Amnesty Hearings — Durban — 1999-10-05

CHAIRPERSON: I don't, well perhaps Mr McBride can correct me if I am wrong, I didn't understand that he is challenging the locus standi, I understood that he would like to know the list of the people who are opposing because as he mentions here, for purposes of reconciliation maybe, if we can make an endeavour to...

MR DEHAL: May I just confirm Mr Chairperson, that is the correct view.

MR RICHARD: My instructions are not to give the list, I don't see on what basis Mr McBride can have the list at this stage.

JUDGE PILLAY: Mr Richard, I asked for the list and you promised to give it long ago.

MR RICHARD: I did give the list.

JUDGE PILLAY: Well, you didn't give it to me.

MR RICHARD: I gave it to the Logistics Officer.

CHAIRPERSON: I see there is the Logistics Officer.  You needn't clarify, I don't think.  Perhaps we can sort this out during the tea break.  Just one point, Mr McBride, you are talking in your statement of what you have to, what you require to prove or not.  This is not really a question of proving like in a court case.  What is required here is for us to receive your evidence, and then to determine in terms of the criteria contained in the Act, whether what you have told us, suffices to make a decision on your applications in so far as the incidents in which you, for which you apply for amnesty.  The main criteria, and there are various other criteria which Mr Dehal knows is that whether your actions at all times in respect of each of the incidents, were performed in furtherance of a political objective, committed during the conflict of the past and secondly whether there has been a full disclosure in our view as to what role you played in respect of each of the incidents.   Whether a victim, any victim in any amnesty application is opposing or not opposing, does not really have a major impact in regard to the satisfaction by the applicant of those criteria contained in the Act.

ROBERT JOHN MCBRIDE: Thank you Honourable Chairperson, it is just that Mr Richard representing the victims had indicated nothing is admitted, that is I don't know at which point that begins and at which point it ends, whether I am a South African, whether I was born here, whether I am an ANC member, whether I worked for Special Ops.  I ask this because at some stage relatives or the family of the victims had indicated that they had information that I was not a member of the ANC.  It is on this basis that I am asking you know, where are the problems.

CHAIRPERSON: Yes, well, Mr Richard isn't obliged to indicate exactly what is admitted and what is not.  As I said, it is not as if we are in some litigation in a court here, where all the matters have been put in issue that every single one has to be proved.  I mean the fact that - if you say that you are a South African citizen, we I can assure you as a Panel, don't expect you to now go and call somebody from the Department of Home Affairs and prove your birth certificate and that sort of stuff.  We will just listen to the evidence and make findings on that.

ADV PRIOR: Mr Chairman, may I assist.  At page 3 of bundle A1 the Evidence Analyst extracted a list of victims in respect of the Why Not bar, so from the Amnesty Committee's side, we have 74 names.  Unfortunately there are no addresses, but as a starting point, these have been gleaned from the various documents that the Commission had possession of, so possibly it could assist to some extent the applicant's enquiry.

CHAIRPERSON: Thank you Mr Prior.

MR RICHARD: At this juncture Chairperson, with your leave, there is a procedural matter I would like to put on record.  As will appear from the record, since last week I have repeatedly been requesting access to the transcript of the trial record of the prosecution against Mr McBride.   While true it has been brought to this hearing, it is important to put on record that to date I have not been given those volumes which contain the indictments and the ancillary supporting documents, the admissions or the evidence of Mr McBride.  I still, when I received documents over the weekend, those volumes were missing.  I raised this point and it was not corrected.  It must be seen against the context that the strenuous opposition to Volume C, Exhibit C was a topic of argument yesterday.
	During that argument mention was made of other documents referred to in Exhibit C, it seems as if there is only one consistent inference to be drawn from this refusal or failure to get the documents into my possession.  We know and I think it is now important to put it on record, that there are various contradictory and conflicting versions of various incidents contained in all three documents and I think that there is a constructive effort underway to prevent access to the contradicting documents so as to prevent cross-examination on them, but I will leave the point till later, I have put it on record, and I will deal with it in cross-examination.

CHAIRPERSON: Yes, sorry, on that point Mr Prior, what is the position relating to the trial record and Mr Richard's concerns, why hasn't he received the relevant volumes.   I can answer the question, there is only one extant copy that we can locate and that is in Mr Dehal's possession.

ADV PRIOR: Mr Chairman, yes, I may be able to assist.  In the preparation of this hearing, it was discovered that the Commission did not have a full copy of the record.  Strenuous efforts were made around the country to obtain such a record, even the appeal record was not, had been unbundled and - we then made enquiries from Mr Dehal at a very early stage and he indicated that he did have an archive of documents at the trial, but that he would also require, because they weren't specifically at his office, he had to also make time to go through them and satisfy which was reasonable in the circumstances, given the extent of time that had elapsed.  We did indicate in writing that any documentation to be used, we would welcome at an early stage, and I understand when we got into Durban, enquiries were made for access to the record.  I understood that Mr Richard and Mr Dehal were in contact with each other as was the case with other legal representatives, and because we did not have a pre-hearing, it was agreed that the legal representatives would be able to communicate formally with each other and obtain whatever documents, and I think at the beginning of the hearing it was also raised, and there was an indication from Mr Dehal as I recall, that he would make the relevant documentation available to Mr Richard, that we could at least, from the victims' side at least, that he could prepare himself on that evidence.  I cannot take the matter any further than that.

CHAIRPERSON: Thank you Mr Prior.  What is the position relating to the trial record, Mr Dehal?