Amnesty Hearings — Vanderbijlpark — 1999-05-12

MR LOWIES IN REPLY: Chairman, I would submit that at this stage for the purposes of prayer number 3, it's not strictly relevant.  It may be a motivation to bring, and I want to stress this, it may be a motivation to bring the declarator in terms of prayer number 3, but the applicants' point is the following; the law is not clear and if you decided you are bound, a certain aspect will have to be canvassed then, if you decide that you are not, then we proceed as the matter ...  That is simply put, the attitude of the applicants.  I don't think that it is necessary for you at this stage to make a finding as to whether or not there is bias, and we're not asking for you, for sure we're not asking you.  We say it may be a motivation in bringing this application, but it is not an issue that you have to make a decision on.

CHAIRPERSON: The second argument amounts to this;  you are asking this Committee to make a declaration, to issue a declaratory order as to first of all, the status of the report, is that right?

MR LOWIES: That is correct, in the main.

CHAIRPERSON: And secondly, and that is to say whether or not it is bound by that Report.  That's the essence of the declarator?

MR LOWIES: Correct, Chairman, I couldn't have phrased it better.

CHAIRPERSON: Okay.  The answer is the following from Mr Mapoma;  he says the Amnesty Committee is a creature of statute which has no other powers other than those that are set out in the Act.  Nowhere in the Act is this Committee given the power to make the order of the kind you are requesting it to make.

MR LOWIES: I would submit two aspects there, Chairman.  The common law is applicable to you inasfar as it is applicable to administrative tribunals, and (b); one must also bear in mind that some aspects may be implicit in your duties and prerogatives that you have.  May I give a good example  to illustrate this in my submission?

CHAIRPERSON: Would you deal with the common reposition first?

MR LOWIES: The common law position, Chairman I would suggest is the following;  a tribunal has the right to regulate its own proceedings and I think the Act goes further here as well and it tells you to regulate the proceeding.  For instance, if you are requested to recuse yourself, there's nothing in the Act that says you may or may not recuse yourself, but yes, it is common law and it is accepted practice that an administrative tribunal has that authority.  Now all I'm saying is, the very nature - maybe the word "declarator" is not a good word, but the very nature of this application is that you regulate your proceedings and telling the applicant, to put it in other words in other words, telling the applicants in other words; "The procedure that I'm going to follow is, I'm not going to regard myself as being by that."  That I would submit is implicit in what you have, although there is no specific provision in the Act.

CHAIRPERSON: Why should we do that, because there is no-one here who has sought to introduce the Report to us and those findings and has called on us to accept those findings.  We can only do that if someone comes up and does that.

MR LOWIES: But Chair, for instance, the applicants may want to do that, the applicants may want to.  Nobody has done it because of ...(intervention)

CHAIRPERSON: They have not done so.

MR LOWIES: No I agree, with respect, Chairman, but that is the point.

CHAIRPERSON: So why should ...(intervention)

MR LOWIES: The matter is not settled.  What if the applicants may want to?  For argument's sake, just to take the point, what if the applicants may want to say; "There's a finding by the TRC (where there is) that Mr Peens has killed Victor Kheswa", and from that make certain submissions to yourself.  What is the status of that?  It's not been done, it's not been argued.

CHAIRPERSON: We will deal with that position as and when it is raised, but we simply cannot issue - that goes to the question of procedure.  I agree with you, we can regulate our own procedure.  But what you're asking us is to pronounce on the status of the Report, whether, are we bound by that.  And that's what Mr Mapoma submits is beyond our powers.

MR LOWIES: My only counter argument is it relates mostly to procedure and therefore it is something which by necessary implication, is within your powers.  I can take it no further.

CHAIRPERSON: No, further than what?

MR LOWIES: And of course to interpret the Act, sorry.

CHAIRPERSON: No further than what?  You say you can't take the matter any further, I'm asking further than what?

MR LOWIES: No, I don't want make further submissions.  That is my argument.

CHAIRPERSON: What is the argument?

MR LOWIES: The argument is, Chairman, that ...(intervention)

CHAIRPERSON: You are asking us to pronounce on the status of the finding and whether we are as a Committee bound by that.  It's not a matter of procedure, is it?

MR LOWIES: I would submit the ...(intervention)

CHAIRPERSON: By no stretch of imagination can it be a matter of procedure, can it?

MR LOWIES: No, the argument goes as follows, Chairman;  you have certain implicit powers, inter alia regarding procedure.

CHAIRPERSON: Yes.

MR LOWIES: Now I would say, this is akin to the powers that you have to regulate your procedure.  In other words, you can say: "I have the power to state that I am not bound by that decision", and then you must give it, with respect.  And this is what you are requested to do.  Or you have the power to say: "I have no choice but to accept it and within that framework, this is the way that the procedure is going to be, or the application is going to be entertained."  I would submit it's implicit.

CHAIRPERSON: Yes.

MR LOWIES: That's my argument, Chair.

CHAIRPERSON: So is it your submission in essence, that this is just a matter of procedure, whether in the course of this hearing we will be having regard to the TRC findings?

MR LOWIES: No, the something similar to that.  I want to draw the line or I want to draw the ...(intervention)

CHAIRPERSON: Just before you draw any line, is it your submission that it is not a procedure, but it is something akin to a procedure?

MR LOWIES: Precisely, Chairman.

CHAIRPERSON: Okay, yes.  Do you accept that if it is not a measure of procedure, we would have no power to pronounce, to issue the kind of order that you are requesting?

MR LOWIES: Yes, but I'd like to qualify it, provided that it's not something that one can say is within the common law and principles relating to administrative tribunals ...(intervention)

CHAIRPERSON: What is this common law that you're referring to?

MR LOWIES: This power that you have to make ancillary findings.  For instance to regulate procedure; for instance to decide whether or not you should recuse yourself, which is of course not of issue, but never mentioned in the Act, something similar in that vein, in that genus.

CHAIRPERSON: Yes, very well.

MR LOWIES: Sorry, may I add a third point which I have mentioned before, but not in summary now.  And of course, Chairman, you have the right to interpret the Act.

CHAIRPERSON: Yes, I understand that.  What you're asking us in essence, is to pronounce on a matter which may or may not come before us.

MR LOWIES: No, not necessarily.  I say the following; it may come before you, but my request is not that you pronounce on something which is uncertain.  You with respect ...(intervention)

CHAIRPERSON: It is not before us, do you accept that it is not?  No-one has sought to introduce the Report, is that right?

MR LOWIES: No, but it is in existence.

CHAIRPERSON: Oh yes, just like a whole host of other evidence that is not before us.

MR LOWIES: Correct, Chairman.

CHAIRPERSON: So it is not before us and no-one has sought to introduce it here, is that right?

MR LOWIES: That is correct.