, if no procedure has been prescribed, the proceduredetermined by !he Commission, or, in' the absence of such a 25 determination, in !he case of a committee or. subcommitte, the procedure determined by the committee or subcommittee, as !he ~ase may. be: · · . '· . . (2) If during any· investigation by or any hearing before !he Commission-· (a) any person is implicated in a manner which may be to his detriment; (b) the Commission contemplates making a decision which may be. to. the 30 · ' (c) . ·detriment of a person who has been' so implicated; . it appears !hat any person may have suffered harm as a result of a gross 'violation 'of human rights~ . · · · · · · · '· · . · . !he Commission shall, if such person is avaiJable, afford him or her an opportunity to submit representations to !he Commission wilhin a specified ,time· with· regard to the 35 matter under consideration or to give evidence' at a hearing· of the Commission.· · ! ~ • :·:·} ._· ' • : • • •·• r l -~ : Compellability of witnesses and inadmissibility of incriminating evidence given before Commission · ·· . 31. ( 1) Any person who is questioned by !he Commission in the exercise of its powers in terms of !his Act, or who has been subpoenaeq to give evidence or to produce any 40 article at a hearing of !he Commission shall, subject to !he provisions of subsections (2), (3) and (5), be compelled to produce any article or to answer any question put to him or her .wilh regard to !he subject-matter of the hearing notwithstanding the fact that the article or his or her answer may incriminate him or her. . ... (2) A person referred to in subsection ( 1) shall only be compelled to answer a question 45 or to produce an article which may incriminate him or her if !he Commission has issued an order to !hat effect, after !he Commission- ( a) has consulted .with the attorney-general who has jurisdiction; . · . · (b) has satisfied itself !hat to require such information from such a person is reasonable, necessary and justifiable in an open and democratic society based 50 , on freedom and equality; and · · · .. · ; ·' · '-. (c) has satisfied itself that such a person has refused or is likely to refuse to answer a question or produce an article on !he grounds that such an answer or article · might incriminate him or her. · · · · , (3).Any.incriminating answer or information obtained or incriminating evidence 55 directly or indirectly derived from a questioning in terms of subsection (1) shall not be admissible as evidence against !he person concerned in criminal proceedings in a court of law or before any body or institution established by or under any law: Provided !hat 32 No. 16579 Act No. 34, 1995 PROMOTION OF NATIONAL UNITY AND RECONCILIATION ACT, 1995 ' ' ' GOVERNMENT GAZETIE, 26 JULY 1995 incriminating evidence arising from such questioning shall be admissible in criminal proceedings where the person is arraigned on a charge of perjury or a charge contemplated in section 39(d)(ii) of this Act or in section 319(3) of the Criminal Procedure Act, 1955 (Act No. 56 of 1955). : (4) Subject to the provisions of this section, the law regarding privilege as applicable · 5 to a witness summoned to give evidence in a criminal case in a court of law shall annlv in relation to the questioning of a person in terms of subsection (1). (5) Any person appearing -before the Commission by virtue of the provisions of subsection (1) shall be entitled to peruse any article referred to in that subsection, which was produced • by. him ·or her, as may be reasonably- necessary. to refresh his or her 10 memory. Entry upon premises, search · ror and seizure and · removal or certain articles or other things · ·J2. (1) Any commissioner, member of the staff of the Commission or police officer authorized thereto by a commissioner may on the authority of an entry warrant, issued 15 in terms of subsection (2), enter upon any premises in or upon which any article or thing- '.: (a)· which is· concerned with or is upon · reasonable grounds. suspected to be concerned with any matter which is the subject of any investigation in terms of this Act; 20 . . . (b) which contains,' or 'iS upon 'reasonable groundssuspected to· contain, information with regard to'aily'such matter: is 'or is upon reasonable grounds suspected to be;' and may on the authority of a search warrant,' issued in terms of subsection (2}- (i) inspect and search such premises and there make such inquiries as he