Special Hearings — Chemical And Biological Warfare Hearings — 1998-06-08

MR VALLY: The point is the provisions of our Act relating to enquiries and hearings into the gross violation of human rights is envisaged in the Constitution and is not in conflict with those fundamental provisions. That is the one point.
 The second point I wanted to make is if that is not acceptable then we look at the normal limitation of rights. I have a long quote where Mohammed DP talks at great length about our Act. He refers to the fact that we have a Committee on Human Rights Violations and what the obligations of that Committee on Human Rights Violations are which is finding out gross violation of human rights and the persons responsible therefore, etc. He quotes from our Act directly. He sets out what the provisions are.
 The third angle that I want to raise is and if this is envisaged as being in violation of Section 35 then it is justified limitation on those rights in terms of Section 36. And again the answer is contained in the Constitutional Court judgment of Mohammed DP as he then was. On page 1 I think it is apposite especially in this case. This case where we are talking about allegations of Mandrax being manufactured on a large scale. Allegations of Ecstasy being manufactured on a large scale. Allegations of Cholera being used against people. Allegations of murder by Anthrax in cigarettes. Really with respect disgusting in any civilised society. Never could be justified. We are entitled to invoke the limitation to that right in this respect. And I quote from Mohammed DP: -
"For decades South African history has been dominated by a deep conflict between a minority which reserved for itself all control  over the political instruments of the State and a majority who sought to resist that domination. Fundamental human rights became a major casualty of this conflict as the resistance of those punished by the denial was met by laws to counter in fact the effectiveness of such resistance. The conflict deepened with the increased sophistication of the economy, the rapid acceleration of knowledge and education and the ever-increasing hostility of an international community steadily outraged by the inconsistency which had become manifest between its own articulate ideals after the Second World War and the official practices which had become institutionalised in South Africa through laws enacted to give them sanction and teeth by a parliament elected only by a privileged minority. The result was a debilitating war of internal political dissension and confrontation, massive expressions of labour militancy, perennial student unrest, punishing international economic isolation, wide-spread dislocation  in crucial areas of national endeavour. Accelerated levels of armed conflict and a dangerous combination of anxiety, frustration  and anger among expanding proportions of the  population.
The legitimacy of law itself was deeply wounded as the country haemorrhaged dangerously in the face of this tragic conflict which had begun to traumatise the entire nation. During the eighties it became manifest to all that our country with all its natural  wealth, physical beauty and human resources was on a disaster cause unless that conflict was reversed. It was this realisation which mercifully rescued us in the early  nineties as those who control the levers of State power began to negotiate a different future with those who had been imprisoned, silenced or driven into exile in consequence of their resistance to that control and its consequences. Those negotiations resulted in  the interim Constitution committed to a transition to a more just defensible, and democratic political order based on the protection of fundamental human rights. It was wisely appreciated by those involved in the preceding negotiations that a task of building  such a new democratic order was a very difficult task because of the previous history and the deep emotions and indefensible iniquities it had generated. And that this could not be achieved without a firm generous commitment to reconciliation and national unity. It was realised that much of the unjust consequences of the past could not ever be fully reversed. It might be necessary in crucial areas to close the book on that past."
 He quotes the post-amble to the Constitution and he goes on: -
"Pursuant to the provisions of this epilogue parliament enacted during 1995 what is colloquially referred to as the Truth and Reconciliation Act. Its proper name is the Promotion of National Unity and Reconciliation Act 34 of 1995, the Act."
He sites the objectives of the Act and he says in paragraph 4: -
"It is enjoined to pursue that objective,"
and he quotes, 
"by establishing as complete a picture as possible of the causes, nature and extent of the gross violation of human  rights  committed during the period commencing 1st of March 1960 to the cut off date."
For this purpose the Commission is obliged to have regard to the perspectives of the victim and the motives and perspectives of the person responsible for the commission of the violations."

CHAIRPERSON: Mr Vally do I understand you to be saying that in pursuit of the aims and I am stating it very generally but I just want to understand the essence of your submission. Are you saying in pursuit of the aims and objectives of the Commission Section 36 can be invoked to limit the fundamental rights of individuals?

MR VALLY: Not all fundamental rights. I am arguing the two propositions put forward by my learned friend.

CHAIRPERSON: Yes I am addressing this particular ones?

MR VALLY: Sure.

CHAIRPERSON: So that those rights are not absolute?

MR VALLY: Yes. Well the Act is clear on that.

CHAIRPERSON: Yes I understand but is that the essence of your submission with regard hereto?

MR VALLY: It is on this aspect yes. On this leg.

CHAIRPERSON: And you are relying on Mohammed's (...indistinct) for the proposition?

MR VALLY: Partly. Should I continue?

CHAIRPERSON: Yes.