Amnesty Hearings — Durban — 1998-11-17

CHAIRPERSON: Before we start on today's hearing, there is a matter that I would like some information on, perhaps think about it.
	There are various applications made by the same people that haven't been heard by this Committee.  Am I right in assuming that you will all be concerned in those applications?

ADV PRIOR: Mr Chairman, I can't give you any assurance or undertaking, I know there are many other applications, where I was as Evidence Leader, involved.

CHAIRPERSON: You can probably make arrangements.  Mr Ngubane, are you concerned in the others?

MR NGUBANE: No Mr Chairman, I was just instructed for these applications only.

CHAIRPERSON: Perhaps you can find out from your instructing attorney, who instructed you?

MR NGUBANE: Unfortunately I am the attorney, I was instructed by the families directly.

CHAIRPERSON: So you haven't spoken to the other families?

MR NGUBANE: No, I haven't.  I don't know who they are.

MR VISSER: Mr Chairman, Visser on record.  On Friday last, Mr Chairman, my learned friend Mr Ngubane, enquired from the witness, Botha, who his informers were who assisted in the abduction from Swaziland of Ms Ndwandwe, to which questioning I objected.
	You allowed the matter to stand down till today for legal argument to be presented to you in that regard, as to whether it was a proper question to ask and whether the witness or any witness should be compellable or should be compelled, to divulge, disclose the identity of his informers.  
	Mr Chairman, if you can give an indication as to what sequence you wish the argument to be heard in, I am happy to start.

CHAIRPERSON: I had thought we would finish the evidence first so we could excuse the witnesses, but if you want to proceed with the argument.

MR VISSER: Yes Mr Chairman, we are in your hands, we can do it any time.  We thought it stood down until this morning 9 o'clock.

CHAIRPERSON: I just thought as a matter of convenience, it doesn't really matter, should we proceed with it now or ...

MR VISSER: Mr Chairman, let's proceed with it now and get done with it, if it is in order with you.
	Mr Chairman, we have found it possible to prepare heads of argument for you in which we attempt to deal with all the issues around the issue of informers and the disclosure of their identities.
	Mr Chairman, the first point of departure must of necessity be the question of the power of the Committee to make an order, that a witness be compelled as it were, to answer a question.
	Mr Chairman, the Amnesty Committee is a creature of statute as we know, it has no inherent jurisdiction as has the Supreme Court.

CHAIRPERSON: Can this argument and Mr Ngubane's argument be recorded?  Fine.

MR VISSER: Thank you Mr Chairman, I am informed that the argument is being recorded.  Mr Chairman, I was saying that the Committee is a creature of statute of the Promotion of National Unity and Reconciliation Act, to which I shall refer as the TRC Act, and does not possess of the inherent jurisdiction which resides in the Supreme Court.
	Therefore Mr Chairman, it is bound to the four corners of the empowerment of its parent, the Act.  The only reference in the TRC Act to the compellability of witnesses to answer questions Mr Chairman, you will find in Section 31, which I have quoted in my written argument.
	I have quoted it there by reason of the fact that certain phrases and words are emphasised, I will read it to you Mr Chairman.
	Section 31 deals with the compellability of witnesses and inadmissibility of incriminating evidence given before the Commission, and it says in subsection 1, any person who is questioned by the Commission in the exercise of its powers in terms of this Act, or who has been subpoenaed to give evidence, or to produce an article - the following words are not really relevant - says, be compelled to produce any article or to answer any question put to him, or with regard to the subject matter of the hearing, notwithstanding the fact that the article or his or her answer may incriminate him.
	Now, immediately it becomes clear that subsection 1 deals with an entirely different situation, than does the Amnesty Committee.  What it deals with here Mr Chairman, is clearly the proceedings before either the Human Rights Violations Committee or the Investigation Unit, because it is only there where these issues will become relevant.
	The question of incriminating Mr Botha himself, does not enter the arena or the enquiry here.

CHAIRPERSON: Why not Mr Visser, if you think that the applicant has not made a full disclosure, one may well want to ask him questions about the precise part he played in something, and the answers might well incriminate him.