Amnesty Hearings — Johannesburg — UNKNOWN

MR DU PLESSIS: Yes Chairperson if that has created thewrong impression that was not our intention.  The intention wasto make it clear that the people with whom we have cooperated,the people from the Truth Commission, or who are employed by theTruth Commission and I will name them specifically, these peoplehave treated us very well and we just wanted to place that onrecord.  We include Archbishop Desmond Tutu here, first and foremost. And we would also like to add the name of Dr Alex Boraine.  Alsothe name of Jasmin Suka, Andre Steenkamp and Advocate Mpshe.
 The only purpose of this statement which we made was to makeit clear that we have faith in the Truth Commission.  It was mentionedin the Press and in public that there are certain parties andgroups, especially from the security forces who have no faithin the Truth Commission and we just wanted to make the point veryclear that as a result of the way in which we were treated bythese people we have arrived at the point in which we have absolutefaith in the Commission.  We have never at any stage had any consultationsor talks with the members of the Committee now before us, regardingthe applications.
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 May I beg leave to hand up the heads - oh have you received these,thank you very much.  I would want to place on record that thereare representatives here of the Attorney General's office andI would like to present them with copies of the heads of argumentas well so that they can follow the argument.
 I have been informed by Dr Pretorius, to whom I am handing thecopies of the argument now, I have been informed by him - he'sappearing on behalf of the Attorney General together with Mr Rigeldu Toit, that they will oppose this application and that theywill address you in respect of this application.
 The application is based upon section 29C of the Act.  Section29C of the Act reads as follows:
  "The Commission may, for the purposes of or in connectionwith the conduct of an investigation or the holding of a hearingas the case may be by notice in writing call upon any person toappear before the Commission and to give evidence or to answerquestions relevant to the subject matter of the hearing".
 As I read the section Mr Chairman it provides a wide discretionto the Commission to call upon, in writing, upon any person toappear before the Commission to give evidence or to answer questionsin respect of the subject matter.
 If I can refer you to page 1.2 on page 2 of the heads of argument,
  "It is submitted that the Commission has the power in termsof section 29 of the Act to call upon the abovementioned personsto appear before the Commission and to give evidence or to answer
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  questions".
The abovementioned persons are all State witnesses in the State'scase against most if not all of the applicants.  The persons mentionedin paragraph 1.1 are Captain Jaap van Jaarsveld, Sergeant DionGous, Warrant Officer Andre Oosthuizen and Warrant Officer JoeMamasela.
 It is of importance for the applicants to have their versionspresented at the hearing to the Commission, corroborated by theevidence of the State witnesses, as well as affidavits and statementsmade to the Attorney General in the course of his investigations.
 Mr Chairman one should keep in mind that the applicants now haveto testify in these proceedings about happenings of ten yearsor longer ago.  Clearly they will not be able to remember everything. Clearly some witnesses will remember certain things and otherwitnesses will remember other things.  In that regard the applicantshave made full disclosure, but it is possible if one strives tohave the truth and the whole truth that some of the State witnessesmight add, will be able to add to certain parts of the evidenceof the applicants, and we say that that is important for the truthto come out.  We also say that that will serve to corroboratethe versions of the applicants and to show that they have madefull disclosure of whatever they can remember.
 Paragraph 1.4 we say that,
  "The Commission is requested to call upon the AttorneyGeneral of the Transvaal, in terms of section 29(1)(b) of theAct to hand over the dockets of their enquiries made by the AttorneyGeneral in respect of each of the applicants.  It
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  is submitted that the statements made to the Attorney Generalby the above witnesses would be of material importance to theapplications of the applicants, and would assist the Commissionand the applicants in obtaining the truth and determining theapplications.
  It is submitted that the Commission could only be requestedby the Attorney General to take steps aimed at the preventionof any undue delay in/or the disruption of any investigation orjudicial proceedings in terms of section 29(3) if the State witnessesshould be called as witnesses".
If I can refer you to section 29(3).  Section 29(3) states that,
  "If the Commission is of the opinion that the productionof any article in the possession of the State, any departmentof State or the Attorney General, may adversely affect any intendedor pending judicial proceedings or the conduct of any investigationcarried out with a view to the institution of judicial proceedings,the Commission shall take steps aimed at the prevention of anyundue delay in or the disruption of such investigational proceedings".
 Now it is possible that the Attorney General might argue thatto call a State witness and to provide statements of State witnessesto the applicants might adversely affect the intended or pendingjudicial proceedings.  There are pending judicial proceedingsagainst Brigadier Cronje, Captain Hechter and Captain Mentz atthis point in time.
 Now in respect of that we submit to you that section
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29(3) only becomes applicable after a decision has been made orwas made by the Commission to subpoena such witnesses.  We sayin paragraph 1.8,
  "As judicial proceedings against Brigadier Cronje, CaptainHechter and Captain Mentz have been postponed such judicial proceedingscan obviously not be affected.  It is therefore only the investigationwhich could  possibly be affected. Even though the Attorney Generalopposes this application it is not clear in what way the investigationwould be affected if the dockets are presented to the Commissionat this hearing.  It must be clear that the investigations havealready been finalised in the light of Brigadier Cronje, Hechterand Mentz as they have already been, they haven't been asked toplead but their cases have been postponed.  They have been arrestedhowever".
 Paragraph 1.14 we submit, we say, 
  "It is submitted that these State witnesses might possiblybe requested to answer questions which might incriminate them".
