Amnesty Hearings — Vanderbijlpark — 1999-05-04

CHAIRPERSON: Mr Nosenga?  Is he here?

MR LOWIES: Chairman, if this is an appropriate time? A matter outstanding from yesterday is still the application, what is the situation if I may enquire regarding the application at this stage?

CHAIRPERSON: Yes, very well.   Yes, I've gone through your application, it seems to raise three issues.
	The one is the investigation of Mr Nosenga's application.  	The second one is in the form of a declarator, the issue there being whether or not this Committee is bound by the findings of the Commission.
	The third issue is whether Members of this Committee ought to recuse themselves, right, because of their participation in the preparation of the Report which gave rise to the finding contained in the Truth Commission Report.  Is that right?

MR LOWIES: I would submit, with respect Chairman, yes, with a rider.
	Pertaining to the first two issues I would agree with respect with your summary, however, the last aspect pertaining to the recusal of this Committee, if I may call it like that because it's strictly speaking not so, I would like to make the following observations and submissions.

CHAIRPERSON: ...(inaudible)

MR LOWIES: No, what I would submit there is the application is, at this stage there is a prime facie suspicion of bias which needs to be investigated.

CHAIRPERSON: Yes.

MR LOWIES: Because Chair ...(intervention)

CHAIRPERSON: And that is bias on the part of the Committee?

MR LOWIES: Of the Committee.

CHAIRPERSON: Yes, which arises from what fact?

MR LOWIES: Which arises from inter alia the finding by the TRC relating to the participation of police officers ...(intervention)

CHAIRPERSON: Yes.

MR LOWIES: And White people, which I would submit is crucial to the nature of the application.

CHAIRPERSON: Yes and what is the other fact which gives rise to this perception of bias?

MR LOWIES: The second leg of course is ...(intervention)

CHAIRPERSON: Because if you are correct in that first submission it means that this applicant would not get a fair hearing before any Committee of the TRC and for that reason they can't apply for amnesty if your argument is to be upheld?

MR LOWIES: No Chairman, that is why I said I must qualify the manner in which the last application was paraphrased by yourself in the beginning.  The operative words are prima facie, in other words there's a prime facie view.

CHAIRPERSON: The fact of the matter is that you are relying upon the findings of the Truth Commission's in their Report in regard to the presence of the police which the applicants are denying and you are submitting that because of that finding, prima facie, the matter has been prejudged?  This is simply the issue isn't it?

MR LOWIES: With the rider, Chairman, with respect, that if any Member of this Committee participated in deliberations, in that finding, it means there is annexes stronger than just, it is your parent body.  The annexes is ...(intervention)

CHAIRPERSON: In terms of the Act, I think it's Section 5, I think it is, the Amnesty Committee, whilst the Truth Commission may review the decisions and procedures of other Committees including the Reparations Committee and the Gross Human Rights Violations Committee, it has no power whatsoever over this Committee.  That in itself should be sufficient to indicate the independence of the Committee, apart from the fact that when this Committee has to make it's decision, it has to base it's decision in terms of Section 20, Sub-Section 3 of the Act.

MR LOWIES: Again Chairman, the test to be applied whether of not a Member of the Committee or the Committee itself should recuse itself is not the following and I submit it's important to note that it's not the following because if this is the situation then it is easy to understand the nature of the application.  It is not whether there is bias on the part of this Committee, there is no suggestion at this stage and I don't think there was at any other stage a suggestion that there is bias on the side of this Committee.  As it is not a test and as it is common cause that there is no such suggestion, I now turn to the true legal principles pertaining to bias and that, with respect Chairman, is simply the following.  Would a reasonable litigant in the position of these applicants or a reasonable applicant have reasonable cause to believe as a result of various objective facts that there is bias.  Now let's look at these facts ...(intervention)

CHAIRPERSON: No, no, no.  I'm not - the other parties still have to respond to your application.

MR LOWIES: Yes.

CHAIRPERSON: All I want you to do is to make up your mind whether you want this Committee, whether you're making an application that this Committee recuse itself, or what?

MR LOWIES: Chair, I can respond to that.  In the last part of the ...(intervention)

CHAIRPERSON: Because if that is what you want to do, it may well be that your application must be heard as soon as possible so as to deal with that issue.

MR LOWIES: Chair, page 6, main paragraph on page 6 reads as follows and this answers, with respect, the question put to me
"Please take notice that the above applications are based in the pursuance of justice in that the applicants are dependent thereon to enable them ..."
And this is important:
"...to respond to the TRC findings which implicate them and are detrimental to their applications, thereby exercising the right to the rule of audi alteram partem"
and the second point ...(intervention)

CHAIRPERSON: Mr Lowies ...(intervention)

MR LOWIES: Chair, with respect ...(intervention)

CHAIRPERSON: This is not the occasion to challenge the findings of the Truth and Reconciliation Report.  The issue before us here is whether these applicants are entitled to amnesty in the sense that they meet the criteria.  If you want to challenge the findings of the Commission on the basis that you were not given a fair hearing, in other words there was no compliance with the audi alteram partem rule, this is not the forum to do that, the forum for you to do that is not this one.  The issue here is whether the people that you represent meet the criteria set out in the Act for the granting of the amnesty.  I can understand if the essence of the application is to ensure that you get information in order to deal with the issue of full disclosure which is an issue here which arises from the presence or otherwise of the police during the day of the massacre, but this is not the forum to challenge the Commission Report.  If you want to challenge that Report you've got to go to some - this Committee has no jurisdiction to hear that matter, but what we can do is to hear that evidence surrounding the issues relevant to whether or not there has been full disclosure.  I think that must be clear.  You must be aware that the issue of the Report was challenged in the High Court?