Amnesty Hearings — Vanderbijlpark — 1999-05-12

MR LOWIES: Thank you, Chairman.  Chairman, pertaining to the documentation handed over to us and pertaining to prayers 1 and 4, I must first of all place on record the following and express my gratitude towards the TRC, specifically towards Mr Kjellberg and Mr Mapoma for the information supplied to us, and in his absence also, Mr Prior.
	It seems, Chairman, pertaining to those two prayers, that the channels of communication is open.  We're not happy with everything that we've received and we will no doubt in the process have communications between the parties, but the channels are so open that I don't think at this stage it warrants an intervention by the Committee and therefore I would say, Chairman, that prayers 1 and 4 should actually fall away because we are in a process and the channels are open regarding that.  That is the purpose of what I'm saying to you now with respect, and that is I don't think that it merits any, it's of academic value, it merits any further aspect.
	Regarding the declarator which is the 3rd prayer, Chairman, I have to ...(intervention)

CHAIRPERSON: Mr Lowies, those channels have always been open.

MR LOWIES: I was unaware of it, but it seems like it has been, Sir.

CHAIRPERSON: You can only blame Mr Strydom and Adv Pretorius for not telling you that the channels are open.

MR LOWIES: I don't think they will accept liability, but I will do so, Chair.
	Chair, then regarding the 3rd, may I just as an introduction, say the following - and it had been mentioned in the past before, if one has ...(intervention)

CHAIRPERSON: ...(indistinct)

MR LOWIES: Prayer 3.  If one has a look at the annexure to the Notice of Application and the findings by the TRC, there are basically three paragraphs in the annexure which is a concern to the applicants.  And those are ...(intervention)

CHAIRPERSON: Would you direct my attention please?

MR LOWIES: Thank you, Chairman.

CHAIRPERSON: Where does that occur?

MR LOWIES: It's the fourth - my mistake, after page 7, there is an annexure to the Notice of Application.

CHAIRPERSON: I hope I don't have to repeat, that people will cellphones, would they please switch them off.
	Is that the ...?

MR LOWIES: The annexure to the Notice of Motion.

CHAIRPERSON: Findings by the TRC?

MR LOWIES: That's correct, Chairman.

CHAIRPERSON: Yes, very well.

MR LOWIES: The second paragraph, Chairman, is of relevance here
"The Commission finds that KwaMadala Hostel residents, together with the police, planned and carried out an attack on the community of Boipatong and the surrounding informal settlement, Slovo Park, on 17 June 1972 ..."
It should read 1992, of course, because the TRC was not in existence in '72.
Secondly, in other words the 3rd paragraph:
"The Commission finds that the police colluded with the attackers and dropped them off at Slovo Park."
And then the 5th paragraph, Chairman:
"The Commission finds that the police were responsible for destroying crucial evidence, in that they erased the tapes of the transactions in the control room of the ISU."
And then the 7th paragraph, Chairman:
"The Commission finds that the SAP colluded with the KwaMadala residents in planning the attacks.
			The Commission finds further that they obstructed the ends of justice by tampering with the evidence relating to the matter.  
			The Commission finds further that two of the suspects died whilst in custody of the police."
	Now Chairman, as a result of these findings which were published, and as a result of the documentation attached to the affidavit of Fredrech and Malan, my clients were concerned - and this is the purpose of this application, that the matter may have been, or may be prejudged.  And please, Chairman, there is no accusation that it is.  There is a concern that it may be as a result of the fact that this Committee sits as an extension of the TRC, the Commission.  The argument is, in a lay person's mind, the following, but it's one and the same.  Now to canvass this further I would submit the following is relevant, and that is why I would submit there is a need for this, yes, I must concede immediately, Chairman, that there is no way that the TRC can review a decision regarding amnesty by this Committee.  And that is trite law because it is inaccurate as such, in the Act.
	However, Chairman, when one deals with - and you will remember I handed up summaries of three cases, for instance the BTR matter and the MONING matter and so forth, when one deals with a likelihood of bias or a perception, very important I submit, only a perception, then one has - sorry?

CHAIRPERSON: Yes, okay.

MR LOWIES: ... when one deals with an aspect such as that, Chairman, the point that I would like to make is, the test is whether a lay person, a lay litigant in the position of an applicant for instance, if we bring it closer to this matter, would have a perception that there may be bias.  It goes no further than that.
	Now Chairman, my submission in regard to the declarator, or the alternative prayer, which I will discuss, elaborate on just a little bit later, is the following on behalf of the applicants, ...(intervention)

CHAIRPERSON: Well just before you go on, let me just make sure that I understand the basis of the applications.  Put simply it amounts to the following:  The Truth and Reconciliation Commission has issued a report in which it has inter alia made the findings which appear in the annexure to the Notice of Motion.

MR LOWIES: That is correct.

CHAIRPERSON: The essence of these findings is that the police colluded with KwaMadala residents to attack Boipatong.

MR LOWIES: That is correct, Chairman.

CHAIRPERSON: That is an issue which is hotly disputed.  The Amnesty Committee is an arm of the Truth and Reconciliation Commission.

MR LOWIES: That is correct, Chairman.

CHAIRPERSON: Therefore, it appears as if the issue of whether the police were involved, has already been decided by the Commission and by implication the Committee.

MR LOWIES: That is correct, Chairman.

CHAIRPERSON: Okay.  Therefore, the Committee - well, therefore there is a fear amongst the applicants that they may not be judged impartially, consistent with the Constitution.

MR LOWIES: Correct, Chairman.

CHAIRPERSON: But if the - that's what it is okay.  Well if one accepts the proposition, isn't it, is the result not therefore that the applicant would not under any circumstance apply for amnesty, because whatever Committee, albeit a different one, would still remain part of the Commission and by implication would have made those findings and therefore there is no Committee which would be perceived as being impartial and therefore the applicants are not able to approach the Commission for amnesty?