Amnesty Hearings — Durban — 1998-11-17

MR VISSER: Yes, Mr Chairman, and if  I may just be allowed to read this, in referring to the evidence of Powell, the learned Judge said that although he had been designated as a spy or traitor and an accomplice, if his object in entering into the confederacy, was not to deceive or entrap anyone, but to serve his country, he was entitled to praise instead of censure, etc, etc, Mr Chairman.
	Again, further down the page, a spy on the other hand, may be an honest man.  He may think that the cause he pursues, is absolutely essential for the protection of his own interests and those of society and if he does so, if he believes that, there is no other method of countenancing the dangerous designs of wicked men, I can see no impropriety in  his taking upon himself, the character of an informer.
	Mr Chairman, perhaps lastly, with reference to Rex v Heuser, their Lordships referred to that case and say it was held that neither an informer, nor police officers who assented to his entrapping of an offender, became accomplices to the person so entrapped.
	In my view it is thus established by authority and accords with our sense of justice, that a person who collaborates with an accused in purported furtherance of criminal conduct, but with provable and proved intention of merely collecting evidence against such a criminal and revealing such evidence to the police or prosecuting authorities, is not to be regarded as an accomplice.
	Mr Chairman, we leave that point there, these were the authorities which may be obliquely relevant which we have been able to find on the issue of where the informer becomes part of the criminal act.
	We say Mr Chairman, dealing with that very point which you mentioned to me just a moment ago, we say that a court of law will not depart from the general rule of non-disclosure where the person in question is not before it, so that it might enquire as to whether he was the one or the other, in terms of the authorities which we have read to you.
	In the present instance Mr Chairman, we say they are described as police informers on the evidence, and they are not present to establish that they were in fact not accomplices Mr Chairman, and we say that suggesting that the disclosure of their identities would bring about a situation where they will have such an opportunity in a court, ignores the fact that they will probably never reach the portals of that court of law, as they would probably be killed once their identities have become known.
	We refer Mr Chairman, to Siliman v Hansa where his Lordship Mr Justice Fannon held that in the case of an informer who give ...(indistinct) information to the police, thereby committing a crime or offence, public policy nevertheless requires that his identity as informer, must be protected.
	That is the judgment in Siliman's case.
	Mr Chairman, what is the reason for the rule of non-disclosure of identity of informers?  Clearly Mr Chairman, it is their safety, it is submitted that the issue of disclosure of the identity of an informer, stands apart from the issue of whether he was an accomplice.
	Whether or not, putting it differently, whether or not he was an accomplice, is going to make not the least little bit difference to the situation of his safety once his identity becomes known.
	The rule of protection of informers, was devolved for specific reasons, and those have already been referred to.  That rule cannot be waved because the informer also happens to be an accomplice.  As the result of disclosure of his identity will be the same, whether he was an accomplice or not.
	The disclosure of his identity Mr Chairman, will in all likelihood be tantamount to a death sentence and particularly we say, in the present circumstances and in the present instance.
	Mr Chairman, now we come to the issue of full disclosure at page 13 and we say this Mr Chairman, let us not forget what we are busy dealing with here.  We are dealing with amnesty applications.
	The Act has stated the requirements and the specifications to which an applicant has to conform in order to obtain amnesty.  We say Mr Chairman, that the question of the identity of these informers has got nothing to do  with the application before you.
	Whether you know about their identity or not, makes absolutely no difference in your enquiry as to whether the provisions, the requirements of the Act have been complied with by the applicants.
	It does not form part of the facts, or circumstances which the Committee is required to adjudicate, in order to give judgment on the subject matter of the case.  It is therefore irrelevant we say Mr Chairman, and again if we may quote from Carla's case as to what would be relevant information, where His Lordship says so the public interest in preserving the anonymity of police informers had to be weighed against the public interest that information which might assist the judicial tribunal such as you Mr Chairman, and your co-Commissioners, to ascertain facts relevant to an issue on which it is required to adjudicate.
	Mr Chairman, you will agree that the identity of the informers cannot in any way assist you to adjudicate upon an issue which it is required for you to do in order to grant amnesty or refuse it.
	We say therefore Mr Chairman, that the identity of the informers is therefore entirely irrelevant to the present proceedings.  Those proceedings are to facilitate the granting of amnesty to the applicants, not proceedings for the benefit of those who with revenge in their hearts, wish to use the proceedings for purposes of gathering information for their own designs.
	The exhibition of hatred and aggression Mr Chairman, by some of those present at the hearing on Friday and I dare say today again, would have made it plain that the information was sought not for innocuous purposes.