or 25 she may deem necessary; • ' 1 • •; ·::0 ' ·' . ' ' , • . : , , I : · · ' , . (ii)' :examine any article or thing found in or upon ·such premises; (iii) ' request from the person who' is in controlofstich premises or in whose possession or under whose control any article or thing is when it is found, · or who is upon reasonable grounds believed to' hilVe information with 30 regard to any article or thing, an explanation or information; ' : (iv) make copies of or extracts from any such artiCle found upon or in 'such -· _; , · · ' ~ premises;'· (v) seize any article or thirig found upon or in such premises which he or she · .. ·_ .... -· , .. _._. _:·(: _ .... .... . ' ' ·' · · · '· · ' ~-- · · . upon reasonable grounds suspects to be an article or thing mentioned in 35 paragraph (a) or (b); . _ '(vi) . after having issued a 'receipt in respect thereof remove 'any article or thing found on such premises and suspected upon reasonable' grounds to be an article or thing mentioned in paragraph (a) or (b), and retain such article or thing' for a reasonable period for the purpose or further examinationor, 40 ,in the 'case of su.ch ' 'article, the making 'of 'copies thereof or extracts therefrom: Provided that any article 'or thing that has been so removed; ' shall be returned as' soon as possible after the purpose of such removal .. ' . has been accomplished~ ' : .·.. . . . . "'_ " ' . " ' ' _. ... , . . ' . . (2) An entry or search warrant referred to in subsection ( 1) shall be issued. by a judge 45 of the Supreme Court or by a magistrate wtio has jurisdiction in the area where the preinises inqu~stion are' situated; and 'shrul only be issued if it appears to the judge or magistrate from' information on oath that there are reasonable grounds for believing that an article or thing mentioned in paragraph (a) or (b)of subsection (l) is upon or in such premises, an~ ~hall speCify whi-ch of the acts'mentione~i~ p~agraph (b )(i) to (vi) of that 50 subsection may be performed thereunder by the person to'.whom it is issued. ·· c3) A. warrant issued iri terms this section shall be executed by day unless the person who issues the warrant authorizes 'the execution'thereof by_ night at times which shall be reaSonable; a'nd any entry upon or search 'of any premises specified in such warrant shall be conducted with strict regard to decency and order, induding-: . . ' ' 55 " ' . · i • I " ' ' 34 No. 16579 GOVERNMENT GAZETTE, 26 JULY 1995 Act No. 34, 1995 PROMOTION OF NATIONAL UNITY AND RECONCILIATION ACT, 1995 (a) a person's rightto, respect for and the protection of his or her dignity; (b)· the right of a person to .freedom and security; and the right of a person to his or her personal privacy. , (c) (4) Any person executing a warrant in terms of this section shall immediately before commencing with the execution-,- . (a) . identify him.self or herself to the person in control of the premises, if such person is present, and hand to .such person a copy of the warrantor; if such person is not present, affix such copy to a prominent place on the premises; (b) supply such person at .his or her request with particulars regarding his or her . . . . authority to execute such a warrant. (5) (a) Any commissioner, or any· member ~fthe s~aff of the Co;nmissio~ or police officer at the request of a commissioner, may without a warrant enter upari ·any premises; other than a private dwelling, and search for, seize and remove imy article or thing referred to in subsection (l ) - . . . . . . . . . . . . 5 10 (i) . if the perSon "who is competent to do so consents to such 'entry,'search~ seizure 15 and removal; or · (ii) if ~e or she upon reasonable grounds beljeves that- ··· ·: · ' · ' · · ' · . . ( aa) the required warrant will be issued to him· or her iri tenns of subsection . . · . . (2) if he or she were to apply for such warrant; and . . . . . . . (bb) the delay caused by the obtaining of any such wan-ant would defeat the 20 object of the entry, search, seizure and removal. · · ·· (b) Any entry and search in terms of paragraph (a) shall be executed by day, unless the execution thereof by night is justifiable and necessary. ; · · (6) (a) Any person who may on the authority of a warrant. issued in terms of subsection (2), or under·the provisions of subsection (5), enter upon and search any 25 premises, may use such force as may. be reasonably necessary to overcome resistance to such entry or search. (b) No person may