Amnesty Hearings — Cape Town — UNKNOWN

JUDGE MILLER: You see, Mr Moses, one might also be left with the feeling and one doesn't know that if one takes a look at the affidavit, the deposition, the signature of the deponents and the Commissioner of oaths stand alone on a page of its own, so one doesn't know whether there is anything else from paragraph 59 to 65 or 165, we don't know, because the signatures are on their own page, so we don't even know whether this is a complete affidavit.

ADV J MOSES: That is...I can only confirm that and as I have indicated, the only...(microphone off).  I still have a serious problem with my microphone.  That's better.
	Chairperson, that is why we - I have raised certain preliminary issues for the sake, for the sake of clarity on the part of the Commission as well as for the other interested parties, because my instructions are that we will be using this statement leading up to and including paragraph 59 as the basis of the evidence which will be tendered.
	I cannot really comment and advise the Committee on the status of that statement, that is why I refer with respect to it as a statement, but since it, as I have indicated, it would seem to have been gathered by the investigation unit in the course of their investigations and it pertains information which seemingly would be crucial to the just disposition of these applications.  I would submit that it could serve as the basis of the tendering of Mr Mbane's evidence, what ever the status of that statement might be.
	If your Lordships and members of the Committee are prepared to proceed or let Mr Mbane proceed on that basis, then I would request just to briefly deal with one or two aspects of the preliminary issues which I have raised in the document, which I have just handed to the Committee.

CHAIRPERSON: Do you have anything further to say?

ADV J MOSES: Chairperson, members of the Committee.  If you would allow me just to briefly explain the purpose and the context of these submissions.
	Chairperson as I have indicated previously, I was made to understand that the statement, even if it was in the form as contained in volume 2, was indeed distributed, not only to members of the Committee, but also to members of the other legal representatives.  And the problem and the basis why I was instructed to raise this with the Committee is with specific reference firstly to the fact that Mr Mbane had been subpoenaed to give evidence and secondly, by the specific - or the aspects mentioned in paragraph 28, 29, 30 and 31 and including 32 of that statement, which...

SISI KHAMPEPE: May I interrupt Mr Moses.  Are you referring to the statement as contained in volume 2, or are you referring to the affidavit which you intended to use today?

CHAIRPERSON: There still seems to be something very wrong with the sound system....

ADV J MOSES: If I may proceed Chairperson.
	The gist of the submission my Lords, members of the Committee, is that from those paragraphs which I have referred to, it is clearly, or it is clear that that would constitute evidence or information which might be to the detriment of the witness and as such might incriminate him.  Now it is clear as I understand the provisions of Section 31, my Lord, members of the Committee, that evidence tendered at a Committee in the course of their proceedings could be inadmissible, provided it does not fall within the proviso to sub-section 3 of Section 31.
	The problem of Mr Mbane, my Lords, members of the Committee, is that there was no application for amnesty and there is...the act does not prohibit the Attorney General from indeed instituting prosecution against Mr Mbane and in the context of that...of that possibility, that real possibility, that it is submitted that an order might have to be made by the Committee with regard to the evidence which might be elicited either through examination in chief, or through cross examination.  Because from the statement, whether it be in the form as contained in volume 2, or in the form as it is indicated and reflected in the original document, it is clearly, it is clear from that that those evidence or facts would conforms to what is referred to in Section 31, sub-section 2(c) of the Act, where it is, and it reads thus my Lords and members of the Commission:
"A person referred to in sub-section 1 shall only be compelled to answer a question or to produce an article which may incriminate him or her if the Commission has issued an order to that effect."
And then the objective jurisdictional requirement, as I understand it, my Lords members of the Commission, after the Commission firstly has consulted with the Attorney General who has jurisdiction, and has satisfied itself that to require such information from such a person is reasonable, necessary and justifiable in an open and democratic society based on freedom and equality, and has satisfied itself that such a person has refused or is likely to refuse to answer a question or produce an article on the grounds that such an answer or article might incriminate him or her.
	Now it seems to me with respect, my Lords and members of the Committee, and I might be wrong, that in order for Mr Mbane to invoke only the privilege of his evidence not being admissible against him in criminal proceedings should it follow, an order at least is required to be issued by this Committee.  That in any event, it seems to me and it is submitted with respect, would not preclude the Attorney General to institute criminal proceedings.  It would, however, preclude him or her to use his evidence which would be elicited here and which clearly indicates that it would be of incriminating nature to be used against Mr Mbane, should he be prosecuted.

JUDGE MILLER: Mr Moses, so one of the aspects of which the Commission has to satisfy itself is that the person has refused or is likely to refuse to answer a question.  As we are sitting here now at this stage, can the Committee, can it be said that the Committee has satisfied itself that as of present, your client is unwilling to answer any question that may be put to him now, even if it is incriminating at this stage?

ADV J MOSES: My Lord, it is clear that we will have to invoke that privilege.

JUDGE MILLER: So we can then safely put it up that we have satisfied ourselves in terms of 2(c).

ADV J MOSES: Correctly so my Lord.

CHAIRPERSON: I am afraid I am still a little confused.  There is this statement that has been handed in for some purpose or another.   But how relevant is it?

ADV J MOSES: My Lord, Chairperson, members of the Committee, it seems that the relevance of the complete statement, it would be argued and submitted at a later stage, would include, would run up to only and including paragraph 35, would be submitted that with reference to the original document of the original statement which runs into paragraph up to and including paragraph 59, those would really be irrelevant to the subject matter of these proceedings and should that be canvassed by any of my colleagues, we will certainly have to ask the Committee to make a ruling on the relevancy thereof or otherwise.
	The purpose of my preliminary submission would relate, as I have indicated, to the potential eliciting of incriminating answers from Mr Mbane, with reference to the paragraphs which I have referred to.  Paragraphs 28 up to and including paragraph 32 of the statement, my Lord.

CHAIRPERSON: Do I understand that it's only those paragraphs that you object to?  Paragraphs 28 to 32?

ADV J MOSES: Because there are clear indications that Mr Mbane is incriminated.

SISI KHAMPEPE: Is it not really, Mr Moses, that it is only part of 32 which might actually give rise to such an incriminating situation insofar as Mr Mbane is concerned?

ADV J MOSES: Could Madam just repeat that, I couldn't hear...
(Question repeated)

CHAIRPERSON: There are a number of other paragraphs that implicate him.  So why have you chosen these?