The Pretoria Minute 6 August 1990

The government and the ANC have held discussions at the Presidency, Pretoria, today 6 August 1990.

1. The Government and the ANC have again committed themselves to the Groote Schuur Minute.

2. The final report of the Working Group on political offences dated 21 May 1990, as amended, was accepted by both parties. The guidelines to be formulated in terms of the Report will be applied in dealing with members of all organisations, groupings or institutions, governmental or otherwise, who committed offences on the assumption that a particular cause was being served or opposed. The meeting has instructed the Working Group to draw up a plan for the release of ANC-related prisoners and the granting of indemnity to people in a phased manner and to report before the end of August. The following target dates have in the meantime been agreed upon:

• The body or bodies referred to in paragraph 8.2 of the Report of the Working Group will be constituted by 31 August 1990.
• The further release of prisoners which can be dealt with administratively will start on 1 September 1990.
• Indemnity which can be dealt with in categories of persons and not on an individual basis will be granted as from 1 October 1990. This process will be completed not later than the end of 1990.
• In all cases where the body or bodies to be constituted according to paragraph 8.2 of the Report of the Working Group will have to consider cases on an individual basis, the process will be expedited as much as possible. It is hoped that this process will be completed within six months, but the latest date envisaged for the completion of the total task in terms of the Report of the Working Group is not later than 30 April 1991.
This programme will be implemented on the basis of the Report of the Working Group.

3 In the interest of moving as speedily as possible towards a negotiated peaceful political settlement and in the context of the agreements reached, the ANC announced that it was now suspending all armed actions with immediate effect. As a result of this, no further armed actions and related activities by the ANC and its military wing uMkhonto we Sizwe will take place. It was agreed that a working group would be established to resolve all outstanding questions arising out of this decision to report by 15 September 1990. Both sides once more committed themselves to do everything in their power to bring about a peaceful solution as quickly as possible.

4 Both delegations expressed serious concern about the general level of violence, intimidation and unrest in the country, especially in Natal. They agreed that in the context of the common search for peace and stability, it was vital that understanding should grow among all sections of the South African population that problems can and should be solved through negotiations. Both parties committed themselves to undertake steps and measures to promote and expedite the normalisation of the situation in line with the spirit of mutual trust obtaining among the leaders involved.

5 With due cognisance of the interest, role arid involvement of other parties the delegations consider it necessary that whatever additional mechanisms of communication are needed should be developed at local, regional and national levels. This should enable public grievances to be addressed peacefully and in good time, avoiding conflict.

6 The Government has undertaken to consider the lifting of the State of Emergency in Natal as early as possible in the light of positive consequences that should result from this accord.

7 In view of the new circumstances now emerging there will be an ongoing review of security legislation. The Government will give immediate consideration to repealing all provisions of the Internal Security Act that –

(a) refer to communism or the furthering thereof;
(b) provide for a consolidated list;
(c) provide for a prohibition on the publication of statements or writings of certain persons; and
(d) provide for an amount to be deposited before a newspaper may be registered.

The Government will continue reviewing security legislation and its application in order to ensure free political activity and with the view to introducing amended legislation at the next session of Parliament, The Minister of Justice will issue a statement in this regard, inter alia calling for comments and proposals.

8. We are convinced that what we have agreed upon today can become a milestone on the road to true peace and prosperity for our country. In this we do not pretend to be the only parties involved in the process of shaping the new South Africa. We know there are other parties committed to peaceful progress. All of us can henceforth walk that road in consultation and cooperation with each other. We call upon all those who have not yet committed themselves to peaceful negotiations to do so now.

9. Against this background, the way is now open to proceed towards negotiations on a new constitution. Exploratory talks in this regard will be held before the next meeting which will be held soon.

PRETORIA – 6 August 1990

 

 

Report – Working group established under paragraph 1 of the Groote Schuur Minute

1. On 2, 3 and 4 May 1990, at Groote Schuur in Cape Town, a delegation of the African National Congress met the State President accompanied by Ministers and officials. At the conclusion of the meeting a document, called the Groote Schuur Minute, was adopted. A copy thereof is attached. Paragraph 1 provided for the establishment of a working group. The ANC nominated as its representatives on the working group, Messrs Zuma Maduna, Nhlanhla, Pahad, Phosa and Ndlovu (its members on the Steering Committee). The Government nominated as its representatives Minister Coetsee, Deputy Minister Meyer and Messrs Van der Merwe, Swanepoel, Louw and Viall, Major General Knipe and Brigadier Kok.
2. The Working Group was charged with –
• Making recommendations on a definition of political offences in the South African situation;
• Discussing, in this regard, time scales; and
• Advising on norms and mechanisms for dealing with the release of political prisoners and the granting of immunity of political offences to those inside and outside South Africa.
3. It is recognised that in terms of the Groote Schuur Minute, the category of persons involved only in offences set out hereunder have already been catered for, for immediate attention:
3.1 The leaving of the country without a valid travel document;
3.2 Any offences related merely to organisations which were previously prohibited (including membership of uMkhonto we Sizwe.
4. Persons in the above category are entitled to be dealt with in terms of the provisions set out in paragraphs 6.2 and 6.3 hereof, as the case may be.
5. The Working Group met on a number of occasions and reports as follows:

DEFINING POLITICAL OFFENCES IN THE SOUTH AFRICAN SITUATION:

6.1 The following classes of persons, whether inside or outside South Africa, must be taken into account with regard to pardon or indemnity for political offences:
(a) Persons already sentenced, including persons serving a sentence, persons subject to any suspended sentence, persons awaiting execution of a sentence or where the case is on appeal or review.
(b) Persons who may be liable to prosecution, or who are awaiting or undergoing trial.
(c) Persons in detention.
6.2 The power to pardon is vested in the State President by virtue of section 6 of the Republic of South Africa Constitution Act, 1983 (Act 110 of 1983), and section 69 of the Prisons Act, 1959 (Act 8 of 1959), and will apply to persons already sentenced, i.e. class (a) above.
6.3 Special power to grant indemnity is required in regard to persons referred to in class (b) above. The relevant power is contained in section 2 of the Indemnity Act, 1990. Section 6 of the Criminal Procedure Act, 1977 provides for the stopping of a prosecution and may therefore be applied.
6.4 The recommendations contained in this document relate only to political offences and in no way imply any limitation upon the general exercise of the powers mentioned in paragraphs 6.2 and 6.3.
6.5 In preparing for the making of ‘recommendations on a definition of political offences in the South African situation’, the following principles and factors were noted (the principles and factors are largely those applied by Prof. Norgaard in the Namibian situation after study of the jurisprudence and the representations of the parties concerned and do not purport to be exhaustive):
6.5.1 There is no generally accepted definition of ‘political offence’ or political prisoner’ in international law. What is generally accepted, however, is that principles developed in the field of extradition law are relevant in distinguishing between ‘political offence’ and ‘common crimes’.
6.5.2 The law and practice of states show that there is now a considerable degree of consensus both as to the types of offence which may in principle be classified as political as well as to the sort of factors which should be taken into account in deciding whether an offence is ‘political’ or not. In particular, the following are aspects of the law and practice of extradition which appear to provide valuable guidance:
(a) Whether or not an offence is political depends on the facts and circumstances of each individual case. The question is thus approached on a case-by-case basis.
(b) Certain offences are recognised as ‘purely’ political, e.g. treason directed solely against the State and not involving a common or ‘ordinary’ crime such as murder or assault or the dissemination of subversive literature.
(c) In certain circumstances a ‘common’ crime, even a serious one such as murder, may be regarded as a political offence. Here the following are the principal factors which are commonly taken into account by national courts:
(i) The motive of the offender – i.e. was it a political motive (e.g. to change the established order) or a personal motive (e.g. to settle a private grudge).
(ii) The context in which the offence was committed, especially whether the offence was committed in the course of or as part of a political uprising or disturbance.
(iii) The nature of the political objective (e.g. whether to force a change in policy or to overthrow the Government).
(iv) The legal and factual nature of the offence, including its gravity (e.g. rape could never be regarded as a political offence).
(v) The object of the offence (e.g. whether it was committed against Government property or personnel or directed primarily against private property or individuals).
(vi) The relationship between the offence and the political objective being pursued (e.g. the directness or proximity of the relationship, or the proportionality between the offence and the objective pursued).
(vii) The question whether the act was committed in the execution of an order or with the approval of the organisation, institution or body concerned.
6.6.1 The Working Group endorses the principles and factors set out in paragraph 6.5.2 and accept that these will form the basis of guidelines to meet the South African situation when considering the grant of pardon or indemnity in respect of political offences.
6.6.2 As stated in the Groote Schuur Minute, it is understood that the Government may in its discretion consult other political parties and movements, and other relevant bodies with regard to the grant of pardon or indemnity in respect of offences relating to them. For this purpose it shall be free to formulate its own guidelines which it will apply in dealing with members of such organisations, grouping or institutions, governmental or otherwise, who committed offences on the assumption that a particular cause was being served or opposed.

Time scales

7.1 Having defined political offences, the norms and the guidelines a cut-off date will have to be fixed. Pardon and indemnity will only be considered in respect of political offences committed on or before that date.
7.2 Bearing in mind the preamble to the Groote Schuur Minute, the Working Group accepts that the process should proceed as expeditiously as possible. It is understood that diverse periods for pardon, indemnity and release will apply to diverse persons, categories of persons and categories of offences. A mechanism to provide advice to Government in this regard is necessary.
7.3 It is understood that the Government may, without waiting for the implementation of the process contemplated in this document, proceed to exercise the powers referred to in paragraph 6.2, in terms of existing policy. This may result in substantial results in the very near future in regard to persons referred to in class (a) of paragraph 6.1.

A Mechanism

8.1 The granting of pardon or indemnity in respect of a specific offence or a category of offence is an executive governmental function. The purpose of devising a mechanism is to provide the executive with wise advice and to demonstrate that the interests of all parties are being taken into account in as objective a manner as possible.
8.2 It is suggested for this purpose that a body or bodies be constituted, consisting of a convenor with ad hoc appointments from concerned groups when dealing with particular offences (or categories of offences).
8.3 It is recommended that this Working Group be kept active in respect of ANC interests.