enter upon or search any premises unless he or she has audibly demanded admission to t .he premises and has notified the purpose of his or her entry, unless such person is upon reasonable grounds of the opinion that any article or thing 30 may be destroyed if such admission is first demaiided and such purpose is first notified. (7) If during the execution of a warrant dr. the conducting of a search in terms of this section, a person claims that an article found on or in the premises concerned contains privileged informatio~ and refuses the inspection or removal of such article, the person executing the warranfor conducting the"search shall, if h·e or she is 'of the opinion that 35 the article contains' information which is relevant to the investigation and that such information !s necessary for the investigation or hearing, request the registrar of the Supreme Court which has jurisdiction or his ()r he;r delegate, to seize and remove that article for safe custody until a court oflaw has made a ruling on the question whether the information concerned is privileged or not. ' . •. . . . ' ,· . . ' ' ' . . 40 ' (8) A warrant is.sued in terms of this section· may be issued on any day and shall be of force until- · · tiy 'any person with likeauthority; or ,. · · . (a) it is executed; or .(b) it is cancelled by the person who issued it or, if such person is not available, · .· · ... (c) . the expiry of one mo~th from the day of its issue; or (d) -the purpose for the issuing of the warrant has lapsed, · . · ' . whichever may occur first. ' · ·; '' · ·· · · ·' · · . · · ·· 45 ' I • • . , Hearings of Commission to be open to public ·-· .. ·' 33. (1) (a) Subject to the'provisions of this section, the hearings of the Commission 50 . shall be open to thepublic. ' · .. ,· .. ; ~ · .. · •. . . . • ... . . . . . ' (b) If the' Commission: in any proceedings before it, is satisfied that- . ·, . (ii) there is a iikelihood that hami may ensue to ani person as a" result of the (i) it would be in the interest of justice; or . . . ; . .. · ; .. . · proceedings being open! ·. · ' '· · · - ' ·· · ' 55 .. . ' · · ' 36 No. 16579 GOVERNMENT GAZETTE, 26 JULY 1995 Act No. 34, 1995 PROMOTION OF NATIONAL UNITY AND RECONCILIATION ACf, 1995 it may direct that such proceedings be held behind closed doors and that the public or any category thereof shall not be present at such proceedings or any part thereof: Provided that the Commission shall permit any victim who has an interest in the proceedings concerned, to be present. (c) An application for proceedings to be held behind closed doors may be brought by a person referred to in paragraph (b) and such application shall be heard behind closed doors. (d) The Commission may at any time review its decision with regard to the question whether or not the proceedings shall be held behind closed doors. 5 (2) Where the Commission under subsection (l)(b) on any grounds referred to in that ' 10 subsection directs that the public or any category thereof shall not be present at any proceedings or part thereof, the Commission may, subject to the provisions of section 20(6~ (a) direct, that no information relating to the proceedings, or. any part thereof held < , ~ behin<l clos~d doors, shall be made public in any manner; (b) direct that no person may, in any manner, make public any information which _.. (c) give such directions in r~spect of the record of proceedings _as may be ,, may f(!':ea).the identity of any,witness in the proceedings;. , . · ; .. . 15 necessary to protect the identity of any witness: . ' ' .·, ' . ' ' ' Provided that the Commission may authorize the publication of so much information as . 20 it considers w'auld be just and _equitabl~.. . . Legal representation 34. ( 1) Any· person questioned by an investigation unit and any person ~ho has been subpoenaed or called upon to appear before the Commission is entitled to appoint a legal representative: · . :. · · · · - · · ' "·. · . · •· _.·_:_ · : · "· · ' · · ·· : ' . 