Amnesty Hearings — Durban — 1999-10-04

MR RICHARD: Chair, may I proceed.  My first point is that between the 21st of April 1997 and the 14th of June 1986, number one the applicant was an accused in a very lengthy, hard and well fought trial and other trials had happened.  Mr Derrick McBride, his father, and Mr Lecordier, Mr Gordon Webster and in those proceedings much evidence was led.  The second point is whatever this document or statement or application is, or was, it was confirmed by him under oath in response to the questions put to him at the Section 29 enquiry.  The third point is what is now clearly common cause is that his applications for amnesty and the matters dealt with at the Section 29 enquiry, are the same.  In other words the Parade Hotel incident.  In other words he has given evidence on oath in relation to those incidents.  Then I have no difficulty in the circumstances, that as at April the year before last, the fifth applicant was able to make the statement during the car bomb operation at the Why Not bar, three people were killed and 69 injured.  He made that under oath.  It is an admission which he is bound by and which he cannot withdraw.  It is an admission of fact.  He goes on to say
"... those who were killed, were Marchelle Gerrand, Angelique Pattendon and Julie van der Linde."
	They are names that must have been bandied about the court rooms at length.  And then he proceeds to say -
"... for the list of those injured, refer to the trial record and charge sheet."
	And then adds on as an afterthought, but it is a particularly relevant afterthought -
" ... further details are contained in the application handed into the Commission in Durban at S29 hearing."
	I believe that the only consistent inference to be drawn from that parenthesised add-on is that  what he is referring to is the overall picture, not something relating to some minor aspect.  Now, where it takes this argument is that what is set out in Exhibit C and all the matters arising there from, are common cause with this current hearing, parallel thereto and intertwined and my submission is irretrievably so and it is impossible to separate the two.   I then turn to the questions of law.   At page 8, at paragraph 3, I deal with the first issue.  What is the nature of the information contained  in Exhibit C?  Now, Section 29 has a particular word in it, that which is furnished.  Now I have gone at length at pages 8 and 9 to detail how this hearing is a hearing in terms of the Act which is governed by the provisions of Chapter 6.  Exhibit C has been furnished in the plain English meaning of being provided firstly to the Committee, secondly to me and thirdly that if one embarks on a careful analysis of Section 29(5), that Section and I would then proceed to refer to an appendice to my Heads of Argument, the last page thereof, the power, the authority of the Commission to prohibit the making public of the information emanating from a Section 29 investigation ends when the document, information, article has been and I will use the word provided as opposed to furnished, at a hearing that at has historically now happened.  It is a past fact.  Whatever power the Commission might have had prior to the furnishing or providing of Exhibit C and everything emanating from it, is now at an end.  It is a public document which as I have outlined in the document before us, my Heads of Argument, which now falls in the public domain.  There is no restriction on any one picking it up from the table here and taking it and publishing it.

JUDGE PILLAY: Well Mr Richard, in your argument shouldn't you persuade us that the word "furnished" and "produced" and even "publicise" is something that is akin to mere production here, or is there something more that needs to be done?

MR RICHARD: The Act is silent and does not qualify the word "furnished".   If one looks at the plain ...

JUDGE PILLAY: I take the point, but I mean maybe it is a lacuna in the Act, but really speaking, if someone Joe Soap, produces such a document here from wherever he obtained it, is that sufficient for it to be declared publicised, or must some routine perhaps, procedure be completed before it is properly produced or furnished at this hearing?

MR RICHARD: In the facts of this particular matter, it was not Joe Soap, it was not an accidental act which landed, which resulted in the exhibit being provided to both the Committee and myself.   It was part of what has become as is said in my learned colleague's arguments, the practice before Committees, to provide the Section 29 record.  I see no irregularity in that act.   To deal with the cases such as comes to mind where some Security Branch personnel in South-West Africa raided an Attorney's office and stole documents where the Court exercised its jurisdiction to exclude that evidence, there is no factual basis in this matter to proceed along that line of enquiry.  In fact, I then refer to a section that I have headed "Openness and Transparency" at page 14, paragraph 3.3.

JUDGE PILLAY: Let's get back to my question to you.  Are you then arguing that the mere production and I apologise if I have offended  you by referring to Mr Soap, but whoever brought it into this hearing, and placed it on our table, you are arguing that is sufficient for furnishing if you want to call it that?

MR RICHARD: Judge, your argument ...

JUDGE PILLAY: It is not an argument, I am just raising a concern.

MR RICHARD: Your concern, forgive me, but the point, would imply that for me and I will use the analogy, to make a donation, would require some act of will.  Pursuant to that decision or mind, I would then do something to carry forward the idea of taking whatever it is I want to take over to somebody else and do it.   Now, your concern Judge is that in this matter,  there was no preceding decision or application of mind.  That is not so.   I look at page 14 of my Heads of Argument,  there I have a look at the situation where the Commission might apply its mind as to whether information such as that contained in and arising out of Exhibit C might or might not be made public.    We immediately are confronted by the word may, which I refer to in paragraph 3.3.3.1
"... and the Commission may having due regard to the principles of openness and transparency declare that any article produced or information provided, shall not be made public."
	It is phrased in the context that the decision which is the subject matter of the Commission's discretion, is to decide whether it should prohibit or do something not to make the information or other matter, public.

CHAIRPERSON: What you are saying is that the discretion is to prevent the production, so the starting point is that it will be made public unless a discretion is exercised to prevent that from occurring?

MR RICHARD: As the Chair correctly points out, and as I say in my argument, that is the plain interpretation on an analysis of the Section.  It is not that the information is automatically not public.   It is that until the decision applies its mind and exercises the discretion, emanating from the use of the word may.

JUDGE PILLAY: Isn't that the procedure that I was then referring to?  It is not a discretionary power of one of the employees of the Commission to decide whether such a document must be included in the bundle or not, and if he so decides, then it is public.  Isn't it for this Committee to decide that?

MR RICHARD: Well, that might be.  I then carry on to have a look at the way in which such a discretion might be exercised.   We are all familiar with the textbook arguments about the word "may" and I am not going to go through it.

CHAIRPERSON: I think we know that, I am sure Mr Dehal won't be arguing that.  The use of the word "may", does not mean that there is a discretion.  It does not mean "shall".