Amnesty Hearings — Ermelo — 1998-07-27

MR HATTINGH: ... is whether there exists a reasonable suspicion of bias on the part of the decision maker.  An apprehension of a real likelihood that the decision maker will be biased, is not a prerequisite for disqualifying bias.  The very objects which the reasonable suspicion test are calculated to achieve, would be frustrated by grafting onto it the further requirement that the probability of bias must be foreseen provided that the suspicion of partiality is one which might reasonably be entertained by a lay litigant, a Reviewing Court cannot be called upon to measure in a nice balance, the precise extent of the apparent risk.
	If suspension is reasonably apprehended, then that is an end to the matter.  The last case is the Supreme Court judgement, Cape of Good Hope Provincial Division, S v Collier 1995 (8) BCLR 975 (C) where it is stated on page 978 at (g) to (i) it was an appeal pertaining to an application for recusal, turning to the matter of the appeal, it is true that justice should not only be done, but manifestly and undoubtedly be seen to be done.
	It is for this reason that South African courts have not hesitated to set aside proceedings where a person challenged, has so associated himself with one of the two opposing sides, that there was a real likelihood of bias or where reasonably lay people would get the impression that he would be biased.
	South African law has developed to a stage that disqualifying bias will be found to exist where the reasonably lay observer would gain the impression that there is a real likelihood that the decision maker will be biased.
	Mr Chairman, the golden threat that runs through all the judgements is that we are dealing with a subjective perception on the part of a litigant or on the part of a party, or of an interested party.

CHAIRPERSON: If that is so, then you will have to persuade me how the requirement of reasonableness can be reconciled with subjectiveness.

MR HATTINGH: Sorry Mr Chairman, I could not hear you.

CHAIRPERSON: If that is correct, that it is a subjective test, then you are going to have to persuade me how the concept of reasonableness is reconciled with subjectiveness because as you correctly point out, and this is perhaps one of the very few points that I agree with you so far, is that the perception must be reasonable and must be that of a reasonable person.

MR HATTINGH: Mr Chairman, it is for that reason, I cannot place myself in the part of the applicant when I make this application.

CHAIRPERSON: Your point is made.

MR HATTINGH: Mr Chairman, all that remains to be said is and that was for the very reason that I wanted to make available a written application supported by way of sworn affidavits, is to show to this Court the extent to which the people wishing or the people who are unhappy, who are at present having the impression that there is not impartiality at this hearing, showing their reasons to this Committee.
	At this stage however, I trust that you and your Committee will accept that what I am going to tell, is what they told me and what their perceptions are, and why they believe that this Committee is not impartial in its dealing with the application.
	I am instructed that the people that I mentioned, all relatives of victims, are of the opinion that full disclosure is not being made at this amnesty hearing and the reason that full disclosure is not being made, is that the Committee and the Chairman is in fact playing an active part in not allowing the full truth and the full disclosure to come to the surface.

CHAIRPERSON: Why do they say so?  They have not, the time for them to give evidence has not come and gone?  They are at liberty, you have indicated that you are going to call six witnesses.  Have you been at all stopped from doing so?

MR HATTINGH: No Mr Chairman, it goes back to from the very beginning, the manner in which the hearing has developed, where as applicants and once again I am relaying their, what their perceptions are, that I as their representative am being stopped from cross-examining amnesty applicants to the full, that I am being stopped to place documentation and cross-examine applicants with regard to the documentation.

CHAIRPERSON: Let us stop just there.   Is it your duty in appearing for such victims or next of kin, to come here to prove that certain things aren't being done?  Isn't that our job?
	Let us look at Section 4(b).  It reads and in my view crisply defines the position of victims or their next of kin, and I might add this is only one of the examples in this whole Act.  One of the functions of the Commission which includes the Amnesty Committee for this purposes, and I am going to read it slowly, is to facilitate and initiate or coordinate the gathering of information and the receiving of evidence from any person including persons claiming to be victims of such violations or the representatives of such victims which establish the identity of victims of such violations, their fate or present whereabouts and the nature and extent of the harm suffered by such victims.
	Perhaps it would be well to read Section (c) as well so that we are able all to by comparison and equating to understand this different interest.  Section 4(c) reads as follows:  That one of the functions of the Commission is to facilitate and promote the granting, promote the granting of amnesty in respect of acts associated with political objectives by receiving from persons desiring to make full disclosure, of all the relevant facts relating to such acts, applications for the granting of amnesty in respect of such acts and transmitting such applications to the Committee on Amnesty for its decision and by publishing decisions granting amnesty in the Gazette.
	Now Mr Hattingh, that in a nutshell is basically what the two interest parties are and from where they derive their rights.  If one has respect and understand the Act, then one ought to see where the rights of victims are placed.  It is not the first time I mention this and I mention specifically so that each and everyone understands the law.
	I say that one can criticise the law like you want to, the fact of the matter is I have to follow it.  I say so not to make excuses, I am pointing out my duty and that of the Committee.
	Now, I appreciate your position in making the submission, but really I hope that you can explain on a more informal manner the status of different people.  This is a process that is not a criminal matter, it is not an appeal.  The purpose of this enquiry is quite different to the results of a civil or criminal matter.
	You can carry on.

MR HATTINGH: Thank you Mr Chairman.  Perhaps I should just run through the problems as I was instructed and just briefly deal with each and every one of them and then leave it to your Committee to decide.

CHAIRPERSON: Before you carry on, I just want to get something clear.  As I have listened to your argument thus far, it would appear that the application is directed at myself and not my colleagues, or am I wrong?

MR HATTINGH: That is correct yes, Mr Chairman.

CHAIRPERSON: Okay, carry on.

MR HATTINGH: Mr Chairman, I think in essence the concern of the applicants for the recusal is that whereas the Act in Section 19 makes provision for this Committee to investigate applications and to make enquiries with regard to the applications, and that can be done either before the hearing, during the hearing, during cross-examination or questioning of applicants, at any time, the applicants in this ...

CHAIRPERSON: Isn't the nature of the proceedings such that it discourages long term cross-examination as opposed to what would be allowed in a criminal or civil matter, precisely because there is facility for people to can testify?