25 (2) .The Commission may, , in 'order_ to expedite 'proceedings, . place reasonable limitations 'with ·regard to the time allowed in respect of the' cross-examination of witnesses or any address to the Commis-sion. ·, (3) The Commission may appoint a legal representative to appear on behalf of the person concerned if it is satisfied that the person is not financially capable of appointing 30 a legal representative himself or herself, and if it is of the opinion that it is in the interests of justice that the person be represented by a legal representative. · { · · · · (4) A person referred to in subsection (1) shall be informed timeously of his or her right to be represented by a legal representative. Limited witness protection programme 35 35. (1) The Minister shall; in' consultation· with· the Commission, promote the establishment of a witness protection programme in order to provide for the protection and safety of witnesses in any manner when necessary. · ' (2) ·The witness protection programme contemplated in subsection (1) .shall be prescribed by the President as soon as possible after the date referred to in section 7(3). 40 (3) The regulations providing for a witness protection programme· shall- ( a) provide for, among others, the appointment of. a .private person or•the secondment of an official or employee of any department of State in terms of the Public Service Act, -1994 (Proclamation No. 103 of 1994), to act as the witness protector; and 45 (b) be Tabled in Parliament for approval, (4) (a) Until such time as the witness protection programme has been established the President may, in consultation with the Minister and the Commission, prescribe interim measures to be followed in order to provide for the protection and the safety of a witness: Provided that the provisions of section 185A of the Criminal Procedure Act, 1977 (Act 50 No. 51 of 1977), shall, with the necessary changes, apply in the absence of such interim measures. (b) The interim measures contemplated in paragraph (a) shall be Tabled in Parliament for approval. · (5) In this section- ·:'."witness" mearis a person who wishes to give evidence, gives evidence o·r gave evidence for the purposes of this Act and includes any member of his or her family 55 38 No. 16579 GOVERNMENT GAZETTE, 26 JULY 1995 Act No. 34, 1995 PROMOTION OF NATIONAL UNITY AND RECONCILIATION ACT, 1995 or household whose safety is being tiu:eatened by any person or group of persons, . whether known to him or her or not, as a result thereof. CHAPTER 7 General provisions Independence of Commission 36. (1) The Commission, its commissioners and every member of its staff shall function with~ut political or other . _bia~ pr . interference and . ~h.all_. uniess t~is Act expressly otherwise provides, be independent and separate from any party, government, administration, or any other functionary or body directly or indirectly representing the interests of any such entity. 5 10 (2) To the extent that any of the personnel of the entities referred to in subsection (1) may be involved in the activities of the Commission, such personnel will be accountable solely to the Commission. · · (3) (a) If at any stage during the course of proceedings at any meeting of the Commission it appears that a commissioner has or may have a financial or personal 15 interest which may cause a substantial conflict of interests in the perfonnance of his or her functions as such a commissioner, such a commissioner shall forthwith and fully disclose the nature of his or her interest and absent himself or herself from that meeting so as to enable the remaining commissioners to decide whether the commissioner should be precluded from participating in the meeting by reason of that interest. · (b) Such a disclosure and the decision taken by the remaining commissioners shall be entered on the record of the proceedings. . . (4) If a commissioner fails to disclose any conflict of interest as required by subsection (3) and is present at a meeting .of the Commission or in 'any man~er participates in the proceedings. such proceedings in relation to the relevant matter shall, 25 as soon as such non-disclosure is discovered, be reviewed and be varied or set aside by the Commis'sion without the participation of the commissioner concerned. · · 20 · (5) Every commissioner and member of a committee shall- ( a) · notwithstanding any personal opinion, preference or party affiliation, serve ·impartially ar{d independently and perform his or her duties in good faith and 30 without fear, favour, .bias or prejudice; . (b) serve in a full-time capacity to the exclusion of any other duty or obligation arising out of any other employment or occupation or the holding of another office: Provided that the Commission may exempt a commissioner from_ the provisions of this paragraph. 