The Department of Justice will assist students being prosecuted for their roles in the Fees Must Fall protests in order to pursue avenues other than outright criminal prosecution and guide them in applying for amnesty, Minister Michael Masutha announced on Monday.
A student, speaking on behalf of his cohorts, described the agreement with Masutha as "wishy-washy", but said they would work with the ministry.
Masutha said he had met with the students on Friday - on the instructions of President Cyril Ramaphosa - who are camping out at the Union Buildings in Pretoria, demanding amnesty.
He also met with them at Tuynhuys in Cape Town on Wednesday.
"On both occasions, I pointed out that, in line with its respect for the principles of separation of powers and the rule of law, the executive branch of government had neither the mandate nor the inclination to favour any person or group of people with a specific or general reprieve outside the existing constitutional and legal framework.
"The criminal justice system provides avenues for various alternatives to outright criminal prosecution which include diversion, mediation and various forms of restorative justice mechanisms.
"With respect to pardons, the department of justice and constitutional development supports the process by way of facilitating applications and draft memoranda on the basis of which the minister makes a recommendation to the president for decision."
Masutha proposed the following to the students:
- The students will constitute a delegation which will provide a list of all affected students - those who are arrested and still in custody or detention, charged or awaiting a prosecutorial decision, on trial and sentenced, including those serving custodial sentences in a correctional facility;
- That he would assist the students in approaching the National Prosecuting Authority (NPA) to consider evaluating each case, specifically in order to determine the seriousness or otherwise of the charges, the weight or otherwise of the available evidence and, where appropriate, possibilities of the option for diversion, mediation or other forms of restorative justice in the case of those students who are yet to appear before the courts;
- That he will, where appropriate, guide the students in making applications to the NPA for the review of prosecutorial decisions in cases of students who are already charged and whose matters are currently on trial, and;
- The ministry of justice will guide the students on the process of compiling applications for a presidential pardon for those students seeking to make such applications.
Masutha pointed out that presidential pardons were granted in respect of convicted and sentenced persons only on the basis of the information they provide and in circumstances where the applicant has shown good cause.
"Under no circumstances can a presidential pardon be pre-determined," he said.
"The department of justice and constitutional development stands ready to begin with the process as soon as the students have submitted their applications with the relevant information."
Masutha said all these measures were already available recourses in the criminal justice system.
"All we will be doing is furnishing the NPA with information, and leave it up to them to use their discretion."
Masutha said, as justice minister, he had never and would never, instruct the NPA to prosecute or not to prosecute.
'Go back and organise'
Fees Must Fall activist Bonginkosi Khanyile also spoke at the briefing and confirmed the meeting with Masutha.
"It was a rainy day when he came with police and bodyguards and an umbrella to protect him against the rain," Khanyile said.
He said they had committed to work with the minister, even though Masutha didn't make any specific commitments.
"The minister gave us a lecture on the Constitution," he said. "He just became a typical politician," said Khanyile, who was dressed in a jacket emblazoned with the EFF's colours.
He said the agreement was "just wishy-washy".
"Go back and organise," was his call to student activists.
He said that the more than 560 students in the legal system, following the Fees Must Fall protests for free higher education, were not criminals.
"All what students have done was a reaction to what was happening on the ground," he said.
He said students had faced violence from the police and private security companies.
The protesters were not against the Constitution, he added.
Khanyile did not want to reveal the student activists' next step.
"We must surprise them," he said.
Khanyile, who was arrested in 2016, was initially facing 13 charges, but was acquitted of nine others. He will have to return to court on October 16 for sentencing.
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