Amnesty Hearings — Durban — 1999-09-29

ADV PRIOR: Mr Chairman, if I was incorrect in producing the Section 29 of Mr McBride, that is something which is not conceded, but if that may be the case in the judgment of the Panel, then I would say that in terms of (5) of Section 29, that the Committee or the Commission then rule, that will be my application, that on the basis of openness and transparency, those are the guidelines, the Act provides those as the guidelines for which the Committee can or the Commission can rule that the Section 29 proceedings be used.  That would be my alternative application in response to the objection.  In other words, the objection is being based or premised on the fact that the Evidence Leader erroneously albeit in good faith, tendered the proceedings of the Section 29 and produced them as part of the bundle.  If that has to be held as correct, then I would say that the Committee is still open in terms of Section 29(5) to make a ruling on the basis of openness and fairness.   The Section refers to the Commission, however it is the Amnesty Committee in terms of Section 43 which now stands in for those powers and functions formerly exercised by the Commission.

CHAIRPERSON: What is your view on the relevance of Mr McBride's testimony in the Section 29 hearing for questioning Mr Ismail now?

ADV PRIOR: My point yesterday was if it is admissible as information or evidence, then it is admissible throughout.  It can be referred to for purposes of cross-examination, it can never bind Mr Ismail, surely he can be asked, like any other document that was produced, and in that document or statement so and so said that, what is your comment?

CHAIRPERSON: Now this hearing that we are doing here, set down for three weeks, it contains the applications of 10 people, they are not co-applicants in the sense that they haven't filled in one application form with applicant number 1, 2, 3, 4, 5, they haven't come together as in a civil application in the courts, where you often get co-applicants who come together in one piece of litigation.

ADV PRIOR: Yes, I understand.

CHAIRPERSON: These are all separate applications, made separately probably not in each other's presence, at different times, at different places and they have been lumped together now, nothing wrong with it, matter of convenience and I think it is correct that they are heard together, but the fact is that they are separate applications being dealt with together for purposes of convenience and for - to deal with logistical questions as well, to meet logistical questions.  But they are separate applications.  Now, at this stage, should we rule that Mr McBride's Section 29 transcript of his evidence should be declared to be usable in Mr Ismail's application?  I ask that, what is your view?

ADV PRIOR: Mr Chairman, yes, the Act does not allow for collective type of applications, each applicant must apply in person.   One of the reasons is convenience, otherwise you would have been saddled with a whole series of individual applications, one starting after the other was completed.   But the fact of the matter is that they all are intrinsically bound together, and if we are after the truth, the full disclosure in the interest of justice, surely we - it is an accepted principle throughout that surely for purposes of cross-examination, a document can be put to a witness for his comment.

JUDGE PILLAY: Mr Prior, what Judge Miller is asking you is if we were perhaps British citizens and had enough money to have separate days and separate venues for each application, would the Section 29 investigation record have been at a hearing when Mr Ismail's application was heard and I am talking about investigation in respect of Mr McBride?

ADV PRIOR: Mr Chairman, we are speculating.  The way the Amnesty Committee prepare this hearing with respect, was on a theme.  Those people involved were the applicants before this Committee.  Even if it was determined that individual hearings should have been held, no doubt all the documentation which you have and see before you, would have been at hand.  It would be naive to say that one could only cross-examine on what the application said and could not go further than what the application said, with respect.   I cannot take the matter any further.

CHAIRPERSON: Thank you.  You have had your say, but I just want to ask, are the clients that you are representing opposing the applications, and if so, on what, what is the basis of their opposition?

MR RICHARD: Thank you Chairperson, I won't go back into the Section 29 argument, I think that most points about it have been ventilated.   When, taking instructions from victims, as defined in the Act in regard to an application, my first question is "do you believe that this person should be granted or in this case, that group of people should be granted amnesty or not" and I explain the consequences of amnesty.  In this situation, the instructions and that is what I am here to implement is that they should not be granted amnesty.  Then to be more technical, one looks and explains what Section 20(3) provides.  That Section sets out what must be established before a Committee shall give amnesty.  My instructions in that regard are to contest the various aspects provided for in (2) and (3) and 1 of Section 20.  If I were to be technical, I would have said all matters are in dispute and nothing is admitted.

CHAIRPERSON: Yes, I think if we could take the tea adjournment now, I think it might be the most convenient way of doing it, I see it is 25 to 11, we take the tea adjournment and then we will come back at eleven o'clock and hopefully be in a position to make a ruling then.   Just, I think what we will probably do is just make a ruling and then any reasons for such ruling will be delivered at a later stage, thank you.

MR RICHARD: As the Chair pleases.
COMMITTEE ADJOURNS

CHAIRPERSON: Thank you.  We have taken the opportunity during the short tea adjournment, to consider the submissions that were made prior thereto, regarding the status of the Section 29 transcript of Mr McBride's evidence.   As indicated I said I would just be making a ruling on such at this stage, without giving full reasons, which will be given later.   Our ruling is that at this stage, the document may not be used for purposes of cross-examining Mr Ismail, that however does not mean that it may not be of use when Mr McBride himself gives evidence, but Mr Dehal indicated that he would like to do further research on the matter before making further submissions.   We may have to revisit the status of the Section 29 proceedings when Mr McBride gives his evidence, at that stage, but not in respect of Mr Ismail.  Mr Richard, will you proceed?

MR RICHARD: Thank you Chairperson.   As I understand the Committee's ruling, it is that I may not use that document at this stage, or any other stage to cross-examine other witnesses and when Mr McBride comes to give evidence, the matter may be revisited, but as far as use for other applicants ...

CHAIRPERSON: Yes.

MR RICHARD: My response is that that decision will be taken on review, but I will not ask for a postponement so as to delay these proceedings.  I will proceed.

MR DEHAL: Sorry Mr Chairperson, may I seek an indulgence at this stage.  On a matter completely unrelated, Ms Kooverjee and I represent a witness Marcelle Andrews.  He is present here today and was present yesterday.  I can hardly see us getting to his evidence in the next few days, he has had a death in his family, his father's brother died, he had a heart attack and his father has also suffered a heart attack, he wants to be excused so that he can attend to the funeral arrangements, would that be agreeable?

CHAIRPERSON: Yes, unless there is any strong objections thereto, but certainly - and our condolences to him.

MR DEHAL: Thank you Mr Chairperson, I am indebted to you.

MR RICHARD: (continued)   May I proceed?