35 (6) No commissioner or member of a committee shall- ( a) by his or her membership of the Commission, association, statement, conduct or in any other manner jeopardize his or her independence or in any other manner harm the credibility, impartiality or integrity of the Commission; (b) make private use of or profit from any confidential information gained as a 40 result of his or her membership of the Commission or a committee; or (c) · divulge any such infoimation to any other person except in the course of the perfoririance of his or her functions as such a commissioner or member of a committee.' Conimissio'n to decide on' disclosure of identity of applicantS and witnesses 45 .37. Subject to the-provisions of sections 20(6), 33 and 35 the Coriunission shall, with due regard to the purposes of this Act 'imd the objectives and -functions of the Com~ission, decide to. what extent, if at . all, . the id~ntity of any person who made an application under this Act or gave evidence at the hearing of such application or at any other inquiry or investigation under this Act may be. disclosed in _any report. of the ,:,u Commission. · · · · · 40 No. 16579 GOVERNMENT GAZETTE, 26 JULY 1995 Act No. 34, 1995 PROMOTION OF NATIONAL UNITY AND RECONCILIATION ACT, 1995 Confidentiality of matters and information . , .. , 38. (I) Every commissioner and every member of the staff of the Commission shall, with regard to any matter dealt with by him or her, or information which comes to his or her knowledge in the exercise, performance or carrying out of his or her powers, functions or duties as such a commissioner. or. member, preserve and assist in the preservation of those matters which are confidential in terms of the provisions of this Act or which have been declared confidential by the Commission. (2) (a) Every commissioner and every member of the staff of the Commission shall, upon taking office, take an . oath. or. make. an affirmation. in the form specified in subsection (6). . . . . , •. . (b) A commissioner shall : take the oath or make the affirmation referred to in paragraph . (a) . before . the Chairperson of the Commission or, .in the .case of the Chairperson, before the Vice-Chairperson. , . (c) A memiler of the staff; of the Commission shall take ,the oath. or make the affirmati_on. r~ferre~ to in paragraph (a) before a commissioner. . . 5 10 15 .. . . . . (3) No commissioner shall, except for the purpose of the exercise of his or her powers, the perfon_nance of his or her functions or th~ 9arrying out of his or her duties or when n~ql1ired by a cou~of law to _do s_o, or under any)aw, disclose to any person any info~ation acquired by hi~ ()r her as such a commissioner or while attending any meeting of the Commission. . .. (4) Subject to the provisions of subsection (3) and sections 20(6) and 33, no person shail disclose or.ni.ake kn'()wn any ii}fonnation ·which is confidential by . virtue of ~y prcivisiori .of this Act. ·. . · ·" (5) No person who is not authorized thereto by the Commission shall have access to. any info1111ation which is confidential by virtue of any provision of this Ac~. , . . . .. · · · 25 ... (6) For 'the purposes of this section the oa·th or affirmation shall be;· in the following . fc;n:~: · . ·"I; A B;hereby declare under oath/solemnly affirm that I understand and shall , . ' • ' honour the oblig'ation of confidentiality imposed !JpOn me by any provision of the .. Promotion of Natiomil Unity and Reconciliation' Act,' 1995, and shall not. act' in 30 · ·~;:. ·, " ·. . . . . . , . . :. · . 20 , · . . . · , j. ·· · ·. : • ·. . . .·! ·. : · . ; ... , · . •. .· • : · · · · · . contravention the~ecif.". .. " . . . . i ' ,' . ' . • ~ . • ·-. . -' ' . .:. . . : ' . , i • • • : • Offences and penalties , , l ' · . i ~ -•• ; . ! • ! : · . •

39.Any person who- · ... :.' : ·.: ' · · : _,., . (a) ; anticipates any finding of the Commission regarding an investigation in a - · ·' ·. / : ' :manner calculated to influence its proceedings or such findings; · 35 :.· : · (b). does anything calculated improperly to influence the Commission in respect of any matter being or to be considered by the Commission in connection with an investigation; . · .. : . · · (c) does anything in relation to the Commission which, if done in relation to a • • 1 • ·· court of law,' would constitute contempt of court; · . . . . . . " . 