Amnesty Hearings — Cape Town — 2000-11-18

UNKNOWN: ...(sound cut off) agree with that, but I also submit that it goes a bit further than that and the full spirit of the Act was also stated by the Judge, a bit more than just the first one.
	Now the problem I have if one is going to say that satisfy means that there is an onus on the applicants, several problems would then arise.  Well firstly, I wish to indicate that if the legislature intended to impose an onus on the applicants, certainly the legislature would have said so in as many words it could have been said, and it doesn't state that.  It could have said at the end of Section 20: "It shall grant amnesty in respect of that act, omission or offence if the applicant satisfies the Committee on a balance of probabilities".  Why wasn't it stated specifically?  And I don't want to go into the interpretation of Acts, etcetera, etcetera, but I submit that the interpretation most favourable to the subject, in this instance the applicant, should be followed and that interpretation will be that there is not an onus created and it would then mean obviously that a liberal interpretation of the word "satisfy" should be followed.
	The problem is that, well over and above the fact that it's not specifically stated in the Act, and it could have been with no problem, is if there is an onus on the applicant, then obviously he should be granted a fair trial.  I submit that then the rules of the rules of evidence will have to be applied, like in a formal trial.  
	Now for instance, in this matter we had reference to Section 29 statements on which many of the applicants had been questioned without any problem, because as far as I am concerned this is an open process in the spirit of reconciliation, where a person could be confronted with certain facts, hearsay evidence, etcetera, etcetera, as had been allowed here, and that he could give his comment to that.  He can obviously tender whatever evidence he wishes to, and at the end of the day the Committee will form an impression of whether it is satisfied or not with what he said and whether it could be as Mr Wessels expressed, whether it could be then accepted as a reasonable possibility of what had happened.
	Now if one then says that the applicants have an onus as in a trial, for instance as in a criminal trial or a civil trial rather, then it does create several problems and the fact is that, for instance in this case the applicants applied, they were some of the first people who in terms of the very first Act, applied for amnesty back in 1991.  So what happened, they were also heard in Bloemfontein and those facts were never disputed.  In terms of the second Act, no result given.  Then they had to wait.  
	They were some of the first ones applying, they had to wait until the very last moment before their case is heard.  I submit that in a trial situation, if they were to carry an onus the point may have been raised and may have been taken, that they didn't have a fair trial because of the long period that it took for the case to come to trial.  And again, obviously they would be prejudiced to a large extent if inadmissible evidence like the Section 29 statements were tendered in evidence.  
	And I do submit that in a trial situation if a court of law allowed, incorrectly allowed for instance, reference to evidence like the Section 29 statements as an irregularity, it wasn't done for instance in a trial within a trial, assessing whether it could be submitted or not and an irregularity was committed, then for instance, the applicants would have been entitled to approach the Supreme Court or to bring an application for the Presiding Officer or Officers to withdraw from the case or take the matter on review, because of the fact that irregularities were committed.
	So I submit that - also, if one has a look at the Act, it is clear that there is no prescription of the exact procedure to be followed, or that the rules of evidence as in civil or criminal trials has to followed.  This is an open procedure to be followed in terms of the rules of natural justice and it does not burden the applicants with an onus to prove anything beyond a reasonable doubt.  It's an impression that the Panel has to form on the evidence in totality at the end of the day.  And I submit that it cannot be anything different than to find whether the submissions made or the so-called defence by the applicants for what they did was reasonably possibly true and not on a balance of probabilities.
	So that concludes my submissions on that point.  It has been dealt with in Mr Martini's Heads and also in the Heads which I submitted as an annexure in the Craig Williamson matter.  I therefore urge the Committee to find that the applicants do not carry an onus to prove on a balance of probabilities.
	I will then move on to the requirements faced by the applicants I represent.  May I refer to page 7 of the Heads of Argument, it's dealt with with reference to page 7 and 4.1 is then the first element.  The application ...(end of side A of tape)  ... the victims, that the Committee should take cognisance of the fact that the applications made by the applicants are defective.  Now I submit that this first requirement in terms of Section 20(1)(a) is merely a formal requirement, that is just to qualify to have the application heard and nothing more than that.  Obviously the Committee can take cognisance of what is stated in that application.  For instance, the applicants I represent, all of them conceded that there are discrepancies in their applications as compared to the evidence before the Committee, but I submit that what is important is the evidence here in terms of Section 19(4).  This is a procedure where a hearing is held and they must be judged on what they said here and not on what they said in their application, although obviously it can be taken into consideration when an opinion is formed as to whether they satisfied the requirements or not.  So I submit as far as the first, 4.1 is concerned, the first element, that in fact they qualified for their applications to be heard ...(intervention)

MR LAX: Sorry Mr du Plessis, surely there's a difference, a fundamental difference between whether the form is complete in all material respects and attested to properly and signed properly and so on, and there's a difference between that and the contents which they've sworn is the truth in form.  And really, the gist of Section 20(1)(a) is that in a formal sense it's got to be here within the right time frames, all those things, cut off ... That's the only part of that that's relevant in this respect, the rest ...(intervention)

UNKNOWN: ...(inaudible - no microphone)

MR LAX: Yes.  But as to the content of the form and whether it's materially different from the evidence or not, that's a completely different issue.

UNKNOWN: Yes, no that is so, but that is not what my learned friends for the victims have said in their Heads of Argument. ...(indistinct) ...(intervention)

MR LAX: Sorry, your mike please.

UNKNOWN: What they are saying boils down to this, that they can be refused amnesty purely on the basis that their amnesty applications as contained, I think it's bundle A, are defective.  It boils down to that, but I submit that that cannot be correct.  But I do conceded, obviously, that it can be taken into consideration when judging their credibility.

MR LAX: I didn't understand the point they were taking, to be that the forms are defective in form, I thought they were arguing on the issue of whatever untruths are in the forms go towards full disclosure.