Amnesty Hearings — Durban — 1998-11-17

MR VISSER: Yes Mr Chairman, may I deal with it later on in the argument?  I do come to that.
	Mr Chairman, we submit also that there is no basis to distinguish between various types of crimes in which informers might have been involved.  It is equally clear Mr Chairman, in our submission that Myburgh J, approached the classes of informers who deserved protection, under wide or to put it that way, liberal basis, even suggesting that such classes may well be extended, not curtailed.
	That shows the approach Mr Chairman, that there should be an inclination to protect, rather than to disclose the identity of the informers, with reference do D v National Society case Mr Chairman, in which it was stated at 6058 to be the categories of public interest, are not closed and must alter from time to time, whether by restriction or extension, as social conditions and social legislation develop.
	We have referred to the fact Mr Chairman, that Judge Myburgh suggested that certain instances, the discretion might properly be curtailed of the Supreme Court, but Mr Chairman, the important fact that arises from, the important decision that arises from Carla's case, is at page 233 where His Lordship says that the balance has fallen on the side of non-disclosure.
	We refer you to S v Sefadi Mr Chairman, a case in which Manawick Acting J, held the following if the sensitive material, that is in the police docket, relates to the identity of an informant, Counsel's attention should be directed to the following passages from the judgment of (a) Pollock CB in Attorney General v Bryant and (b) Lord Esher MR, Master of the Rolls, in Mark v Byfuss, and he quotes Mr Chairman, (a) the rule clearly established and acted on is this that in a public prosecution, a witness cannot be asked such questions as will disclose the informer, if he be a third person.
	This has been a settled rule for 50 years, and although it may seem hard in a particular case, private mischief must give way to public convenience, and we think the principle of the rule applies to the case where a witness is asked if he, himself is the informer.
	What is stated there is if a witness is asked whether you were the informer, he is entitled to refuse to answer the question.
	(b) if upon the trial of a prisoner, the Judge should be of the opinion that the disclosure of the name of the informant is necessary or right in order to show the prisoner's innocence, then one public policy is in conflict with another public policy, and that which says that an innocent man is not to be condemned when his innocence can be proved, is the policy that must prevail.
	It is of interest Mr Chairman, that one of the recognised exceptions in the Austrian Freedom of Information Act, is information which and I quote "would or could reasonably be expected to endanger the life or physical safety of any persons."
	While we are on that point Mr Chairman, I will make mention of it later, but while it is relevant now, in the South African context, there are authority, statutory provisions in which the position of informers are protected, and we think here Mr Chairman, of the Sea Fisheries Act for example, Act 12 of 1988.
	I think they are mentioned later Mr Chairman, I am just putting this out of context, yes, at page 17, paragraph 45.  The Forest Act, Sea Fisheries Act and even the TRC Act Mr Chairman, where it deals in Section 20(3)(i) with the question of reward, and in the case of an informer, rewards received by him, are regarded as not being an obstacle in his application for amnesty.
	Mr Chairman, just to return, we submit that our law in regard to the preservation of the anonymity of police informers, is in keeping with the common law and statutory law as was found by Justice Myburgh, and that there should, it should not be departed from unless exceedingly good reason exists.
	Mr Chairman, His Lordship, Mr Justice Myburgh referred to one exception to the rule.  We believe it is proper for us to state as we have done, the exceptions to the rule as we understand it in the authorities, page 9, paragraph 18, we say the first is the one that Justice Myburgh mentions, to show the innocence of a person, but secondly in the authorities Mr Chairman, there is also the rule that disclosure may be ordered by a Court, when it is material to the ends of justice and lastly, where the identity of the informer has become known, therefore removing the need of secrecy and we refer Mr Chairman, specifically to Sefadi's case at page 441, where you will find this authority.
	Mr Chairman, any argument that the rule should be relaxed in the present case because we are dealing with political crime, or because the informer himself was a co-perpetrator, ought not to succeed.  We say Mr Chairman, that no such distinction or exception appears from the authorities referred to.
	In none of the authorities which we have been able to find, was the position of the safety of the informer placed subject to the type of crime or situation in which he might have been involved in, and we will refer you to the authorities in a moment, which we have been able to find.
	We submit indeed Mr Chairman, that the authorities which we were able to find, if only by inference, suggests the contrary.  Carla's case suggests that the classes of informers who deserve protection, ought to be extended and that the Court's jurisdiction might be curtailed.  The Constitutional Court has upheld the rule of non-disclosure in Tshabalala & Others v Attorney General of the Transvaal & Others.  I see I have left out the reference, it is 1996 (1) Mr Chairman, 725 Constitutional Court, 757(5), and perhaps I should read it to you, it is a brief summary of what occurred in the case Mr Chairman.  Just by way of background in that particular case, the matter placed before the Constitutional Court was based on the submission that an accused person in a trial, should be entitled to all the information in possession of the Prosecution, and His Lordship, Mr Justice Mohammed in paragraph 5 of his orders stated the following "the State is entitled to resist a claim by the accused for access to any particular document in the police docket on the grounds that such access is not justified for the purposes of enabling the accused properly to exercise his or her right to a fair trial, or on the grounds that it has reason to believe that there is a reasonable risk that access to the relevant document, would lead to the disclosure of the identity of an informer, or State secrets or on the grounds that there was a reasonable risk that such disclosure might lead to the intimidation of witnesses or otherwise prejudice the proper ends of justice."
	Mr Chairman, that is a full summary of the real situation as it were, really in a nutshell, including in our submission, placing the correct emphasis on the protection of the identity of informers, as did His Lordship, Mr Justice Mohammed in that case.
	We now deal Mr Chairman, with the issue of an informer who is also an accomplice or if you wish to call him that, a co-perpetrator and we refer you to State v Rossouw & Another, Mr Chairman, a South West Africa case, presently Namibia, where His Lordship, Mr Justice Hookster as he then was, held that a statement by an accused to the police, that his co-accused previously illicitly dealt in diamonds, was not admissible as evidence because that would expose him as an informer.
	In this case Mr Chairman, there were two co-accused, they were both charged under the Protection of Diamond Dealings Act, I am not sure that I've got the name of the Act correct, and they had a statement by the one against the other, that he had previously dealt in, illicitly dealt in diamonds, and that statement was refused by Justice Hookster on that ground.
	And Mr Chairman, we say that it is of interest that Justice Hookster in this case, held that this State was not authorised to waive the protection of informers, which was held to be a protection which the Court was bound to protect in the public interest.
	That is rather an interesting aspect of His Lordship's judgment in Rossouw's case.