Minutes and Accords between the ANC and the South African Government, May 1990 - February 1991

Contents

• The Groote Schuur Minute, 4 May 1990
• Fax from Security Branch, 23 October 1990
• Pretoria Minute, 6 August 1990
• Report: Working Group Established under Paragraph 1 of the Groote Schuur Minute
• D F Malan Accord
• Joint Statement by the State President, Mr F W De Klerk, and Mr Nelson Mandela, Deputy President of the African National Congress, 12 February 1991

THE GROOTE SCHUUR MINUTE

The government and the African National Congress agree on a common commitment towards the resolution of the existing climate of violence and intimidation from whatever quarter as well as a commitment to stability and to a peaceful process of negotiations.

Flowing from this commitment, the following was agreed upon:

1. The establishment of a working group to make recommendations on a definition of political offences in the South African situation; to discuss, in this regard, time scales; and to advise on norms and mechanisms for dealing with the release of political prisoners and the granting of immunity in respect of political offences to those inside and outside South Africa. All persons who may be affected will be considered. The working group will bear in mind experiences in Namibia and elsewhere. The working group will aim to complete its work before 21st May 1990. It is understood that the South African government, in its discretion, may consider other political parties and movement and other relevant bodies. The proceedings of the working group will be confidential. In the meantime the following offences will receive attention immediately:
1. The leaving of the country without a valid travel document.
2. Any offences related merely to organisations which were previously prohibited.
2. In addition to the arrangements mentioned in paragraph 1, temporary immunity from prosecution of political offences committed before today, will be considered on an urgent basis for members of the National Executive Committee and selected other members of the ANC from outside the country, to enable them to return and help with the establishment and management of political activities, to assist in bringing violence to an end and to take part in peaceful political negotiations.
3. The government undertakes to review existing security legislation to bring it into line with the new dynamic situation developing in South Africa in order to ensure normal and free political activities.
4. The government reiterates its commitment to work towards the lifting of the state of emergency. In this context, the ANC will exert itself to fulfill the objectives contained in the preamble.
5. Efficient channels of communication between the government and the ANC will be established in order to curb violence and intimidation from whatever quarter effectively.

The government and the ANC agree that the objectives contained in this minute should be achieved as early as possible.

Cape Town,
4th May 1990

Fax from Security Branch, 23 October 1990

1. In accordance with paragraph 5 of the Groote Schuur Minute, the Minister of Law and Order, Mr Adriaan Vlok and Mr Jacob Zuma, information chief of the ANC, met to discuss the creation of efficient channels of communication between the government and the ANC.
2. After an in-depth discussion it was agreed that:
• Liaison committees be established on a regional level and also on a district or local level depending on the needs that are identified. The objective of the committees is to maintain regular contact between the S A Police and the ANC.
• Both the S A Police and the ANC will, as soon as possible, provide one another with the names and addresses and telephone numbers of persons they appointed as liaison officers on the different levels so that the system can become operative by 30 October 1990.
3. The object of the exchange of names of liaison persons is to ensure a line of two-way communication. Up to date the S A Police has received only 29 names of ANC liaison persons.
4. Please furnish the S A Police with the rest of the names of your liaison persons so as to ensure the efficient functioning of the channels of communication.

Signed: Brigadier R P McIntyre

PRETORIA MINUTE

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 will 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 cognizance of the interest, role and involvement of other parties the delegations consider it necessary that whatever additional mechanisms o 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 -

1. refer to communism or the furthering thereof;
2. provide for a consolidated list;
3. provide for a prohibition on the publication of statements or writings of certain persons; and
4. provide for an amount to be deposited before a newspaper may be registered.

The Government will continue reviewing security legislation and it application in order to ensure free political activity and with the view to introducing amending 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 co-operation 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:

1. 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.
2. Persons who may be liable to prosecution, or who are awaiting or undergoing trial.
3. Persons in detention.

6.2 The power to pardon is vested in the State President by virtue of section 6 of the REpublic os 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:

1. 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.
2. Certain offences are recognized as "purely" political, eg. 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.
3. 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:
1. The motive of the offender - i.e. was it a political motive (eg. to change the established order) or a personal motive (eg. to settle a private grudge).
2. 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.
3. The nature of the political objective (eg. whether to force a change in policy or to overthrow the Government).
4. The legal and factual nature of the offence, including its gravity (eg. rape could never be regarded as a political offence).
5. The object of the offence (eg. whether it was committed against Government property or personnel or directed primarily against private property or individuals).
6. The relationship between the offence and the political objective being pursued, eg. the directness or proximity of the relationship, or the proportionality between the offence and the objective pursued.
7. 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 accepts 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 offences, 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 convener 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.

