Special Hearings — Mandela United Football Club Hearings — 1997-11-28

CHAIRPERSON: Thank you.  Good morning.  We welcome you to this the fifth day of the sitting of the Truth and Reconciliation Commission.  As I announced last night, we are doing everything we can to try and catch up on our schedule and I believe that we have been acting as expeditiously and responsibly as we can.
 We will not now meet tomorrow, Saturday and Sunday, so you can watch the Rothmans Final and the rugby test with a clear conscience, but we think that responsibly we should budget for Monday, Tuesday and Wednesday of next week.
 I want to say too that today, in order to make it possible for our Muslim friends to attend mosque, we will take lunch between half past twelve and half past one.  Lunch may not arrive at half past twelve, but they are going to try and solve that out.  If it comes at one o'clock, then it comes at one o'clock.
 Messrs Cachalia and Morobe, you are still under oath.

MURPHY MOROBE: (still under oath)

AZHAR CACHALIA: (still under affirmation)

CHAIRPERSON: Mr Semenya?

MR SEMENYA: Thank you Chairperson.  Maybe one can start with Mr Cachalia.  Mr Cachalia, I want us to explore your request or your call for recommendation by the Truth and Reconciliation Commission, that you say that people convicted of crimes involving human rights abuses, ought not to take public office.  Is my understanding correct?

AZHAR CACHALIA: Well, let me qualify that, that in the course of the struggle for democracy in this country, that there were human rights violations that were committed.   Many of those who committed those human rights violations, for example in the course of our armed struggle, did so because they were acting in the best interests of the organisations they represented at the time, and many of those people would have applied for amnesty.
 And those who have applied for amnesty and have been granted their amnesties in relation to acts that have been committed, I think that their past in that sense should be taken account of, but what I am saying is as a general proposition and as a general proposition I was not referring Mr Semenya, to your client, Mrs Mandela particularly.  As a general proposition, I think it is important in this country that those who have committed human rights violations of a serious nature, should not qualify to hold public office.

MR SEMENYA: I am beginning to understand you are amending the call for which their was a standing ovation given to you, there was an ovation that was given to you?

AZHAR CACHALIA: Is that your observation, or do you want me to comment on that?

MR SEMENYA: Is my observation correct?  That after you made this statement there was ... (intervention)

AZHAR CACHALIA: No, I am not amending the recommendation that I am calling for.  I had nothing to do with the hand clap either incidentally.

MR SEMENYA: But you want this recommendation to exclude people who would have applied for amnesty and granted amnesty?

AZHAR CACHALIA: Yes.

MR SEMENYA: It is an amendment of this statement as I read it?

AZHAR CACHALIA: It is not an amendment Mr Semenya.  The issue of whether or not people should be granted, should hold public office or not, as you would know, is a complex debate.  If one has to deal with that, that submission particularly, then I could literally go into volumes to discuss this matter.
 I have dealt with this matter briefly in one paragraph as a proposition to the Commission.  The Commission in its, I would hope that the Commission, in its wisdom is able to take into account not only what I have said, but that there would have been many people who would be making submissions in this regard.  It is a matter that the Commission would take account on.

MR SEMENYA: Yes, that is why I am trying to invite you now as a lawyer and a human rights activist, to help us understand the moment in history that you had.  Is it correct that the creation of the Truth and Reconciliation Commission was discussed at length, the purpose being to avoid as it were, your Nuremberg style, type of prosecutions after a democratic election?

AZHAR CACHALIA: I think that is one of the purposes, it had many other purposes as well.

MR SEMENYA: The other purpose was to attempt to make sure we don't burden our future with for want of a better term, political linking is that correct?

AZHAR CACHALIA: Well, I am not sure that I understand your question.  Perhaps you can be clearer about that?

MR SEMENYA: The question is, it was important for all the players to make sure that our future is not burdened by linking people whose political convictions  were different from ours.   Linking in a political sense, not in a physical sense.  We do not target people for special treatment because they hold political views different from ours?

AZHAR CACHALIA: No, surely that was not the purpose of the Commission.  The Commission didn't have anything to do with the fact that people had robust differences of political views that so if people in the past believed in the theory of racial supremacy, that you know, that the Truth and Reconciliation Commission is not making recommendations that people should change their attitudes.  I really don't understand the question.

MR SEMENYA: Let me make it a little easier and refer you to the postamble to the Constitution of the Republic of South Africa Act 200 of 1993.  Precisely where it refers to the National Unity and Reconciliation.
 And I am reading to you what appears as the third paragraph.  It reads the adoption of this Constitution lays the secure foundation for the people of South Africa to transcend the divisions and strife of the past.
 That was the object of, amongst others, of the adoption of the Constitution, am I correct?

AZHAR CACHALIA: That is correct, yes.

MR SEMENYA: Further down it says in order to advance such reconciliation and reconstruction, amnesty shall be granted in respect of acts and it goes on to this end, Parliament under this Constitution shall adopt a law determining a firm cut off date which shall be it says the date, providing for the mechanisms, criteria and procedures including tribunals if any, through which such amnesty shall be dealt with at any time after the law has been passed.
 So I am reading from this that there was an intention in the Constitution agreed by everybody, that it contemplated a forum through which this reconciliation can be fostered.

AZHAR CACHALIA: Certainly, yes.

MR SEMENYA: And that reconciliation is the one that must transcend the divisions and the strife of the past?  And one looks at the ...

MR VALLY: Keep your microphone on Mr Cachalia.  Sorry, could I just take a brief opportunity Mr Semenya, I don't mean to interrupt you, but the postamble to the Constitution links the issue of reconciliation with the issue of the granting of  amnesty.  I think in its entirety, it specifically refers to the issue of amnesty in connection with the issue of the reconciliation.  So I think with respect, I think that should be recorded in its entirety, that aspect.

MR SEMENYA: Chairperson, I am lost what Mr Vally is saying to me.

MR VALLY: The point I am making sir, is that the aspect that Mr Semenya is quoting from the postamble, is not quoted in its entirety.  The connection between the bridge from the past to the future, to a stage where we reconcile, is specifically linked to the issue of amnesty sir.

MR SEMENYA: I don't know, are you saying the function of this Commission is not to foster reconciliation and provide the mechanism which is a bridge from our strife torn past to a reconciled future?

MR VALLY: I don't mean to interrupt your cross-examination.  All I am saying is the postamble that you are quoting, you are not mentioning that link.  The link between amnesty and reconciliation.