Amnesty Hearings — Durban — 1999-09-29

MR DEHAL: Thank you Mr Chairperson.  Mr Chairperson, as I understood the argument yesterday, the inquiry appeared to fall outside the purview of what is today being discussed. Yesterday my learned colleague, the Evidence Leader, premised his argument on the basis that Mr McBride referred to his 29 proceedings in his application for amnesty, and that is the reason why he caused those copies of the evidence to be included in the bundle before us.  Now I think he is acting in good faith, I see reason for him to have acted so, I have no argument against him, but wrongly, he has acted wrongly.  Surely, not in bad faith.   In so far as Mr Richard is concerned, I understood his argument as being premised on privilege and so he went about Hoffman and privilege and the document falling in his lap and hence the privilege waived.   I see today that the argument deals principally with the Act and the legal submissions, I will deal with them all briefly.  I think it would be important to deal with yesterday's submissions for the inquiry I submit respectfully, is  wider.   My submissions are that one must have regard to the application for amnesty by Mr McBride and the reference therein to the, albeit ambiguous terminology relative to the evidence in the 29 hearings.  May I take you Mr Chairperson and Honourable Members to page 103 of bundle A1 and ending at page 112, that is the application for amnesty by Mr McBride, page 103 onwards.  Mr Chairperson, you will notice that this firstly is an application for amnesty by Mr McBride himself, this is an application formulated not on the roneod form, but on a form that has been captured onto Mr Currin's computers, to keep the roneo'd format the same, but to fill in details.  What is important is not that, but this.  Mr Chairperson, you would look at page 104 and paragraph 9(a) which deals with the acts itself.  In dealing with the acts and various counts for which amnesty is being sought, no reference is made to any aspect relative to the 29 proceedings.  He refers to it only under paragraph (b) on page 106, but of course it is referred to on the following page, page 107.  It is important to understand this document and the reference to the 29's aspects, not the proceedings but aspects, within that context.   9(b) deals not with the acts, but purely with the injuries and deaths resulting from the above.  (i), (ii) on page 106 and on page 107 (iii).  (iii) Mr Chairperson and Honourable Members, deal with the following - principally the car bomb operation at Why Not bar and in particular confined to a list of the persons who were injured or killed as a result of that operation.  Now to obviate the need to type out a list of those names or injured and deceased persons, Mr McBride seeks to refer in the first place to the trial record and charge sheet and then to the application and look at those words specifically, he says in parenthesis "further details are contained in the application handed in to the Commission in Durban at Section 29 hearing", he does not say look at my evidence.

CHAIRPERSON: I wanted to ask you about that Mr Dehal, what is that application that was handed in?

MR DEHAL: Thank you Mr Chairperson.

CHAIRPERSON: I might say I haven't read the Section 29 hearings personally yet.

MR DEHAL: I am indebted to hear that, thank you.  Mr Chairperson, it would appear or sorry, I am instructed that firstly the application referred to does not refer to the evidence under the 29 hearings for many reasons, not least the fact that this application was one formulated and two, handed in prior to the evidence being recorded.

CHAIRPERSON: That application, it says here "further details are contained in the application handed in to the Commission in Durban", what was the application handed in to the Commission in Durban at the Section 29 hearing?

MR DEHAL: Mr Chairperson, my instructions are that those relates to three aspects.  One, the affidavit of Mr Ismail which was handed in before the 29 hearing, which is contained on page 76 to page 77 in this matter.

CHAIRPERSON: Sorry, was that then handed in by Mr Currin on your client's behalf at the Section 29 hearing to the Panel that may have been presiding there?

MR DEHAL: Correct Mr Chairperson, and indeed it also included an application for amnesty by Mr Aboobaker Ismail, which in itself referred to the names of the persons who were injured and killed in the car bomb, and hence to obviate the need to reiterate those by pure reference, for purposes of inclusion of the names, sorry of the names of the injured and deceased, purely confined to that inquiry alone and that list alone, was this reference made.  More importantly Mr Chairperson, it refers also to during the 29 proceedings, there were certain subpoenas served on my client, Mr McBride and also on Ms Apelgren, both of whom presented themselves at the 29 hearings and certain documents that were dealt with during the 29 hearings, which were looked at before the hearings began and which dealt with the list of names alone.  Support for that submission can be found in a correct logistic reading of this application for amnesty and as earlier submitted, the acts are dealt with earlier in paragraphs (a).  There is no reference under that Act to the evidence under the 29 proceedings, and surely if one had regard to the 29 proceedings and the evidence, it would be prudent, advisable, astute, correct to refer to those submissions and evidence under 9(a) and not under 9(b), which simply requires a detailed recording of the names of the persons injured.  Just one further submission Mr Chairperson, in that regard quickly, the 29 - sorry the evidence heard under Section 29, does not in any way record a list of the names of the injured and deceased persons at the Why Not. If it does not contain that list, nowhere in the evidence of the 29 proceedings, is there a list of the names of those injured and deceased persons.  It cannot conceivably be argued that the evidence was intended to be included as a result of the, albeit ambiguous (indistinct) under (9)(b)(iii).

CHAIRPERSON: Mr Dehal did your clients make application for amnesty subsequent to the Section 29 hearing?  One would think so, otherwise this wouldn't have been mentioned, the Section 29 hearing wouldn't be mentioned in the application?

MR DEHAL: That is principally my argument Mr Chairperson.

CHAIRPERSON: ... this application, is it, my one on page 112 does not have a date on it.  But it is clearly after the - received on the 10th of April, yes, that is the only indication of a date, it was received on the 10th of April.  When were those Section 29 hearings?

MR DEHAL: Mr Chairperson, I was not present there, but I ...

ADV PRIOR: 21st.

MR DEHAL: 21st?

ADV PRIOR: Yes, the Section 29 has occurred after this, but there was a reference to the Section 29 before they were ...

CHAIRPERSON: Okay, so it was much at the same, within a couple of weeks of each other, that this was received and the hearing was held?

ADV PRIOR: Yes, two weeks, yes.

MR DEHAL: Mr Chairperson, I submit respectfully that your inquiry homes in on my submissions and the finding I would ask this Committee to make, namely that this application was drawn up, finalised, handed in, received prior to the hearings of the 29.  And therein lies support for the submission that it could never have been intended by Mr Currin who formulated this application, assisting Mr McBride, or by Mr McBride, that the evidence heard in the 29 proceedings were intended to be included, because that evidence was not even heard by then.

CHAIRPERSON: Yes, and Mr Dehal, what is the attitude of you and your client with regard to the Section 29 evidence?  When I say that, I mean in respect of these hearings?  Do you have objection to them being used or what?