Amnesty Hearings — Durban — 1999-10-04

ADV PRIOR: Thank you Mr Chairman.  Mr Chairman, the preamble to the Promotional of National Unity and Reconciliation Act, I submit lays or indicates the wide scope  that this Committee has in particular, in dealing with amnesty applications in respect of receipt of information.
	In terms of the Commission's work as a whole in investigating gross violations of human rights, the establishment of as complete a picture as possible, of the nature, causes and extent of those violations, is required.  Mr Chairman, it is apt to highlight the fact that the powers conferred upon this particular Committee on amnesty in terms of Section 5 of the Act, allows or allow the Amnesty Committee to set out working procedures and from there, develop practises as to how it would conduct its business.  To that extent, the office or the position of Evidence Leader was not lightly determined.  In fact the support of such a person or office forms an integral part of the work of the Amnesty Committee.  A practice has developed since its inception, that information would be prepared, would be collated and presented to an Amnesty Committee specifically dealing with a particular amnesty application.   To that extent my submission is that the legislature had in its mind, at the time when it drafted or when it pronounced on Section 29, that very situation.   
	My reading of Section 29(5) in particular, I submit, caters for two distinct situations.   The one situation is where the Commission having regard to the principles of openness and transparency may declare such Section 29 evidence, not to be made public as was argued by my learned friend, and as correctly pointed out by the Chairman.  If or in the absence of such determination, that determination being that the evidence or the proceedings should not be made public, if that does not happen, the Act says until the article is produced at a hearing, which is an amnesty hearing in point, and then I don't refer to proceedings in courts of law, they are two disjunctive situations, it is not and or, it is not a condition that the Commission needs to pronounce upon .

CHAIRPERSON: Yes, if it does not, then the second part kicks in?

ADV PRIOR: Yes, and that is my submission.   Maybe the Committee does not have to maybe go there, which would be my alternative argument, that I don't - my submission is that we are not incorrect, we are not acting unlawfully if we produce as Evidence Leaders, part of the Amnesty Committee, the Section 29 proceedings as envisaged by the Section.   I would submit in any event, there is a far wider interest which is catered for by the Act in respect of the first proposition that having regard to those principles of openness and transparency, this Committee ought to allow it in any event.
	Finally, we are indebted to both legal representatives of the victims and of the applicant, the fifth applicant, both their Heads of Argument are very helpful, however, if I may just briefly refer to paragraph 1 of Mr Dehal's Heads.  With submission, all three points that he makes, being the basis of the objection to the inclusion, I submit are without any real substance.  Subparagraph (a), I submit flies in the face of the clear language of Section 29(5), his argument that Section 29 evidence was never intended to be included in these or any other proceedings, is without any legal or factual foundation.  Paragraph (b), he submits that by agreement at the 29 enquiry on the 21st of April 1996, the evidence is protected.  With respect, there is nothing from the preamble or the prelude to those proceedings.  If one gleans from the record, there was never any agreement struck between the Commission and the fifth applicant to that effect, and with submission, even if that was so, such agreement in the language or in the intention of the Section, would not have been proper, it would have been void.  It would not have been a binding agreement, because the Act does not allow for such an agreement to be struck.   
	And thirdly, subparagraph (c), I submit has been adequately canvassed by Mr Richard on behalf of the victims that privilege does not exist in the sense in which it was argued, and certainly I would also go along with Judge Pillay's reference to privilege if in the broader sense, it has a particular meaning in so far as such evidence would not be allowed to be used in proceedings where there was a penal sanction or the possibility of a penal sanction.  I would submit it would only be appropriate in that limited instance.  Those are my submissions, thank you Mr Chairman.

CHAIRPERSON: Thank you Mr Prior.   Mr Mall, you have no change of mind or anything like that?

HASSAN MALL: I will not be addressing the Commission on this aspect.

CHAIRPERSON: Mr Dehal?

MR DEHAL: Thank you Mr Chairperson.  Mr Chairperson, firstly, briefly to deal with some of the legal aspects Mr Richard raised.  Firstly in regard to what he termed the in limine submission, that this argument is premature.  I have some difficulty with that in that you will recall Mr Chairperson, that when first bundle C came into play, when Mr Richard endeavoured to cross-examine Mr Ismail if I recall correctly, there on, there were objections to it and I outlined at that stage, that I would be objecting to its inclusion in these proceedings.  I think it is you, Mr Chair, who decided that it would be prudent and in my view, correctly so, to have this argument aired out at this stage, before Mr McBride seeks to give evidence.

CHAIRPERSON: Yes, I think Mr Richard just made mention of a point in limine, he didn't really raise it in limine and deal with it as such, but I agree with what you have said.  I think what Mr Richard was getting at when he mentioned it, not in limine rather, but towards the end of his argument was that in the context that when he made the submission that there was no factual basis upon which, which he knows being made by the applicant to justify the contention that the evidence, the document should be excluded.  But it was as you correctly mentioned, raised and put on record that you will be objecting and secondly I think when all the legal representatives met on Thursday, as you said, it was deemed prudent to use this day which would have been a wasted day otherwise, for purposes of this argument.

MR DEHAL: Thank you Mr Chair, I will take that point no further.
	The other legal aspect that Mr Richard raised is that relating to onus.   As I understand it, it would appear as though his view is that I lead and he responds.  As I understood it, I objected to his endeavour to have documents included and indeed to the Evidence Leader's endeavour to have the documents included.  I persist in my objection thereto, as indeed is contained in my Heads, and I submit respectfully that the onus does not rest on me, but on those who seek to rely upon the inclusion of the document.

JUDGE PILLAY: Mr Dehal, to the extent that the onus is relevant, isn't it correct that the Act tends to lean towards accepting that such information and documents are presentable at this hearing, subject to any cogent reasons why it shouldn't?  If that be the case, isn't it then for you or your client, to prove if an onus is necessary, that these documents should not be ruled admissible?  On those cogent reasons, shouldn't they be coming from you?

MR DEHAL: Judge, if the approach is premised on the understanding as you formulate it, I would agree, but my submissions would be in due course that that understanding is also incorrect, that the view ought to be in the reverse and I will deal with Section 29 and Section 31 in that regard.   Again, for fear that the incorrect impression may be created, my contention is that the onus does not rest on us, but on the other side, thank you.   Mr Chairperson, before I even begin ...(intervention)