A GUIDE TO THE NEGOTIATIONS PROCESS AND THE ARMED STRUGGLE

1. THE STEERING COMMITTEE

The Steering Committee is made up of government and ANC

representatives. Is main function is to steer the talks about talks, It dealt with all the preparations for both the Groote Schuur and Pretoria Minutes.

2. THE GROOTE SCHUUR MINUTE

The Groote Schuur Minute is the first agreement on the talks about talks between the government and the ANC. Is main features are the following:

1. The establishment of a working group to define a political offence.
2. The NEC members together with certain senior cadres of the ANC allowed to return home to begin the process of establishing ANC offices inside the country.
3. An undertaking by the government to lift the State of Emergency.
4. An undertaking by the government to review all security legislation and to bring the same in line with internationally acceptable standards.
5. The creation of channels of communications between the government and the ANC.

3. THE INDEMNITY ACT

The Indemnity Act is an act of parliament in terms whereof temporary or permanent indemnity may be granted with or without conditions.

4. THE WORKING GROUP IN TERMS OF THE GROOTE SCHUUR MINUTE - PARA. 1 THEREOF

In terms of paragraph 1 of the Groote Schuur Minute, a working group was established to work out a definition of political offence as well as the mechanisms and time scales for the release of political prisoners and the return of exiles.

5. A REPORT OF THE WORKING GROUP ESTABLISHED UNDER THE GROOTE SCHUUR MINUTE

This report was adopted by both the government and the ANC on the 6 August 1990 at Pretoria. It deals with a definition of a political offence, the question of the release of political prisoners and the return of exiles.

6. THE PRETORIA MINUTE

The Pretoria Minute is the second important agreement between the government and the ANC. It was entered into on the 6th August 1990. its main features are the following:

1. The suspension of armed action by the ANC.
2. An undertaking by the government to - release all political prisoners by the 30th April 1991 - allow all exiles to return home
3. The intention to form national, regional and local structures to address situations of conflict at the levels aforementioned.
4. An agreement for the commencement of constitutional exploratory talks between the government and the ANC.
5. The establishment of a Working Group to deal with the implementation of the suspension of armed action.

7. THE WORKING GROUP IN TERMS OF PARA 3 OF THE PRETORIA MINUTE

The functions of the Working Group established under paragraph 3 of the Pretoria Minute are "to resolve all outstanding questions arising out of the decision to suspend armed action and related activities".

8. THE DF MALAN DOCUMENT

The Working Group established under paragraph 3 of the Pretoria Minute produced the DF Malan Document after more than six months of extremely lengthy and difficult discussions. The main features of the DF Malan Document are the following:

(i) An undertaking by the ANC to stop:

• Attacks by means of armaments, firearms, explosives or incendiary devices
• Infiltration of men and material
• Creating military as opposed to political underground structures
• Statements inciting violence
• Threats of armed action
• Military training inside the country

(ii) The government agreed and accepted the following:

• That MK is not only a legal organisation but also that membership of MK is neither a crime nor in violation of the Pretoria minute
• The historical fact that MK placed arms and caches within our country
• That MK may continue to recruit and train its cadres
• That mass action is a legitimate form of protest
• That our non-automatic firearms will be legalised for self- defence
• That the ANC is entitled to continue to maintain the already existing military underground structures
• That the security forces will take cognisance of the suspension of armed action and related activities and that all unauthorised activities by them be addressed.

(iii) A Liaison Committee to deal with the implementation of the DF Malan Document was created in the same document.

9. THE LIAISON COMMITTEE IN TERMS OF THE DF MALAN DOCUMENT

This Liaison Committee met on several occasions but has thus far failed to reach a substantial agreement. The regime's representative sought to turn the suspension of armed action into a termination of the armed struggle and this was rejected by the ANC representatives. There is not a stalemate in the discussions in the Liaison Committee.

DF MALAN ACCORD

REPORT OF THE WORKING GROUP UNDER PARAGRAPH THREE OF THE PRETORIA MINUTE

1. The Working Group was established under paragraph 3 of the Pretoria Minute, which reads as follows:

"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, nor further armed actions and related activities by the ANC and its military wing, Umkhonto weSizwe will take place. It was agreed that a Working Group will 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."

2. Having decided that it would not have been possible to submit a final report by the 15th September 1990, an interim report was brought out on 13 September 1990.

