Amnesty Hearings — Durban — 1999-10-04

CHAIRPERSON: Good morning everybody.  I see that you have placed before us Heads of Argument, thank you very much, Mr Dehal.  I take it these ones are yours Mr Richard?  Thank you.   As I said on Thursday when we adjourned, that this morning, today in fact is just going to, we are just going to hear argument on the question of the evidence which was given by Mr McBride at the Section 29 hearing during 1997.  You will recall we said that we requested Heads and two sets have been provided here and then said that any legal representative, should he or she so desire, can emphasise points and make oral submissions.  Could we start with Mr Dehal, ask Mr Dehal whether you have any submissions you would like to make, points you would like to stress on the arguments which you have submitted?

MR DEHAL: Thank you Mr Chairman.  Mr Chairperson and honourable members, I would begin by saying that there is no point, it would seem for me to reiterate the argument contained in my Heads, least the incorrect impression be drawn from that submission, I wish to qualify it only on the one basis and that is as is the case with my Heads, I have only now seen my learned colleague's Heads, and once they have addressed you Mr Chairperson, perhaps if I am given the opportunity to respond, then I could deal with those aspects.   Apart from that, just to highlight a few aspects on my case.

CHAIRPERSON: Are you in a similar situation Mr Richard, that you would want to have some time to read Mr Dehal's Heads?

MR RICHARD: I also only received his Heads in the last 45 minutes, I think we have started a bit late, but I am ready to proceed.

CHAIRPERSON: Yes.  Mr Mall, are you going to make any submissions?

HASSAN MALL: No, I am not going to make any submissions today.

CHAIRPERSON: Mr Prior?

ADV PRIOR: Mr Chairman, there were just one or two aspects I wish to highlight.

CHAIRPERSON: Are you ready to proceed Mr Richard, otherwise if you want some time to read these Heads, you can have it?

MR RICHARD: I am ready to proceed and in the same way as Mr Dehal has indicated, that he wishes to reply to me, I will in due course reply to him, rather than waste time reading, I am
ready to proceed now.

CHAIRPERSON: Yes, thank you.

MR RICHARD: Thank you Chair.  In this particular matter attention needs to be given to the context of the matter, its peculiar facts and background.  To argue it as a matter of pure law, in my submission would be artificial.   At page 2 of my Heads, onwards to page 7 I have outlined certain facts.   One of the things to stress in that narration, is that the document which we referred to as Annexure C is the product of a Section 29 investigation at which Mr McBride was legally represented by Mr Brian Currin and in which as is outlined in page - for give me, gone too fast - page 5 referred to in the Section 29 hearing.  I don't think it is a breach in anticipation or otherwise to refer the Committee to what is said at paragraph 1.19.  The essence of it ...

JUDGE PILLAY: Mr Richard, I am just browsing through your Heads, at 1.27 the last paragraph on page 6 of your Heads, I think there is an error there, I think it should read it was explained that it was not deciding the question of whether the Section 29 transcript may be used for the purposes of cross-examination the fifth applicant.

MR RICHARD: I stand corrected, it is quite correct, there is a word "not" missing in the second line of paragraph 1.27.  The transcript may not be used for the purpose of cross-examining the fifth, that is quite correct.  I am sorry, I am not a typist, I made the error while typing it myself.   Now, at page 179 of Exhibit C Mr Currin says
"...  what we have, which I will in a moment hand back to you Mr McBride, is a document which contains detailed information with regard to the Magoo's bombing and we would like (and then there is irrelevancy and it continues later in the paragraphs) which I think is fairly comprehensive."
	And then at the end of that paragraph Mr Currin proceeds to state -
"... and it is also the - this will be part of his application verbatim, part of his application which we will lodge to the Amnesty Committee at a later stage."
	It is important to note that that statement by Mr Currin was made in the context that on the 10th of April 1997, as appears from Exhibit A, Mr McBride's application was received by the Amnesty Committee, there is a date stamp on the first page of the amnesty application.   Then this hearing took place a few days later, on the 21st of that month.  So it is clear that whatever this document is, which we have never seen, was part and parcel of what was the then amnesty application and also part and parcel of the Section 27 enquiry record.  I believe - it is at page 29 - and  I believe that ...

ADV PRIOR: You said the Section 27 hearing.

MR RICHARD: Section 29 hearing, sorry, I thought people were reminding me of page numbers, Section 29 investigative proceedings.   Now any law such as that applicable in this debate, has to be applied in a factual context.
	Now the next issue that I would address is what in fact is the applicant's objection.  In paragraph 13 under paragraph 3.2.2.5 and here I have used the work the fifth and first applicants appeared, I have stressed the word appear, because there have never been a formalised notice of objection,  object to the use of the Section 29 transcript by the Amnesty Committee.  If that is not correct, I would ask Mr Dehal to amplify or to alter it.  Then the second point, the client provide the victim's legal representative and the Committee with copies of the document described as the and I set out the quote, as referred to in paragraph 9(b)(iii) in his application and mentions in paragraph 1.17 above.   
	The third one is an objection to the transcript and whatever is referred therein, being used in cross-examination.  At that stage, since we both are reserving our rights to reply, I think I might ask Mr Dehal if there is anything that he would like to add to make sure that we are focused as to what objection is before us.

MR DEHAL: Mr Chairperson, in so far as that paragraph itself is concerned, that is page 13, paragraph 3.2.2.5, indeed subparagraph (a) is correct.  Subparagraph (c) it would seem follows from subparagraph (a), but in truth is not an objection in principle raised by myself, relative to the applicants represented by Ms Kooverjee and I, but indeed by Mr Berger, relative to Mr Ismail when he then testified.  It is not really a point I am taking, I simply supported Mr Berger.  In so far as subparagraph (b) is concerned, the terminology is incorrect, the inference therefore is incorrect.  I do not nor do my clients decline to provide the victims' legal representative with anything in that regard, I do not have any copies.  In fact when you, Mr Chairperson, enquired from my appropriately what might the word application refer to if it does not refer to the evidence of Mr McBride in the 29 hearing, I endeavoured to suggest what it may possibly refer to.  I do not have those documents.  Mr Brian Currin represented Mr McBride, I telephoned Mr Currin, I sought to have his files sent to me, but he indicated after careful search that the files he did find, would be of no use to me.  I do not decline to provide any documents, I do not have them, and I think in this regard, when I am given the opportunity to respond, what I will do is refer to non-committal aspects of bundle C, particularly the first seven pages, which allude to what that document application may possibly be.  Thank you.

CHAIRPERSON: Sorry.   Mr Richard, while you are on this, sorry Mr Prior, do you have any idea or whether any documents were handed in at the Section 29 hearing?