Amnesty Hearings — Durban — 1998-11-17

ADV PRIOR: Thank you Mr Chairman, Mr Chairman, I have prepared very brief Heads and I simply want to make one or two remarks if I may.
	Mr Visser has correctly stated the legal position regarding the privilege relating to informers, and it is trait that those considerations apply.  However, I would ask the Committee to distinguish those decisions on the basis that the circumstances before this Committee, are somewhat different from the circumstances in each of those cases, decided upon by the various Court decisions.
	Those principles and the judgments which underpin those principles, operated or evolved in a normal situation, if I may refer to it as a normal situation, where the police were acting legitimately and lawfully in the combatting of crime.
	Hence the submission that this Committee can well distinguish those views.  I endorse the view and it is also the submission that the two persons referred to as informers, are not in fact informers in the true sense of the word and on that, if that is the case, then a lot of the argument then falls away regarding their protection or the refusal to communicate their identity.
	I also endorse the suggestion made by the Committee at this stage, that possibly a practical solution to the impasse would be the one suggested by the Chairman, yourself Mr Chairman.

CHAIRPERSON: I want to make it clear, I don't think it is necessary a solution to the impasse, but it will provide us with I think a great deal of relevant information on which to base any findings.

ADV PRIOR: Yes, in so far that it leads us to that point, yes Mr Chairman, I agree with that.  Mr Chairman, may I simply also address the question of relevance.
	We have heard evidence of how the Security Branch infiltrated the various liberation organisations, we know on the evidence that these two persons were involved in the liberation struggle, and were known to the deceased.
	However, there may be more information which may be of greater benefit to the Committee, involving the method employed in luring or enticing the deceased to her death because what is implicit in the facts before the Committee is that the conspiracy to abduct and eventually kill the deceased, was in place before the operation set out, or set forth into Swaziland. 
	Those persons, I submit on the probabilities, would have known that the ultimate result would have been the death of Portia Ndwandwe.

CHAIRPERSON: Mr Prior, I don't know if I understand your argument because as far as I am aware, there has been no suggestion made that these persons, their identity should be disclosed so that they can be available as witnesses.
	We were told by Mr Ngubane, that the families wished to know the names and it stopped there.

ADV PRIOR: Yes, but the suggestion has been that one goes further, and I submit if that is implemented that these persons are approached, there may well be an indication that they wish to place evidence before this Committee and it is on that basis that I make that remark.
	Mr Chairman, may I be permitted finally to refer the Committee to the matter of Azanian People's Organisation & Others v The President of the Republic of South Africa & Others which was reported in the Butterworth Law Reports Constitutional Law, 1996, Volume 8, 1015 particularly at page 1029, and with the leave of the Committee I wish to read out paragraph 20 which appears in marginal note b to e.
	It effects really the position of the victims and it is appropo the comments of Mr Visser, that the victims really have no say or no locus standi and possibly flowing from that then interest, in the identities of these persons.
	In Section 20(7) to the extent to which it immunises wrongdoers from criminal prosecution, nevertheless objectionable on the grounds that amnesty might be provided in circumstances where the victims or the dependants of the victims, have not had the compensatory benefit of discovering the truth at last or in circumstances where those whose misdeeds are so obscenely obsessive excessive, as to justify punishment, even if they were perpetrated with a political objective during the course of the conflict in the past, some answers to such difficulties are provided in the subsections of Section 20.
	The Amnesty Committee may grant amnesty in respect of the relevant offence only if the perpetrator of the misdeed makes a full disclosure of all relevant facts.  If the offender does not, and in consequence thereof, the victim or his or her family is not able to discover the truth, the application for amnesty will fail.  Moreover it will not suffice for the offender merely to say that his or her act was associated with a political objective.
	I end the quote there.  Mr Chairman, it is obvious from the reaction of the victims and their families and possibly the community at large, that if there were co-perpetrators in this type of conduct, and those persons were living among them, I submit that it is relevant to full disclosure, that those persons are named and are known.
	Thank you Mr Chairman.

MR VISSER: I don't know whether my learned friends on the other side of the room, wish to express any opinions Mr Chairman.

MR NEL: Thank you Mr Chairman, Christo Nel, I have no opinions, except that I support what my learned friend, Mr Visser has argued, and I will leave it at that, thank you sir.

MR NOLTE: Mr Chairman, Mr Nolte on record, I also support Mr Visser.