The South African Constitutional Court is hearing an unique application by former apartheid-era security policeman Wybrand du Toit, convicted with two others of killing four policemen in a December 1989 bomb blast in Port Elizabeth.
Du Toit, commander of the security police's technical division during the apartheid era, which ended in 1994 when ex-president Nelson Mandela became the country's first Xhosa-president -- had helped prepare the bomb, which was placed by himself and co-convicted colleagues Gideon Nieuwoudt and Martinus Ras.
Their criminal trial records showed that the security cops decided to kill their colleagues 'because they knew too much' about the murder of an anti-apartheid activist. see
The three security police officers were convicted and jailed for 15 years for blowing up warrant officer Mbalala "Glen" Mgoduka, Sergeant AmosTemba Faku, Sergeant Desmond Daliwonga Mpipa and an irregular police operative referred to as an "Askari' , Xolile Shepard Sakati, in their police vehicle.
Du Toit also lost his job the day after his conviction and jail sentence. He then applied for amnesty under the provisions of the new "Promotion of National Unity and Reconciliation Act", introduced in South Africa after 1994 as part of Nelson Mandela's process of reconciliation.
This law granted amnesty to many participants who had carried out often very gruesome acts on both of the long drawn-out conflict. Du Toit had obtained a written promise from former national police commissioner George Fivaz that he could have his job back if he obtained amnesty and made a 'clean breast of it'. However Fivaz' successor then reversed this decision after Du Toit was granted amnesty.
And now he's applied in the Constitutional Court for his old job back - with back pay.
It's only fair, argues his lawyer Jaap Cilliers, because "thousands of policemen, including commissioners had also received amnesty and still retained their jobs - except Du Toit."
However advocate Tim Bruinders, arguing for the police and safety and security ministry, said "amnesty laws could wipe a person's record clean of an apartheid-era crime, but it could not bring a job back."
"The loss of his job was a natural consequence of his conviction and to undo the legal consequences of the conviction, would "offend what reconciliation was about", said Bruinders. He also pointed out that Du Toit could apply for any job now that his slate had been wiped clean.
The South African constitutional court finds itself in a unique legal quandary however: they need to determine the legal status of Du Toit, who was granted amnesty and thus lost his job -- because of a crime 'which doesn't exist any more'. But, asked Bruinders: "Do you need to put people back into their jobs to achieve reconciliation?"
Chief Justice Pius Langa pointed out during the hearing that 'not only perpetrators of crimes should benefit from reconciliation. The victims and their families should also be considered."
One of the other bench judges, Johann van der Westhuizen however said ' the court could not know how the families felt and whether they would be upset to see Du Toit back on the job or not'.
He pointed out that 'the purpose of the Truth and Reconciliation Commission and the amnesty process was to seek information on apartheid crimes from both sides that would otherwise not have been forthcoming."
"This was intended to give closure to all involved, and to assist national reconciliation and forgiveness."
However -- would Du Toit be forgiven and get his old job back? Judgment was reserved. see