This is a possible argument that the Attorney General might wantto raise.  We submit that this would then have to be dealt within terms of section 30(1)(2) of the Act which makes specificallyprovision for this.  This section says that,
  "A person referred to in subsection 1, that is a personwho was called to be questioned by the Commission shall only becompelled to answer a question or to produce an article whichmay incriminate him or her if the Commission has
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  issued an order to that effect, after the Commission, firstly,has consulted with the Attorney General who has jurisdiction..."
and the Attorney General will address you now on this,
  ".... has satisfied itself that to require such informationfrom such a person is reasonable, necessary and justifiable inan open and democratic society based on freedom and equality".
We say in this regard that the proceedings that we are dealingwith now, relating to truth and reconciliation is clearly, clearlyrequires that as much information as possible should be placedbefore the Commission and that to order State witnesses to provideevidence and to make available statements in dockets by the AttorneyGeneral would be reasonable, necessary and justifiable in an openand democratic society which strives for freedom and equalityand strives for the truth.
 Then the last paragraph,
  "Has satisfied itself that such a person has refused oris likely to refuse to answer a question or produce an articleon the grounds that such an answer or article might incriminatehim or her".
I don't know what the attitude of these witnesses might be, butsurely if they are requested or questions are asked pertainingto the commission of certain deeds which might be criminal actsthey would, in all probability, want to rely on their right againstself-incrimination.
 We say that section 31 was specifically included to deal withinter alia the question of State witnesses being calledat hearings before criminal proceedings.  We say 
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that, and we make that submission because of the fact that section31(2)(a) refers to a consultation with the Attorney General inrespect of a question asked to a witness where he has to incriminatehimself.  The involvement of the Attorney General gives the indicationand creates the perception that this section was included in theAct to also make provision for a situation where a State witnessor a possible State witness might be called at these proceedingsbefore criminal proceedings take place.
 We say in paragraph 1.17,
  "Such a reference would not have been included in section31 if this situation was not contemplated.  This means that thedecision to make a decision pertaining to the use of prosecutionwitnesses at a hearing of the Truth Commission becomes the Commission'sdecision and falls within the discretion of the Commission".
Section 19(7) makes provision for the stay of prosecution in theevent of criminal proceedings having been instituted.  It doesnot make provision for the stay of an amnesty application beforecriminal proceedings.  The intention, therefore, is that amnestyapplications should be dealt with first and should receive priority. If the intention of the legislature was that criminal proceedingsshould be the first priority the Act would have specifically statedso.  Then we say that priority of amnesty applications might alsosave the taxpayer legal expenses if the amnesty is granted eventually. Nowhere in the Act provision is made for the exclusion of a specificcategory of persons from the ambit of the Act and from becominga witness in terms of section 31 of the Act.  It would have beenexpected of the
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legislature to exclude persons if the intention was to excludeanybody.  Prosecution witnesses should therefore not be treatedin any other way than any other witness.
 We submit that the proceedings before this Commission are completelydifferent proceedings from criminal proceedings and that the factthat criminal proceedings are pending should have no influencewhatsoever on the Commission's decision in this regard.
 Paragraph 1.20 we say that,
  "Evidence by a prosecution witness cannot be used againsthimself in later criminal proceedings so there cannot be any prejudiceto any prosecution witnesses if they should incriminate themselvesin these proceedings".
It is clear that the Attorney General wants the benefit of hearingall the facts of the deeds by other witnesses such as the applicants,and to utilise it in his preparations of any criminal proceedings,especially in the case of a hearing where the evidence presentedto this Commission would have been done without confidentialityattached thereto.
 On the other hand the Attorney General does not want to participatein these proceedings by making available State witnesses who mightcorroborate the applicant's version and who might also assistin this Commission to get to the truth of the matter.  
 It is furthermore submitted that the principals in respect ofaccess to dockets in criminal cases as set out in the recent caseof the Constitutional Court in Tshablala v Attorney General,Transvaal, are not applicable to the question currently underconsideration.  As those 
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proceedings are not criminal proceedings, the same as these proceedingsare not criminal proceedings the same principles cannot be applied. And we submit that the only basis upon which this applicationcan be determined is the Promotion of National Unity and ReconciliationAct.  
 As you are all probably aware of the Tshabalala case providesfor a discretion of the Court on certain grounds to allow thedefence to have sight of documents in the docket, especially statements,and also to consult with State witnesses.
 We submit furthermore that it is important to note that the evidenceof the State witnesses will also deal with aspects surroundingthe security forces and not necessarily only with the evidenceof the deeds.  The evidence which they will present will thereforehave a much wider ambit than the information available to theAttorney General.  We do not understand how the Attorney Generalcan then be of the view that such witnesses, where they will beused and specifically I wish to refer you to Captain Jaap vanJaarsveldt where they will be used if they are called as witnessesto give evidence about a lot of wider aspects than simply thehappenings and the deeds.  Captain van Jaarsveldt can, for instance,shed a lot of light on certain instructions and orders that weregiven on the background in respect of the dealing with informationby the Security Branch.
 As long as the Attorney General does not want to allow thesewitnesses to give evidence at the Truth Commission this informationwhich is also relevant to the applicant's applications will notbecome available to the Commission and will not be disclosed tothe Commission as part of the 
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process to seek the truth.  We say that in the international contextit's ...(intervention)