Amnesty Hearings — Pietersburg — 1997-07-01

ADV VISSER: May it please you Mr Chairman.  This is an application for amnesty for the persons mentioned in B on your covering note of your bundle.  Mr Chairman could you just give an indication what your normal time for your tea adjournment is.  Is it at 11 or 11H15?
	Mr Chairman we have two points really which we want to alert you to before we commence.  Why we wish to do it now Mr Chairman is because we know that these issues will become pertinent when you hear the evidence, and if I may give you an inkling what this is about Mr Chairman, it really concerns an interpretation of Section 20 in regard to the expression, act, omission or offence.  The intention is not to become involved in a detailed legal argument.  The intention is merely to alert you to the fact that what you will hear from the applicants is that they don't believe they did anything wrong. 
	Now why we wish to make this point now is that we are afraid that it may give rise to a reaction from the Committee but if you say you did nothing wrong, why are you here?  And what we've done Mr Chairman is to be of some assistance if possible,is, we've put this down on paper very shortly under Heads of Argument.  May I beg leave to hand it up to you?  The idea is not to deal with this fully at this stage, I'm just going to refer you to certain passages in it and what I would suggest, with respect, is that you read it in your own good time, and if it is necessary thereafter Mr Chairman, you can call on me and one can discuss this as being suggested perhaps after the evidence has been led.
	Mr Chairman, may I take you through this very quickly. 
	Paragraph 1 deals first of all with the Interim Constitution, the preamble.  Now this issue concerns whether the approach of this Committee should be to grant amnesty to individuals as opposed to amnesty in regard to incidents.  It is not altogether clear Mr Chairman and there is no authority on the point. The preamble, to summarise, the postamble of this interim Constitution speaks of acts, incidents if I may call them that, in regard to which amnesty will be granted.  I have underlined it at page two Mr Chairman.
"Amnesty shall be granted in respect of acts, omissions and offences associated with political objectives."
That is all it says. 
	Then I have quoted for your convenience at the bottom of the page what the Promotion of National Unity and Reconciliation Act says.  You will see Mr Chairman from what I have underlined that although the wording has been retained, the focus somehow was moved to individuals.  Now your question will be why do we mention this?  We mention this for the following reasons, Mr Chairman.  We are very well aware that this Committee is under extreme time pressure.  We have a situation where this is going to arise, where we have at most half of the persons. Say six of the thirteen people who are applying for amnesty who can make a contribution towards the facts. The rest of those people will just be wasting time by giving evidence, each and every one of them.  They're available and we can do this but in an attempt to assist the Committee, we thought we'd point out, Mr Chairman, that if their approach is going to be that if your Committee feels that the political motivation for this particular incident is such that the persons involved therein were politically motivated to commit the acts, then Mr Chairman ...(indistinct), then all of them or none of them receive amnesty, and then you would be in a position to say, well Mr Visser, lead the evidence of the people who could tell us something, but don't lead the evidence of those persons who can tell us nothing new.  
	I'm leaving it for your consideration Mr Chairman. We will start leading the evidence, we believe that six witnesses can be of any assistance, thereafter the others will be available and at that stage, when you've read the heads, you can then make a decision in respect of whether you want to hear each and every one of them. 	May I say immediately what we have in mind is to bring each of those persons before you, let him take the oath, let him confirm what he has stated in his application form and then Mr Chairman, I'm certainly not going to lead the same evidence as you have heard before, I'm simply going to allow him to be cross-examined by my learned friends, by whoever wants to cross-examine them or questions from the Bench as it were.
	Mr Chairman if I may turn to page 7.  We there deal with the issue - well perhaps well perhaps we should go to page 8 paragraph 3. The whole issue of acts, omissions or offences, the provisions of the Act are fraught with ambiguities Mr Chairman as you will know, because, and I tried to set out the relevant provisions, the Act in short says what you have to deal with is an act, omission or offence.  On a literal interpretation of the Act it would mean that each of those would be a category, it would be an act, an omission, or an offence, but then our Act goes on to say that an Act must also be an offence without specifying whether the offence and the act have now become one category.  The result of this, there are three permutations.
	One is that your Committee and the Commission must adopt the view on the literal interpretation that once a person says, I committed an act that the qualification in Section 21(b) to say that it must also be an offence or delict doesn't qualify the Act as a peremptory provision that the act must be that.  It can only be an act.  That's one interpretation.   
    Then there's another interpretation which says no but Section 21(b) means that every act, ommission or offence must be an offence or a delict which is tautologous, ambiguous and it really doesn't make sense, but it's an interpretation which is possible. 
	Now on that score Mr Chairman, what we're saying is that you've got two extremes. You've got an extreme case where it clearly can be said that the act which the people are applying for for amnesty is certainly not an offence or a delict and the other extreme is it's clearly either an offence or a delict but you have a grey area Mr Chairman.  Where a man says to you, I don't think I did anything wrong, but maybe I'm wrong. I can't be the judge of my own case.  You may think that I exceeded the bounds of self-defence in which event what I did may have been a delict, I don't know, I think I did right.  Or the alternative ...(intervention)

CHAIRPERSON: Speaking for myself professionally, I don't think amnesty is meant to be an insurance against somebody who feels that possibly his defence will not stand.

ADV VISSER: Mr Chairman that's precisely what amnesty is about. That is with all due respect, that's precisely what it's about.

CHAIRPERSON: Well either you have committed a crime or you haven't.

ADV VISSER: Who must judge that Mr Chairman, must the perpetrator be the judge of his own case?

CHAIRPERSON: Well can I take you on that.  If a person comes and he gives us the facts, and we find that according to what he is saying he has not committed an offence, we can't give him amnesty.

ADV VISSER: Well that's the question which we're raising here Mr Chairman.

CHAIRPERSON: Well it will be - surely it's absurd to say that if we find from what he's telling us he has definitely not committed an offence, it is absurd to say that we must give him amnesty.

ADV VISSER: Mr Chairman may I put it this way.  In the press we have seen on many occasions Bishop Tutu saying, if you have any doubts, apply for amnesty. Why did he say that? Quite correctly he said that.

CHAIRPERSON: Well that is his view.