3. Since then a number of meetings have taken place. This report was finalised at a meeting on the 12th of February 1991.

4. With reference to the work "suspending" as used in paragraph 3 of the Pretoria minute, the Working Group what was said in paragraph 4 of its Interim Report, namely that suspension occurred as a step in the process of finding peaceful solutions, with the presumption that the process would lead to the situation where there would be no return to armed action.

5. (a) Under the terms of suspension of "armed action" and "related activities" by the ANC, with specific reference also to Umkhonto weSizwe and its organised military groups and armed cadres, it was agreed that the following will not take place:

1. Attacks by means of armaments, firearms, explosive or incendiary devices.
2. Infiltration of men and material
3. Creation of underground structures
4. Statements inciting violence
5. Threats of armed action
6. Training inside South Africa

(b) The Working Group:

1. agreed that the democratic process implies and obliges all political parties and movements to participate in this process peacefully and without resort to the use of force;
2. therefore accepted the principle that in a democratic society no political party or movement should have a private army;
3. noted that the ANC had, in good faith and as a contribution to the process of arriving at a peaceful settlement announced the suspension all armed actions and related activities, with the presumption that the process would lead to the situation where there would be no return to armed action;
4. noted that by virtue of the fact that Umkhonto weSizwe is no longer an unlawful organisation, membership thereof is not in violation of any of the provisions of paragraph 3 of the Pretoria Minute and the letter and spirit of the Pretoria Minute as a whole;
5. noted the historical fact that the ANC and Umkhonto weSizwe had placed arms and cadres within the country;
6. agreed that in the context of paragraph 5(b) (ii) , (iii) and (iv) above, it was vital that control over such cadres and arms be exercised to ensure that no armed actions or related activities occur;
7. further agreed that in the context of paragraph 59b(ii) , (iii) and (iv) above, a phased process be initiated in order to enable these cadres of the ANC to resume their normal lives and also facilitate and legalise control over the arms and the process to ensure such legality will immediately be taken further by the Working Group;
8. agreed that where applicable, individual weapons shall be licenced in terms of existing legislation;
9. further agreed that the security forces take cognisance of the suspension of armed action and related activities and that the parties hereto will remain in close liaison with one another according to the procedure prescribed in 6 9a) of this document with a view to ensuring prompt and efficient reporting, investigation and redressing, where applicable, of all allegations of unlawful activities or activities contrary to the spirit of this agreement, by the security forces.

(c) The Working Group:

1. agreed that the population at large has a right to express its views through peaceful demonstrations;
2. further agreed that it is urgent and imperative that violence and intimidation from whatever quarter accompanying mass action should be eliminated;
3. further agreed that peaceful political activities and stability must be promoted;
4. further agreed that it this end joint efforts should be made to implement the intentions contained in paragraphs 5 of the Groote Schuur and the Pretoria Minutes to ensure that grievances and conflict-creating situations are timeously addressed.

6. (a) The Working Group agreed that designated members of the ANC would work with government representatives in a Liaison Committee to implement this agreement, and that the existing nominated SAP and ANC liaison officials appointed in accordance with paragraph 5 of the Groote Schuur Minute shall serve as supporting structure of the Liaison Committee.

(b) It is agreed that this agreement will be implemented forthwith and its objectives attained as speedily as possible.

(c) It is further agreed that in view of the above the process of attaining the objectives contained in paragraph 2 of the Pretoria Minute will be realised according to the procedures contained in that minute.

7. It is understood that nothing in or omitted from the agreement will be construed as invalidating or suspending the provisions of any law applicable in South Africa.

8. It is recommended that this Working Group be continued to supervise the implementation of this agreement relating to paragraph 3 and the activities of the Liaison Committee and to give attention to further matters that may arise from the implementation of this agreement, such as proposed defence units.

JOINT STATEMENT BY THE STATE PRESIDENT, MR F W DE KLERK, AND MR NELSON MANDELA, DEPUTY PRESIDENT OF THE AFRICAN NATIONAL CONGRESS

Delegations led by President F W de Klerk and the Deputy President of the African National Congress, Mr Nelson Mandela, met in Cape Town today.

The problems experienced by the Working Group dealing with paragraph 3 of the Pretoria Minute, were resolved and agreement was reached with regard to the most pertinent points.

It was agreed that there was a need for ongoing consultation with the Working Group.

The Cabinet and the National Executive Committee of the ANC will consider the document containing the agreement and when approved a full text will be released immediately.

ISSUED BY THE OFFICE OF THE STATE PRESIDENT
CAPE TOWN
12 FEBRUARY 1991