40 ·- · (d) : (i) : hinders theCommission, any commissioner or member of the staff of the Commission in the exercise, performance or carrying out of its, his or her .. > i powers, functions or duties under this Act; · (ii) wilfully furnishes the Commission, any such commissioner or member ; : . .. . ,., :' '· · with any information which is false or misleading; . , , 45 ·, , :(e) · (i) , having been subpoenaed in terms of this Act, without sufficient cause :: • ·, · . • . . . fails to attend at the time and place specified in the subpoena, orfails to remain in attendance until the conclusion of the meeting in question or until excused from further attendance by the person presiding at that :; · ··, '·- .· ., .. meeting, or fails to produce any article in his or her possession or custody 50 or under his or her control; , • .' · . . ·,,, · · (ii) having been subpoenaed in terms of this Act, without sufficient cause · refuses to be sworn or to make affirmation as a witness or fails or refuses .: · . .·. . to answer . .fully and satisfactorily to the best of his or her knowledge and . " ·· (f) fails to perform any act as required in terms of sections 36(6) and 38; . · ·belief any question lawfully put to him or her; : .. 1 • . 55 • (g) · discloses any confidential information .in contravention of any provision of , , this Act; . . , · . · . · · 42 No. 16579 GOVERNMENT GAZETTE, 26 JULY 1995 Act No. 34, 1995 PROMOTION OF NATIONAL UNITY AND RECONCILIATION ACT, 1995 (h) destroys any article relating 'to or in antiCipation of any investigation or proceedings in terms of this Act, shall be guilty of an offence and liable on conviction to a fine, or to imprisonment for a period not exceeding two years or to both such fine and such imprisonment. Regulations 5 40. (1) The President may make regulations- · (a) prescribing anything required to be prescribed for.the proper application of . thisAct; . . _ . . . . (b) prescribing the remuneration and ·allowances and other benefits, if any, of commissioners: Provided that such remuneration shall not be less than that of 10 a ·judge of the Supreme Court of South Africa; . . (c) determi~ing the persons who shall for the purposes of this .Ad be regarded as the dependants or relatives of victims; · (d) providing, in the case of interim measures for urgent reparation payable over a period of time, fo.r' the revision, and, in appropriate cases~ for 'the' 15 discontinuance 'or reduction of any reparation so paid; . · (e) prohibiting the cession, attachment or assignment 'of any such reparation so . (f) . determining that any such reparation received iri terms ofa recommendation granted; · . . . . . . . · · ' . . . . . · · . shall not form part of the estate of the recipient, should ~ucll estate be 20 sequestrated; . '· · · · · · · · (g) proyiding for the payment or reimbursement of expenses incurred in respect of travel and accommodation by persons' attending any hearing of the . Commission in compliance with a·subpoena issued in teirns of this Act; ' ' terms of section 42; .· .. · (h) ·with reg'ard to imy matter.relating to the affairs of. the Fund, established in 25 · · . ( i) . with regard to any,' matter _which the President deems necessary or expedient to prescribe in order to achieve the ·objects of ~is Act.'. ~- ..... . - . ' ... · . .' (2) Any regulation made in terms of subsection . (l) which "may result. in the expenditure of State money shall be made in consultation with .the Minister. and the 30 Minister of Finance. · · ·' · · · · · · ·' · , , . , : · · · · · .. '. .· . · . · · · · Liability of Commission, commissioners and mem~ers .of staff : · .. ~ . • •' . I ' '" 41. (1) Subject to the provisions of subsection (2), the State Li~bllity ;\ct:'l957 (Act No. 20 of 1957), shall apply, with the necessary changes,' in respect of the Commission, a member of its staff and ~·commissioner, and in such application a reference in that Act 35 to "the State" shall be construed as areferenceto "the Commissiori",'and a reference to "the Minister of the depMtitfent concerned" shall be construed as a ~eference to the Chairperson of the. Commis.sion. . (2) N~ " : , ; . . · (a) 'commissioner; . ' (b) member of the staff of the· Commi~sio~; or . .. (c) ' person who. performs -any task on' behalf or'th~ Conimission, . . shall be liable in· respect of ~u1ything n!flected.in any rep-ort, finding, point' of view or recommendation made or expressed in . good . faith arid submitted or inade known in terms of this Act. ·' · .. ' . . . 45 · · · · . . _ ,. 