Amnesty Hearings — Ermelo — 1998-07-23

MR BLACK: That is so, and Mr Chairman this is one of the, well this is the only Act that I am aware of that incorporates the concept specifically of "ubuntu".
	Now, moving on from the preamble of the Act, may I deal first with the victims' rights, or as the chairman correctly pointed out, the general flow or general trend of the Act, of what it's trying to achieve, that we know, and how it is about to achieve that, I would respectfully submit is to possibly lean in favour, to a certain extent, on a balanced manner, in favour of the applicants who are, who freely wish to appear before this Committee.
	Just referring to certain aspects of the Act.   If one starts off with the preamble, referring specifically to victims, what does it say about victims there?   It starts off by saying it wishes to determine or deal with the facts or whereabouts of victims of any of the violations and affording victims an opportunity to relate the violations they suffered.
	Then we move on to Section 11 of the Act, that's 11(d):-
"When dealing with the victims, the actions of the Commission..."
and in this, here you can read Committee:-
"...shall be guided by the following principles."
It sets out the various principles, and when (d), as far as little (d) is concerned:-
"Victims shall be informed, through the press and any other medium, of their rights in seeking redress through the Commission, including information of
(i)	the role of the Commission and the scope of its activities;  and
		(ii)	the right of victims to have their views and submissions presented and considered at appropriate stages of the inquiry."
	Then, if we move on to Section 30, which forms part of the chapter in terms of where Commission can be read as Committee, 30 dealing with procedure to be followed at investigations and hearings of Commission, Committees and sub-Committees.   
	We then refer specifically to sub-Section 2, that's Section 30.2, it says:-
"If, during any investigation or at any hearing before the Commission..."
read Committee, little (a) talk about implicated person, and little (c) deals with victims, it appears that any person may be a victim, it goes on:-
"...the Commission..."
Committee:-
"...shall, if such person is available, afford him or her an opportunity to submit representations to the Commission within a specified time with regard to the matter under consideration, or to give evidence at the hearing of the Commission."
	Nowhere in this Act are victims afforded a right of cross-examination, but they are required to come before the Committee, make representations, set out the basis upon which they wish to make the representations, should they wish to oppose any application, the clear grounds and basis of their opposition must be placed.    This is not a court of law and I am pleased that Mr Hattingh has perceived that.
	If, out of the sub-rules and a sense of fairness, the Committee has afforded victims the right to cross-examine, as opposed to the right of being legally represented and making representations, then I wish to refer the Committee again to the provision of Section 34 of the Act relating to representation, and specifically to Section 34.2, where:-
"The Commission..."
where you can read Committee:-
"...may, in order to expedite proceedings, place reasonable limitations with regard to the time allowed in respect of cross-examination of witnesses or any address to the Commission."
	This is one of the issues which was raised.   The other issues have already been dealt with by Mr Hattingh and conceded to by him, about the applicability of the usual technical, evidential and procedural rules which apply to courts, conceding that they do not directly apply here, but that my submission, as I've already said and don't want to repeat, is to achieve the aims and objectives set out in the preamble of this Act, and I may say it's a pity that it's  fairly, it's a shortened version, it was fairly long, but I wish, perhaps I may suggest that at some stage, for the sake of the community, this be read out in full at some stage of these proceedings.
	Now, as far as the victims, before I leave the victims, are concerned, one of the issues raised was whether or not, what's the right of victims simply to come here if, the exact wording was something about the nature and extent of the opposition perhaps, may I put it briefly, of a person who wishes to oppose, to what extent should that be allowed?  My submission is that any opposition and any victim has a right to make representations to this Committee and be legally assisted in making such representations.   Insofar as the extent and nature of any cross-examination is concerned, that I submit is an indulgence granted by the Committee and in order perhaps as to be seen to be fair.

CHAIRPERSON: How can you say that, sorry for the interruption, Mr Black, how can you make that statement in the light of Section 34.2?

MR BLACK: Section 34.2 deals with legal representation, but does not deal with the rights of any victim.   342, with respect, is, you will note, with due respect, Mr Commissioner, is under investigations, it's preface is
"any person questioned by an investigation unit, any person who has been subpoenaed or called upon to appear before the Commission, is entitled to appoint a legal representative."
Then it goes in that - it follows then that this legal representative's rights can be limited.   Now, no victim has been subpoenaed to testify, they have been notified to appear before the Committee, should they so wish to, no-one is obliged to appear before this Committee or to represent its case and ...(intervention).

CHAIRPERSON: But answer the question, Mr Black, if they do choose to appear in this case?   Isn't Mr Sandi's question then appropriate?

MR BLACK: Well, if one reads 34.2
"The Commission may, in order to expedite proceedings, place reasonable limitations with regard to the time allowed in respect of the cross-examination of witnesses or any address to the Commission."

CHAIRPERSON: Precisely, the right to cross-examination has been protected by the Act, albeit limited.

ADV BOSMAN: Only limited in regard to time, Mr ...(intervention).

MR BLACK: My reading of that sub-Section, and I just don't want to dwell on this, because I've got no objections to any cross-examination, it does not confer a right to cross-examine to any person, it says a right is conferred on the Committee to curtail any cross-examination, should such cross-examination be allowed.   So it places a limitation on it, but there's no inherent right, in my submission ...(intervention).

CHAIRPERSON: I know that nothing really turns on this issue, but Mr Black, does the Act say anywhere that the victim has no right to cross-examine applicants?