ESMIE FERREIRA, Cape Town | Tuesday 9.00pm.
THE Truth and Reconciliation Commission (TRC) says the setting aside of former State President P.W. Botha’s conviction on contempt of court charges may allow him to ‘escape responsibility’ for apartheid-era abuses.
“Mr. Botha will once again not suffer the consequences of his actions during the worst period of the excesses of apartheid” if the court decision stands, the TRC said in a statement. Botha was sentenced in August to a fine of R10000 rand or 12 months in jail by a court in his home town of George after he flatly refused to testify before the TRC.
Judge Selwyn Selikowitz upheld the appeal on technical grounds, saying the subpoena calling Botha to testify before the TRC on December 19, 1997, was invalid. Accordingly, Botha, who has branded the TRC a “circus,” did not act unlawfully by failing to appear before the commission, the judge said.
The subpoena, issued on December 5, was invalid because it called Botha to appear after the TRC’s active lifespan expired, on December 14. An amendment act prolonging the truth commission’s activity was not promulgated until days after the subpoena was issued, and it was not retroactive. The TRC therefore did not have the power to call a hearing on December 19.
The TRC said it is “sad” that Botha’s technical defence “should outweigh the nation’s need for truth and reconciliation.” It asked the state to consider using its right of appeal against Selikowitz’s decision. State prosecutor Bruce Morrisson said that the decision to appeal lay with the Western Cape director of public prosecutions, Frank Kahn — who originally took the decision to prosecute Botha.
Botha’s lawyers argued that the TRC had disregarded its own legal provisions by issuing the subpoena and had only itself to blame for the dilemma.