Amnesty Hearings — Durban — 1999-09-29

CHAIRPERSON: Good morning.

ADV PRIOR: Mr Chairman, you will notice that the seating arrangements have changed, it was more convenient for the applicants to sit on your left, that the applicants not testifying were easily or better accommodated behind their counsel.

JUDGE PILLAY: I am happy to hear it was a matter of convenience, I thought you were trying to confuse us.

ADV PRIOR: Thank you Mr Chairman.

CHAIRPERSON: Thank you Mr Prior.

ABOOBAKER ISMAIL: (s.u.o.)

MR RICHARD: Thank you Chairperson.  Where we left off yesterday evening, there were a number of matters outstanding.  The first was the status of a Section 29 record, the other was the issue of statistics as derived from various sources and the third point was the material from what I could say, various archives.   With regard to the statistics, I am waiting for various reports from Pretoria and elsewhere and I will leave that point until I get them.   Archival material, I thank Mr Dehal for making available what he has, unfortunately there are no indexes and keys to the various photographs extant any more, but I will deal with that as best I can as we go, I regret to say I haven't read 21 volumes of the various appeal records overnight.   Then, I then proceed to the status of the Section 29 record.    I believe what can be the starting point is the matter that is common cause, that Volume C is the product of information gained on cross-examination via the provisions and mechanisms provided for in Section 29.  I don't believe I need to address further.   The only factual matter that I may deal with there is I make the comment, but it doesn't prepare that a prepared statement was handed in, unless it is not part of the bundle, but that does not affect the argument.   Once Section 29 governs the matter, reference needs be made to Section 29(5) firstly, which provides to paraphrase that information and matter to put it loosely obtained in such a hearing, shall not be made public until the Commission determines otherwise, or in the absence of such a determination, until the article is produced at a hearing in terms of this Act, and then it proceeds, or at any proceedings in any court.   Section 29(5), this document has been produced, and therefore it has been made public.   The fact that it is correctly in our hands, I believe flows automatically from that Section.  As to what use it can be put to, reference then need be made to Section 31(3).  There, (3) provides that any incriminating answer or information obtained or incriminating evidence directly or indirectly derived from a questioning in terms of (1, shall not be and now I stress, admissible as evidence, against the person concerned in any criminal proceedings in a court of law, or before anybody or institution established under any law.   The operative concepts underlying that section are firstly, shall not be admissible as evidence for what purpose I add, against the person.  Now, in these hearings, what use Exhibit C is being put to, is I am not seeking to admit it as evidence, I am seeking to use it as cross-examination.  Clearly Section 31(3) has no application, it certainly does not bar me from using it for the purposes of cross-examination.   If it was the intention to prohibit that use of the record, which is now a public document, it was incumbent on the legislature so to say, the Section is completely silent and therefore it can only be assumed that if that were intended to be prohibited, as it doesn't say so, it is perfectly admissible.  Then the next leg, is the argument regarding privilege.  Now, my submission is that no privilege at all attaches to the documents and in that sense, it is certainly not privileged in the law of evidence sense.  What (4) of Section 31 states is that the law of privilege is and the attendant writes associated with the concept available to a witness giving evidence before an inquiry in terms of the Section.   In other words, if information has been imparted in a privileged circumstance such as communication between a legal advisor and the witness, that communication would be privileged and as is per the law of privilege, a right which the witness can claim if so wished during the course of the questioning.   If one looks at the language of the Section, I will read
"... subject to the provisions of this Section, the law regarding privilege, as applicable to a witness summoned to give evidence in a criminal case in a court of law, shall apply in relation to the questioning of a person in terms of (1)."
	No reference again is made to the results of the questioning and for that subsection to be interpreted to mean that the evidence given is privileged in any way whatsoever, I cannot see any device whereby the meaning, the plain meaning of that section could be contorted to have that import, so my argument this morning is that the point of privilege is completely relevant.   To sum up, I can find nothing in the various Sections which prohibits me from using this Section 29 inquiries for the purposes of cross-examination.  The content of the Section 29 may or may not be admissible as evidence, but that doesn't affect my rights to cross-examination, to use it as a subject matter on which to cross-examine.  The two are completely  separate and distinct concepts.   My request and my application is that I be permitted to proceed as and when appropriate to use the document for the purposes of cross-examination, thank you Chairperson.  Thank you Committee.

CHAIRPERSON: Thank you Mr Richard.  Mr Berger, do you wish to have any response to that?

MR BERGER: Just a very brief response, Chairperson.   My learned friend argues that the documents are now public simple because the Evidence Leader has placed the document before him.   Chairperson, I submit that that begs the question - the documents are only public I would submit when this Committee rules that they can be used, until such time, the documents are not public and cannot be used.   The second point my learned friend argues that Section 31(3) provides that - well, it only prohibits incriminating evidence being elicited from a witness.   My learned friend says that he does not intend to use the answers as evidence, he does not intend to illicit incriminating evidence, if that is so, then for what purpose does he intend to use the answers?  It can only be for evidence and if that evidence is incriminating against the person who made the statement, in this case it would be Mr McBride, I am not suggesting that the answers are incriminating, but as a legal principle, my learned friend's submissions cannot be correct.

JUDGE PILLAY: Could he use it to attack the credibility of the witness?

MR BERGER: Well Judge, it may arguing in abstract, it may tend to incriminate the witness if the witness' credibility is attacked in such a way that it tends to incriminate the witness, then the evidence is being used for that purpose.

JUDGE PILLAY: ... intended to be used to attack the credibility of the witness merely to be able to argue at the end of the day that this witness should not be believed, is that possible?

MR BERGER: Chairperson, or Judge, isn't that just another way of incriminating the witness?

JUDGE PILLAY: To my mind, it does not follow that incriminating evidence would come out or be produced because the credibility of a particular witness is attacked.   It may very well turn out to be like that, but it is not in my view necessarily so.  I am just asking the question, I don't know the answer, I haven't thought of it yet.

MR BERGER: Judge, the strange thing in amnesty hearings is that all the evidence is incriminating evidence.

CHAIRPERSON: I was just going to say, this is - in order to comply with the criteria of full disclosure, most of the evidence we hear in most of the hearings, is incriminating - the applicants come willingly and give evidence, which incriminate themselves.