Amnesty Hearings — Durban — 1999-10-04

CHAIRPERSON: I thought about what you have submitted, after having looked at this, but it also leaves a problem with the interpretation.  I hear what you say, but if you say "against the person concerned in criminal proceedings in a court of law, or before any body, institution established under a law", that means that it couldn't be used before any other body or institution established by law in respect of any matter, any evidence.  Why then restrict the evidence in a court of law, to only criminal evidence, do you see what I am getting at?  Why shouldn't it be - you know, I think what - you know if it was against the person concerned in proceedings in a court of law or any other body, then of course there would be no, then it would be quite clear, but the way that you ask us to interpret it, court of law is only criminal proceedings, but not delict or contractual whatever, anything else, civil, but in any other body can be anything.  Whereas the problem with the interpretation as Mr Richard puts it, you know, is criminal proceedings in any other institution or body, you know, what did the legislature have in mind?  Okay, we have come up with perhaps court martial and Mr Richard came up with saying well, you might get disciplinary proceedings where somebody is charged in-house by his employer of thieving or let's say, now can they use the evidence that he gave at Section 29 in the disciplinary proceedings where he admitted to thieving from his employer, that sort of thing.  So, there is difficulties whichever way one looks at it.

MR DEHAL: I concede Mr Chairperson, there are those difficulties.  The only interpretation I seem to come to is if you add those two comma's, it is probably there where the interpretation ends.  I think if they used the words "in criminal proceedings", without the reference to "in a court of law", then it might have had a wider interpretation in criminal proceedings, perhaps before another Court like the other forums you have referred to, but I think it is confining itself to criminal proceedings in a court of law, and then deals different from that, to proceedings before any other body or institution, indeed.  Mr Chairperson, apart from those submissions, I just want to see very quickly, whether I have anything else to say.  Mr Chairperson, I concede immediately that Judge Pillay's apt recording of the question that this Committee is to rule on, is in fact correct.  Whether this is admissible or can be used, and I submit that is the question to be answered.  My submission is that the legal arguments I have adduced in the Heads of Argument, including the constitutional aspects, deal with this aptly and ought to prevent its inclusion.  I reiterate, all the aspects in the Heads, thank you.

CHAIRPERSON: Thank you.  Sorry, Ms Kooverjee, do you have any submissions that you would like to make?

MS KOOVERJEE: None, thank you Mr Chairperson.

CHAIRPERSON: Any ...

MR RICHARD IN FURTHER ARGUMENT: Very briefly.  With regard to the question of perjury emanating from Section 31(3), I think the object of the legislature is plain.  If one imagines the results that would flow if this Commission could not sanction
people who lie to it and commit perjury in its face, it is ...(indistinct), the extension of the interpretation, I go back to what I have said earlier - somebody commits an act, is tried for it, during the course of his defence, lies, but he is not believed and convicted, and then comes out with the truth.  I took it as part of, it is not legally correct, but ...(indistinct).  
	Then when we talk about the debate of the furnishing or providing of Exhibit C, well, none of us in the room were responsible therefore, it would have been useful if some rules had been written some years ago, none were, I think what our learned colleague Mr Prior, said, practices and procedures have evolved.   My post-script to my point in limine, point in limine, I don't take it any further.  Then when one talks about onus and that topic, I have often questioned what is the Truth and Reconciliation Commission, and I came to the conclusion that it is sui generis, it is neither an administrative tribunal in that sense, or body, nor a court of law.   It certainly is charged with a duty as (20) outlines, to investigate amongst other Sections, consider, decide, but on what criteria?  The word "its satisfaction" often comes up, I have cross-referred.   Clearly because it has powers of investigation as is set out in chapter 6, its power to obtain information, articles, and so on, that are relevant, cogent, pertinent, are considerably higher and more effective than any court of law or other ordinary administrative, so at the end of the day, I don't believe there is much purpose in pushing the point of onus.  It is really relevance, cogency and what in the end, is aimed at facilitating the outing of the truth.  The agreement, I wasn't a party to that agreement, I wasn't there and I don't believe the victim class were even present or represented at the Section 29 hearing.  An inference I draw that this supposed agreement that was arrived at, was really an agreement, might in fact and I take it no further than the word "might" an understanding as to what the law was.  An admission of what the law is, has never bound anyone.  The law is plain, what we have argued this morning is the law, and what was agreed, takes us no further.  In fact, the agreement is in my submission irrelevant and of no consequence to the victim class.  Thank you Chair, nothing further.

CHAIRPERSON: Anything ...

MR DEHAL: I am indebted to you, Mr Chairperson, there is nothing further I wish to add.

ADV PRIOR: Mr Chairman, I wonder if I may be permitted just by way of example, to - this information might be of assistance, where one looks at situations where it would not be in the interest of the hearing or in the process of full disclosure, with the Chemical and Biological Warfare Hearings, where certain aspects of proliferation of either weapons of mass destruction or in that particular case, the formula for certain drugs ...(intervention)

CHAIRPERSON: Which these days I think, all such formulas and designs and recipes are freely available on the Internet?

ADV PRIOR: I take your point, but that is the type of situation, and possibly in respect of ...(indistinct) between nations, that that information would obviously be looked at and maybe even protected in the interest of justice.  We don't have that situation here.  And just lastly, I don't think we can ignore the comments and the judgment of His Lordship, Mr Justice Mohammed in that AZAPO case.  He goes right to the root of it, the trade-off in plain, blunt language is full disclosure, truthful full disclosure.  If the victims cannot learn what the truth was, what happened, that is the essence of what these proceedings are all about.  We cannot be seen to be subverting any information which may assist this Committee in determining what the truth is, or the victims hearing what the truth was, in fact.  Thank you Mr Chairman.

CHAIRPERSON: Yes.  Well, thank you.   We will make our ruling tomorrow morning when we proceed.  I would like to thank the legal representatives for their helpful argument and the Heads or argument.   We adjourn until - what time did we mention, was it half past nine or ten o'clock?

MR DEHAL: Ten o'clock.

CHAIRPERSON: Ten o'clock?

MR DEHAL: Yes.

CHAIRPERSON: Was it ten o'clock tomorrow morning?

MR DEHAL: Correct.

CHAIRPERSON: Yes, so we will then stand adjourned until ten o'clock tomorrow, when we will continue with the hearing, thank you.

MR DEHAL: Thank you.
COMMITTEE ADJOURNS