Amnesty Hearings — Cape Town — 2000-11-19

MR HOCKEY: Thank you Mr Chairman.  May I just start off by saying that I associate myself with the arguments raised in their Heads and with the oral argument of Adv Bizos and Adv Kahanovitz insofar as the legal aspects and the facts and the application  of the facts to the law is concerned.  Mr Chairperson, I raise, in the first part of my Heads I also addressed the issue of the interpretation or the test that should be applied and to what extent that should be liberal or restrictive and I quote extensively from the AZAPO Judgment.  The first quote in paragraph - I'm not going to read it out, deals with the reason why, the rationale behind the whole question of truth, especially for the victims.  Obviously the rights of the victims are that they want full disclosure and because the rationale behind this is because they want to put closure to certain chapters in their lives.
	If the Committee will bear with me, I do want to quote two passages from the AZAPO Judgment which sums up the position that I adopt.  The first one is under paragraph 5 of page 4 of my Heads, where Judge Mohammed says in paragraph 9 of the AZAPO Judgment:
"The effect of an amnesty undoubtedly impacts upon the very fundamental rights.  All persons are entitled to the protection of the law against unlawful invasion of their right to life, their right to respect for and protection of dignity and their right not to be subjected to torture of any kind.  When those rights are invaded, those aggrieved by such invasion, have the right to obtain redress in the ordinary courts of law and those guilty of perpetrating such violations are answerable before such courts, both civilly and criminally."
An amnesty to the wrongdoer effectively obliterates such rights.  The other quote from the Judgment is found on page 5 of my Heads, Mr Chairperson, where the Judge says in paragraph 32:
"The amnesty contemplated is not a blanket amnesty against criminal prosecution for all and sundry, granted automatically as a uniform act of compulsory, statutory amnesty.  It is specifically authorised for the purpose of effecting a constructive transition towards a democratic order.  It is available only where there is full disclosure of all facts to the Amnesty Committee and where it is clear that the particular transgression was perpetrated during the prescribed period and with the political objective committed in the course of the conflicts of the past."
I make, I quote from the AZAPO Judgment to make the point that any interpretation should not be at the expense of meeting the requirements of the Act.  My submission is that there are certain jurisdictional facts that have to be met and one of those, which obviously there are conditions present to the granting of amnesty and in my particular Heads I concentrate on the aspect of full disclosure.  I stand by other grounds or other jurisdictional facts which it's contended have not been met, raised by Advocates Bizos and Kahanovitz.
	Mr Chairperson, I'm just going to very briefly refer to the facts in consideration of the question whether the requisite jurisdictional facts are in fact present here and whether it is therefore incumbent on the Committee to grant amnesty to the applicants.  It should be borne in mind of course that I represent the victims of the ELC only and I only address the applications in respect of that bombing.

CHAIRPERSON: And I see from your Heads that you're also addressing on behalf of Mr Williams.