Ex-S. Africa Leader Wins on Technicality

In a stinging setback for the truth panel that has delved into this country’s apartheid past, a court on Tuesday overturned former President Pieter W. Botha’s conviction on charges of refusing to testify about the secrets of his white-minority regime.

Botha, 83, who led South Africa from 1978 to 1989, declared his gratitude for the ruling “on behalf of all South Africans who love their country.” The Truth and Reconciliation Commission, meanwhile, expressed deep regret for the decision, which it said gave legalistic arguments precedence over the country’s need for healing.

“Should this decision stand, Mr. Botha will once again not suffer the consequences of his actions during the worst period of the excesses of apartheid under his rule,” Martin Coetzee, the commission’s chief executive officer, said.

The High Court in Cape Town sided with Botha on a technicality, not on the substance of his objections to the work of the truth panel, which he has described as an anti-white tool of the black-dominated ruling African National Congress. The court ruled that a subpoena issued to Botha in December 1997, which required him to testify before the commission, was invalid because it was issued after the panel’s initial mandate had expired.

Parliament had voted at that point to extend the commission’s term, but the law had not yet taken effect. As a result, the court ruled, the commission had no legal authority to require Botha’s testimony.

The ruling Tuesday overturned a lower court decision last year that had held Botha in contempt for ignoring the subpoena. The lower court had ordered the former president to pay about $1,500 and issued a one-year suspended jail sentence.

“The court is mindful of the fact that there will be many who may consider that it is unjust,” Cape Town High Court Judge Selwyn Selikowitz wrote Tuesday. “This court is duty-bound to uphold and protect the constitution and administer justice to all persons alike without fear, favor or prejudice.”

As a practical matter, the ruling has no impact on the truth commission’s effort to glean information from Botha about the killing of anti-apartheid activists when he headed the white government’s State Security Council. The commission concluded its hearings on human rights abuses and issued its report last year; it is now completing its final task of considering amnesty applications from apartheid-era criminals.

But Richard Lyster, an attorney and commission member who worked on the human rights cases, said Botha’s conviction was “hugely symbolic” in the message it sent to those unrepentant for the apartheid past. Although no one believed that Botha would ever serve a day in jail, Lyster said, the conviction demonstrated that apartheid’s wrongdoers could be held accountable.

“We saw him appearing in a court under a new government before a black magistrate,” Lyster said of the lower court case last year. “I think those images will never be lost.”

In his statement Tuesday, Botha said the ruling was evidence that the judicial process in South Africa remains independent, a statement interpreted by some analysts as a slap at the black magistrate who found him guilty last year. The two High Court judges who heard the appeal are white.

But Lyster said it would be unfair to attribute the High Court ruling to race.

“This is not a case of old-regime white judges coming to the rescue of P.W. Botha,” he said. “The ruling is disappointing, but on technical grounds, the judges were correct.”