Amnesty Hearings — Cape Town — 2000-11-18

MR WESSELS: That one can't answer without speculating as to what the reason for that was, but you've got to see it in the context of the evidence of Webb: "If I had been asked, I would probably have granted it".  So it's clear that in the factual matrix of events, this was something that Verster reasonably could have believed that he had authority for.
	Now if there was a short circuit anywhere in the final decision, then it would mean that there wasn't authority given, but it doesn't detract from the fact that Verster believed that he had authority and his belief that he had authority, even though factually incorrect, still makes him bona fide.

CHAIRPERSON: I don't think anyone has got a problem with the concept that if somebody bona fide and genuinely believes that he's acting with authority, that Section 20(2)(f) clicks in, that's quite clear.  But then one has to have regard to the evidence to find out whether it's reasonable to find that he did bona fide have that belief.  That's basically what it is, just an assessment of the evidence.

MR WESSELS: But a distinction must be drawn between the instruction ...(indistinct) that happened and whether the belief was reasonable.  And there's, with submission, no evidence to suggest that Verster's belief that he had authority, was unreasonable.  If for instance this was something that was clearly outside the ambit of what the CCB was doing, then one could say he didn't have authority and you could not have believed, you could not have been bona fide.  The test for bona fide is a different test from whether he had authority.  And there's nothing to suggest that his belief could not have been bona fide.  He believes he had the authority, but let's assume he's wrong, let's assume for the moment that he's wrong on that.  What is there to suggest that his belief is not genuine?

MR LAX: Perhaps what you could do for us in due course, during the course of today and tomorrow perhaps, let's hope we don't get to tomorrow, but if we have to we have to, is find for me the sections in his evidence where the distinction between, where he says anything other than that: "Webb gave me this".   Well actually, I might be wrong and it's possible that I just thought that he gave it to me, rather than actually gave it to me".  If there's any concession to that effect in his evidence, that would help us, at least it might back up the secondary argument, the alternative argument that you're using.  And if you could refer us to those aspects, if there is such evidence, then obviously that would be helpful.

MR SIBANYONI: Mr Wessels, before you continue, I see this as a clear contradiction between Webb's version and Verster's version.  Is the Committee entitled to prefer one version above the other?  What is your submission in that respect?

MR WESSELS: Well the Committee can make a finding to say we accept the one and not the other, if there are reasons to prefer one above the other.  The difficulty that comes in is if the Committee is uncertain as to who is in fact correct.  And then the problem comes in Mr Chairman, the question posed is very interesting, it's a very interesting question and the answer is quite difficult.  One of the two is wrong, clearly wrong.  Now if it is Webb that is wrong, then clearly Verster is entitled to amnesty.  If the Committee is uncertain who is wrong, then you can't refuse Verster's amnesty on the possibility that it was Webb that's right and Verster is wrong.
	So before you can then find against Verster, you must make a positive conclusion that Verster was not telling the truth, that he was lying on this particular aspect.

CHAIRPERSON: I think the route followed in the applicant's argument is that they were both bad witnesses, there's no proof, there's no credible evidence that can be relied on ...(intervention)

MR WESSELS: No, no, the opposition.

CHAIRPERSON: The victims at least, not the applicant.  ... that can be relied on and there's some sort of onus, although it's not mentioned in the Act, merely because the applicant's an applicant he's got to put up stuff to convince the Committee that he's entitled to the application, therefore there's a form of an onus on him.  But the evidence is just unacceptable in respect of both those applicants and ...

MR LAX: Sort of akin to, for example in a civil trial, the point of absolution, ja.

MR WESSELS: That would be placing an onus on an applicant and then we get back to the important issue, does full disclosure place an onus on an applicant, that he has to satisfy and if he doesn't do so, is there an absolution of his application type of procedure?

MR LAX: Well perhaps you could address us on that, because it is a relevant consideration.

MR WESSELS: Mr Chairman, my submission there is, there's no onus in that sense, it is merely - the test as I said is, is it possible, is it reasonably possibly a full disclosure?  Is it possible that Verster could have believed that he had authority?  Can that inference reasonably be drawn?  And once that happens, then he has satisfied in the sense of this particular Act.

MR LAX: Then how do we deal with the, assuming there is a contradictory version which is equally reasonably possibly full disclosure, then what do we do?  You see, if they're both equally reasonably possibly, what decision do we make?

MR WESSELS: Then he must be granted amnesty, because as far as his version is concerned that must then be isolated from the other reasonably possible version.  You don't have to weigh up the two versions and say which one is more reasonably possibly true or not?  Just look at the applicant's version, if his version is reasonably possibly true, that's it.  There's no scale of weighing the different reasonably possibly trues.

MR LAX: So we don't look at which is most reasonably possibly true or which is most probable?

MR WESSELS: No.

MR LAX: And what if the one is just so glaringly not -  I suppose then it's not reasonably possibly.  Absolutely.

MR WESSELS: ...(inaudible - no microphone)

MR LAX: Okay, fair enough, fair enough.  I'm getting myself in a knot.

MR WESSELS: Mr Chairman, let me emphasise this is not, we don't have a trial, the Act didn't contemplate a trial situation where there has to be a weighing up of versions.  It happened in this particular case that we, in an oppositional type of situation, hereby the victims as opposed to the applicants, but in a lot of these cases that wouldn't have been the situation and there may not even be opposition to it.

CHAIRPERSON: Yes, but obviously if the two applicants who have the different versions were both applying in respect of the same incident, then one would have to weigh them up, because otherwise if you apply your test, then they would both get amnesty on two different versions for the same incident.

MR WESSELS: Yes, yes.  But we don't have that situation, that would have complicated the issue if there was two applications pertaining to the same factual incident matrix, and you have two versions, the one is full disclosure and the other one is not, then you have a difficult position.  But fortunately, in my submission, you don't have that situation here and therefore, it's not necessary to come to a conclusion that Webb's version is more reasonable than Verster's version.  Just look at Verster's version and judge it on its own and see, having regard to the fact that the weapon was to be obtained from the stores, that money was to be obtained from the budget, which all went through the  authorities, whether that  ...(intervention)

MR LAX: But hang on a second, none of that went through Webb, and the evidence is clear on that, that those logistical issues went through your client.  They didn't go through Webb.