Amnesty Hearings — Durban — 1999-10-04

MR RICHARD: I think we have all answered an exam question or two on that one.   But in my submission here the use from the context of the Section, is that it is not shall, it is the discretionary.
	The next question is, once we look at the duty and obligation to use the discretion, we then have a look at the prescriptive manner in which the Act dictates that that discretion must be exercised.   It enjoins the Commission to have regard to the principles of openness and transparency.  At page 16, paragraph 3.3.6, I stopped my research after looking up what the meaning of the two words "openness and transparency" were and I have outlined.  Transparent means having the property of transmitting light so as to render what is laying beyond, completely visible.  That can be seen through, open, exposed to general view or knowledge and the meaning of the words is so plain, argument will take it no further.  
	I then revert to the fact that we are in a situation where the applicant has had the and I must concede the trauma and experience of giving evidence firstly at a lengthy trial, then at attending to the sequels of appeals and so on, then at a Section 29 investigation and now faces being questioned in these proceedings.   In this regard I must point out that if one examines the version put up at the trial, and compares it with the version put up by the first applicant, Mr Aboobaker Ismail, and the as yet unknown version of the fifth applicant, it would fly in the face of every notion of openness and transparency if it were said that it was prohibited that any one of all these versions and everything emanating from them all, including the warning and interrogation statements, were precluded from the gamut of cross-examination.  It would mean that the fifth applicant would be entitled in some manner or other, to not be called upon to explain inconsistencies, contradictions and in fact would lay the way open and I am not submitting that that is necessarily the case in this matter, because we haven't yet gone there and for me to say it, would be premature, to chose, to sensor a version so as to chose the most favourable which certainly is not consistent with transparency and openness.   
	Now, so to revert to the argument that the document falls as a public document, I ask the question how could any person exercising the discretion, not to allow the document and its information to remain public, justify a decision to make it secret?  The next point is ...

CHAIRPERSON: I suppose you could get circumstances where it is in the public interest, that sort of situation?

MR RICHARD: Yes Chair, there are factual situations which one can hypothesise and theorise, public interest, State security and very special exceptions, but in relation to this particular incident which arose 13 years ago, there is no factual basis for any such submission.   Then parallel to that we have the debate relating to full disclosure.  Again to go through it quickly and I don't intend labouring the point, I believe our learned Deputy President of the Constitutional Court set it out far better than I will ever do it, in the case of Azanian People's Organisation Azapo & Others v The President of South African & Others, I have referred to the case at page 12, paragraph 3.2.2.4 and I have set out the quotes therein, particularly the second quote lower down on the page and continuing on to page 13.  There the learned Judge emphasised the utmost importance and quintessential essence of an amnesty application, that the victims are entitled to ascertain the truth and to know the truth and the applicant is under a duty to disclose the truth and make full disclosure.  I then allude to the object of the Commission at paragraph 3.2.2.1, I refer to paragraph 1(a)
"... by establishing as complete a picture as possible of the cause, nature and extent of gross violation of human rights."
	And then paragraph (b) more importantly -
"... the object 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 facilitating the granting of amnesty to persons who make full disclosure of all the relevant facts relating to acts associated ..."
	Now, if one relates that back to the discretion I have outlined in terms of Section 29(5), again, there is only one defensible and justifiable decision that could be made as to what to do with a document and the information emanating from it, like Exhibit C, and my submission is that there certainly could have been no irregularity or mis-application of mind in making a decision not to do anything to declare it a document which shall not be made public.   
	Now, then we revert to some more what I call semantic arguments and there I refer to paragraph 3.4.2 of my Heads at page 17.  Section 31(3) of the Act, that is the Promotion of National Unity and Reconciliation Act, contains a section which is interesting from a point of view from interpretation.  In that subsection there is a phrase which I have emphasised by highlighting it - "shall not be admissible as evidence against the person concerned."  Now, the word concerned creates a semantic convolution which can only be resolved by returning to (1) of Section 31, where the Section compels any person who is questioned by the Commission in the exercise of its powers in terms of this Act, or who has been subpoenaed to give evidence, to procure, etc.  
	Now, we then turn back to (3) and there before the tortuous phrase, derived from a questioning in terms of (1), my submission in that regard is that the only proper meaning that might be given to the phrase "against the person concerned" is that that person is the person who in terms of (1), was compelled to produce or to answer questions or to provide information.   The next question is what does the Section relate to?  Any incriminating answer or information obtained or incriminating evidence directly or indirectly derived - now that evidence shall not be admissible in criminal proceedings in a court of law, or before any body or institution established by or under any law.   
	Now, in the nature of things, any applicant before this Amnesty Committee is required to give particulars of an act or omission which constitutes a crime or a delict within the rest of the requirements.  Now, the mere making of an application for amnesty is an incriminating act.  That fact in my submission means that an Amnesty Committee is not what was intended when ...(intervention)

JUDGE PILLAY: Furthermore Mr Richard, I don't think an Amnesty Committee could be regarded as a Committee from which penal consequences could flow?

CHAIRPERSON: Criminal proceedings?

MR RICHARD: That was my next point, I drop it there.  It is a tortuous argument, but I thought ...

CHAIRPERSON: If one takes a look at this "against the person concerned" okay, here it comes "in criminal proceedings in a court of law or before any body or institution established by or under any law", so it would seem, I don't know, I am just raising it for argument from both Mr Dehal, yourself and anybody else, that whether it be in a court of law or any other institution or body, its got to be criminal proceedings.  Okay, that raises the question, where can you have criminal proceedings other than in a court of law?  Well, it might be I think the days are numbered, but a court martial, that sort of, some sort of tribunal or other.

MR RICHARD: Other than a court martial or that sort of criminal forum, the only other factual example that I could come up with last night while thinking about it, was a Disciplinary Committee in an employment situation, and it is clearly not what is intended by the Section.

CHAIRPERSON: Yes.