Amnesty Hearings — Cape Town — 2000-11-18

MR WESSELS: Thank you, Mr Chairman.  Mr Chairman, I will refer to my Heads of Argument in some detail, but I won't dwell on the matters that I've addressed therein.  Mr Chairman, the Preamble of the Act makes it clear that one of the aims in the passing of this Act, is to create the unique machinery whereby those who in the past had in certain circumstances made themselves guilty of violations, can be granted amnesty for their deeds.  It's clear here that we're dealing with a unique process which is not unknown in the world.  And let me emphasise that reference and should properly be made to perhaps decisions in criminal matters and other civil matters, but there shouldn't be a slavish following of the principles that have been decided upon in criminal matters necessarily in the past.  One has to always have regard to the fact that we're dealing here with a unique process which is different in many respects, from that which prevails in the criminal court and that the provisions of this Act should be widely interpreted and more benevolently than which the Criminal Procedure Act in the criminal law should be applied.
	Mr Chairman, I state in paragraph 2 that no procedure for the hearing is described in the Act, but it is clear that we are dealing with an administrative process which is subject to the principles of administrative law.  I may refer to the case of Du Preez vs The Truth and Reconciliation Commission, where the principles had been set out, that's well known, and one of the important principles of administrative law and the fairness principle in that is that when there is an accusation against a person, that person should be given an opportunity to deal with that accusation, he should have proper notice of that and then he must be given an opportunity to deal with that.  Now in due course I will submit that insofar as my client is concerned there were no, although it may be argued that he did not make a full disclosure, it was not suggested to him in any respect that there were facts and what the facts were that he failed to disclose.  The attack on him was a general credibility attack as to what had happened before the Harms Commission some 10 years ago and the attack was not pertinent to any particular fact that he had not disclosed insofar as these particular deeds are concerned for which he applied amnesty for.
	Mr Chairman, I state in paragraph 3 that the Committee in these applications has the unusually difficult task of deciding the applications in an unbiased fair way, while the issues, personalities and atmosphere of the hearing are deeply emersed in the emotion and previously acquired profiles negatively reflect on the character of the applicant.  Mr Chairman, we can just have regard to what had appeared in the press in the last 10 years, the accusations that have been levelled against the applicants, the suspicions that prevailed and in particular, where the press over the last 10 years and especially in 1990, everything that had gone wrong had been placed at the doors of the CCB.  Now we all know, and you know better than any of us, I presume, that all these deeds that were placed, most of the deeds that had been placed at the door of the CCB in those years, actually were committed by the Police and the Security Forces in particular.  And as a result of the bad press that the CCB had received in the early years, a perception had been created that everything that was done was done by the CCB and Verster, in particular, which in fact is not true.  So Mr Chairman, it is my submission that the Committee has the invidious task of disassociating itself from the urge to approach the application against the background of prejudice and popular public perception and preconceived impressions.
	Mr Chairman, although at first glance appearing an insurmountable task Mr Chairman, as you are only human with certain backgrounds and certain perspectives, it becomes easier if one has regard to the clear and unambiguous words of Section 20 of the Act, which states how amnesty should be granted and the effect thereof.  And Mr Chairman, I would like to read it although you probably know this better than anyone else, but it is of importance that one should always bear the words of the legislature foremost in one's mind.  It states:
"If the Committee, after considering an application for amnesty, is satisfied the application complies with the requirements of this Act.  The act, omission or offence to which the application relates is an act associated with a political objective committed in the course of the conflict of the past, in accordance with the provisions of (2) and (3) and (c), the applicant has made a full disclosure of all relevant facts, it shall grant amnesty in respect of that act, omission or offence."
Mr Chairman, it is suggested that if you steer clear of speculation and conjecture, then a grant of amnesty will follow as a matter of course.
	Insofar as the word "political objective", in terms of Section 20(1)(b) is concerned, a benevolent interpretation should be adopted.  The clear intention of the legislature was for reconciliation and reconstruction of society.  Statutes like this should always be liberally interpreted.  I refer to some authority.  It was also of importance to note that this particular Act had been promulgated against a background and the spirit of the Preamble, which reads as follows:
"And since the Constitution states that there was a need for understanding but not for vengeance, a need for reparation but not for retaliation, a need for ubuntu but not victimisation."
	It is therefore submitted that regard has to be taken of the Preamble of the Act and the intention of the legislature and the Constitution, and that it's clear that a narrow and restricted interpretation and application of the criteria mentioned in the Act, could not have been the purpose and intention of the legislature.  A narrow and restricted interpretation would invariably lead to the creating of a dangerous situation and that it would certainly discourage people which it sought to bring forward to apply voluntarily for amnesty and to disclose the deeds that were perpetrated in the past, in the fear that the conditions would be applied so harshly, strictly and narrowly that the granting of amnesty would only be done in the most exceptional cases.  ...(indistinct) past decisions of the Amnesty Committee show that a wide and benevolent interpretation has been adopted.  
	Now Mr Chairman, you sit as a Committee of the Amnesty Committee and it is my submission that in regard to decisions that have been made in the past where amnesty was granted, although of course the facts differ and there is no precedent, principle that applies, you are nevertheless bound to apply the general principles that have been applied in the past and if a benevolent interpretation has been adopted, then you should be bound by applying the same type of principle in these cases.
	There have been many applications granted in the past, and unfortunately I'm not in possession of those decisions, I can only speak from what has been reported in the popular press, but in regard to many of those cases where amnesty has in fact been granted on both sides of the spectrum, it is clear that the Commission have applied a benevolent interpretation, especially insofar as the proportionality principle has been concerned, and it is my submission that if you look from the one end of the scale, matters like Macgoo's Bar Bombing and on the other hand even matters like Nietverdiend killings, those are matters which were far more serious than any of the matters which are before you, and amnesty was nevertheless granted in those particular cases.

CHAIRPERSON: Not yet in the Macgoo's Bombing.