Amnesty Hearings — East London — 1999-04-21

MR JANSEN: Thank you Mr Chairman and Honourable Members.  Mr Chairman, I took the liberty to hand up some authorities that I will be referring to, I am in the position that my applicant is in a slightly different position than the others.  I must obviously first convince you of the fact that he has in fact done something wrong and that he therefore in theory qualifies for amnesty.  I just quickly want to tell you what these authorities are.
	The first one is the well known criminal law text book, a excerpt from the Snyman text book on Accessory After The Fact, the second little bundle or second bits of pages you have there, is the same issue, Accessory After The Fact from the Burchell & Hunt edition.  The third one is also the Burchell & Hunt edition on the General Principles of Criminal Law, relating to Conspiracy and then in the last sort of photostatted authorities here, are two cases, the first page is S v Jonathan, just a short page from that, two pages from that judgement, and then from the second page of that, if I can call it bundle, is the case of S v Gaba and I will be referring to that.  At the very last page, is just in my own handwriting, more or less what I believe the wording of the order which is sought, or assistance in how the order for amnesty should be given.
	Mr Chairman, it is obvious that applicant Ras was not, did not partake and did not assist in the coup.  The question then remains or should be asked obviously whether he has committed any offence.  Now, it is in a certain sense the central question to this entire Act, the Promotion of National Unity and Reconciliation Act, I will just refer to it as the TRC Act, I think we are all  well aware of the fact that any notion that it could be so interpreted that the word Act means something very vague and indistinct, as going so far as something which may in the eyes of some people, create moral responsibility, is not catered for by this Act, that is clear from the judgements in various other matters including the top structures of the ANC and the Steve Biko judgement.
	Mr Chairman, therefore applicant Ras must satisfy you that he has committed an act, omission or an offence with enough detail to I would submit, enable somebody to draft a charge sheet or a pleading and maybe not with that precise particularity which is required of a charge sheet, or a pleading, but certainly enough to identify a specific incident, so that if somebody should later charge him of an offence, he can say but I have been granted amnesty along the reasoning and lines of the plea of autrefois acquit.
	Mr Chairman, the first point that I want to bring home is that it is important not to forget that we are not only dealing with criminal liability in terms of this act, we are also dealing with civil liability.  I think it is often sort of forgotten because it is, generally we are dealing with acts of a criminal nature.  But because civil liability is easier established, both as a matter of substantive law and as a matter of evidential law, there is obviously cases where people can be guilty of a delict or have committed a delict, but not necessarily a crime or it maybe arguable whether he has committed a crime or not.
	I submit that in the case of Ras, it is clear that he is an accessory after the fact, to all those offences which were committed in the course of the so-called Duli coup, which are really murder and then the general offences relating to explosives and ammunition.  The reason why I submit that that is so Mr Chairman, is found in these authorities which relate to the law of accessory after the fact.  Mr Chairman, I should maybe start off with that short except from the case of S v Jonathan which is at the bottom of that pile.  You will note that the Appellate Division there refers at the bottom of that page, I think it is 644, at the bottom of that page, (I) and (J), the Appellate Division refers to the two main not distinctions, but schools of thought in respect of accessory after the fact.  Those two schools of thought are in fact represented by one the one hand Snyman and on the other hand, Burchell & Hunt.  Unfortunately the copies that I made of these two authors are very old editions, those were the best I could find in town.  That situation is still the same as far as I know, in our law.  There are those that say to be an accessory, you must come very close to being a partaker in the offence, and it must be, because it is so akin to the offence of obstructing justice, there must be some positive act and some participation almost.   In that specific, under that (ii) it is said as follows -
"... it exists in assistance to a deed or accomplishing after a crime."
	The other school casts the net a lot wider, Burchell & Hunt approach, which says that no, if tracing the history of the offence and the whole principle of the moral blameworthiness underlying, it is something a lot wider and it is summed up by the Appellate Division there as under that (i) -
"... it exists in reconciliation with the crime (association) ..."
	So a lot less is required to be an accessory in terms of that.  The Appellate Division hasn't answered that question yet as far as I know, but I submit that in the present context, Mr Chairman, if you have to err, if there is legal uncertainty and you have to err, you have to err on the side of what I may call a plus petitio, in other words giving somebody slightly more than he may possibly be entitled to, for instance if the question relates to a more serious or a less serious offence which are competent verdicts, for instance whether it is murder of culp, and there is some uncertainty, you should rather give amnesty for the murder than for the culp, because it could be relevant later on.
	Now, Mr Chairman, it is in that respect where the next case, the Gaba case is relevant.  The Gaba case deals with obstructing and defeating the ends of justice.  I respectfully submit that whatever is said there, should or is probably also true of being an accessory, in other words that in cases where there is a legal duty to do something positive or to act positively, an omission to do something will constitute the offence.  There can be no doubt that there is a growing consensus in our law which especially on Policemen, places such a duty, to stop crime, to apprehend criminals and to report crime.

ADV SANDI: Yes, but sorry Mr Jansen, in the case of a Police Officer, are we not dealing with a statutory duty in terms of the Police Act?