Amnesty Hearings — Durban — 1999-10-12

MR DEHAL: Sorry Mr Chairperson, may I come in at this, I apologise for the interjection.  I have a concern insofar as the applicants Mr Kooverjee and I represent and Mr Berger seems to align himself with my concerns insofar as the first witness Mr Richard represents is concerned and the nature, quality of the submission she has made in the format that she has made them.  I do understand that there is no evidential value to her statement made in the nature it was made but in addition there are many aspects in that statement that cast ...(indistinct) on Mr McBride, his credibility, on aspects outside the ambit of this application on things that attack his credibility, his character etc, for example the Cape Town brawl, the Mozambique issue.  I am seeking clarity for I do not know what my status is, what my applicant's rights are insofar as that statement is concerned.  I think leaving it as it is without expressing our views especially with the public recording offered and the wide publicity that this is going to receive I have deep concerns and it counters reconciliation, especially in the spirit with which it was read out.  Thank you.

MR BERGER: Chairperson, I align myself with Mr Dehal's comments in particular we understand from the Committee's point of view that a statement made not under oath doesn't carry any evidentiary value, we understand that completely and we have no problem with that, the problem of course is that these proceedings are being recorded by the public media and will receive as Mr Dehal correctly points out, wise publicity and it's that publicity that would be uncontradicted and uncountered and we have a serious problem with that as well.

CHAIRPERSON: Mr Richard?

MR RICHARD: Thank you Chair.  When consulting with victims I was at pains to explain to them that it is their prerogative and privilege to say what they feel and what they have on their hearts and minds to say.  For a witness to be censured or to be restrained or to be confined to what they wish to say I believe would be contrary to the rights of a victim in a particular situation.  I don't think Ms Burton transgressed any rule or practice in the Commission, it's what she wanted to say and she has had her right to say it and it stands.

CHAIRPERSON: Do you want to say anything Mr Prior?

ADV PRIOR: To the extent that the statement was not under oath, obviously the evidential weight in these proceedings is minimal.  There is precedent for the procedure or for the fact that unsworn statements have been read out throughout the history of the Amnesty Committee, such practice has been followed and allowed in many amnesty applications to the extent that the applicant feels that he is now prejudiced by that, unfortunately the process doesn't cater for that save that if there is a feeling that the public only have heard one side of the story obviously I think that could be addressed via the media or through the media.  Unfortunately as Mr Dehal has pointed out there is very little that this Committee can in fact do to assist the applicant in respect of the objection that he makes.  The statement is now on record, it's been attended at an open hearing, I don't have any practical solution other than if the applicant feels aggrieved by that he could also maybe talk to it and get equal time to talk to it via the representatives of the broadcasting media.  Thank you Mr Chairperson.

CHAIRPERSON: We'll just take a five minute break so that we can just discuss this issue before ...(intervention)

MR BERGER: Chairperson, might I just add before we take the adjournment that I'm not sure if Mr Prior is correct in saying that there is provision made in the Act for an unsworn statement.  I refer the Committee to Section 19.4(b) of the Act which says that if an application has not been dealt with in terms of (3), the Committee shall conduct a hearing as contemplated in chapter 6 and shall, subject to the provisions of Section 33, (a) says "notify the victim" and (b) says "inform the persons referred to in paragraph (a) which includes a victim of their right to be present at the hearing and to testify, adduce evidence and submit any article to be taken into consideration.  It speaks about testifying and adducing evidence which I would submit would mean evidence under oath.

CHAIRPERSON: Thank you.

ADV PRIOR: But may I reply?  Submitting any article, article is very widely defined, I'm simply saying that in the history of this process there are many, many amnesty hearings where such unsworn statements were tendered and received by the various Committees.  If this Committee requires examples of those ...(intervention)

CHAIRPERSON: We know that that happens at a large number of these hearings.

ADV PRIOR: That's basically what I was alluding to, that a practise has developed, been allowed to develop and I think it's not out of line of (4)(b) in terms of the definition of article.

JUDGE PILLAY: You see, Mr Prior, that is true but I think it's probably the first time that certain comments were made out of context and irrelevant comments to the application, attacking peoples person, integrity and that seems to be the nub of the problem.  Had the comments been confined to the facts of the application, I don't suppose anybody could have any problems with it and that seems to be to me the sore point.

CHAIRPERSON: We'll take a short adjournment.

MR DEHAL: Perhaps Mr Chairperson, I should just mention in all fairness before the adjournment, I'm sorry to interject, in the prudence and the exercise of our discretion, in the exercise of our professional will, Ms Kooverjee and I, together with Mr McBride, Robert and Derrick, had considered it appropriate not to have his statement handed in inasmuch as he does not have anything inflammatory to prevent a situation like this arising and I think the other side was aware of this and the possibility of Derrick McBride's statement possibly being one that would take that line, called in advance for copies of statements and we considered it wise not to read them, not to hand them in.  Now we've not had the opportunity of seeing these statements in advance, we heard afresh, it goes to the public media, it is now flashing all over the world on TVs, Mr McBride is attacked, is defamed, how do we address this?

MR RICHARD: May I object at that stage?  The statement that Mr McBride was attacked and defamed I believe is an inflammatory statement in its own right.  Ms Burton did not say anything that was not within her rights to say.  She said, as this tribunal allows, what is on her mind.  She has every right to have her point of view and to put it on record and I believe her right in the situation should be respected.  It is her opinion and her feeling which she gave her statement regarding and I do not believe that it's appropriate to put her under attack for making use of what is her right.  As it pleases you.

MR DEHAL: Chairperson, not only was Mr McBride defamed but so was Mr Ismail defamed.  To say that he was a commander of terrorists, that he was a terrorist commander who put young boys into the public domain so that they could commit terrorist acts, that is nothing but defamatory of Mr Ismail and the African National Congress and Chairperson, to make those statements without giving us notice of what the statements are going to contain in a public domain which is where those statements are irrelevant for purposes of this hearing can only be to make them maliciously and then obviously then litigation will follow.

CHAIRPERSON: Yes thank you, we'll take a break now and we'll let you know when we'll reconvene.
COMMITTEE ADJOURNS
ON RESUMPTION