Amnesty Hearings — Durban — 1998-11-17

MR NGUBANE: Thank you, I am grateful for that clarification because I didn't know how to go about with my argument.
	Mr Chairman, before I come to the Heads of my argument, to follow that sequence, I would like to address some of the issues that had been raised by my learned friend.  
	The first one being an extensive quotation from Seshaba and other documentation from the ANC, the intention of that being to stress the point that there will be no security of informers if their identities are disclosed.  I will come later on more fully to the question security of informers.
	But I would like to point out to the Committee that a very important intervention was omitted by my learned friend, and that is after this publication, there was an important development that the ANC renounced the armed struggle and since then, there has been no indication that there was any inflammatory publication by the ANC to incite people to kill informers.  My respectful submission Mr Chairman, is to the effect that in the absence of that, the point as advanced or intended to be advanced by the various publications by the ANC should fall away.
	Regarding the locus standi of the victims, Mr Chairman, I would submit that they are here to indicate that the applicants are not disclosing fully and the whole question of informers centre around that, that here are these people, they are applying, but they are not disclosing fully.
	I respectfully submit that the families as well as myself, have a locus standi to be here to disclose that these people are not being forthright with their application.
	My Lord, turning to the issue at hand, that is the disclosure of informers, I do concede that it is established law in South Africa, that there is a privilege covering informers.  That privilege as we all know, was adopted from English law and it was imported into South Africa, and it was interpreted in various judgments and applied  in various situations.
	What is important Mr Chairman, is that when this policy was developed and adopted by South Africa, there was no ...(indistinct) generous process as the truth and reconciliation and all the authorities that have been quoted by my learned friend, I do concede they do apply, but they do apply to ordinary situations.
	Here we are dealing with a peculiar situation, the truth and reconciliation and the authorities quoted, were to an extend some doubt in Rex v Pillay 1945 AD 653 (658) and the Courts I submit sir, follow that authority and the existence of the privilege relates to certain instances, exists as a result of certain instances for example public policy, the likelihood of the informer not informing further if he is identified and hinderance of the investigations in the event of identity of the informer being disclosed.
	In this situation we are dealing with the past, we are dealing with the policemen who in fact, on their own version, have resigned from the South African Police.  We are dealing with the policemen who were not involved in legitimate investigations, and I submit respectfully that is why the distinction is public policy demands that those people be known.
	If one looks at the spirit of the Act, the spirit of the Act is this, that all those people who have been involved in criminal activities should come forward, and say so otherwise they will be prosecuted.
	We do not have information that the so-called informers have applied for amnesty or not.  If they haven't applied for amnesty, and I submit in all likelihood they haven't, public policy demands that those people be prosecuted, be disclosed and be prosecuted.
	I respectfully submit that then the privilege that extends to informers does not extend in this particular case.

CHAIRPERSON: Isn't that a completely different approach, and it may I am expressing no opinion on it, it may be a very valid one, that you lodge a complaint with the Attorney General that prosecution should be instituted.

MR NGUBANE: Well, we do not know who those people are.

CHAIRPERSON: The Investigator could question them, it would then be for the Investigator to question.

MR NGUBANE: That is the option, but the other leg of my argument Mr Chairman, is that in order for amnesty to be granted to the applicant, he must to an extent come out clear.

CHAIRPERSON: Yes, but surely full disclosure must be interpreted in the widest sense.  If he can legitimately say I fear that if I disclose those people's names, they may be killed, I am not prepared to cause somebody else's death for my own benefit, can one then hold it against him and say you hadn't made a full disclosure?
	He has disclosed everything he did himself.

MR NGUBANE: The difficulty that I have with that Mr Chairman, is that I don't see the difference between an informer and a person who is implicated.  People who are in a worst position than informers, had been mentioned before the TRC and those people are at risk of being killed.
	Then if now we come and say that informers because they are at risk, they shouldn't be disclosed, I submit that it would be flouting the constitution, we will be treating people unequally, we will be discriminating against people in favour of informers and I see no special reason why we should make this distinction.
	There are people who are exposed to victimisation, either physical victimisation or political victimisation, who have been mentioned before the TRC, and my respectful submission Your Worship, is that quite correctly one can say that the informers can be exposed to danger, although that is speculation at this stage, but it is potential possibility, but now the difficulty that we have is that one might argue that in all the amnesty applications, where people have been implicated, where their security is at stake, that information should be expunged from the record, and I submit Mr Chairman, that will lead to further complications.
	It is my respectful submission that the informers should be treated on equal footing as any other citizen of South Africa.

CHAIRPERSON: Now let me put another problem to you.  These people are alleged to have done certain things.  If their names are mentioned, it will be on the basis that they acted as the applicant/policemen who said they did.  Doesn't justice demand that before that is done, they are communicated with, told that they have been implicated and given an opportunity to be heard or make representations?

MR NGUBANE: Well, justice demands that but I have been informed that there is a machinery to deal with the situation like the one we might find ourselves in, that is Section 30.  Unfortunately I haven't dealt with the hearings more extensively as other, some of my colleagues might have dealt with, but I am reliably informed that there is provision for the Act to deal with that particular situation, that they can be notified in an appropriate manner, Section 30.

CHAIRPERSON: That should be done before any publicity is given?

MR NGUBANE: I cannot honestly answer that question, but I am informed that during the proceedings, if someone is mentioned, then he can be notified.

CHAIRPERSON: If one can avoid the danger, one should do it, shouldn't one?

MR NGUBANE: Yes.  Yes, I agree with that Mr Chairman.
	Mr Chairman, the point that I wanted to advance further is that if the Act of 1995, Act 34, intended to create a special category of people who should be exempt from being mentioned in the Truth and Reconciliation Commission, the Act I submit would have made it clear that there must be full disclosure, but so and so should be disclosed.
	In all, all in all Mr Chairman, I don't think I can advance the argument without repeating myself and that is all I wish to submit to the Committee.

CHAIRPERSON: Right, we will take the short adjournment now.
COMMITTEE ADJOURNS

CHAIRPERSON: Mr Prior?