Amnesty Hearings — Johannesburg — UNKNOWN

MR DU PLESSIS: As it pleases Your Lordship, I will leavethat issue there.
 As regards Dr Pretorius' points he made the specific point thatthe application currently before the Committee is premature. He referred to the history of our Criminal 
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Procedure Act but the important point which he didn't mentionis the fact that in this country we have never had a Truth Commissionand we've never had to grapple with these issues, or the issueof where there are two processes involving the same kinds of evidencesuch as for instance criminal proceedings and the Truth Commissionwhich process should be given precedence and for that reason Itried, in my heads of argument, to try and refer you to the internationalnorms and experience, and how it's dealt with internationally. And as I tried to show and is clear from the articles which Iquoted in all cases in Argentina, in Chile, Guatemala and Haitiwhere amnesty was granted precedence was given to the amnestyprocedure rather than criminal prosecution procedures.  Althoughin South Africa, if there is no blanket amnesty to be given youhave to actually apply for it we are respectfully submitting thatthe same situation should obtain in this country.  The processfor obtaining amnesty should be given precedence over the criminalprosecution process.
 Dr Pretorius also referred to the potential prejudice of thediscrediting of State witnesses, that there might be a previousrecord which could be used against a witness at a later proceeding. In the first place there's section 31(3), the provisions of thatsection that where such a witness gives incriminating evidencethe record may not be used against him.  
 Furthermore it is so that in our judicial system there are recordsavailable in certain cases which may be used in evidence againstcertain parties.  It may happen that a criminal case takes placeand after that a civil case and the record of the criminal casemay be used in the later 
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one.  It is not a totally unheard of procedure in South Africanlaw and it is not something so foreign to our legal system thatwe cannot deal with it.  If the Attorney General has faith inhis State witnesses and in the evidence and the veracity of theevidence he would have had no hesitation in saying that his witnessescould testify because he would know that their witnesses would,more than likely give the same evidence at a criminal prosecution.
 I must, however, concede that a witness whose evidence is alreadyon record may be in a somewhat weaker position as a result ofthe questions which may be put to him.  This should not be sucha persuasive factor, however, that this Committee should considerit fit that the truth should take a second place.
 I would also like to refer to the previous procedure in the CriminalProcedure Act where there were provisional enquiries and evidencewas heard before the actual trial during these preliminary hearingsthe same process is actually still followed during military courtmartials in terms of the Defence Act, and there the evidence ofa witness is available beforehand to the various parties and sucha witness may be cross-examined on that evidence.  And that appliesspecifically to witnesses for the prosecution.  Dr Pretorius,my learned friend, referred to the fact that an investigatingofficer may be called, that is hearsay evidence, and we can seeno reason why an investigating officer should be called insteadof the actual witness themself.  My learned friend also did notanswer the point I made right at the outset when I said that someof the witnesses, and especially Captain van Jaarsveldt, couldoffer other testimony which would be far wider than mere 
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criminal activities.
 My learned friend also referred to the Tshabalala decisionand mentioned the fact that this is the wrong forum to deal withconsultation and acquiring of evidence from State witnesses aswell as the disclosure of documents. During the investigationsof the Attorney General the Tshabalala decision, as I havealready said, deals with the situation where you have a criminalcase in a court and the Court is actually given the discretion. Here we are dealing with the procedure of the Truth Commission,and our submission is that the Truth Commission has a discretionwhich it can exercise in this respect and that the Tshabalaladecision is actually not relevant.  I am also not relying on theTshabalala decision to say that the Commission must nowexercise the same discretion as the court in terms of the Tshabalaladecision.  The only aspect in which the Tshabalala decisionmay support the applicants is the fact that it has changed thelegal position regarding having insight into State witnesses statementswhich was previously not the case.  It, therefore, strengthensthe applicants' cases somewhat.
 We take note of the difference of attitude between Captain vanJaarsveld and Joe Mamasela but we make it very clear that we areof the opinion that whether the witnesses have an interest inthese applications or not, it's in the interest of everybody thatthese witnesses testify.  As far as Mamasela is concerned he hastestified beforehand.  He has been interviewed on television. His evidence is on record and if he is to be discredited duringthe State's case then he might just as well be discredited asa result of that evidence.
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 The last point I'd like to make is that after listening to theAttorney General's argument it would appear as if one needs toweigh up the various interests between the question of whetherwitnesses in a later criminal prosecution might be discreditedand that must be weighed up against how important the truth isto the Truth Commission. Those are the two interests to be weighedup one against the other. 
 With that in mind I submit that the witnesses should be subpoenaedand we request the Commission to do that.  And we are requestingthe Commission to also subpoena the Attorney General to discloseto the Commission and the applicants all the documents relatingto the cases in his possession.  Thank you.

BERNARD MAKGABO NGOEPE: Mr du Plessis perhaps it's not fair tosay that Mr Pretorius adopts the attitude that amnesty is notgoing to be granted.  I think what he was trying to say to uswas that we should take into account the possibility that amnestymay not be granted.  I don't think his argument puts it strongerthan that.
 And related to that argument may I just ask you, what happensif we cause the docket to be produced and handed over to yourselfand they don't get amnesty?  And I guess this is one of the pointswhich Dr Pretorius is making.  
Would we not have - you would of course, you would have gottenthe docket through your process and under circumstances that younormally would not have got that docket?

MR DU PLESSIS: Yes the - I beg your pardon.

BERNARD MAKGABO NGOEPE: And isn't that a factor which we must takeinto account in the exercise of our discretion?