Amnesty Hearings — Ermelo — 1998-07-22

MR HATTINGH: Mr Chairman, thank you for the ... (intervention)

MR SANDI: Sorry, Mr Hattingh, I just want to sort out something with my chairman here, sorry, for a moment.

MR HATTINGH: Thank you, Mr Chairman.  I did give this whole issue further consideration during the break and I don't want to waste this Committee's or this Commission's time any or much longer.  There are only five points which I would like to mention and then I will leave it in your hands.  Number one is, I think when we deal with documentation which was submitted to the Amnesty Committee or Commission, then we don't talk about any further privilege as we know it, then we talk about confidentiality, not privilege.
	Once you've sent your application and all other documentation, statements to the Amnesty Commission then you can't keep your privilege with regard to those documents.  But the Act, on the other hand, does provide for a confidentiality with regard to those statements and documents and that's what we're dealing with here.  That's the first issue and we can, in terms of section 19.8(a) and (b) we can deduct it from section 19.89(a) and (b) of the Act where it is stated that:
"Such application documentation in connection therewith, further information and evidence obtained, deliberations conducted in order to come to a decision or to conduct a hearing shall be confidential."
Nothing about privilege.  So, we're only dealing with confidentiality.  The second issue is, and I think that is clear, is that there was only one formal application on behalf of this applicant, and we have that formal application as part of the documentation as contained in the bundle as from pages twenty three (23), twenty four (24) and twenty five (25), that is the formal application.  We are advised that there is no other formal application but this one.  
	Now, the statement about which the whole discussion is about is not a statement separate of this application.  It is the application.  Once you say, and it is stated in paragraph nine (9), on page twenty four (24), 9(iv), nature and particulars.  This formal application refers to or in it on page twenty four (24), on page two thereof, it says, "Refer to file incorporating the statement".  Now, the statement we have heard now is the statement which is not before this Committee.

CHAIRPERSON: Assuming I accept your point, what is the position where the power at (b) separates the different incidents into various applications separate from each other, what would then be the position?

MR HATTINGH: I think it's clear that you can't have an application, and we're dealing here with ninety percent (90%) of the incidents contained in that application and only have half of the application or actually the real contents of the application is not before this Committee.  It's just not on.  So, whatever the dangers of any disadvantages to the applicant, his application, he cannot carry on with an application which is only in part before this Committee.  So, what I say is that whatever we do with it, the application itself must be complete and that application includes by way of annexure, the statement which was first submitted together with the application and which is not before this Committee.

MS BOSMAN: Mr Hattingh, sorry.  May I just enquire from you, are you saying that the Amnesty Committee cannot hear the incidents separately, or are you simply saying that whenever an incident is heard the full documentation must be put before the Committee?

MR HATTINGH: I'm not saying that this Commission cannot hear an incident separately.  I do not know.  If the Act does not make provision for that I do not know under what authority they can do that.  But let's for one moment accept they can do that.  Following from that, I say that we cannot proceed with this application with the five murders on which the applicant makes his application with only half the application before us.  We've got to have the full document as it was submitted initially for his application.

MS BOSMAN: It's exactly the point I'm making.  You are referring to the full documentation.  Right, thank you.

MR HATTINGH: So, just to finalise this point.  I do not think it's a matter of I can submit that it is not possible to take your initial application and then, as time goes by, substitute your annexures to that application at will.  Include, exclude and take away things that was initially part of your application.  That document must remain the initial application.  You can always add to that, but you cannot take away and substitute.  That is just a matter of, I think it flows for obvious reasons that one cannot do that.  I cannot find anything in the Act to say you can do it or not.  Then if we move on to section ... (intervention)

CHAIRPERSON: We'll get onto that.  Deal with this then.  We all know now today that a number of monstrous crimes were committed by, for want of a better example, by a number of high ranked policemen in this country, some of whom were involved in more than one incident.  Are you suggesting that for example, that the policemen involved in the Biko murder, some of whom were also involved in the Cradock Four murder, that it is capable of questioning them in the Biko application about what happened in the murder of the Cradock Four?

MR HATTINGH: Mr Chairman, for this very question I don't have an answer readily available.

CHAIRPERSON: Isn't that based on your argument?

MR HATTINGH: No, what I say, I don't have an answer readily available from the Act to say that yes, you are entitled to do so or not.  But I would suggest, and I've made this suggestion all along, is that yes, to test this applicant with regard to his motives you've got to be allowed to cross-examine him on those other matters.  Now, the reason why I'm saying so is the third point I would like to make, and that is in section nineteen (19) - sorry, that would be section 20.1(c).  Twenty two zero and then subsection (1)(c), where it is stated that
"The applicant has made a full disclosure of all relevant facts it shall grant amnesty in respect of that act, commission or offence."
	Now, if we have to look at the Act, I cannot see that one can say and that the society can recognise it as full disclosure of all relevant facts to be considered by this Commission if some facts are to be withheld, although they may very well form part and parcel of the other incidents for which amnesty application is being made.  So, based on that, a full disclosure of all relevant facts I say yes, my submission would be in the circumstances it would be necessary to be allowed to cross-examine.

CHAIRPERSON: Well, if he chooses not to make full disclosure, assuming you're correct, doesn't that count against him at the end of the day?  Can anybody force any applicant to make a full disclosure?  If he doesn't then he hasn't complied with the requirements of the Act, isn't it?  But certainly he can't be compelled to make full disclosure.  I can't think that that would be the case.  He elects in his application to make full disclosure.
	If he doesn't he risks not getting amnesty, not so?  He may very well get away with it at the end of the day, but certainly he risks as opposed to forcing him to make this full disclosure.  What do you say about that?

MR HATTINGH: I would submit that one cannot force an applicant, force him to make full disclosure, but the result of non full disclosure would then flow that he's not going to get amnesty and if that nondisclosure pertains to another incident, but which in essence is also relevant to the incident for which he makes application, then that is not full disclosure and then he's not going to get amnesty.  You cannot force him, but he will have to live with the results or the consequences thereof.