Amnesty Hearings — Sebokeng — 1998-07-14

MR BERGER: No, I'll deal with it now, Chairperson, it seems to of concern.  The granting of amnesty in terms of the Act was a constitutional requirement.  I don't think I need to go into the history of the compromise that was reached at Kempton Park, everybody knows about it.  In the interim constitution, it was recorded that there shall be amnesty and the constitution said "Amnesty shall be granted" - let me start at the beginning of the sentence:  "In order to advance such reconciliation and such reconstruction, amnesty shall be granted in respect of acts, omissions and offences associated with political objectives and committed in the course of the conflicts of the past.  To this end, parliament under this constitution shall adopt a law determining a firm cut off date which shall be a date after 8 October 1990 and before 6 December 1993 and providing for mechanisms, criteria and procedures including tribunals, if any through which such amnesty shall be dealt with at any time after the law has been passed."  The constitution said that an act of parliament must provide for procedures and criteria through which amnesty can be granted because amnesty was not going to be granted to any one and everyone, it had to be granted in terms of certain criteria and in terms of certain procedures - that's what the constitution required so it was prior to the start of the work of the TRC, even prior to the Human Rights Violations that the constitution already contained an imperative that there shall be amnesty but subject to procedures and subject to criteria.
That there is a trade off between truth and justice was recognised and in fact has been recognised by the Constitutional Court in the AZAPO case, AZAPO versus President of the Republic of South Africa - it's referred to in my heads of argument.  The Deputy President, Justice Mohammed as he then was, said the effect of an amnesty undoubtedly impacts on very fundamental rights.  All persons are entitled to the protection of the law against unlawful invasions of their right to life, their right to respect for and protection of dignity and their right not to be subject to torture of any kind.  When those rights are invaded, those aggrieved by such invasion have the right to obtain redress in the ordinary courts of law and those guilty of perpetrating such violations are answerable before such courts both civilly and criminally and amnesty to the wrongdoer effectively obliterates such rights.  
	Now my learned friend says there will be no prejudice to anybody if these defective applications are allowed to stand.  That is not correct.  Meta Molete will not have the right to sue  - Meta Molete, Mrs Pauline Mbatha will not have the right to sue if the applicants are granted amnesty.

CHAIRPERSON: Isn't the point that it's being made at this -because the ruling that these applications comply with the Act, you should know that, does not mean that the applicants are entitled to amnesty.  The question whether they are entitled to amnesty is a separate matter altogether which will depend upon whether the Committee is satisfied, amongst other things, that they have made a full disclosure and that in addition to that, what they did is associated with a political motive - it is in that limited sense that I understood the prejudice to be referred to.

MR LAX: You see, Mr Berger, what you're asking us to weigh up here is, not the prejudice that would accrue when the application is granted, or not - when the application for amnesty is granted or refused - but rather the prejudice that might or might not accrue at this stage in terms of us allowing the applications in or not, in other words, whether we would countenance them or not.  That's a very subtle and completely different issue.

MR BERGER: It's, with respect, not completely different and the reason is the following.  I've submitted that Section 20 which sets out three jurisdictional requirements, that all of them must be satisfied before amnesty can be granted.  Section 3.1 (b) of the Act says under the heading "The objectives of the Commission - the objectives of the Commission shall be to promote national unity and reconciliation in a spirit of understanding which transcends the conflicts and divisions of the past by (b) facilitating the granting of amnesty to persons who make full disclosure of all the relevant facts relating to acts associated with a political objective and comply with the requirements of the Act."  So it's clear that complying with the requirements of the Act is an essential prerequisite before amnesty can be granted.

MR LAX: Mr Berger, what we're asking you to address us on in essence and this is where some of us have a concern and that is in arriving at Section 20 and the three jurisdictional requirements inherent in Section 20, should we not read that all together as the process by which the application comes to us i.e. Section 18 and Section 19 because it goes further than just Section 20.  There's an additional process in terms of which even when they are received we're still entitled to ask for further particulars and a whole range of other information gathering and investigative tools, if you like.  So what I'm asking you in essence is this, should we not be drawing a distinction between a number of different things here.  On the one hand the submission of the application, add to that Section 19 which provides a mechanism for giving directions on completion or submission and for further particulars.  After that point you then have an application.  That application is then in and then there's a further opportunity for further investigation and further particulars which is then inherent in the other sections after that.  So what I'm putting to you or asking of you is should we not be reading a consistent process in 18 and 19 which precedes the jurisdictional factors inherent in Section 20?

MR BERGER: Mr Lax, unfortunately you're now taking me out of vested rights and into something else, but I'll answer that and then I'll try and work out where I am.

MR LAX: Maybe leave it hold and when you get to it you can answer it.  It's okay, I don't want to take away from your argument.