Amnesty Hearings — Johannesburg — UNKNOWN

CHAIRPERSON: And I can't tell you just now when we willgive a decision in the matter but as soon as we are in a positionto do so we will give a decision in this application.

MR DU PLESSIS: Yes.

CHAIRPERSON: So what I can say is that we will reserve ourdecision and we would like you to proceed with your case in themeanwhile.

MR DU PLESSIS: Yes.  Mr Chairman Mr Mpshe has just pointedout to me that that would obviously then entail the evidence ofGeneral van der Merwe who is the first witness that I want tocall and not then the other witnesses thereafter
2B before/...
48
before judgment is given on this application, as I understandyou correctly.
 Mr Chairman there is just one other issue before I go ahead tocall General van der Merwe which I want to raise with the Committeenow so that clarity can be obtained in respect of that issue forthe future.  We have a concern pertaining to the interpretationof section 31(3) of the Act dealing with incriminating evidence,and the fact that it's provided therefor that incriminating evidenceshall not be admissible as evidence against the person concernedin criminal proceedings.
 If on reads section 31(3) closely it refers to the following,
  "Any incriminating answer or information obtained or incriminatingevidence directly or indirectly derived from a questioning interms of subsection 1 shall not be admissible as evidence"
That only relates to a questioning in terms of subsection 1. Now subsection 1 says,
  "Any person who is questioned by the Commission in theexercise of its powers in terms of this Act or has been subpoenaedto give evidence...."
there is a clear distinction between a person who is questionedby the Commission and a person who has been subpoenaed to giveevidence.  
 Then I want to refer you also to section 29(c) which deals withthe right of the Commission to subpoena witnesses which says that,
  "By notice in writing call upon any person to appear beforethe Commission and to give evidence or to answer questions relevantto the subject
2B matter/...
49
 matter of the hearing".
 Now the applicants are concerned that if they are regarded asthe category of persons who are to give evidence at the hearingin terms of section 29(1)(c) and not to answer questions theywill not fall under the auspices of section 31(3) and any incriminatingevidence they might give in these proceedings might be used ina criminal case against them later.  The only point I want toraise here in conjunction with the Committee is that I want toplace it on record and I wish the Committee to agree with theapplicants that the applicants are at this hearing, although theyhaven't been subpoenaed, as a person who is questioned by theCommission as meant in section 31(1) and that the applicants willthen fall under the auspices of section 31(3) and incriminatingevidence by them will then be evidence derived from a questioningin terms of subsection 1.  We would request the Committee to,if possible, if the Committee is prepared to do that to stateon record that the applicants are regarded as witnesses who arequestioned by the Commission and that according to the Commissionand the Committee that they fall under section 31(1) and 31(3).

CHAIRPERSON: Whatever evidence the applicants give in thiscase, and if it should transpire that they will have to appearbefore another tribunal in a criminal trial for instance thenwhether this evidence that they give before this Committee wouldbe admissible in the second tribunal or not is a matter for thattribunal to decide and I have no doubt their counsel would beentitled to argue at that stage and give reasons why their evidencethat they gave before this Committee is not admissible in thattrial.  We cannot bind, and give a ruling now, we cannot givea ruling now and 2B bind/...
50
bind the powers of another tribunal in this matter.

MR DU PLESSIS: Mr Chairman thank you very much, I understandthat completely.  The only request I made was for the Committeeto pronounce that the applicants are persons who are questionedby the Commission as is meant in section 31(1).

CHAIRPERSON: Even that is a bit unrealistic at this stagebecause interested parties in these proceedings apart from membersof the Commission may want to question witnesses.  There mightbe dependants or victims or relatives of dependants who mightwant to ask questions on the basis that the applicants may nothave made a full disclosure.

MR DU PLESSIS: Yes.  Mr Chairman I realise that completelyand obviously that will not preclude any other parties to askquestions from the applicants.  The only factor that worries theapplicants and which is a bit - something that is not clear fromthe reading of section 31 is that a person is only covered inrespect of incriminating evidence if that evidence is derivedfrom a questioning in terms of subsection 1.  And subsection 1refers to two categories of persons.  Firstly a person who isquestioned by the Commission and secondly a person has been subpoenaedto give evidence.  Now on the reading and interpretation of section31 it is possible that a person who has been subpoenaed to giveevidence might not fall under the umbrella of section 31(3) whichis a problematic factor and which means that incriminating evidencecan be used in a criminal case against such a person.  That iswhy the request is directed to the Commission that the applicantsbe regarded as persons of the first category referred to in section31(1), namely persons who are questioned by the Commission andnot
2B necessarily/...
51
necessarily persons who have been subpoenaed to give evidence.

JUDGE WILSON: As my brother has just said that will bea matter for that Court to decide, not for us to decide.  If theydecide he is not a person who is questioned by the Commissionin the terms of the Act anything said by us will be irrelevant.

MR DU PLESSIS: Yes My Lord I accept that.  I have mademy submissions on that and I have your answer, I will abide bythat.  Thank you very much.

CHAIRPERSON: Mr Mpshe are there any submissions that youwish to make on the application that has been made to us aboutthe subpoena of witnesses?

MOKOTEDI MPSHE: Mr Chairman, Members of the Committee I haveno submissions Mr Chairman.

CHAIRPERSON: Very well then.  May we proceed with the evidenceof the witness you propose calling.

MR DU PLESSIS: Thank you Mr Chairman.  I then wish tocall General Johan van der Merwe as a witness.

BERNARD MAKGABO NGOEPE: Mr du Plessis there are lots of documentationin front of us which we needed to read before we came here, dowe understand you to - I know that General van der Merwe is goingto give evidence in general, maybe background, but back to thepoint we started with, Mr Mpshe has identified certain matters,irrespective of which there has not been proper notice to thevictims or the families.  I assume we are conducting the hearingson the basis that we are not going to be dealing with those particularincidents? Or are you insisting that we should also hear applicationsfor amnesty in respect of those incidents?

MR DU PLESSIS: No, Mr Chairman clearly if the procedural
2B requirements/...
52
requirements have not been complied with I would be foolish toinsist that the hearings go ahead because that could only meantrouble in the future in respect of whatever decisions are madein respect of those issues.  I would speak to Advocate Mpshe andenquire from him how far the process in respect of those incidentswhere the procedures have not been complied with, how far thatprocess is and if those incidents could not perhaps be dealt withright at the end of the hearing perhaps next week so that onecould try and see if compliance could not be reached in respectof those incidents.  I will have a discussion with him.  I willnever insist that hearings go ahead where the procedure has notbeen complied with.