Amnesty Hearings — Cape Town — 2000-11-18

MR WESSELS: But where do you draw the line?  And in my submission I think one must take into account that there was no real harm done in this particular case.

MR LAX: Mr Wessels, I don't know if you or any of the other parties are necessarily aware of the decision of the TPD in an unreported matter of Botha, the Review Application, where the Presiding Judge in that matter took the view that these criteria set out in Section 20(3) are all indiciae, in a sense, of what is political and are not requirements per se.  I just thought I'd draw that to your attention, because it's relevant to the question of proportionality.  In that particular case proportionality wasn't the matter under discussion, it was another aspect of those list of indiciae or criteria.  But there is that unreported decision that we're aware of, because that matter is being reheard in due course, as a result of that Review Application.

GEORGE BIZOS: ...(inaudible - no microphone) our Durban office acted for the victims and that Review Application was argued without notice to the victims and without, I don't want to criticise the learned Judge, with respect, but we will argue that this Committee can, with respect, will not be bound by that decision because it was not argued on the other side.  We considered setting the Order in the Judgment aside, but decided that we will go back to Durban and argue that the amnesty should have be refused anyway, rather than asking for a re-opening and going to the Appellate Division to set his Order aside and that sort of thing.  But we will not concede that that Judgment is a binding authority on anyone, Mr Chairman.

CHAIRPERSON: Because it fully argued by both sides, yes.

GEORGE BIZOS: It wasn't fully argued, it's actually - nobody, not the counsel for the applicant, not the Judge himself said, where are the people that were amassed to oppose this application in the ...?

MR LAX: Yes, I just thought it only fair to draw everyone's attention to that decision, because it goes to this issue.

GEORGE BIZOS: ...(inaudible - no microphone) working on it, Mr Chairman.

MR WESSELS: Well Mr Chairman, it may well be that Mr Bizos is not happy with the outcome of that case, but until that Judgment is set aside, it remains a Judgment of the Supreme Court and it is still binding.  Whether it was argued by other people or not, then there must be a new Judgment, but until such time as there is a new authority overruling that authority, it still remains ...(intervention)

CHAIRPERSON: Yes, we're getting into another whole branch here, to what extent are we bound by decisions of the Court in any event?  Sitting here as a Committee.

MR WESSELS: Well the laws of precedent are not applicable, because you're not a court of law, you're an administrative body.  And it is my submission that administrative bodies are clearly bound by any Judgment of a Supreme Court.  So to that extent, irrespective of whether the parties were heard or not, if there's a Judgment with a certain ratio, that ratio applies until it is set aside of course.
	Mr Chairman, then it's clear that insofar as my client is concerned, that there is no question that he did not do any of these acts for personal gain but he acted merely in his capacity as a solider of the State,  and there's no personal malice, ill will or spite directed at the victims of the acts.  
	And then I deal with the full disclosure aspect for which amnesty is applied for.  And then let me emphasis again, Mr Chairman, it doesn't appear in my Heads, but being an administrative procedure, if it is suggested that there is no full disclosure of factual events, then those particular allegations must be placed or put to a particular person for him to deal with that.  
	Now the criticism during Verster's evidence, not ...(intervention)

MR LAX: Sorry, can I just interrupt you, I didn't understand what you were saying now.  Are you saying that if an applicant comes before us and doesn't make full disclosure, that before we can hold failure to make full disclosure against him, we have to draw to his attention the extent to which he hasn't made full disclosure?

MR WESSELS: No, not in that sense.  He must come and he must place facts before you to indicate full disclosure, but if there is a suggestion that for instance, like in this case there was "you didn't make full disclosure because there were nails attached to the bomb", then that should be put to him so that he can deal with that aspect and point out what the probabilities are or call evidence or whatever to do that.  But it's not good to say just go through it and then at a later stage put a trap there and say: "I've got a witness here who puts a totally different set of facts before you and now from this it appears that you didn't make full disclosure" ...(intervention)

MR LAX: Well that goes to the rules of normal procedure, no trial by ambush, etcetera, one accepts that.  But the thrust of my question is, is the applicant not dominus litis in that sense, and therefore if he - it's in his bundle if he doesn't place the appropriate facts the Tribunal.

MR WESSELS: Yes, no ...(sound cut off) only if there are particular issues forthcoming which is now used to disprove the facts that he has placed before you, that that needed to be put to him in that sense.  And it is my submission that there is nothing put to him in that sense, in this case.
	Mr Chairman, it is my submission that the criticism against him when he gave evidence was that he did not tell the truth at the time of the Harms Commission.  Now it has already been argued - sorry, the other criticism is, or the main criticism against him is that he refused to answer questions pertaining to acts for which he did not apply for amnesty.  Now Mr Chairman, insofar as that is concerned it's already been argued that anything falling outside the ambit of the Act, for which amnesty is applied for is irrelevant and need not be answered.  His refusal to deal with those matters can therefore not be regarded as a failure to comply with the full disclosure course.  And secondly, we debated that and argued that before you at the time and you in fact made a ruling that he needn't deal with specific acts.  And I can refer to the record, it's on page 101, 107 of the transcripts - sorry bundle E, Mr Chairman.  So it is my submission ...(intervention)

CHAIRPERSON: Sorry Mr Wessels, inextricably linked to this whole question of full disclosure is credibility as well.  I think everybody agrees that it's a full disclosure of all relevant facts, which is frank and honest.  So one also under this heading of full disclosure, has to look at the credibility of a witness.  Now we, in our experience sitting at hearings, often hear of cases where somebody has lied in the court at his trial and given a completely different version, alibi or whatever, and he comes and applies for amnesty and then says: "Look, I lied at my trial, because I didn't want to get convicted."   Okay, that's taken into account, it's a little warning light with regard to assessing the credibility of the witness, but it doesn't exclude him from it.  But what is your submission with regard to where there's conflicting statements that have been made to the Committee?  In other words, there's something different said in the application as to what is said at the hearing.  These are both, I mean they're different, you can ...(intervention)

MR WESSELS: No, no, that's different, that's obviously pertinent.