	That was also confirmed in the submission of Mr Ngubane Mr Chairman, who suggested that  it would be better for the identities of these two informers to be divulged in order to protect four or six or more others, who are presently suspected of having been those persons.  Clearly Mr Chairman, it is from a point of view that harm was anticipated at least, and probably will definitely result.
	Mr Chairman, why do we say that, we know this from the writings, information given out by the ANC.  We refer there to Seshaba Mr Chairman, January 1979, page 28 where it is blandly stated as a fact in the recent period, some of the black members of the Police Force and informers, have been eliminated.
	As a statistical fact, the ANC's struggle update, number 3 of 1985, a report of an interview with Mr Joe Modise under the caption Umkhonto update, at page 7, he says collaborators are being weeded out and are lucky when they are able to escape with their lives.
	Can we really say that those sentiments are dead in our society today Mr Chairman, we believe not.  Seshaba, December 1986, a report of an interview with Mr Chris Hani, under the caption 25 years of armed struggle and listen to what he says.  He says so the necklace was a weapon devised by the oppressed themselves to remove this cancer from our society.  The cancer of collaborators of the puppets.  It is not a weapon of the ANC, it is weapon of the masses themselves to cleanse the townships of the very disruptive and even lethal activities of puppets and collaborators.  We do understand our people when they use the necklace, because it is an attempt to render our townships, to render our areas and country ungovernable, to make the enemy's access to information, very difficult.
	Mr Chairman, we also have in the volumes before you, volume 3 page 412, MK strikes against impimpis, with lists given of people who were regarded or alleged to be impimpis, traitors.  It is under the caption kill the traitors.
	In the ANC statement to the TRC Mr Chairman, dated August 1996, reference is made to the elimination, the murder of traitors, page 11, page 52, page 69 and page 100.  I am not going to read through it Mr Chairman.
	And then Mr Chairman, we come to the question as to the locus standi of the family of the deceased here, to bring such an application and without wasting time, we say they have absolutely no such locus standi Mr Chairman.  They are not the prosecuting authority, they are not the Attorney General, who has approached the witness to say we wish to prosecute these people, give us the names.
	What have the members of the family got to do with it Mr Chairman?  The only purpose could be for purposes which are not innocuous and we say Mr Chairman, that in the authorities which you will find, and which we have referred to, the issue of the question of the protection of identity of informers, all occurred within a certain situation and that was always in order to assist an accused person, in a criminal case, with his defence.  Not in circumstances as we have here today, and it may be argued yes, but the TRC didn't exist at the time when these authorities came about, and that may be so Mr Chairman, but clearly one would have to ask yourself, what is the locus standi of Mr Ngubane to ask these questions, and what is it intended to do with this information.
	Certainly it is not intended that these people should thereby now be prosecuted, because that is the decision of the Attorney General, Mr Chairman.  By all accounts, if there is an Attorney General, if I read the newspapers in Natal, Mr Chairman, we deal with the consequences of an order to disclose.
	We say Mr Chairman, if you were to order and we mean no disrespect, we are looking at the situation here, if you were to order for example Botha to give the information, and he says I am not giving it, what happens then?  What happens then?
	You will not issue an order, and this is trait law Mr Chairman, which you cannot enforce.  The only enforcement of such an order would be a criminal prosecution, having gone through the steps of Section 31, and reading Section 39 and clearly Mr Chairman, the argument is that there won't, there can't be such a prosecution in terms of Section 39, because the test differs.
	It is not the same test.  The test as I have already discussed with you earlier, was one devised to obtain evidence from a person in the situation where the Investigation Unit is looking for evidence or the Human Rights Violations Committee is looking for evidence, not in this test situation in which we find ourselves.
	We say Mr Chairman, the Committee has no power to convict such a witness of contempt.  Section 39(c) presupposes that the Committee would have to lay a charge of contravening the provisions of the TRC Act with the Attorney General for him to institute criminal proceedings for contempt.
	An applicant who refuses to disclose the identity in spite of being ordered to do so by the Committee, can also not be accused of not having made a full disclosure of the relevant facts, in accordance with the provisions of Section 20, because as we have already stated Mr Chairman, relevant facts do not pertain to the identity of informers.
	Such relevant facts cannot be interpretation refer to the disclosure of the identity of an informer.  Mr Chairman, we deal separately with the question of public interest.  We repeat the statement in Carla's case as to the two separate instances of public interest Mr Chairman.  We say that with great respect, the disclosure of the identity of informers in the present case, is not going to assist this Committee in its work, in what it has to adjudicate on and therefore Mr Chairman, it should not so be ordered.
	The interest of the family of the victims cannot be equated Mr Chairman, we say at paragraph 46 with public interest.