Amnesty Hearings — Cape Town — 2000-11-19

MR WESSELS: The uncontroverted evidence of Verster and everybody else that gave evidence about how the CCB operated at the time, was that Verster was fanatical about procedure, security and all those sort of things.  Why would he not get the authority when it would have been the easiest thing in the world for him to get it?  It doesn't make sense.  So on the probabilities, it's clear that his version in that regard should be accepted.
	Mr Chairman, Mr Lax asked me to give some indication of portions in the record that may indicate that there could have been a mistake or misunderstanding between Verster and Webb in this regard.  I have some references, some are oblique, some are more direct.  May I just give them to you?  Page 128, 130, 137, 140, 142, 143, 168 to 169, 191, 214, 216, 412, 476 to 477, 499 and 502.  
	Mr Chairman in regard to the test, the words "full, frank and honest disclosure" that are used by Mr Bizos and Mr Kahanovitz in their Heads of Argument and particularly on page 16, but one must ask oneself, why did the Legislature use the words "full and frank" - sorry frank and honest in Section 204 of the Criminal Procedure Act, but not those words in Section 20 and the answer is that what the Legislature was wanting, was a disclosure of the deed for which amnesty is being applied for.  It had accepted that applicants may not be good witnesses, that they may lie about other matters, but those weren't relevant factors as far as the purposes of the legislature in this particular Act is concerned.  The Legislature wanted facts to come in the open in regard to what happened to people, that a disclosure must be made so that those people would know, the victims would know what had happened to their dear ones, themselves and how it happened that that happened.  They're not interested in the credibility of a witness and the rest of his life.  The emphasis is on a particular act and that particular act is the one for which amnesty is applied for.

MR LAX: Mr Wessels, my difficulty with that proposition is that you're dealing with a situation where there was a whole range of incidents for which amnesty would be applied for, which the Legislature knew had been denied in the past and in fact lied about.  It was fully aware of that, and how could it then anticipate that all that would be required was for the same liars to come back and simply say the barest possible version, it doesn't make sense to me.

MR WESSELS: With respect, in regard to the act itself, there must be full disclosure of that particular act and the relevant facts pertaining to that act like who did what, who gave what instruction, how was it executed and facts pertaining to the act itself.

MR LAX: And the inquiries referred to in 23 as well.

MR WESSELS: Yes.

MR LAX: Okay, well that's okay because that goes much further than what I'm hearing you say.

MR WESSELS: Insofar as those aspects in Section 20 are concerned, in 20(3), there has to be full disclosure, but it doesn't go beyond that and there could be many other factors arising during a hearing that don't strictly fall within the ambit of 20(3) and the Legislature doesn't deem it necessary for a witness to be a truthful witness and an honest witness and a frank witness regarding all those other aspects, as long as he makes full disclosure and full disclosure in regard to the issues mentioned in 20(3) would be an honest and a frank disclosure, but it's limited to those aspects only, it is not a wide general full disclosure of everything in your life.

MR LAX: Now I understand you.  It's fine.

MR WESSELS: Thank you.  It doesn't apply in the Evans and Omar matters because there was no bad result.  Proportionality is a slippery fish that comes into play when there is a result and it's a value judgement.  If for instance in the bomb incident, the motive was and the instruction was to kill a minor supporter of the ANC and a massive car bomb was planted one Sunday afternoon at the soccer match where there are 40, 50 000 people, merely to eliminate that particular person, that's where the proportionality ...(indistinct) will become relevant or if you have, if you know that a certain person will be on an aeroplane, a boeing and you plant a bomb on the boeing and the whole boeing comes down, that's where proportionality becomes a relevant factor.  It's only in the extreme cases where you can apply it because it's a relative concept.  It becomes impossible to apply in the usual cases, or in this particular case where the bomb is planted and a building is destroyed, it's not a relevant factor in these circumstances and the Commission will know much better than what I do, how it had been applied in the past where people had been killed on the other side of the political spectrum for sometimes less than good reason, nevertheless amnesty has been granted.  So in my submission, proportionality in these cases that are before you now, is not really a material factor that should take too much of your time.
	Now it's been suggested here that in other cases where amnesty had been granted that probably could have been granted wrongly because the proper principles of proportionality hadn't been taken into account by the Committee.
	Mr Chairman, let me emphasise, if I read the Act, there's a Committee that deals with amnesty.  It has been altered and there are many Committees now dealing with that, but in law there's one Committee that makes decisions on amnesty and although the principles of precedent don't apply, this is an administrative process and the principles of fairness demand that a Committee will be consistent in its application of the principles.  Now as we say about the umpires in cricket games, they can be wrong as wrong as they're consistently wrong.

CHAIRPERSON: We keep hearing that.  It doesn't matter how bad they are as long as they're consistent.

MR WESSELS: If you stick to that principle, people will be satisfied and ...(indistinct) some people will be satisfied and I urge you to be then consistently wrong in your approach.
	Thank  you very much, Mr Chairman, those are my submissions.

CHAIRPERSON: Thank you Mr Wessels.

UNKNOWN: May I just give you two references?  I submit with respect that my learned friend would say that you had ruled in a particular way, had obviously not taken into account that your main ruling in the matter Mr Chairman, is to be found at the bottom of page 64, to the top of 65.  They who did not rule that anything was inadmissible ...(intervention)

CHAIRPERSON: 65 to 66.

UNKNOWN: The top of 66 yes.  The bottom on 64 to the top of 66.  What you did say is that you didn't know about the CCB and you would have to be informed, that you would not make a general ruling, but that you would deal with specific questions.  That is the main ruling.  There is another ruling to which a specific objection was upheld by, made by Mr Wessels which appears on page 107 and 108 in which three cases were mentioned, that you will not be making findings in relation to those three matters by way of example, but what you did say in your original statement was that when objections were made, we would deal with it.
	Now what I want to say is that when the evidence of Mr Barnard was led, there was no objection to its evidence being received because instead he was cross-examined at some length if I remember correctly and there is no ruling that you could not or would not take that into account.  That's all I wish to say Mr Chairman and not argue it any further.

CHAIRPERSON: Thank you Mr Bizos.  Mr Martini, do you have anything to say?