Amnesty Hearings — Johannesburg — UNKNOWN

UNKNOWN: Mr Chairman before I call Colonel VenterI just want to raise one issue with you which was raised withme by Mr Curren and that is the question to what extent the legalrepresentatives of the families or the victims are entitled tohave sight of the contents of the applications of the applicants? Mr Curren requested copies of all five applications which hewanted to have now.  Our view was that that is contrary to theconfidentiality section in the Act.  Our view was that they areentitled to copies as soon as
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every applicant starts testifying about each and every specificapplication of each and every deed.  We agreed that we would raisethis with you to get a possible ruling from you on that so asto enable Mr Curren to assess his position on that.

CHAIRPERSON: By copies of applications does he mean allthe supporting documents in connection, attached to the applicationform?

UNKNOWN: Mr Chairman he wants copies of the wholeapplication, the bundle as I show it to you now, beforehand, soas to enable him to prepare for cross-examination of the witnesses. We say that the intention of the clause in the Act providingfor confidentiality refers to the fact that it's not confidentialanymore when a hearing starts and that pertains to each and everyspecific application, pertaining to each and every specific deed,but we are in your hands in that regard.

JUDGE WILSON: Haven't you said that the evidence youhave led is a general application and applies to all the applicants?

UNKNOWN: Yes, yes, we have no ...(intervention)

JUDGE WILSON: So they've all started their, the hearingfor all of them has commenced.

UNKNOWN: I am in your hands Mr Chairman, that'swhy I am raising this point.  If you give an indication that theyare entitled long before the evidence is given about the contentsof the applications then we have no problem, as long as the applicantsdon't forego their right to amnesty because of the fact that thecontents are disclosed to people outside the process.

ADV DE JAGER: Mr du Plessis I can't think that they could
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forego their right for amnesty in that event.  I think the peopleare entitled to prepare and I don't know what my colleagues wouldfeel, but you've asked that documents in the Attorney General'spossession be made available to yourself, I can see no objectionto that.

CHAIRPERSON: Mr - would you just refer me ...(intervention)

MR CURREN: Section 19(8) (a and b) and our interpretationis that the moment the hearing commences we are entitled to copiesof all the documents that were referred to in section 19(8)(a)and that would certainly include all the relevant documentationthat pertained to our clients.  We would be inclined to say thatthe hearing has commenced.

JUDGE WILSON: Why are you entitled to copies of them,why should they pay to give you copies?

MR CURREN: We didn't ask them to give - we just askedthem to enable us to make copies.

JUDGE WILSON: That's different.

MR CURREN: That's what we asked for.

JUDGE WILSON: Well that's not what we were told.  Wewere told you asked for copies.

MR CURREN: No, no, no, we asked if we could have a copyso we could make copies for ourselves and we were declined.

UNKNOWN: Yes Mr Chairman I am sorry, perhaps Iformulated it not in the right way.  Mr Curren said that theywill make the copies themselves and I want to refer you to subsection8(b) which also refers to the fact that the Commission can decideto release the information.  That is why we say we are not difficultabout this.  We don't really want to oppose it strenuously, wesimply raised this point and we asked that you make a ruling onthis.

SISI KHAMPEPE: But Mr du Plessis has this hearing not
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commenced?  The section makes it quite explicit that you can'trely on any confidentiality once the hearing has commenced.

UNKNOWN: Mr Chairman we say that the referenceto hearing here, if an applicant comes with one application inrespect of one deed that would be the hearing.  We say that oneshould apply that interpretation to each and every applicationthat is made in respect of each and every deed.  We say that theintention was clearly that interested parties would have the opportunityto hear the evidence and then cross-examine, and that the intentionwas not that documents be disclosed to interested parties a weekor perhaps longer before in respect of certain incidents so asto enable everybody to prepare severe cross-examination.  Butwe are in your hands, if that is not the correct interpretationI accept it.

JUDGE WILSON: There's no question of a week before, itis when the hearing commences.

UNKNOWN: Yes Mr Chairman I understand that thesection says when the hearing commences, the only question isif that refers to a hearing that's held simultaneously such asthis one or if that refers to a hearing of each and every specificapplication pertaining to each and every deed.

JUDGE WILSON: But you have commenced the hearing of allof them as you have just conceded by calling evidence which appliesto all the hearings.

UNKNOWN: I have, I must concede that, that is so.

CHAIRPERSON: Is the position that counsel for a particularclient would be entitled to the entire record or documents relatingto each applicant, or is your view that he'd be
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only entitled to that portion of the record or documents whichrelate to his client or clients?

UNKNOWN: Yes Mr Chairman obviously that is ourview.  He is only entitled to those incidents which relate tohis clients.  We also say that the method that should be utilisedin providing the copies is that the bundles should not be providedto the legal representatives so that they can make copies of themselves,the specific incidents should be copied by my learned friend andthen provided to them, so as not to disclose other informationabout other incidents not concerning the specific representatives.

CHAIRPERSON: That's how it should be.

ADV DE JAGER: But what would prevent them, the one givingto the other and they make copies of the whole bundle in the longrun.  We are not engaged in a legal battle here, we are involvedin an investigation.

UNKNOWN: Yes, yes that's why we don't have a problemMr Chairman.  We are simply concerned, and one of our major concernsis the Press.  It is possible that if such applications are madeavailable that it could be leaked to the Press.  We don't knowwhat implications that would have.  As long as it doesn't influenceour right to amnesty we won't have a problem.

JUDGE WILSON: From what I have read in the Press statementswere leaked to the Press by the applicant's attorney last week.

UNKNOWN: Mr Chairman no statements have been leakedto the Press by the applicant's attorney relating to any informationpertaining to the applications themselves.  Certain informationwas apparently leaked, we don't know how.  We are simply concernedabout that if the availability 3A of/...
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of the documents to legal representatives on the basis that itis not disclosed to the Press, on the basis for them to preparecross-examination and on the basis that the applicants won't foregotheir right to amnesty, if the Commission makes that decisionwe won't have any problem with that.  That's why I am not strenuouslyopposing the situation.

CHAIRPERSON: Well Mr Curren you've realised how the basison which this application is being opposed.  The emphasis seemsto be on the word strenuously.

MR CURREN: Not strenuously.  We hear that Mr Chairman,and our position is simply that any documents given to us whichare in advance of evidence being led will be held by us.  We arecertainly not going to make copies and distribute them to anyone. We have given undertakings to that effect already.  Quite franklyI think we should dispose of this and let's proceed with the matter.

UNKNOWN: Mr Chairman we accept that undertakingand I will leave the matter there.

CHAIRPERSON: Very well.  We may proceed.
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