Amnesty Hearings — Ermelo — 1998-07-23

MR BLACK: No, no, not at all, and it does not confer any such right, and that is why, either, and this why I made it quite clear that it has become a practice and a, possibly a rule of the Committee, I don't know, but certainly I'm just simply making that statement, that this cross-examination certainly can, whichever, opportunity, let's put it that way, is given to somebody, can be controlled and curtailed.
	While we're on the issue of witnesses, and in order to curtail and focus any cross-examination, my submission is that it must be clear for whom the legal, whom the legal representative is representing, and the basis upon which the opposition is being made, should there be any opposition being made.   I must confess that to date I have not yet, I am not clear as to, first of all, what basis the opposition is, the victims must clearly make representations to this Committee, the victims, as the preamble says, must be granted an opportunity to relate the violations they suffered, and if their representations to the Committee is one of a form of opposition, then I submit that it must be clear on what basis, on what grounds they are opposing the matter, because this cross-examination and the lengthy delays that can ensue are, it's mind-boggling, it defeats the whole, undermines the whole objective and purpose of these proceedings.
	At present I get the impression, and most of the parties here are represented by legal representatives, but the impression I get is, someone comes along and says "oppose", you get served with a summons, you go to your lawyer and you say "oppose", but on what basis?   We must be told, and as applicants we want, we wish to know on what basis this opposition is being made.   We on one day hear that it's being opposed because of motives, the other day we hear that it's being - well I don't know on what basis that he's not telling, there's no full disclosure.   We can't chop and change.   My respectful submission is that a victim cannot simply come and oppose, without making representations and setting out the basis to the applicant.
	Now, from an evidential point of view, with regard to these particular documents, it is clear that insofar as this particular applicant, Mr Gushu, is concerned, he has already stated that he was tortured and acted at all times under duress from the date of his arrest.   
	Now, furthermore, it is perhaps not that clear, but I can inform the Committee, and I'm certain that my learned friend for the victims is aware of the fact that the sole basis upon which the Court, in convicting Mr Gushu, relied upon, the sole evidence was the evidence of a pointing out and a confession, and those confessions, as were obtained under duress, but to assist my learned friend as far as the basis or his argument relating to the fact that on the face of the confession it was lawfully obtained, and his information obtained from the investigating officer corroborates that, I just by way of analogy wish to refer the Committee to one or two cases, which I submit are perhaps in point.
	The first matter is the case of the S v MVELASE 1997(2), the October law reports of the South African criminal law reports, just to, it relates to a confession, about the before and the after effects of coming into effect of the constitution.   This was an appeal from a decision in the Natal Provincial Division ...(intervention).

CHAIRPERSON: But my view is that the present law applies.

MR BLACK: Yes, that's precisely that.   What exactly happened here ...(intervention).

CHAIRPERSON: Then we agree, we don't need to hear all the facts.

MR BLACK: Well it applies to such an extent, that if a trial starts and the verdict is given after the coming into the constitution based solely on the confession, the whole thing gets thrown out, because the previous statement obtained is regarded as unconstitutional.
	The same with the pointing out, which I'm sure I can mention, the very, if I don't need to cite all the cases, the case law is precisely that, where a trial is pending and a pointing out takes place prior to the trial and the hearing of the trial takes place after the pointing out and after the constitution, of course, having come into effect, then the constitutional rights of the applicant are protected and the document and recordings of the events, or information obtained by unconstitutional methods, are disregarded.
	So, with respect ...(intervention).

CHAIRPERSON: Mr Black, how does one establish ...(intervention).

MR BLACK: I beg your ...(intervention).

CHAIRPERSON: ...whether that particular document was acquired unlawfully or unconstitutionally or not?

MR BLACK: Well, one can look at the face of the document, the normal questions, and whether or not he was offered legal representation, or whether or not he was in fact legally represented, I think, without going into the contents of the document.   So prima facie I would submit one could determine that.   And anyone wanting to use that document would then have to show that the constitutional rights were in fact complied with or met, or requirements, not rights, were met.
	So my respectful submission is that this documentation, which I have had sight of, and the confession which was referred to, of which a copy I have now had sight of, prima facie does not comply with the requirements, and without being unduly - I would submit therefore that it should not be allowed and that, with all due respect, a fishing expedition should not be embarked upon in order to try and determine some form or basis of opposition, which we still don't know, which has not been put to the applicant, and my respectful submission is that if any concrete basis exists, apart from saying, "I don't want to see this applicant be granted amnesty", then that must be put and we must know what case do we have to meet, are witnesses going to be called, then - but I don't want to get into an adversarial type of forum, which this is not, and I again refer to the Act and to the nature of the relief which the Act seeks to grant the victims and the hurts and violations which the victims have suffered, which the Act wishes to address and redress and effect some form of reconciliation.
	So my submission is that it would appear that this forum is being treated almost as a court of law.

CHAIRPERSON: Mr Black, we have received a number of applications as this Committee from people who were members of the former Security Police, who have now applied for amnesty, and in these applications they say it was a norm, it was a normal thing to do, to torture and beat up the likes of the applicant, once arrested.   Now my question to you is, in your submission, would you go as far as to say that we should take judicial cognisance of such facts?

MR BLACK: I find it a bit difficult to say that.

CHAIRPERSON: (Indistinct).

MR BLACK: Unfortunately, I'm not a - I don't have to take cognisance on it or judicially, but I certainly take cognisance in other ways, and if the applicant does make such submissions, I would submit that the general tenor of the evidence which may have been, which, or has been given by senior members of the security forces at the time, can be taken into account when it comes to giving any credence to the evidence of the applicant, because - so I would respectfully submit that in order to save time, I'd first like to know exactly who the victims are which Mr Hattingh represents ...(intervention).

CHAIRPERSON: Hasn't he given you that?

MR BLACK: This seems to have changed on occasions, and ...(intervention).

CHAIRPERSON: All that has changed is that his mandate to represent the mother of Miss Nkosi has been terminated.   He's accepted it, I think.