Amnesty Hearings — Durban — 1999-09-29

MR DEHAL: Mr Chairperson, I think that inquiry is very wide, I have four things to say in that regard.  The first is when I received the bundle of documents, marked C, contained Greta Apelgren's evidence and indeed Mr McBride's, I immediately called Mr Currin to establish whether there was any privilege attached to them, as I understood 29 to be as my learned colleague, Mr Berger, argued and indeed the Committee understands it.  Mr Berger told me that there was an agreement prior to the 29 hearings, that any evidence led therein would never be used - sorry not Mr Berger, Mr Currin, sorry.  I see that that agreement is included on page 1 and 2 of the 29 hearing on Mr McBride's evidence and secondly Mr Chairperson, that whereas Mr McBride and I say this without prejudice, whereas Mr McBride has no difficulty with what he said in the 29 proceeding,  he has difficulty on advice from Mr Currin and myself that 29 proceedings in themselves, are privileged, and that the moment they are referred to within the ambit of these proceedings, then the level at which these documents and this evidence may well be used in subsequent proceedings, takes a different tone.   If it is confined to a 29 proceedings, then the level of prejudice and the content and the way in which it may possibly be used in criminal proceedings and any other proceedings, has a different tone to it, a different nature to it.

JUDGE PILLAY: What is the extent of the protection afforded by the Act?  Isn't as I remember it, against criminal prosecution and delictual action?  Not so?

MR DEHAL: Indeed.

JUDGE PILLAY: This particular hearing, to my mind, does not fall in either of the categories, is that not so?

MR DEHAL: I agree.

JUDGE PILLAY: And furthermore any agreements between legal representatives surely cannot erode any duties or rights of this Committee?  If we, the Committee feel that we have to refer certain bits of evidence arising out of Section 29 investigations, then surely we are entitled to refer to it.

MR DEHAL: I agree - sorry Judge bear with me.

CHAIRPERSON: Sorry, just before you respond to Judge Pillay, Mr Dehal, if one takes a look at Section 29(5), no person other than a Commissioner, a member of staff or any person required to produce any article or give evidence, shall be entitled to attend any investigation, that is a Section 29 hearing, right?  The Commission may having due regard to the principles of openness and transparency, declare that any article produced or information furnished at such investigation, shall not be made public until the Commission determines otherwise or in the absence of such determination, until the article is produced or the information is furnished at a hearing in terms of this Act or in any proceedings in any court of law.  What is your interpretation of that?

MR DEHAL: Mr Chairperson, my interpretation would be on the lines as I think would be yours, namely that you are empowered with the discretion within the ambit of the subsection, to decide whether it ought to be used or not.   I think this inquiry seeks to address that very purpose and my submissions are that you ought not to allow it to be included.  But I submit respectfully that indeed, if you rule that it ought to be included, that is where the inquiry ends and you do have the powers to do so.  I agree that 29(5) entitles you to have these documents included.

CHAIRPERSON: If that is so, and this is just again for purposes of argument, on what basis would the Commission in terms of Section 29 refuse to allow it to be used?  Bearing in mind that what we are trying to do here is to get this, the whole story, the truth, openness and transparency, now if somebody were to come and say "look, when I went to that Section 29 hearing, I had a guy standing behind me with a gun pointed at my back and I testified under duress and whatever, you know there is some tangible reason to say no, what was said there is, was said under inducement, etc, etc.  There is some reason to exclude it.  But if somebody just comes and says well, I gave evidence at the Section 29 about the same incident, but I don't want it to be used, there is a difference there, you know.  When would the Commission put its foot down and say "no, it is not going to be used?"  Shouldn't there be some specific reason for it, to keep the documents secret?

MR DEHAL: Mr Chairperson, I think my submissions would be - sorry, slightly wider in that regard.  My concern is that a precedent may well be set for Section 29 proceedings to be used in matters of this nature.   I think my submissions and Mr Berger's submissions is intended to address this concern.

CHAIRPERSON: My experience at these hearings and most of them here there has been a Section 29 hearing, we have had the record, but it has never been made an issue of.   It has however, there has never been any objection, so I personally haven't ever had to deal with it on this basis.  That is why I am asking shouldn't there be some sort of specific reason why it shouldn't be used.

MR DEHAL: Mr Chairperson, as I see it, the main reason is that firstly 29 proceedings were by its very nature, held in camera, were intended to adduce evidence against prosecution.  In this particular case, the Attorney-General here in Natal, had gone public on his intention to arrest and possibly charge Mr Ismail and Mr McBride and there was lots of talk in public and directly by the Attorney-General that he intends to re-open the so-called Magoos bar case and as a result of all of that, there was scurrying and rushed applications, one of which was Mr McBride's application and indeed Mr Ismail's application.  These applications proceeded the hearings.  Now, one approached the 29 hearings with that prospect in mind, that the hearings would be confidential and never used at any hearing subsequently.

JUDGE PILLAY: You are talking about the Attorney-General of that time?

MR DEHAL: Indeed, Mr McNally, thank you.   I have a copy of the press clipping that says so, if you require it, I could refer you to it, but I think more importantly ...

JUDGE PILLAY: To me you are not dealing with the question asked by Judge Miller.   We are dealing with something that we have not needed to deal with before.  The question is of an enquiring nature.  Should there not be some type of guiding line to determine whether Section 29 proceedings and the evidence produced therein, whether that should be produced or used in such hearings such as this, or not?  Whether it could in the first place, or the other way around?

MR DEHAL: Judge, I think those are important questions.  I for one, hadn't anticipated that this would be the argument today, nor have I prepared argument in that regard, and I think it is an important question and I think perhaps more important is Judge Pillay's inquiry that one, this is not evidence before us, two, even though it is evidence in the 29 proceedings, can it really be used to question Mr Ismail thereon.   My submissions are, it cannot.   Firstly because it is not evidence and secondly because Mr Ismail was neither present at the 29 proceedings, nor is now familiar with it.