Special Hearings — Mandela United Football Club Hearings — 1997-11-28

MR SEMENYA: Maybe if I can just read the entire postamble, my learned colleague would be satisfied.  The postamble, Mr Cachalia, reads that the Constitution provides a historic bridge between the past of a deeply divided society characterised by strife, conflict, untold suffering and injustice, and a future founded on the recognition of human rights, democracy and peaceful co-existence and development opportunities for all South Africans, irrespective of colour, race, class, belief or sex.
 The pursuit of national unity, the well-being of all South African citizens and peace require reconciliation between the people of South Africa and the reconstruction of society.  The adoption of this Constitution lays the secure foundation for the people of South Africa to transcend the divisions and strife of the past, who has generated gross violations of human rights, the transgression of humanitarian principle in violent conflicts and a legacy of hatred, fear, guilt and revenge.
 This can now be addressed on the basis that there is a need for understanding, but not for vengeance.  A need for reparation, but not for retaliation.  A need for ubuntu but not for victimisation.  In order to advance such reconciliation and reconstruction, amnesty shall be granted in respect of acts, omissions and offences associated with political objectives and committed in the course of the conflicts of the past.
 To this end, Parliament under this Constitution, shall adopt a law determining a firm cut off date, which shall be a date after 8 October 1990 and before 6 December 1993.  Of course, there were amendments to this and provided for the mechanisms, criteria and procedures, including tribunals if any, through which such amnesty shall be dealt with at any time after the law has been passed.
 Would you accept I have read the postamble the way it stands, Mr Cachalia?

AZHAR CACHALIA: I can't accept it, because I don't have it in front of me, but I accept that you have read it.
 I take at face value what you say, I mean you can't expect me to make admissions of things I don't have in front of me, but I accept absolutely your bona fides.

CHAIRPERSON: I will confirm that in fact it is so.

AZHAR CACHALIA: Then I am obliged to accept that as accurate.

MR SEMENYA: And then throughout the process, Mr Cachalia, I wish to read to you the preamble of the current Constitution and I won't read it all unless I am persuaded to do that.
 But one of the lines of the preamble says we the people of South Africa, recognise the injustices of the past, honour those who suffered for justice and freedom in our land, and it goes on that way.  You would accept that that is where we are coming from?

AZHAR CACHALIA: Absolutely.

MR SEMENYA: And to this end, we have in our Constitution the fundamental rights?

AZHAR CACHALIA: Yes.

MR SEMENYA: And as a human rights activist, you would attach, I believe, a very great weight to the fundamental rights enshrined in the  Constitution?

AZHAR CACHALIA: Yes.

MR SEMENYA: And I wish to take with you one of those fundamental rights which are enshrined in the Constitution and I wish to refer you to Section 19 of the Constitution, under the heading Political Rights.
 And that Section 19, subsection (3), reads every adult citizen has the right to stand for office and if elected, to hold office.  So we know we can't appoint where the final Constitution is adopted where everybody is bound by the supreme law that says every adult citizen has the right to stand for public office and if elected, to hold that office.

AZHAR CACHALIA: Yes.

MR SEMENYA: Now, I wish to cross-reference that with an aspect that relates to how one can hold public office, particularly become a member of the legislature.
 And it was very critical at the time, and maybe I should know something about this very aspect, that disqualification of membership for Parliament had with it in Constitutional (indistinct), the question of disallowing as it is, convicted criminals being members of Parliament.

AZHAR CACHALIA: Yes.

MR SEMENYA: But because of our peculiar history, we had Section 47, subsection (e), which reads - let me maybe start with the opening phrase.
 Every citizen who is qualified to vote for the National Assembly, is eligible to be a member of Assembly and we know every citizen means every adult citizen, except and subsection (e) reads anyone who and this is the important aspect, after this section took effect, is convicted of an offence and sentenced to more than 12 months, but it was quite specifically to make sure that the prohibition must relate to convictions that happen after and it was intended not to mar our future with the activities of the past, is that a fair statement made?

AZHAR CACHALIA: I understand what you are saying.  Could I just say Mr Semenya, as you proceed, in the sense this is going to begin to be a debate on human rights (indistinct) between lawyers, I am under cross-examination and it is going to be difficult for me to engage with you know all the very complex matters.
 You yourself said in the Constitutional Assembly, is a technical expert, you would have read books, you would have dealt with all these matters at length.  Now, I am perfectly happy to answer your questions open and honestly, but I am saying that there is a bit of a difficulty for me to engage with the debate, engage with you in debate on this matter, but I am perfectly happy to answer your questions.

MR SEMENYA: No sir, you have made a very deliberate call, which call has an impact if the recommendation is made by the Truth and Reconciliation Commission, to amend our Constitution.

AZHAR CACHALIA: I don't understand it that way.

MR SEMENYA: But that is what I am trying to make you understand Mr Cachalia, that please give me your answer?

AZHAR CACHALIA: As I say I don't understand that the call I am making, it any way impacts on the Constitution having to be amended.  But that is exactly why I am saying, I am now at, I think I am at some disadvantage.
 Can I tell you what my understanding of it is, I may be incorrect.  My understanding is very simple one, and that is that those who have committed offences which amount to gross human right abuses over many years in our past, that they even today can be prosecuted.  Even today, that if one discovers that an offence was committed ten years ago, that person can be prosecuted, and that person, if sentenced, may be disqualified from holding public office.
 Now, the only assistance where the Constitution comes to peoples' assistance in my understanding, is where people have applied for and were granted amnesty.  In that situation, if an offence which amounts to a human rights violation, was granted amnesty for, then that in effect removes the disqualification in my view, for public office.
 That is how I understand it.  If I understand it incorrectly, then you must point that out.

MR SEMENYA: No, but that is precisely my difficulty.  As the law stands, as the supreme law stands today, anybody who gets convicted of an offence and sentenced to more than 12 months imprisonment without the option of a fine in the Republic or elsewhere, would not be eligible to hold public office, so your call, if it is intended to deal with that event, it is (indistinct).  What is the point for the Commission to make that recommendation if that is the sense you are attaching to that?  Because that is the law.
 What are you saying the Commission must recommend?