40 . . . . · · · · · · President's Fund 42. (I) The President may, in ,suchihanner as he or she may de~m fit.' in consultation with the Minister and the Minister of Finance, establish' a Fund into .which shall be , paid---:- . : . · : · . . . . . . . · . · . · (a) all money_appropriated by Parliament for the purposes of the Fund; and 50 .... ' (b) all mqney _donated orc.ontributed to the Fund or accruing to the Fund from any , source. . ,, ... .• .. . . .. . . . . . . . · · i • . . . ' ' ' ' - \ . _. (2) There· shall be paid from the Fund all amounts· payable to y ictims by way of reparation in terms of regulations made by the P~esident. · · · · · · . . . . . . . . ' ~ - ' 44 No. 16579 GOVERNMENT GAZE1TE, 26 JULY 1995 Act No; 34, 1995 PROMOTION OF NATIONAL UNITY AND RECONCIUATION ACT, 1995 (3) Any money of the Fund which is not required for immediate use may be invested with a financial institution approved by the Minister of Finance and may be withdrawn when required. . . . . . , _ .. . ' . ( 4) Any unexpended balance of the money of the Fund at the end of a financial year, shall be carried forward as a credit to the Fund for the next financial year. . · ·. , : , . · . 5 (5) The administrative work, including the receipt of money appropriated by Parliament for, or donated for the purposes of, the Fund or accruing to the Fund fro!ll any source, and the making of payments from the Fund in compliance with a recominenda~ tion in terms of this Act, shall be performed by officers in the Public Service designated by the Minister. . · · · ' ·· accounting officer in respect of the Fund. (6) The' Minister shall appoint an officer designated under subsection' (5) as '' · (7) The Auditor-General shall audit the Fund and all financial statements relating thereto, and the provisions of section 6 of the Auditor-General Act, 1989 (Act No. 52 of 1989), sha~l apply in respect of any such audit. : · · · · ' · · Completion of report by Commission and dissolution of Commission 43. (I) Subject to the provisions of subsection (2), the Coriunission shall within a period of 18 months from its constitution or the further period, not exceeding six months, as the President may determine; complete its work. · 10 15 subsection (1), complete its final report; (2) The Commission shall within three months, froin the date contemplated in 20 · · · (3) The Commission shall be dissolved on a date determined by the President by '· proclamation in the Gazette. ' · Publication of final report of Commission

44. The President shall, in such manner as he or she may deem fit,'bring the final 25 report of the Commission to the notice of the Nation,· among others, by laying such r~port, within two months after having received it, upon the Table in Parliament. Approach to and review by joint committee of, and reports to, Parliament • ' . . ' • ; ·.'i' .. . ' . ' 45. (1) (a) The Commission may; at any time, approach the joint committee with regard to any matter pertaining to the functions and powers of the Commission. (b) The Minister may at any time approach the joint committee with regard to any matter pertaining to functions and powers which may be' performed or exercised by him . or.her in terms of this Act. (c) The joint committee may at any time review any regulation made under section 40 arid request the President to amend certain regulations or to make further regulations iri 35 terms of that section. , (2) The Commission shall submit to Parliament half-yearly financial reports: Provided that the Commission may, at any time, submit a financial report to Parliament · · on specific or general matters 'if- · · · · · · · . . . . . · · · · .. ' 30 (a) (b) (c) (d) it deems it necessary; it deems it in the public interest; . . it requires the urgent attention of, or. an intervention by, Parliament; it is requested to do so by the Speaker of the National Assembly or the , . ·. . . . President of the Senate. · · ·· · · · · · · 40 Chief executive officer, secretaries, expenditure and estimates of Commission 45 46. (1) The Commission shall appoint in its service a person as the chief executive officer of the Commission and four other persons as secretaries to the Commission, the Committee on Human Rights Violations; the Committee on Amnesty and the Committee on Reparation and Rehabilitation, respectively. (2) The chief executive officer- . 