Amnesty Hearings — Durban — 1999-09-29

MR BERGER: Indeed, and that is why one has to read into Section 31(3), because 31(3) has a bearing on these hearings as well, so one has to read into the word incriminating, something more than incriminating in the narrow criminal sense, because if the applicants were not tendering incriminating evidence, then they would not qualify for amnesty.     The point I wanted to make in that submission is my learned friend says he does not seek to illicit any evidence, incriminating evidence, the question is what evidence does he seek to illicit and for what purpose does he then intend to use that evidence, he hasn't made that clear.

CHAIRPERSON: Yes, I think on that one as well, we will ask Mr Richard, it is usual for, if an application is being opposed, to state the basis of the opposition, on what basis is it being, if indeed it is being opposed.  We don't even know that.   For what purpose, as you say, is it being asked if we don't know what the intention of the clients are of Mr Richard in this matter.

MR BERGER: And finally Chairperson, my learned friend says that in relation to 31(4), he says that the law of privilege is not really applicable because the Section allows, I am trying to understand my learned friend's argument, it is a bit difficult to understand.  He says that the Section allows a person to be questioned.  In my submission, my learned friend's argument begs the question, the question is whether the Section 29 evidence was tendered without prejudice.  If the Section 29 evidence was tendered without prejudice, then it is privileged and then the Law of Privilege applies, so we go back to the starting point, what was the purpose of a Section 29 hearing?  We know that the Act is clear, the hearing is in camera and it is secret, for a certain period.  Does that mean, and that is I submit the question that the Committee must decide, does that mean that that evidence is tendered without prejudice?  If it doesn't mean that, then the Law of Privilege does not apply.  If that evidence was tendered without prejudice, then the question is has the witness waived that privilege, which attaches to the communication.  My submission is this committee will have to rule, with respect, on what was the status of the evidence when it was tendered at the Section 29 hearing.

JUDGE PILLAY: And what has made it change if it was privileged, if at all?

CHAIRPERSON: And then what do you say to the Section 29(5), that is until the article is produced at a hearing?

MR BERGER: Chairperson, I submit that 29(5) is a general Section which does not deal with questions of privilege and questions of prejudice.   Section 31(3) and (4) are specific Sections which deal with questions of privilege.   My submission is that Section 29(5) has to be read subject to 31(3) and (4).  Chairperson, finally one has to have regard to what was intended by Section 29, it was intended to assist the Commission with regard to investigations and hearings, it was intended to be a hearing out of the public domain in camera, for what purpose, why did the legislature see fit to have secret hearings, hearings in camera?  There had to be a purpose for that and the purpose was, I submit, so that people could come along and without any fear, disclose certain facts.

CHAIRPERSON: Yes, to encourage people to come forward and tell the truth without, as you say, without fear of public recrimination, if one could put it that way.

MR BERGER: Indeed Chairperson.   Now, why should that simply change, why should that position simply change because we are not at an amnesty hearing?  The purpose of the Section 29 hearing was so that the TRC, so that the Investigators who investigate amnesty hearings as well, could be assisted, so that people could come forward and give evidence.  I am talking in principle, I am not relating it to any of the applicants in this matter, I am talking merely as a matter of legal principle, to encourage people to come forward and speak without fear.

CHAIRPERSON: Sorry, carry on.

MR BERGER: Sorry Chairperson, all of a sudden the situation changes because the Evidence Leader, and I am not referring to Mr Prior either, because the Evidence Leader places the record of those proceedings at the disposal of all the legal representatives to an amnesty hearing.   What happened to the guarantees that were put in place to encourage people to come forward at the Section 29 stage?

CHAIRPERSON: It is - dealing with principles again, not this particular matter, if a person gives evidence at a Section 29 hearing and applies for amnesty in respect of the same subject matter to which he is testifying at that hearing, why should there be any objection to what he says earlier being produced later, when he is coming before the Amnesty Committee, talking about exactly the same incidents?

MR BERGER: There may be matters that were dealt with at the Section 29 hearing which are not relevant to a particular amnesty application, that had relevance to some other event, that would not affect the principle of full disclosure.

CHAIRPERSON: But if it is the same incident?

MR BERGER: But we don't know how far and wide the questioning in terms of Section 29 ranged, if it was limited ...

CHAIRPERSON: No, I am just speaking in principle, I am again not relating it to this matter, but if a person comes and gives evidence in a Section 29 about a particular incident for which he has applied for amnesty, on what basis can there be any objection to what he said earlier being produced at his amnesty hearing, if he is giving evidence on the same incident?

MR BERGER: If the facts all relate to the same incident, then I would have to concede that by making an application for amnesty, the person has then indicated that he is willing to make those facts known to the public.

CHAIRPERSON: Because of this question of full disclosure, because otherwise one might just be left with the feeling that there is something that the applicant does not wish to disclose.

JUDGE PILLAY: Mr Berger, isn't your strongest point that we are talking about a statement made by someone else and the question then to be dealt with and answered is whether this applicant must be confronted with whatever is contained in that statement, and is it fair?

MR BERGER: Indeed Judge, the proper approach would be for the Section 29 record to be proved against the person who made it, and only thereafter could it be used against ...(intervention)

CHAIRPERSON: But we know that you - sorry Judge Pillay, your client wasn't present at those Section 29 hearings, when those statements were made?

MR BERGER: No, he was not.

JUDGE PILLAY: Could it be used at any time against the present applicant?  Could he be confronted with what someone else has said even if it is about the same incident?

MR BERGER: No, he could be confronted with what another applicant says in these proceedings.  Yes, but not what an applicant said at an earlier hearing, no.  Thank you Judge.

CHAIRPERSON: Mr Dehal, do you wish to make any submissions?