Amnesty Hearings — Durban — 1999-10-04

CHAIRPERSON: Yes.   You see, and also this question of perjury, look, it is always there, etc, but you know, I personally and I am sure my colleagues here have been involved in many, many hearings, many hearings, where we have the trial record and the applicant comes to the Amnesty Committee and says "I did it, this is what I did", etc, he explains his role, etc.  When you take a look at the trial record, and it says "I was not there, I deny it, I don't know anything about it."  Why did you say that in your trial "well, I didn't want to get convicted."  It is very common and I have yet to hear of a perjury charge being laid against anybody that has been used against him, because the whole spirit is to - you know, if that was the problem, if he knew I am applying for amnesty, I am going to get amnesty, but I am going to go to jail for perjury, it just wouldn't work.

MR DEHAL: Yes.

CHAIRPERSON: So the perjury element is there, because it is on the books, but from a practical point of view, I must say I have never heard of it being implemented and it must, I don't see it as a huge threat.

MR DEHAL: I am glad to hear that from you Mr Chairperson, I was just very concerned about Mr Richard talking about the various versions and the contradictions therein.

CHAIRPERSON: Yes, but it is there, it is there in law, and what I am saying, I am taking more of a robust approach, practical approach, but I mean it is just a fact.

MR DEHAL: I agree, that ought to be the spirit of these hearings.  Mr Chairperson, the other submissions that I wish to make, relate to Section 29 and to the full disclosure aspects, referred to by my learned colleagues.  My submission is that both my learned colleagues referred to full disclosure and that in the spirit of full disclosure, the evidence in the Section 29 hearings, ought to be included.   I submit respectfully that the enquiry is wider than that, and the enquiry relative to full disclosure is premature at this stage, that indeed Mr McBride does intend to testify in these matters.  Perhaps once he has testified, the submissions, the enquiry, the question as to full disclosure will then be appropriate.
	At this stage the criticism relative to full disclosure, premised purely on the argument on the Section 29 evidence, is in my respectful submission, inappropriate.  For that reason the reference to the case of Azapo v The President, is in my respectful submission, irrelevant.  That case does correctly set out the necessary principles in law and generally on the spirit of this Promotion of National Unity and Reconciliation, the need for full disclosure, I agree with all of that, but again I submit, that enquiry becomes appropriate at the end, when Mr McBride has testified, not at this stage.  
	As regards Section 29(5), Mr Chairperson, I am not absolutely certain of this, but in my discussion with senior legal personnel, dealing with (5) and the reliance now sought to be placed there on for the purposes of including this evidence, it seems to me clear that Section 29(5) by the very nature of the fact that it is (5) to Section 29, falls squarely within the purview of Section 29 which is Section 29 that deals with an enquiry on these proceedings, and it is Section 29 that caused bundle C to come about and that (5) perhaps is irrelevant for the purposes of the present enquiry and the term Commission in (5), refers to the Commission that heard the evidence in the enquiry and not the Commission presently dealing with this.

JUDGE PILLAY: You see Mr Dehal, I fail at this stage to appreciate the importance of the contents of those documents, or the document.   The issue that this Committee must decide is a question of principle, whether a record of what was testified to in the Section 29 investigation, is admissible or can be used in this hearing.   That is the crux of the enquiry at this stage.
	My understanding is that this whole process is run under the Act which establishes the Truth and Reconciliation Commission.   There are sub-Committees of that Commission established, one for investigations in terms of which Section 29 in question, was held.  Another Committee is this Committee, the Amnesty Committee.  So really we have two in-house Committees and the record of the evidence given before one of the Committees, and here we are discussing whether that record given before a sister Committee can be used in front of this Committee.  Really, is it not so that we can take cognisance of what was said in front of another Committee under the umbrella of a Commission?  Unless you have cogent reasons why we shouldn't.

MR DEHAL: I agree totally with what you have said Judge Pillay, my only difficulty is that (5) under Section 29, to the extent that argument has been adduced to seek reliance there on for the purposes of inclusion of the evidence, in my respectful submission, falls outside the purview of this enquiry, because (5) is (5) to Section 29, but broadly speaking, I think even morally the submission is right that this Committee, the Amnesty Committee ought to have regard to any aspect before the Inquiry Committee, yes.
	And that brings me to the penultimate aspect, and that is Section 31.  Section 31 in my respectful submission is more apt, more appropriate, more on point on this enquiry, on this enquiry, as opposed to Section 29(5).   To that extent and as included in the Heads, I respectfully submit that 31(2) is appropriate and ought to be relied upon.  31(3) in my respectful submission is to be read differently from what you Mr Chairperson, thought the difficulty related to and I would read it as follows when one deals with criminal proceedings.   Indeed it is correct that criminal proceedings cannot be heard, apart from a court of law, and certainly not by a body or institution, so in line 4 ...

CHAIRPERSON: Unless a court martial, because a court martial is not a court of law, but they certainly can hear matters of a criminal nature, and they can impose fairly extensive punishments, as well.

MR DEHAL: Correct.   Mr Chairperson, if I were to read it and add in the necessary words to give it the meaning I understand, I would read it as follows
"... shall not be admissible as evidence against the person concerned, in criminal proceedings in a court of law, or before any body or institution established by or under any law."
	  If criminal proceedings were intended I submit, in regard to any of the other bodies, it probably would have read like this -
"... shall not be admissible as evidence against the person concerned in criminal proceedings in a court of law or criminal proceedings before any body or criminal proceedings before any institution established ..."