50 (a) shall for the purposes of section 15 of the Exchequer Act, 1975 (Act No. 66 of 1975), be the accounting officer.in respect of all State moneys received in respect of and paid out . of the account of the Commission. referred· to in 46 No. 16579 GOVERNMENT GAZETTE, 26 JULY 1995 Act No. 34, 1995 PROMOTION OF NATIONAL UNITY AND RECONCILIATION ACT, 1995 subsection ( 4 ), and shall keep proper accounting records of all financial transactions of the Commission; (b) shall carry out such duties and perform such functions as the Commission may from time to time impose upon or assign to him or her in order to achieve the objectives of the Commission.· 5 (3) The expenses in .connection with the exercise of the powers, the performance of the functions and the carrying out of the duties of the Commission shall be defrayed out of money appropriated by Parliament for. thatpu.rpose. (4) The Commission shall, in consultatiop with the Minister of Finance, open an account with a banking institution •. into which shall be deposited all moneys 10 appropriated as mentioned in subsection (3) and from which all money required to. pay for the expenses so mentioned shall be paid. (5) (a) The Commission shall within three months from the date referred to in section 7(3), for the first financial year, and there.after in each financial year for the following financial year, in a format determined by the Audit Commission established by section 15 2 of the Audit Arrangements Act, 1992 (Act No. 122 of 1992), prepare the necessary estimate of revenue and expenditure of the Commission. which shall, after consultation with the said Audit Commission, be. submitted to the Minister for his or her approval, granted in concurrence with the Minister of Finance, for furtherance in terms of subsection (3). 20 . (b) The Comlnission shall not incur any expenditure which exceeds the total amount approved in terms of paragraph (a). (6) As from the date on which the Commission is dissolved iri terms of section 43(3) and after all the expenses referred to in subsection· (3)' have been paid, the account opened in terms of subsection (4) shall be closed and the balance of the moneys 25 deposited into that account, if any, shall be transferred to thefiscus. · Consequences of dissolution 47. (1) As from the date on which the Commission is dissolved in terms of section 43(3), all the funds and property which vested in the President's Fund immediately prior to that date shall be transferred to the Disaster Relief Fund referred to in Chapter II of the 30 Fund-raising Act, 1978 (Act No. 107 of 1978), and shall vest in the Disaster Relief Fund. (2) After the date referred to in subsection (1), all the funds and property which would have accrued to the President's Fund, if the Commission had not been dissolved, shall vest in the Disaster Relief Fund. (3) Any funds or property which, by trust, donation or bequest were vestedin, or 35 would have accrued to, the President's Fund, and which vest in the Disaster Relief Fund in terms of subsection ( l ), shall be dealt with by the board of the Disaster Relief Fund in accordance with the conditions of such trust, donation or bequest. ( 4) As from the date n!ferred to in subsection' (1) the liabilities incurred by the Commissionor the President's Fund in terms of this Act, shall pass to the DisasterRelief 40 Fund: Provided that such a liability shall be defrayed only from funds or property which vest in the Disaster Relief Fund in terms of this section. · (5) N() transfer duty, stamp duty or registration fees shall.be payable in respect of the acquisition of any funds or property in terms of this section. Acts repealed 45 48. (l) The Indemnity Act, 1990 (Act No. 35 of 1990), the Indemnity Amendment Act, 1992 (Act No. 124 of 1992), and the Further Indemnity Act, 1992 (Act No. 151 of 1992), are hereby repealed. (2) An)' indemnity' granted under the' provisions of the Indemnity Act,' 1990; the Indemnity Amendment Act, 1992, or the Further Indemnity Act, 1992, shall remain in 50 force notwithstanding the repeal of those Acts. (3) Any temporary immunity or indemnity granted under an Act repealed in terms of subsection (1) shall remain in force for a'period of12 months after the date referred to in section 7(3) notwithstanding the repeal of that Act. 48 No. 16579 GOVERNMENT GAZETIE, 26 JULY 1995 Act No. 34, 1995 PROMOTION OF NATIONAL UNITY AND .RECONCILIATION ACf, 1995 Short title and commencement

49. This Act shall be called the Promotion of National Unity and Reconciliation Act, 1995, and shall come into operation on a date fixed by the President by proclamation in the Gazette.