Amnesty Hearings — Vanderbijlpark — 1999-05-12

MR LOWIES: Chair, be that as it may, what my opinion specifically is as a lawyer is immaterial at this stage and in any other person's opinion, as to how you may go about.  But the fact is there is no law firstly, stating that you are not bound by it.  The only law that there is, is a section in the Act which says you cannot be reviewed.
	Now with respect, the argument is, those two scenarios which I've postulated in the beginning, they still stand, it's either this way or that way and there is no decision as to it yet.  Yes, we may say at a stage, or a lawyer may say;  I read the conduct of the Commission as being X or going in favour of this point of view or that point of view, but still Chairman, there is no decision on that.  There is no law on that and that is what you are requested to do.
	I would submit that the reason why this application is brought, or the motivation for it must be clear, but I don't want to make that quantum leap from the making of that judgment to a bias by this Committee, and therefore I would suggest that there is an intermediate position, and that position is; are you bound or not and then that must be decided by yourself, with respect.  There is a possibility that you may find on the probabilities in the one side or the other, but still ...(intervention)

CHAIRPERSON: How do we decide that?

MR LOWIES: Chairman, you interpret the Act and you make a decision as to that, so that's it's binding on the applicants and the families.

CHAIRPERSON: That's what I have been trying to put across to you, that the answer to your submission lies primarily in the scheme of the Act.

MR LOWIES: But it's not clear, with respect Chair, that is the point that I've been driving at, and we want you to make it clear so that the applicants can also see where they're going.  There may be a strong feeling that you're going in direction X, but it is not clear.

CHAIRPERSON: If that's their feeling then they must tell us that.

MR LOWIES: Chairman, I cannot take it further than to state that I think that you should make a decision as requested in the Notice of Motion.

CHAIRPERSON: So what prayer are you asking?

MR LOWIES: A declarator which incorporates prayers 3.1 and 3.2 ...(intervention)

INTERPRETER: The current speaker's mike is off.

MR LOWIES: Now 3 ...(intervention)

MR LAX: Sorry, just repeat that for the purposes of the translation.

MR LOWIES: Thank you, Chairman.
	A declarator which incorporates prayers 3.1 and 3.2, both of them.

CHAIRPERSON: What precisely is the order you are asking us to make?

MR LOWIES: Whether the Committee regards itself as being ...(intervention)

CHAIRPERSON: What the Notice of Motion does, it simply says:  "Application is hereby made that the Committee issues a ...(indistinct) declaring the status and the nature of the TRC findings."  What do want us to make in that regard?

MR LOWIES: Whether it regards itself as bound by the said TRC findings, the ones which I have highlighted in my argument.

CHAIRPERSON: I want you to tell me what order, if we are with you, should we make?  That is what I'm asking you.

MR LOWIES: Chairman, the order that you can make is one of two, either you find yourself in agreement with the findings of the TRC, that is the one which you have to decide on, or the alternative is you do not find yourself being bound by that.

CHAIRPERSON: In simple terms, I am asking you to tell me what is the draft order that you are prepared to accept.

MR LOWIES: Oh, I see.  Chairman, you must first of all make a decision, but once you've made a decision, I would like an order along the following lines; that the Committee does not regard itself bound by the said TRC findings. - more-or-less as stated in 3.4.  Of course you have a choice, to say that you do find yourself, but my ...(intervention)

CHAIRPERSON: Is that the order that you want?

MR LOWIES: That's the one that I would prefer, the first one.  I just ask the first one.

CHAIRPERSON: Is that all that you're asking for?

MR LOWIES: Thank you, Chairman.

CHAIRPERSON: Do you have any further submissions to make?

MR LOWIES: I have none.

CHAIRPERSON: Yes, very well.  Yes, Mr Mapoma?

MR MAPOMA: Thank you, Chairperson.
	Chairperson, to start with, from the submissions made by the applicant it is quite clear that the applicants' representatives acknowledge that the provisions of the Act make the Amnesty Committee a Committee capable of making its independent decisions with regard to the amnesty applications.  And it is acknowledged by them as well that the Committee cannot be influenced by the decision of the, the findings of the TRC, because it has got its own powers.  Such powers, Chairperson, are derived from Section 4(c) read with Section 5(e), and the provisions of Chapter 4 of the Promotion of National Unity and Reconciliation Act 34 of 1995.  In particular, Chairperson, Section 5(e) provides that no decision of the Amnesty Committee may be interfered with by the Commission.  Those provisions, Chairperson, depict the independence of the Amnesty Committee.  Those provisions were properly interpreted, Chairperson, by the decision in AZANIAN PEOPLE'S ORGANISATION AND OTHERS v THE PRESIDENT OF THE REPUBLIC OF SOUTH AFRICA AND OTHERS 1996(4) SA671.  In particular Judge Mohamed, on page 685, paragraph E the Judge says - if I can quote, Chairperson:

CHAIRPERSON: No, you don't do that.

MR MAPOMA: Oh, thank you, Chair.
	That is intended, Chairperson, to illustrate the independence of the Amnesty Committee.  I do not think, Chairperson, I have to belabour the point, especially in the circumstances now that the applicants themselves acknowledge these provisions.
	What seems to be the crux of the matter therefore, Chairperson, is the perceived bias from the applicants, and it is my submission, Chairperson, that I agree with my learned friend that the test is the perceived bias.  It is my submission, Chair, that perceived bias must be reasonable in the circumstances.  And it is my submission that with respect Sir, the bias which is being contended now is not reasonable.  I'm saying this, Chairperson, because the Act is ...(intervention)

CHAIRPERSON: Well isn't it your submission that having regard to the provisions of the Act, in particular those that you have directed our attention to, if the applicants continue to have this suspicion, it cannot be reasonable?

MR MAPOMA: Precisely, Chairperson, that is my submission.  I'm saying this, Chairperson, more so when the applicants are legally represented and the provisions of Section 34 of the Promotion of National Unity and Reconciliation Act intended that legal representation for the purpose of enabling the applicants to be provided with the proper interpretation of this Act, and that proper interpretation of this Act has been provided to the applicants through their legal representatives.  It is on that basis, Chairperson, that I submit that that alleged perception perceived bias cannot be reasonable in the circumstances.
	I proceed, Chair, to go further to the powers of this Committee ...(intervention)

CHAIRPERSON: If the applicants persist in entertaining the suspicion which we are told, and I should observe that none of the applicants have said so under oath, but we are told that they have that suspicion, notwithstanding the provisions of the Act, what is it that this Committee or any other Committee of the TRC can do to allay those fears?  Is there anything?

MR MAPOMA: Chairperson, there's none that can be made in the circumstances.

CHAIRPERSON: Yes, yes.

MR MAPOMA: I want to go further, Chairperson, to look into the powers of the Amnesty Committee, whether it can issue a declarator on the status of the findings of the Human Rights Violations Committee.  I submit Chairperson, that the Amnesty Committee has no power to make such a declarator because, Chair, the provisions once again ...(intervention)