Amnesty Hearings — Durban — 1999-10-04

CHAIRPERSON: Sorry, just before you proceed, on the question of onus in a matter like this, it really relates to who starts and who gets the right to replying, but as you have seen, we are not dealing with this argument as if we were in a court of law, people are making submissions and then there is a reply and then more submissions, etc.   Basically what we have defined here is on the interpretation of the Act, etc, whether these Exhibit C should be made available at this hearing, it is hardly a situation where we are going to arrive at a conclusion and say well the onus was on X, and X hasn't shifted the onus, therefore we are not finding for him.  It is not that sort of situation, so the onus is basically, relates to who starts and very little else.  It does not have much significance, really.

MR DEHAL: Mr Chairperson, I agree totally with that submission, in fact it is my view that there is no need to find on whom onus rests, but principally because Mr Richard raised it, and I felt myself obliged to answer thereto.
	Mr Chairperson, it would appear to me if I even begin to deal with the Sections and reiterate the legal aspects as I have in my Heads, there appears to be two fundamental difficulties.  
	The first I submit is the following - the question of privilege does not begin and rest nor end, where Mr Richard seeks to have it, or Mr Prior seeks to have it.   The enquiry relative to privilege is a very much wider one, it is a factual and legal enquiry, and does have devastating consequences inasmuch as this Commission does not have any powers to impose penal sanctions.  Let's look at the very real possibility of the corollary that if this Commission decides to refuse amnesty, then the document that is the evidence in the Section 29 proceedings, by its very inclusion in these papers, is a public document and within the realms of public domain, and may well be used in most any civil and criminal proceedings, not even those in criminal proceedings in a court of law.

JUDGE PILLAY: But isn't it protected, isn't the client, the applicant protected against criminal proceedings?

MR DEHAL: Yes Judge indeed, but my submission is that at the level that these documents are not included, these documents namely bundle C and the evidence of Mr McBride is more fully protected, is more, the protection is wider than when it is included in these papers.

CHAIRPERSON: Now, a person gives evidence at a Section 29 hearing, right, that same person gives evidence later at an amnesty hearing, okay.   The evidence that was given at the Section 29 hearing is used in the amnesty hearing, made public, amnesty is for argument sake has to be refused, because if it is granted, then there is no other action, but if it is refused, are you saying then that because the Section 29 hearing evidence was used in the Amnesty Committee, it can then be used against that person in any subsequent criminal trial, but not the evidence that he gave at the Amnesty Committee, that he gave viva voce at the hearing here?  Or are you saying that both can be used against him?  Because if one takes a look at Section 31(3), I don't know if you - I am asking you Mr Dehal, are you distinguishing between the Section 29 evidence and the evidence given at an amnesty hearing?

MR DEHAL: Indeed Mr Chairperson.  Briefly what I am submitting is this, the evidence in the Section 29 hearings is until now, protected.   It is not open to scrutiny and public, it was heard in camera, in fact that is the very reason why we are arguing this matter today, and I am saying that once your ruling is that the evidence in the Section 29 hearings, ought to be included in these proceedings, then they become a part of the broader bundle of documents pursuant to these hearings and if applications for amnesty is refused, particularly in regard to Mr McBride, then the validity, the weight attached to the evidence in the Section 29 hearings, is exactly the same as with most anything  in these proceedings.

CHAIRPERSON: Now, if we take a look at 31(3), it says
"... any incriminating answer or information obtained or incriminating evidence directly or indirectly derived from the questioning in terms of (1), shall not be admissible as evidence against the person concerned, in criminal proceedings, etc."
	 (1) says -
"... any person who is questioned by the Commission in the exercise of its powers in terms of this Act, or has been subpoenaed to give evidence, etc ..."
	wouldn't that protection in 31(3) apply to evidence given here by any applicant before us in an amnesty application and also evidence given at a Section 29 equally, whether it is being used later or not?  I am just asking, you are arguing that there is a difference between the Section 29 and the evidence that Mr McBride will be giving tomorrow?

MR DEHAL: Mr Chairperson, I agree that it would have the same consequences, it would be the same, one way or the other, in that as you rightly read 31(1) and 31(3) read together, would give the consequence to both the documents included or otherwise, the same.  But what I am submitting is this, if you look at the Section 29 proceedings, my learned colleague, Mr Richard, talked about the various versions, the need to cross-examine on the versions at the trial, the subsequent versions Mr McBride led, the aspects of the appeal, the documents during the appeal and indeed the evidence in the Section 29 hearings, and Mr Ismail's evidence.  Now, I think in that submission lies somewhat the test and the aspects that I wish to address on.  If one now seeks to introduce these various versions for the purpose, it would seem, of interrogation, of cross-examining Mr McBride on the various versions, then one talks of perjury, one talks of conflicting, contradictory versions and the possibility of perjury.

CHAIRPERSON: Yes, but wouldn't that exist, I am not talking now of Mr McBride, please understand me, I am talking generally, a person gives evidence in a Section 29 hearing and says X, 30 pages of it, he then comes to an amnesty hearing and says Y, 30 pages of it,  now whether that Section 29 hearing has been made public or whether it has been kept confidential, does that have any - and in both instances take the oath prior to giving them - does that make any difference as to whether that person can be charged with perjury or not?  Let's say for instance that the document is not used at all here, and then there is completely different evidence, how will that ...

JUDGE PILLAY: (Microphone not on)

CHAIRPERSON: I mean wouldn't the Commission then be obliged to lay a charge of perjury?

MR DEHAL: I submit yes, yes.    Mr Chairperson, the other difficulty is this, if this Committee seeks to include the evidence of the Section 29 proceedings, a simple reading of the evidence under the Section 29 proceedings show clearly that it was premised on an acceptance and understanding of the documents handed in.  There is reference to the documents therein.  My submission is that even if that evidence were handed in here, without the documents referred to therein, there is a major lacunae, and one wouldn't be able to fully understand that evidence in the proceedings.