Amnesty Hearings — Ermelo — 1998-07-22

CHAIRPERSON: Relevant to what?  To the incident, isn't it?  Not relevant to his life and his criminal record, but to a particular incident for which he's applying for amnesty, not so?  Surely you're going to have to argue long and hard to persuade me it can be any other way.

MR HATTINGH: Mr Chairman, I've indicated I wouldn't waste much more time, I would leave it to you, but I think if the Legislature wanted to say a full disclosure of all relevant facts pertaining to an incident, then they should very well have entered that.  They elected not to include those words.  So, I think it is for this Committee to decide what facts are relevant facts.  If this Commission believe that a serious incident for which an application was made which forms part of the application, that it is relevant, then it needs to be dealt with.  I may just conclude that as far as section 23(ii), that's of the Act, we are looking at
"Acts and omissions or offences committed by any person referred to in subsection (ii) who acted for personal gain."
That's in subsection (i) and in subsection (ii):
"Out of personal malice, ill-will or spite."
Now this is specifically what I would like to deal with, is I would try to find out whether this as a rule, as a modus operandi operated or acted for personal gain, personal malice, ill-will or spite and for that reason I believe that a full disclosure of all relevant facts need to include also other incidents.  Then just to end my argument, if we look at section thirty one (31) of the Act, in particular 31(2).  It is stated:
"A person referred to in subsection (1) shall only be compelled to answer a question or to produce an article which may incriminate him or her if the Commission has issued an order to that effect after the Commission has consulted with the Attorney-General who has jurisdiction."
I must just stop here.  It would indicate or it would appear from this section of the Act that this Commission very well has the powers of compelling a witness to tell more than he's in fact prepared or he would like to do at this stage, but on certain conditions.  The Commission needs to consult with the Attorney-General who has jurisdiction.  The Commission has to satisfy itself that to require such ... (intervention)

CHAIRPERSON: Before you waste your time, Mr Hattingh.  You're reading a section that is dealt with on the investigations and hearings by a Commission, not the Amnesty Committee.  It's totally different regulations.  If you check under section twenty eight (28), that starts with the rules and regulations and laws pertaining to investigations and hearings and the compellability of witnesses to come give evidence at investigation stage.  That is where the AG comes in.

MR HATTINGH: Mr Chairman, I accept that.  I thought that perhaps that would also have a bearing on the matter.  But in the end, I think what is important is that all documentation becomes available, public knowledge once a Commission public hearing commences or when this Committee decides, let me just find this, if we look at section 19.8(b)
"Subject to the provisions of section thirty three (33), the confidentiality referred to in paragraph (a) shall lapse when the Commission decides to release such information."
And then the alternative, "When the hearing commences".  Now, even if the hearing is not about to commence with regard to the other incident, the Commission can still decide to release the other information if the Commission considers the other information to be relevant and to have a bearing and to be of some necessity for this hearing.  Thank you.

CHAIRPERSON: Mr Black, have you got any reply?

MR BLACK: Thank you.  I'll be very brief, Mr Chairman.  I don't want to belabour this point.

CHAIRPERSON: You made that promise before.

MR BLACK: Mr Chairman, for the assistance of the Committee, from a confidentiality clause point of view that seemed to have become ... (intervention)

CHAIRPERSON: While you're at that maybe you can help us.  We've seen, and I've seen it about an hour ago, the clause relating to privilege.  You're looking for a law and you're not able to find it readily, although you know it exists, can you help me?

MR BLACK: I must say off-hand during the lunch break I did go through it.  The closest I got to was again confidentiality, section thirty eight (38) which binds every member of staff of the Commission to abide by any confidentiality clauses which may be contained in the Act.  My respectful submission is until an application or information relating to a particular incident is made public or brought public to a hearing, let's put it that way, then all that information, the member of staff or the Commission is obliged to keep confidential.

MR SANDI: Has that provision been breached, Mr Black?