Amnesty Hearings — Durban — 1998-11-17

MR MALAN: Sorry Mr Visser, am I understanding this correctly, did the Court hold in this instance that the accused could not make the statement, even though the accused seemingly wanted to have the statement put before the Court?

CHAIRPERSON: The ratio was this Mr Chairman, the evidence of a co-accused in circumstances where he would make himself known, disclose the fact that he was an informer of the police, was not admissible in evidence against the other accused, and that evidence was in fact struck off the record, after it had been given.

MR MALAN: May I just ask the second question here, the evidence also seem to be to have pointed to a crime which was not tried in this specific case, but he refers to previous illicit dealings.

MR VISSER: Indeed so, yes Mr Chairman.  Mr Chairman, we say that there are other authorities, not directly in point again, this has never been dealt with Mr Chairman, this particular situation that we are dealing with here today, I found no authority at all on the point.
	We say not directly in point, which deals with the differentiation between informers and accomplices.  From these authorities it appears that the question as to whether a person must be considered to be an informer as opposed to an accomplice, depends on his own mens rea.  It also appears that a spy who participates in illegal activities, because he believes that he is doing it for his country, for a safer society, cannot be equated with the position of an accomplice.
	That much appears from Ghani's case Mr Chairman.   In Ghani's case I would read to you certain excerpts Mr Chairman.  At page 208(f) - (h), their Lordships Justices Harcort and Leon, stated the following.  They say in our view the case as a whole and these two extracts in particular, referring to extracts already given, emphasises the requirement that for a person to be an accomplice, there must be mens rea involved in a criminal association with the commission of the offence.
	If I may just pause there for a moment Mr Chairman, that would entail literally that before a Court would make an order of ordering the disclosure of the identity, that the Court would have to decide whether the person whose identity is in issue, is in fact an informer or an accomplice.
	This comes close to the situation where we are now Mr Chairman.  Their Lordships continue at page 210 - 212 and they say the following "it is clear however, that the immunity from being considered an accomplice, is not restricted to traps in this restricted technical sense, nor is there in our view any merit in the contention advanced by Mr Louwhen that a person who acts as a trap in an extended sense, must be regarded as an accomplice unless he had prior authority from the police or the Prosecution authorities for detecting and reporting criminal conduct."
	Their Lordships then referred to a case which they refer to as Salmonson's case and they say that it is clear from American and English authority which is appropo and of persuasive force in regard to the topic of accomplices, that persons who act to collect themselves, and to use it for the punishment of criminals, are not to be regarded as accomplices.
	Thus, Weakmore in his work on evidence, 3rd edition, states the position as follows:  the case of a pretended confederate who as detective, spy or decoy associates with the wrongdoers in order to obtain evidence, is distinct from that of an accomplice although the distinction may sometimes be difficult of application.
	Reference is then made to 1848 Mall, J in R v Mullen, Mr Chairman, and the reference is given, stated an accomplice is a person who has concurred in the commission of an offence, but such are different from spies, that is persons who take measures to be able to give to the authorities information so as to prevent those who are disposed to break out from effecting their purpose.
	In the case of an accomplice, he acknowledges himself to be a criminal.  In the case of these men, they do not acknowledge ...

CHAIRPERSON: What is the relevance of this?

MR VISSER: Mr Chairman, the relevance is this Mr Chairman, let's take the facts of our case.

CHAIRPERSON: These men were not accomplices on this authority, right, they were assisting the police.  If they were assisting the police, why should the police not give their names?  That is the question we have to decide.
	This authority, they were assisting, if they were assisting voluntarily, they were not accomplices in any way, to what Ms Ndwandwe was doing.  So right, that is it, they weren't accomplices, why shouldn't their names, this has got nothing to do with whether their names should be made known, has it?

MR VISSER: Mr Chairman, with respect, my understanding from my learned friend, Mr Prior and from Commissioner Malan is what concerned them, was whether the rule of protecting the identity of informers of which there can be no argument, should be relaxed in a case where the informer is also an accomplice.

CHAIRPERSON: There is no suggestion is there, that these people were informers.  They knew the address, the didn't give any information.
	They were told by their superiors in the Police Force what to do.  They weren't informers, these two men, were they?

MR VISSER: The police called them informers Mr Chairman.

CHAIRPERSON: They may, they can call them what they like.  They used them, not to get information, but to entice her into a vehicle by pretending to want to obtain ammunition and weapons from her.  That is not an informer, is it?
	I just don't see how you can say that these people were informers in any sense of the word?

MR VISSER: Mr Chairman, at least allow me to make the submission that we don't know then if there is any question as to whether they were informers, then we don't know, unless we enter an enquiry into that issue, into that question, and how are we going to do that Mr Chairman?
	Because clearly before you make an order for the identity to be divulged Mr Chairman, one will have to have certainty as to that situation.  As far as that is concerned, Mr Chairman, they may well have simply been the spies of which Justices Harcort and Leon are talking here, thinking that what they are doing, they are doing for king and country.  We don't know, we simply don't know Mr Chairman, this is the point I am making.

CHAIRPERSON: Isn't the way of ascertaining that, of arranging for someone to interview them?  Some independent person?

MR VISSER: Like a Judge Mr Chairman?

CHAIRPERSON: An Advocate, but not one engaged in the hearings.

MR VISSER: Mr Chairman, my attorney asked me to state the case to you on a different basis.  We have the evidence of Botha, that they were informers, they were also applied in whatever way in order to effect the abduction.
	That is the prima facie evidence before you.  I hear you Mr Chairman when you say shouldn't this matter be resolved by an enquiry by an independent legal person.  That is something which we haven't considered yet and we would like some time to think about that, because it seems like an imminently reasonable suggestion Mr Chairman, and if there can be safeguards built into that, some safeguards which we will have to think about, some safeguards.
	If I may make the submission Mr Chairman, judging from the reaction from the audience, one can imagine what is going to happen to these informers if their identity ever becomes known.
	Mr Chairman, may I refer you to that case and ask you Ghani's case Mr Chairman, and ask you to read it.  At page 212, I will not read all of it, but you have already given an indication that it may be, page 211 I am sorry.

CHAIRPERSON: It is included in your reference 210(d) 0 212(a)?