Amnesty Hearings — Cape Town — 2000-11-19

MR HOCKEY: Yes and there were some CYCO pamphlets in the car and she therefore left the vehicle there overnight.  My submission is that's an important aspect, because if van Zyl and Botha are correct, then they would have seen that vehicle there.  They say they were - they parked about 42 paces from the building at the back of the building, besides the car of this particular member of the Cape Youth Congress, the evidence is also that there were three other vehicles in that parking area.  So even in that respect, there wasn't full disclosure.  The evidence of van Zyl and Botha was that there were no cars parked.  The indications are there that they must have known that there were people inside the building, with respect, Mr Chairperson.
	Just in conclusion, I again make the point that it's condition precedent for full disclosure to be made and if there's an absence of such full disclosure of the true facts, of the whole truth and nothing but the truth, then amnesty should be denied and it's my submission that there was no such disclosure and in respect of the applicants for the Early Learning Centre, or the bombing of the Early Learning Centre, I submit that no amnesty should be granted.   Thank you Mr Chairperson.

CHAIRPERSON: Thank you Mr Hockey.  Do you have any submissions to make, Ms Coleridge?

MS COLERIDGE: Chairperson I have no further submissions to make.  I think all the issues have been dealt with extensively and I abide with the decision of the Committee.
NO ARGUMENT BY MS COLERIDGE

CHAIRPERSON: Thank you.  Mr Wessels, do you have any reply that you'd like to make?

MR WESSELS: Yes, thank you Mr Chairman.

MR WESSELS IN REPLY: Mr Chairman having listened to what my learned friend Mr Bizos said, it appears to me that the basic point of disagreement between myself and him on the law, relates to the test to be applied in regard to what satisfies me.  Now I've submitted to you that it can mean no more than the version should be reasonably, possibly be true.  Now Mr Bizos said that they were careful in not using the word onus, but the submission, Mr Chairman, that won't help him because the decision that is to be made is, as they've argued, is there a requirement that an applicant must prove on the civil standard of probabilities, that he's made full disclosure.  Now whether that can be called the onus or not, doesn't matter.  The argument is, there must be proof on the balance of probabilities, the civil standard of a full disclosure.
	Now Mr Chairman, if that had been the position, then one would firstly have expected the Legislature to have stated that in Section 20 and it would have been very easy for him to have said an applicant must prove that he has made full disclosure.  That's all he needed to have said, but he didn't say that and he didn't say that presumably with a - for a particular reason and the Legislature, it's been criticised for drafting this particular Act and criticised in many respects for that, but perhaps he must receive credit for this particular section because it was probably anticipated that to require proof would result in insurmountable difficulties for this whole amnesty process.
If the test was one to prove on reasonable probabilities, the civil standard, you would get to the situation that an applicant had to comply with the law as was stated as long ago as 1938 in the case of Gamey vs the National Employer General Insurance Company where it was stated that the court should look at the probabilities.  If he cannot find on the probabilities, it goes on to the credibility and the person on whom the onus rests, may then satisfy a court that the version, that his version is true and correct in every respect.  Not that it is satisfactory, but that absolute reliance can be placed on that version and if one applies that test again to applicants in amnesty proceedings, it would result in severe difficulties. 
Then you would have the position, as Mr Bizos has now argued, that I should have called Mr Verster in rebuttal of the evidence of Barnard on the Webster issue.  Mr Chairman, that would have resulted in all the issues that ...(indistinct) has said that should have been explored, all these different acts that had been done by Verster over the years, totally unrelated to these particular acts, should also be dealt with, because it would also form part of the facts that need to be assessed to assess his credibility.  Then you would have the difficulty, Mr Chairman, with respect, that your decision during the course of the evidence of Mr Verster, has now resulted in evidence, in Mr Verster not dealing with those sort of aspects because you had ruled that evidence of specific acts are not relevant in these proceedings and he needn't answer questions on that issue, in particular, Lubowski, Webster and even the foetus matter.  Now having ruled that, how can it be expected of Mr Verster to now come in rebuttal of Mr Barnard's evidence and deal with Webster?  Now we're starting a new issue, a new inquiry, an inquiry that will take many months to complete, that is just but one aspect of it.  There may have been 100 more events that had taken place outside the borders of this country, that also had to be explored, where do you draw the line?  Does he have to come and only explain his conduct where a person was killed, or does it become necessary for him to explain how he travelled without a licence in Botswana in pursuing a political target?  It becomes an impossible matter to deal with.  
	Let's forget about Mr Verster, let's, just to illustrate the illogical consequences that will flow, let's take Mr Barnard.  Mr Barnard has to then comply with the same test.  Mr Barnard applied for amnesty on a number of matters.  Mr Barnard has to satisfy the Committee on the same basis that he has now made a full disclosure on the balance of probabilities on all issues where he has been involved in.  The procedure that he's adopted here, doesn't make provision for that sort of thing.  The procedure here does not require of an applicant to remain present after he has given evidence, or to have a legal representative to remain here and to place everything in dispute and deal with all issues as if the matter is heard in a court of law.  It could well have been that after Mr Verster had given his evidence, he could have left, I could have left and the matter then proceeds.  That happens, I take it, in many applications.  It's not always that there are legal representation that remain present.

MR LAX: Sorry, I don't know of a single instance where lawyers have left the hearing, but that's just my own experience.