Amnesty Hearings — Cape Town — 2000-11-18

MR WESSELS: Oh sorry, then I made an assumption ...(indistinct) practice.  But there are other incidents where similar types of grantings have taken place.
	Mr Chairman, the applicant has to satisfy the Committee in terms of Section 20(1), that the application complies with the requirements of the Act.  I don't believe that there's any suggestion that we have a technical difficulty in any way.

CHAIRPERSON: Yes, I don't think that's been raised at all by anybody, the actual formality side of it.

MR WESSELS: Yes.  The act, omission or offence to which the applicant relates, is associated with a political objective and was committed in the course of the conflict of the past, in accordance with the provisions of (2) and (3) and that the applicant has made a full disclosure of all the relevant facts.
	Mr Chairman, for purposes of determining if an act is associated with a political objective, the criterion in Section 20(2) shall be taken into account and to determine whether an act is associated with a political objective, the factors as set out in Section 20(3), should be taken into account.
	Then I'm just referred to Section 20(4), I won't dwell on that.  The other formalities or principles that are required I set out in 14, Mr Chairman.  It's not necessarily to deal with that I believe.
	Mr Chairman, what is important is that Section 20(2)(b) makes it clear that amnesty can be granted to members of a Security Force, who committed acts during a political struggle against members or supporters of an organisation opposed to the State, in the bona fide belief that they were countering and resisting the struggle.
	Similarly, Section 20(2)(f) indemnifies any person who, on reasonable grounds, believed that he was acting within the course and scope of his duties and within the course and scope of his or her expressed or implied authority.
	Then Mr Chairman, insofar as Section 20(1)(c) is concerned, one must read the words "full disclosure of all relevant facts" in the context of the Section as a whole.  The application for amnesty is for a particular act, omission or offence, and I refer to Section 20(1)(b) and that act, omission or offence, Section 20(1).  It is therefore clear, in my submission, that the legislature intended to deal only with particular acts and not anything more.  
	This Committee is an Amnesty Committee under Section 16 and 17 of the Act, and not an Investigative Committee under Section 12.  
	Insofar as evidence was elicited which do not pertain to the three applications of the applicant, it is my submission that it is irrelevant for the purposes of the application, whether given by the applicant or anyone else.  Section 20(1)(c) makes it clear that we are not dealing with all facts, but only relevant facts.
	The next question that arises is what is meant by "the Committee, after considering an application for amnesty, is satisfied that".  Mr Chairman, in the Afrikaans version of the Act "oortuig" is used, "satisfied" is not the same as "oortuig".  I refer to the case of S vs Makula and would like to quote from that case:
"The official version of Act 51/77, namely the Afrikaans text, uses the word 'oortuig' in the said Section, whereas the English text used the word 'satisfied'.  In my view, the correct translation of the words 'om te oortuig' is not to satisfy but to convince.  It is only if a person is convinced of a certain fact that one can say in Afrikaans 'hy is daarvan oortuig'.  The correct rendering into Afrikaans of the words 'to satisfy' in the present context, is not 'om te oortuig', but 'om tevrede te stel'.  According to the English/Afrikaans Grootwoordeboek, the word 'satisfied' is translated as 'tevrede, versadig, bevredig, voldoen' and the word 'satisfy' is 'bevredig, voldoen, tevrede stel, versadig, gerusstel."

CHAIRPERSON: If you take a look at this addendum that we've just been given, The Shorter Oxford English Dictionary, page 3 paragraph 8, the Shorter Oxford English Dictionary defines "satisfied" to mean "to furnish sufficient proof or information, to set free from doubt, or certainty, or to convince."  But I agree there is a difference between "convince" and "satisfy", although this Shorter English Dictionary defines "satisfy" to mean also "convince".

MR WESSELS: Perhaps in a general sense, language sense, there may be differences compared to in a judicial sense where particular emphasis is placed on the proof aspect of it.  So it is my submission that analyses in the Makula Judgment is more appropriate than using the dictionary that you have referred to, Mr Chairman.

CHAIRPERSON: But if one takes - it's always difficult to get a precise meaning for a word like "satisfy", you know what is satisfy?  You can give it a, even within itself, a stricter type of meaning or a more liberal and broad type of meaning.  And I know the general rule, we all know the general rule of interpretation, it's the signed text that counts, but if one takes a look at the English, okay that's the signed text, satisfied, and then we now want to know whether we should go the more restrictive way with regard to satisfy or the broader meaning of satisfy, and then the Afrikaans word is convince, "oortuig".  Does that not mean that the intention of, it would indicate that the intention of the legislature was ...(intervention)

MR WESSELS: The stricter interpretation?

CHAIRPERSON: Yes, satisfied should lean more towards convince than the other way.

MR WESSELS: Mr Chairman, firstly, words like "oortuig" or "satisfied" is also a relative concept, what is satisfied for one person may not be satisfied for the other person and you can necessarily say who is right or wrong in applying the word to a particular set of facts.  That is why it has to be read in the context of the Act as a whole, where the intention is, as I've submitted to you, to give it a broad benevolent interpretation, so that as many people as possible, the intention is to give as many people as possible amnesty and to have the purposes of the Act complied with, and you've got to see it in that light, firstly.
	Secondly, you've got to see it in the administrative law sense, which is applicable here, where you're dealing with an administrative procedure and administrative interpretation as opposed to a criminal procedure type of situation.

CHAIRPERSON: Are you saying, Mr Wessels, that in using the word satisfy we can go beyond the balance of probabilities, down to possibilities?

MR WESSELS: Yes, that is what I say and I deal with that further in my Heads, that the test is not a reasonably probably true version, but only a reasonably possible version.  Or that it could be reasonably possibly true.

MR LAX: Wouldn't that make our work extremely ...(inaudible - no microphone) on the irrelevant?

MR WESSELS: No, with respect not, Mr Chairman.  This is not - the interpretation that is to be given to this Act is a wider interpretation than is to be given in criminal proceedings, in the Criminal Procedure Act and even in criminal law the test ...(sound cut off)

CHAIRPERSON: I think you'll probably all agree that it's not beyond reasonable doubt.

MR WESSELS: Yes, that is the onus that is on the State, but if you take the other side of the coin, what an accused in a criminal case must do is only convince a Court that is version is reasonably possibly true.  So if you apply the probably true version here, then you're placing a onus on an applicant which he doesn't even have in a criminal trial.  And that in my submission, is clearly contrary to the intention of the legislature, the intention was not to make it more difficult for a person to get amnesty than for an accused to be found guilty in a court of law.