Amnesty Hearings — Cape Town — 2000-11-19

CHAIRPERSON: You take it on a scale.  I mean you could have a whole lot of possibilities on the one side without ...(intervention)

UNKNOWN: That are not weighable against one another, against each other.
	Could I ask you to go back, Mr Chairperson, to 29.9.1 on page 15.  I promised you to some references to Van Zyl.  29.9.1.  All the details are in bundle B, that is the applications for amnesty  - no, the Section 29 affidavit, yes.  Bundle B at 28 to 29, paragraphs 44 to 46 of that document.

CHAIRPERSON: Yes, thank you.

UNKNOWN: Now Mr Chairperson, if we could turn to page 21, the meaning of "is satisfied" in Section 20(1).  This is where I suggest that you file the additional argument, Mr Chairperson.

CHAIRPERSON: The addendum?

UNKNOWN: The addendum.  Has everyone got a copy, Mr Chairperson?  Yes?

CHAIRPERSON: Does everyone have a copy of the addendum that was handed out yesterday?  I think so, yes.

UNKNOWN: What we're saying in that addendum, Mr Chairperson, is perhaps that should be 21A of the ...(inaudible).

CHAIRPERSON: Yes, 21A through to D.

UNKNOWN: If the material available, Mr Chairperson, the evidence, demonstrates the absence of full disclosure or fails to demonstrate the presence of an offence with a political objective, the Committee cannot be satisfied that Section 20(1)(b) and (c) have been complied with.  Whether there has been full disclosure or whether a political offence or an Act with a political objective has been committed, are clearly matters capable of objective determination by reference to the evidence in the application of the legal principles.  The making of findings of fact that are essential to this process.  These findings of fact must obviously be based on the evidence.  Sufficient evidence must be produced by the applicants to satisfy the Committee that the factors referred to in Section 20(1) exist.  Where there is evidence to support such a finding must be decided on a balance of probabilities.  We would pose a question, on what other basis might a tribunal which has heard evidence under oath an listened to extensive cross-examination, come to make a conclusion.  What lower standard of truth could possibly apply?  The words of "satisfy" can never in themselves connote that either the owners or the civil standard has been dispenses with.  There are plethora of decisions dealing with statute which provide that the court or tribunal will only be satisfied whether something has been proven on a balance of probabilities.  It can hardly be that an Act which provides for exoneration from crimes as serious as the preparation of gross human rights violations, perpetration of human rights violations.
	All that is required is that the applicant must cross the low threshold of convincing the Committee to make a finding as vague as the one to the effect.  The pros in favour of amnesty outweigh the cons and we quote the case of Johannesburg Local Road Transportation vs D. Morton Transport Limited 761887 A at 9048.  Obtaining amnesty surely cannot be as easy as obtaining a road transportation permit.  As the AZAPO decision makes clear, the whole truth is required and the whole truth we would respectfully submit can hardly be established by reference to some standard of proof, lower than proof on a balance of probabilities.  
	Our learned friend, Mr Wessels, submits that the objects of the Act may be satisfied by a victim being given the perpetrators assurance that this is what I reasonably may have done.  It is submitted that this interpretation cannot satisfy the finding in the AZAPO matter regarding the purpose of the Act.  
	And then we quote the shorter Oxford Dictionary on the historical principles which defines the verb "satisfied" to mean the following:
"To furnish with sufficient proof or information, to set free from doubt all uncertainty to convince."
	The word "satisfy" in rule 22.4, dealing with summary Judgment, Mr Chairperson, according to ...(indistinct) Thompson J, in Afrikaans ...(indistinct) Beperk - it should be a versus there, Mr Chairperson, vs Neeser 1948, 2295 SA297 means Mr van Zyl for the plaintiff has in argument me a number of grounds which tend to show that the strong probability is against the defendant's ...(indistinct).  Under rule 22l.4, it is for the defendant to satisfy the court that he has a bona fide defence to the action.  It is true the authorities show that this is not a heavy onus.  "Satisfy" does not mean prove.  I take to satisfy to mean, therefore, that the court must feel that there is a fair probability that the defendant's defence is a good one.  At any rate that is bona fide.  My prima facie impression with all the facts is that it is the impression on the probabilities and the facts, is that it is a made up defence.  But I do not find that and merely say that it is the impression which all the facts make on my mind.  May I draw your attention to the fact, Mr Chairperson, that the word "satisfy" there is in a rule dealing with summary Judgment, a Judgment which is not necessarily a find Judgment by the way.  You can pay the money in ...(intervention)

CHAIRPERSON: Yes, it can be converted.

UNKNOWN: It can be converted into a suspense in judgement but you're paying the money into the Clerk of the Court and entering into a defence.  But even there the judge says "satisfy" is that you must show on a reasonable probability that you have a bona fide defence.  How much are ...(indistinct).
	And then also if I may turn to the Judgment quoted by my learned friend Mr Wessels and his Heads of Argument.  I submit, Mr Chairperson, that will take and satisfy, in one of the meanings of satisfy there is no conflict between the Afrikaans and the English.  And we all know the rule, that if you can find a common meaning.  I know that satisfy means less than, than proven, but if you can find, can mean if you can give a common meaning then you choose the common meaning of the two.  The rule is clear.  "Oortuig" means to persuade, to prove, satisfy.  In one of it's meanings means to prove and insofar as the case quoted by Mr Wessels, in relation to the meaning of the English word to satisfy in that Judgment, the learned Judge must have had, with respect, a more elementary dictionary than an authoritative one as to the meaning of the word satisfy.  I can assure you that I copied this verbatim from the two volume dictionary that I have referred.  So that that is not authority, Mr Chairperson, for finding a meaning of the word "satisfy", less than here.

MR WESSELS: Sorry, while Mr Bizos and his junior are talking, may I just interrupt for one moment?  On the meaning of summary Judgment and procedure, with respect Mr Bizos is incorrect that it's provisional.  It's provisional sentence where a Judgment is provisionally granted.  Once summary Judgment is granted, it's a final Judgment, it's for leave to - you get leave to defend the matter on an affidavit or by just paying in an amount of money that is becoming available.

CHAIRPERSON: Yes, then you defend it on the ...(intervention)

UNKNOWN: Yes, I confused it.  You can pay in the money before the Judgment is given, yes.  I'm indebted to my learned friend for drawing attention to it but even for the payment of a sum of money, a probability is required.

CHAIRPERSON: But the rule 22.4 does use the word satisfy.

UNKNOWN: It uses the word satisfy.

CHAIRPERSON: Would this be a convenient time to take the tea adjournment?  We'll take the short tea adjournment now.  Thank you.
COMMITTEE ADJOURNS
ON RESUMPTION

UNKNOWN: I will go on on page 22 with paragraph 45, Mr Chairperson.

CHAIRPERSON: Yes.