Amnesty Hearings — Durban — 1999-09-29

CHAIRPERSON: Sorry, just let me ask a question, we know that those Section 29 hearings have been distributed, right, the documents, bundle C, like it or not, they have been distributed.  I don't know how far that distributions have gone.  Now, let's take a hypothetical case, if the document is not allowed and then evidence is led at this hearing, which is completely contradictory to what was said in the Section 29, and then we make a decision on the evidence made here, and then it later transpires because of this distribution, we don't know how far it has gone, that our decision is based on evidence that is not very strong, because it wasn't what was said before, it is not the same as what was said before, isn't it just the fact that it is open now, and  that we have to go with it, whether we like it or not in the circumstances?  I am just asking?

MR DEHAL: Mr Chairperson, the fact that they have been distributed, is not something of Mr McBride's making, as we all know, I think that is common cause.   Perhaps it would be wise at this stage to say that Exhibit C includes the 29 evidence of Mr McBride and Ms Apelgren and it has indeed been agreed between Mr Richard, Mr Prior and myself that Ms Apelgren's evidence will not be included in Exhibit C, it would be expunged from the record and would not be used, nor referred to.  The only premise on which they sought to have McBride's evidence included in the record is because of that ambiguous terminology in the application for amnesty by Mr McBride.  I think that is where the enquiry in terms of logistics begins and ends.  In terms of the legal argument, I agree with you fully Mr Chairperson, except that I have not prepared argument in that regard.  I think that inquiry legally is a very  important one, and perhaps ought to be properly addressed, researched and argued.  I for one would like to argue it after having properly researched the question.   Mr Chairperson, that brings me purely to privilege.  I don't concede that Mr McBride has waived his right to privilege.  He is not the one that handed over the document.  I think the question about privilege is not a simplistic one, it is not as simplistic as Mr Richard has you believe.   As I have already submitted, Mr Prior has erroneously caused the document to be included.  I have now explained fully the dates on which it was received, bear me out, I mean the date on which the application for amnesty was received, bear me out, and hence the privilege was not, sorry the handing over of the document was not the making of Mr McBride, that privilege is not waived by him.  I have submitted that the Act itself protects Mr McBride, the 29 proceedings were held in camera and I refer you Mr Chairperson, to page 1, of course purely for the legal argument, without causing it to be included in the record, to page 1 and page 2 of the evidence of Mr McBride in the 29 proceedings, two paragraphs in particular, on page 1, from lines 15 onwards where Mr McBride affirms and states and then the Chairman says "this is an inquiry in terms of Section 29 of the Promotion of National Unity and Reconciliation Act of 1995.  This is not a hearing of the Truth Commission, but it is an investigative inquiry and as such in terms of the Act, is held in camera.  I want to stress that absolutely no finding will be made at this hearing, that is not the purpose of the hearing.  I will briefly outline the obligations and duties ..." and then he deals with Mr Brian Currin, the Attorney-General's  inquiry, Mr McNally, and then on page 2, from lines 7 onwards on the second paragraph, the honourable Chairman says the following - "the Act also provides that any incriminating evidence obtained at such an inquiry, is not admissible against you in a court of law, or any other institution that is established by law."  The one proviso to this, and that is that any evidence obtained at this hearing, may be used against you where and if you are charged with perjury arising out of the making of conflicting statements.  Honourable Chairperson and Members, I submit respectfully that Mr McBride and indeed Mr Currin who went into these 29 proceedings, did so fully understanding that to be the beginning and the end of the protection afforded them if they were to testify.  Perhaps if this was not the understanding, they would not have so testified.

JUDGE PILLAY: Are you submitting, and it is not what you conceded a little while ago, that that protection extends to this hearing as well?

MR DEHAL: Judge, I have submitted that 29(5) allows this Committee to cause it to be included.   My only difficulty is and I am saying a further inquiry is, you must have regard with respect, to the framework of mind, the understanding of spirit, the understanding in law, of the lawyers and indeed the applicants who have submitted themselves to the 29 proceedings.

JUDGE PILLAY: ... deal with this situation if there is reasonable cause to think that any applicant is - has testified in the Section 29 investigation and given a particular version of an incident, and it is contrary or contradicts the version where he applies for amnesty in respect of the same incident.  Where does that put this Committee?  Especially if we bear in mind that we are bound, duty bound to find out the full truth?

MR DEHAL: With respect Judge, I agree with the general consensus approach of this type of hearing and the need for full disclosure, etc, but that thinking and inquiry with respect, is premised on the acceptance firstly that there would be contradictions and secondly that the contradiction favours the finding against credibility pursuant to such contradictions at this forum.  It may well be that that inquiry is in the reverse, that if there be such a contradiction ...

JUDGE PILLAY: Then we understand each other.  So, how do we establish a check and balance system when we consider the amnesty application if we are saying that this Committee is not entitled to have regard for the evidence produced in the Section 29 investigation.  If we say that that is privileged, and we cannot look at it, how do we cross-check it assuming there is a need ...

MR DEHAL: Judge, I concede that those are difficulties.  I will not stand here and argue nonsensically against those, but I am submitting as I did earlier, that that question is one of law, has not as you have rightly conceded or as the Honourable Chairperson has rightly conceded, been addressed, not found on.  I think it is an inquiry that I should not cursorily address you on.  If I am afforded the opportunity to research it, I may probably make other submissions perhaps against myself, perhaps in favour, but I think at this level, Judge Pillay's inquiry causes this point to stop right here, that ...

CHAIRPERSON: At this stage of the hearing you are saying, with regard to Mr Ismail's application?

MR DEHAL: Indeed so, indeed so.  Primarily because one, it is not evidence and two, it cannot be said that it can be used in cross-examination against Mr Ismail.  I support that argument.  Thank you.

JUDGE PILLAY: I must just clear something, I didn't argue it, I suggested it.

MR DEHAL: My apologies.

CHAIRPERSON: Ms Kooverjee, do you have any submissions that you would like to make?

MS KOOVERJEE: None, Mr Chairperson.

CHAIRPERSON: Mr Prior?