Amnesty Hearings — Durban — 1998-11-17

MR VISSER: Mr Chairman, the meaning of incrimination here, is that the answer itself may incriminate him in the sense that he will as a result of the answer, may open himself up to prosecution.  That is the point.
	We will deal with the question of full disclosure a little later on Mr Chairman.  Subsection 2 says a person referred to in subsection 1, shall only be compelled to answer a question or to produce an article, etc, if the Commission has issued an order to that effect after the Commission (a) has consulted with the Attorney General, who has jurisdiction, (b) has satisfied itself that to require such information from such a person, is reasonable, necessary and justifiable in an open and democratic society based on freedom and equality and (c) has satisfied itself that such a person has refused or is likely to refuse to answer a question, to produce an article on the grounds that such an answer or article might incriminate him or her.
	Again, quite clearly Mr Chairman, the intention of Section 31(2) is to deal with situations which might arise before the Human Rights Violations Committee or the Investigation Unit, not before the Amnesty Committee, for the simple reason that these issues which are specified in the subsection, don't arise before you.
	It does nor arise Mr Chairman.  The test of what is reasonable and justifiable, reasonably necessary and justifiable in open democratic society, based on freedom and equality, is no test for any application for amnesty.  The test here, as we well know, are those set out in Section 20, full disclosure, etc.
	So, Mr Chairman, quite clearly, it appears from Section 31, that that is not an empowerment upon which the Amnesty Committee can rely in order to say to a witness I order you to answer a question.
	The only consequence of not answering questions, will be twofold.  One, if by inference it may be interpreted that Section 31 means that the Amnesty Committee can bring a charge, either of contempt of Court or refusing to answer a question, in terms of Section 31 which is doubtful whether it will ever succeed, but be that as it may, in terms of Section 39(e)(2), Mr Chairman, then such a person who has refused to answer the question, may be criminally prosecuted.
	Section 39(e)(2) says any person who having been subpoenaed in terms of this Act, without sufficient cause refuses to be sworn  or to make an affirmation as a witness or fails or refuses to answer fully and satisfactorily to the best of his or her knowledge, and believe any questions lawfully put to him or her, is guilty of an offence.
	Now, that Mr Chairman, deals with the provisions relating to what is necessary and reasonable in an open and democratic society and nothing else.
	With respect Mr Chairman, our first submission is that Section 31 deals with an entirely different situation than does the Amnesty Committee.  This is not a hearing in terms of Section 31, where a person is questioned by the Commission for example.  We know that.  The applicants come here to move an application, it is not a situation of being questioned by the - the procedure is not to be questioned by the Commission.
	Clearly the Commission or the Committee, has the right to ask questions of a witness, but that is not the situation, that is not the situation which is dealt with here.  What is dealt with here, is the procedure.
	It is not a procedure we say, Mr Chairman, where a person is questioned by the Commission, where that is the purpose of the proceedings.
	Secondly Mr Chairman, it is also not the case where witnesses have been subpoenaed, where the applicants in this case, have been subpoenaed to come and give evidence.  The classical situation is the one where the Human Rights Violations Committee, would hear evidence of the Commission of offences, and would then subpoena a witness in terms of Section 29, to come and answer questions.
	That witness as we well know Mr Chairman, may not refuse to answer questions, on the basis that he may be incriminated by his own questions and we say Mr Chairman, without repeating ourselves, that that is not the procedure with which we are busy.  We are busy with amnesty applications and therefore Section 31 has no application.
	We say at page 3, paragraph three and following Mr Chairman, Section 39(e)(2) restricts the criminal liability to cases of refusal to answer questions where the offender has been subpoenaed.  This question also provides a useful guide as to the true meaning of Section 31 Mr Chairman, which in our submission accords with the interpretation which we have just placed on it in our argument thus far.
	We say that the only power of the Commission is to lay a criminal charge against a person who in the circumstances envisaged in subsection 39(e)(2), refuses to answer questions.
	This finds no application or relevance in amnesty applications, whether the applicant to make such disclosure as he sees fit, always knowing that he runs the risk of his application being turned down should it be found that he had failed to make a full disclosure.
	That is the risk he runs.  Section 31 deals with the holding of enquiries by the Human Rights Violations Committee, or the Investigation Unit.  Subsection 31(1)(b) Mr Chairman, which I have read to you, makes that much clear, in as much as the test expounded here is, here it is information which is reasonable, necessary and justifiable in an open and democratic society based on freedom and equality, finds no application in amnesty applications.
	In Section 31(4) perhaps Mr Chairman, just by the by, needs to be referred to and that is where the TRC Act refers to the fact that the law regarding privilege as applicable to a witness summoned to give evidence in a criminal case in a court of law, shall apply in relation to subsection (1).
	That deals simply Mr Chairman, again with the question of self-incrimination and really, there is nothing to be made one way or the other, of subsection 31(4) in our submission.
	We submit therefore Mr Chairman, that the creator of the Amnesty Committee, namely the statute, has given no power to the Amnesty Committee to issue an order that a witness answers questions which he does not wish to answer.
	If we are wrong in our submissions ...

CHAIRPERSON: This Section 31, applies to these hearings, doesn't it?

MR VISSER: Well Mr Chairman, it is difficult to see how they can apply to these hearings.  Clearly Commission includes Committees.

CHAIRPERSON: What is the purpose of Section 19(5) then?  The Committee shall for the purposes of considering and deciding upon an application, referred to in subsection (1), have the same powers as those conferred upon the Committee in terms of Section 5(l) and (m) and chapters 6 and 7, and this is chapter 6?  So we have those powers?

MR VISSER: Mr Chairman, if that is your interpretation of it ...

CHAIRPERSON: The Act says clearly does it not, that we have those powers?