Amnesty Hearings — Cape Town — 2000-11-18

UNKNOWN: Thank you, Mr Chairman.
	Mr Chairman, I will obviously rely on all solid and favourable submissions made by any of my learned colleagues and the rest I will distance myself from for obvious reasons.  I will try not to repeat any submissions made before.  May I just briefly refer firstly to a matter I deal with in my Heads, the background to the amnesty process, on page 2 of the Heads.  
	Now I do submit that this aspect is very important in the whole context of the application by the applicants.  I refer to the fact that this was in fact also included in the Interim Constitution as an epilogue and furthermore I refer to the fact that Section 48 of the current Act 34/95, in fact also refers to the fact that the criteria set out in the repealed Act should be taken into consideration.
	If I may just briefly refer to that.  I have annexed it to my Heads, the two previous Acts as well as the Government Notices.  Without now referring to that in detail I wish to submit that it is clear that throughout it was the intention of the government as well as the opposing parties at the time, the ANC and others, that all people should be treated equally.  It did not matter whether they were supporting the apartheid regime or whether they were freedom fighters.  That was the intention, not only, obviously, of the government of the time, but also of the ANC and others and that appears clearly, for instance, from this Notice 12834 of the 7th November 1990, which actually embodied decisions taken at the Groote Schuur Minute, between the government and the African National Congress.
	Now it is important, because I will be referring to the Heads of Argument on behalf of the victims, where it is in fact stated by my learned friends for the victims that a distinction should be made.  It boils down to that if one reads between the lines and what they say.  I will be referring to that.
	Now if I can then, without further referring, if necessary I can refer to the repealed Acts further, but I don't think it's necessary. If I can then go back to my Heads where I make the submission on page 3, paragraph 2.4:
"that the spirit and the objective of national unity and reconciliation, specifically those of the amnesty process is then provided for in Act 34/95"
it should be interpreted in terms of the objectives of the Constitution of the Republic of South Africa, to which I have already referred in terms of the epilogue.  Now that very same situation was dealt with by the Constitutional Court in a matter of Azapo and Others.  I refer to that on paragraph 2.5.  Now the reason why I just want to make mention of that is because of the fact that my learned friends for the victims also referred to the case.  On page 19 of their Heads, they do refer to quite another paragraph, obviously for, I would say obvious reasons, paragraph 16 where they then quote the then Deputy-President, Mohammed and where they say or especially refer to the section where he said that he could understand that the victims would want the applicants for amnesty who supported the previous government, to be vigorously prosecuted and effectively be punished for the callous and inhuman conduct in violation of the criminal law.
	Now we obviously agree with that paragraph and with the view of such victims, but what Judge Mohammed did was to then refer - in fact, what happened here is that he refused the application by Azapo to have Section 27 declared unconstitutional, for good reasons.  After referring to the epilogue which I quote on page 4, he then went on to say, paragraph 2.6 page 4 of my Heads, and this is very important, so important that I do wish to just briefly read it out:
"In the result, I am satisfied that the epilogue to the Constitution authorised and contemplated an amnesty (and this is important) in the most comprehensive and generous meaning, so as to enhance and optimise the prospects of facilitating the constitutional journey from the shame of the past to the promise of the future."
And may I immediately interrupt myself to say that obviously the applicants I represent are part of the shameful past and obviously the acts for which they apply for amnesty are criminal acts of the most serious kind and that is why they are here, to ask for amnesty.
	And then the Judge proceeds to say:
"They (referring to the Parliament) could conceivably have chosen to differentiate between the wrongful acts committed in defence of the old order and those committed in the resistance of it, or they could have chosen a comprehensive form of amnesty which did not make the distinction.  Again they were entitled to make the latter choice ..."
and to which I added "as they in fact did", Mr Chairman.  	So it's all very well to refer Security Forces of the day and to their despicable deeds and to imply that these people had all the powers of the State in their hands, that they could have locked up people without trial, that we had the Emergency Rules and Regulations to their disposal.  
	Everything said is true, but what has to be kept in mind is that the parties when after 1990 they got together and the specific party, let's refer to the ANC, for instance, they were part and parcel of this decision to which the Constitutional Court here refers, they were part of drafting the Interim Constitution and they decided that there should be no distinction between the people supporting the struggle and those supporting the old dispensation and for that purpose they drafted the Constitution, the Interim Constitution and the epilogue thereto.   And as the Judge stated here, parliament then was entitled to make this decision and they did and we have to live with that decision, and this Committee has to judge the applications of the applicants in that light.  
	There may be people dissatisfied with that, obviously there will be, but it's a decision made parliament and we have to respect that.  And that is all to further the national unity and reconciliation in this country.
	Having said that while the submission now therefore is that in fact this Committee should interpret Act 34/95 then in its widest and most liberal form it can, in view of the Judge's words that a most comprehensive and generous meaning of the amnesty term was intended by the legislature.  That is the first aspect.
	The second aspect then is referring to the test which this Committee should apply in terms of Section 20.  My submission is that in fact the definition referred ... satisfy as set out in the supplementary Heads of my learned friends for the victims, on page 4 of their supplementary Heads: Afrikaans Press, the 1948 decision where it's stated:
"I take satisfy to mean therefore that a Court must feel that there is a fair probability that the Defendant's defence is a good one."
Now I submit that if one looks at this full paragraph, this could not mean on a balance of probabilities, it's a fair probability and ...(indistinct) on a balance of probabilities in my respectful submission, is two different things.

CHAIRPERSON: A fair probability.  You've got a probability as opposed to a possibility, there's a difference.

UNKNOWN: That is in fact so, Mr Chairman.

CHAIRPERSON: So once you've got a probability, if it's a fair probability ...(intervention)

UNKNOWN: But it's looking at ...

CHAIRPERSON: Is that you only arrive on the fact that it's a fair probability after you've balanced what the probabilities are?

UNKNOWN: I submit that ...(intervention)

CHAIRPERSON: ...(indistinct) not a fair probability, then it's not a probability.