Amnesty Hearings — Cape Town — 2000-11-19

UNKNOWN: Yes.  Section 204/97 of the Criminal Procedure Act was subsequently amended to provide for giving of frank and honest answers as a prerequisite for indemnity from prosecution.  It is submitted that the context in Section 20(1)(c) of the TRC Act, the words full disclosure must clearly mean what is required of the applicant as full, honest and frank disclosure of all relevant facts.  In Mohammed versus Attorney General of Natal, 1998, one South African Criminal Report 73 N held that while Section 204 allows for a co-perpetrator to be discharged from prosecution as a quid pro quo for his testimony, the granting of such discharge is subject to the proviso that the court finds that the witness made a completely clean break of it (at page 79).  To make good his side of the bargain he must be an exemplary witness if his evidence be that of an accomplice is to serve its intended purpose.  And we refer to the ...(indistinct), responded to an argument relating to legitimate expectation of a Section 204 witness, the court in Mohammed suggested that the court should not necessarily be going out of its way to assist persons who stands to gain the substantial indulgence of the discharge from prosecution by merely performing the duties to be expected of an ordinary citizen, that is assisting the court by telling it all he knows about the commission of the offence.  We will come to the question of what is meant by Act or offence and I'm going to refer you, Mr Chairperson, particularly what we had in mind and may I just in parenthesis say what has come to my notice recently, that Basson, Walter Basson, the one who is facing charges in Pretoria, you correctly anticipated in one of the questions that you put, Mr Chairperson, was that there is an overall conspiracy with which he is charged with and that is manufacturing noxious substances for the purposes of killing people and entering into a conspiracy in relation to that.  That is a charge but further charges, either in addition or in the alternative it is that the substance was used to kill Chikane, to kill Omar, to kill so and so and so and so.  So that in criminal law and it is clear in the text books, you have a choice where acts are committed in furtherance of the conspiracy, to charge one act as one count, the conspiracy as the crime and to use the evidence in relation to the others to prove the commission of the conspiracy so that this idea that we only have to speak of the act and I submit that whoever stated that murder you only have to show the cause of death, who did it and what his corpse may have looked like afterwards is not an applicable sort of reasoning for the circumstances that we are dealing with here.  I thought I would mention that in passing, that we are not indulging in fanciful, novelle thinking in saying that if you had a conspiracy to murder, everything that you may have done is admissible to find out what you have done and for the purposes of amnesty is admissible once you have admitted what you had done because that is no longer an issue.  But where the Act requires what your motive was, whether it was proportional or not and what the circumstances were, then you are not confined merely to the particular Act.  We'll say something more as the argument progresses.
	And paragraph 39, in the context of amnesty hearings it is submitted that even stronger policy reasons exist to require high degree of frankness and honesty from the applicants.  Successful amnesty applications not only obtain criminal indemnity but civil indemnity as well.  The Constitutional Court in AZAPO and Others vs President of the Republic of South Africa 1996 SA671 (Constitutional Court) laid great stress on the fact that the legislation in question takes away the rights of victims to insist on prosecution for the criminal conduct perpetrated against them and all their families.  Mohammed, the Deputy President, put it in the following way in that Judgment at paragraph 16:
"I understand perfectly why the applicants would want to insist that those wrongdoers who abused their authority and wrongly murdered, maimed or tortured very much loved members of their families who had in their view been engaged in the noble struggle to confront the inhumanity of apartheid, should rigorously be prosecuted and affectively be punished for their callous inhuman conduct in violation of the criminal law.  The Constitutional Court pointed out that in order for an applicant to obtain amnesty, the pro quid pro quo that he must deliver to the victims is to disclose what is at various stages of the Judgment referred to as the whole truth or facts which will grant the victims or their dependants "compensatory benefits of the discovery of the truth at last (8 at 685) or facts which elicit the truth at last about atrocities committed in the past and the responsibility borne for them."   The CCB was an organisation especially set up to murder and commit other atrocities.  How can it possibly be suggested that persons who banded together in a murderous band can come here and disclose only what is already known from way back in 1990, the Harms Commission, and say don't ask us about anything else.  We set the agenda for the Commission's Committee as to what we are going to tell them in order to obtain amnesty for what is already known.  We are not prepared to tell you anything more."
And they give factious excuses that because the offences took place outside.  So what?  The Act says committed within or outside the country.  But don't let me preempt the argument that we're going to - is contained here.  What would the Constitutional Court Judgment on which our learned friends so readily rely on those portions which are in their favour say in answer to the requirement that would set the minds and souls of the victims either to themselves or to their loved ones if they fail to do what is clearly anticipated.  In paragraph 41:
"It is submitted, it goes without saying, that people who were for many years involved in the business of being professional liars would naturally experience considerable difficulty in coming clean for the purposes of these proceedings.  Versions were invented for the Harms Commissions, versions were invented for the Webster Inquest.  Some versions were changed here, others stayed the same.  Old habits die hard.  All old allegiances too.  In what follows, we submit that with the exception of Barnard, none of the applicants ..."
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"... by the Act and the Constitutional Court in AZAPO.  We do not believe that this is a matter where great difficulty will be experienced in concluding that the whole truth has not been told.  In order to obtain amnesty from prosecution and civil liability, the hurdle that the applicants must overcome is to persuade the Committee that their acts should go unpunished because the whole truth has been told.  We would specifically submit that the whole truth is not to be confused with partial truths or evidence which contains some hint of the truth or evidence which contains as much of the truth as the applicants can bring themselves to tell.  Anything less than the whole truth brings no compensatory benefits to the victims of discovering the truth at last.  To come to these proceedings and repeat old lies does not contribute to reconciliation.  Instead it adds insults to injuries of the past."
	Then we deal, Mr Chairperson, with the question of onus.  I want to make a submission to the credit of my learned friends, that they are driven, with respect, to submit that they only have to prove what may reasonably be true because they know that on the facts they cannot possibly persuade the Committee that there is any probability of truth in the versions that have been put before this Committee and I submit both the interpretation rules authority and common sense.  We lead this Committee to approach the facts in making findings of fact as proof by examining the probabilities.  There is no other way.  What are you going to find for the benefit of the victims?  Oh, we find as a fact that Mr Verster possibly told the truth, reasonably possibly told the truth that he had authority from - to kill your husband from Mr ...(indistinct).  Possibly, possibly, that's all he has to show, a possibility.  Or any of the other important findings of fact. Is that what you are here for?  That would be, the confusion arises because a very important distinction is not borne in mind.  This is not and adversary although it may appear so judging by the behaviour of some of us, including myself.  This is not an adversary but an inquisitorial procedure.  In any inquisitorial procedure there are no questions of onus.  An inquisitorial procedure you are not saying oh, the onus is on you, finish your case, now you have the right to rebut or there may be some issues that the onus is on you, now you start leading evidence.  This is an inquisitorial procedure.  The Committee is there, its counsel is there and you seek assistance which may sometimes be described as obstruction in order to find out what the truth is.  That's what an inquisitorial procedure is about and this is what that procedure is and I would have of you, Mr Chairperson, to ignore the emphasis that we place on administrative reviews and that sort of thing.  You have a responsibility in terms of the statute to find out the truth without fear or favour.  Let there be a review if they want to, it's completely irrelevant to what we are doing here.
	Yes, I'm reminded to illustrate this point, Mr Chairperson, in relation of the possibility.  What will this Committee's finding look like?  It is reasonably possible that Mr Verster told the truth.  But on the other hand it's reasonably possible that General Webb told the truth.  So, what function have you performed?