Amnesty Hearings — Ermelo — 1998-07-27

CHAIRPERSON: Mr Hattingh, aren't you mistaking the issues now?  If we were in Chambers, I would have said it in some other terms.  The fact of the matter is that we need to decide her status in respect of this hearing.
	I am quite aware of the problems of this community.  That she is maybe in this unfortunate position that she needs to tell the world about her son, I have grave sympathy for.  The point of the matter is and I am asking you again, is this the proper forum to do that?
	We can't convert an amnesty application into a matter that I think would properly be dealt with perhaps in the Committee dealing with investigating the human rights violations, may I suggest.  All of us need to realise that the Truth and Reconciliation Commission has been divided up into certain Committees.  This Committee has been established for the purpose of dealing with amnesty.
	Provision has been made for people to tell their stories to the world if they so wish.  That Committee deals with investigating or investigations into human rights violations.  I am happy to hear arguments in an attempt to put Mrs Mthetwa into a victim category in this application where the death of her son is not the subject matter.
	I repeat I have my sympathies for her position, but surely you must appreciate that this is not the proper forum unless you disagree with me.

MR HATTINGH: Mr Chairman, I agree with you with regard to the extent that she as the mother of a deceased son, does not qualify in the strict sense of the word as a victim with regard to this amnesty application hearing.

CHAIRPERSON: How else must I interpret the word victim, if you say not in the strict sense?  I suggest we have to interpret it strictly otherwise every victim or every family connected to a victim, can go to any Amnesty Committee meeting, in order to tell her story or his story, isn't it if you are correct?
	People from this area can go to Port Elizabeth and say I don't care if my matter is irrelevant to this hearing, but those people who died in the Cradock 4 incident, in that hearing I want to tell you what happened in Ermelo.  Can it really be that way?

MR HATTINGH: Mr Chairman, the way I submit one should see it is that if the applicant admits committing a particular crime, and makes application for amnesty at this hearing, it would be artificial not to confront him with a string of other murders or crimes which he committed in the same area at the same time, but for which he doesn't make application for amnesty, because that would go to the root of his full disclosure, his telling the truth, his motives and him qualifying or not for amnesty at this hearing.

CHAIRPERSON: Mr Hattingh, I have done my best to persuade you what my views are and I think the correct position is you have made your point, I am not going to pursue it, you can proceed with your argument.  I do have serious doubts about whether you can appear for Ms Mthetwa, but proceed.

MR HATTINGH: Mr Chairman, I have been advised by my Instructing Attorney that I should withdraw my application in this regard for this particular person, Tandi Mirriam Mthetwa.   I am not proceeding in this regard, on her behalf.

CHAIRPERSON: You are doing that on your own accord, I am not making any ruling about it.  I hope you are aware of that?

MR HATTINGH: I am doing it on my own accord, thank you.  Mr Chairman, I just want to take you quickly through the case law as far as I gather the rules applicable to an application for recusal.
	In the S v Maseko 1990 (1) SACLR (107) (A), it is stated in Afrikaans and I am quoting the principle that is applicable for this whole matter for recusal from a legal official is that the law without suspicion, must be followed.  Not only must this official present this case impartially and also with an open mind, but nothing in his actions must or can be connected that would give reason that justice is not done.
	From this decision it would seem that the test has to do with the perceptions of the reasonable person.
	Then I refer you to S v Radebe 73 (1) SA 812 (A) where Appellate Judge Roelf said with regard to applications for recusal and I quote a Court looks at the impression which would be given to other people, even if he was as impartial as could be, nevertheless if right minded persons would think that in the circumstances, there was a real likelihood of bias on his part, then he should not sit and if he does sit, his decision cannot stand.
	This was confirmed, referred to and confirmed in Munnik & Others v The Council of Review & Others (C), Friedman, Howie and Conradie 1989 (4) SA 866 and I quote from the heading - the test for bias is that a Judge should recuse himself if there is reason for fear of partiality on his part.
	That test is more stringent when non-judicial tribunal performing functions indistinguishable from the judicial process, since public would expect it to behave exactly like a court of law.  And in the case of Schultz v Chairman Personnel Advice Committee of the Municipal Council of George, 1983 (4) SA 689.   This decision follows this principle but we are dealing with a kwazi judicial issue here before this forum and the issue was if the Chairman of such a Committee was the subject for a recusal and then it has bearing on the whole Committee.
	Then I would like to refer you to a decision (E) Kicky v Commissioner of Correctional Services & Another 1992 (2) SA 269, Judges Kannemeyer and Ludolf applied the test and confirmed that it is the fear of biased expressed by the applicants which is to be considered.
	Then I would like also to refer to another case reported in 1996 (9) BCLR 1221 (T).  I quote from page 1229 at (i), the law in respect of the test for bias has recently been settled in the case of BTR Industries South Africa v Metal and Allied Workers Union where Appellate Judge Hookster stated in Rex v Connie & Another, Judge President Krause made the following observations which in this country are as pertinent now as they were some 60 years ago.  It is a matter of the gravest public policy that the impartiality of the courts of justice should not be doubted or that the fairness of a trial should not be questioned, otherwise the only (indistinct) of the liberty of the subject in these times of revolutionary tendencies would be undermined.
	Then on page 1230 at (c), I quote further, the law does not seek in such a case to measure the amount of his interest.  I venture to suggest that the matter stands no differently with regard to the apprehension of bias by a lay litigant provided the suspicion of partiality is one which might reasonably be entertained by a lay litigant, a Reviewing Court cannot so I consider, be called upon to measure in a nice balance, the precise extent of the apparent risk.
	If suspicion is reasonably apprehended, then that is the end of the matter.
	Last case but one that I would like to refer to is the one of BTR Industries South Africa 1992 (3) SA 673 (A) and I quote from the heading, Appellate Division decision, the test to be adopted in a recusal application is involving the appearance of bias is whether there exists a reasonable suspicion of bias on the part of the decision maker.

CHAIRPERSON: Can you just repeat that?