CHAIRPERSON: ...(start of tape) submissions and a ruling on the question relating to the disclosure of the names of certain people. I notice Mr Dreyer is not here but however this aspect does not really concern him, it's a point that was raised by Ms Monyane and it concerns obviously her and also Mr Mohlaba who appears for the applicant concerned, Mr Pitsi.
Ms Monyane, do you wish to make any submissions?
INTERPRETER: Before she does that we need time to dish out the earphones for the victims.
MS MONYANE: Mr Chair, before I can make any submissions I would like to know if the applicant is going to answer that question or he is refusing to answer that question.
CHAIRPERSON: Mr Mohlaba, is your applicant still of the same view that he had yesterday or has he reconsidered the position relating to the disclosure of names?
MR MOHLABA: Thank you, Chair. The applicant wants to address the Committee first. He still adopts an attitude that he should not disclose the names of his informants and after that address we may ask for a ruling from the Chair with regard to that aspect.
CHAIRPERSON: Yes, certainly. Mr Pitsi?
MR PITSI: Mr Chair, it is very unfortunate that we are missing certain facts here. We have been members of the liberation movement and for that matter we were not operating freely like what the then Security Branch would do, go into areas, publicly, openly and seen by everybody.
We solemnly depended on the information of the operatives which were inside the country. You know we operated like fishes whereby our water was the community that we were serving. So I don't think it would be a good idea to disclose those names.
CHAIRPERSON: Thank you, Mr Pitsi. So it's quite clear from what Mr Pitsi has said, Ms Monyane, that he's not prepared to disclose names. Now the question is whether we as a Panel can compel in any way.
MS MONYANE ADDRESSES COMMITTEE: Mr Chair, my instructions are that if Mr Pitsi is not prepared to disclose the names of those informers, the Phenyane family are saying that there were no informers involved in this matter. Mr Pitsi knew Mr Phenyane very well and he knew he was born and bred in Atteridgeville and he knew every corner of Atteridgeville.
I would like to submit that if Mr Pitsi doesn't disclose those names, the purpose and the aim of this Committee or the whole purpose of the Truth Commission would not have been met.
The families are saying they're still going to leave this Commission with the questions that they had 10 years back. They don't see how can Mr Pitsi be granted amnesty in this matter if he doesn't fully disclose the names because the whole process of the Truth Commission is that you must tell the truth and nothing else but the truth.
CHAIRPERSON: I think that argument that you are raising now and the points that you are raising now would probably more properly be raised at the end of the hearing on the question of whether or not there's been full disclosure, but do you have any submissions on the point as to whether we have any authority or whether it would be proper for us, the Panel here, to compel the applicant concerned, Mr Pitsi, to reveal the names.
MS MONYANE: On that point, Mr Chair, I'm going to leave that question in the hands of the Committee and the Committee will have to apply the Act, the 1995 Act, what does it say about that point. Thank you, Mr Chairperson.
ADV DE JAGER: Could you perhaps assist us? We've been created by this Act as a Committee, could you find anything in the Act that would empower us to force an applicant to give certain information in his evidence or is it up to an applicant to come and say I'm applying for amnesty, I'm willing to disclose this, and if we find it's not a full disclosure or we're not satisfied with what he's told us, then you can't get amnesty but if he satisfies us that he's disclosed all the relevant facts - the Act stipulates he should disclose the relevant facts as far as his offences are concerned. Is there anything in the Act that would empower us to make an order that he should disclose names and have we got any, is there any sanction that we could apply if he would fail to do so?
MS MONYANE: Mr Chair, I tried to go through the Act yesterday and I couldn't find anything compelling the Committee to authorise the Committee or empower the Committee to force the applicant to disclose the names of the informers. But I would like to say that the Act talks about full disclosure in Section 20, or the 1995 Act, and if we talk about the full disclosure you must disclose everything ...(intervention)
CHAIRPERSON: Well it's full disclosure of - the Act specifically says a full disclosure of all relevant facts. So the point that would have to be decided at the end of the day, not at this stage, would be; does the non-disclosure of the names of the people who provided the information amount to the non-disclosure of a relevant fact in the whole application, in other words, was it relevant.
But that argument comes at the end of the hearing, on the question of full disclosure. It would seem that the only section in the Act, Act number 34/95 relating to the compellability of witnesses or witnesses being compelled to testify, is Section 31.
It is also, on a reading of that section in the context of the whole Act, that that section does not apply to an applicant in an amnesty application but rather to hearings held by the Human Rights Violations Committee and also perhaps of witnesses in amnesty applications who are not applicants themselves.
It would be for instance very unlikely that it was the intention of the legislature that we as a Panel would have to consult with the Attorney-General as required by Section 31, for an applicant to give certain evidence. Surely it's not the intention. In any event, another reason why one can say that Section 31 does not apply to applicants in an amnesty application is because of the requirement of full disclosure because if there has not been a full disclosure in the view of the Committee of all relevant facts, then that would be a non-fulfilment of an essential requirement for the granting of amnesty. So there is a type of a built in penalty for refusing to give evidence if it is deemed to be relevant evidence, the failure to give it amounting to a non-disclosure. So that is our view on the matter.
MS MONYANE: In that instance, Your Honour, I would leave this question in the hands of the Committee.
CHAIRPERSON: Thank you, Ms Monyane.
Mr Mohlaba, I don't think it's necessary for us to hear you on the, to hear any legal submission as to whether or not Mr Pitsi should be compelled by us now to disclose those names, particularly taking into account the attitude of Ms Monyane, and we as a Panel have also considered the matter overnight, subject of course to any argument that we may have received on the
matter and we are of the view that it would not be proper for us as a Committee to compel Mr Pitsi or indeed any other amnesty applicant to give certain evidence.
We therefore make a ruling that he will not be compelled to disclose those names, but as indicated yesterday, this question will no doubt be raised again at the end of the proceedings when we receive legal argument and whether or not the non-disclosure of the identity of the people who provided the information amounts to the failure to provide a relevant fact and therefore be not a full disclosure, is a question which will be dealt with later. I make no comment at this stage as to whether or not there will be a full disclosure or not. So I think that then concludes this point.
Is there anything further that Mr Pitsi wishes to say on this matter, Mr Mohlaba?
MR MOHLABA ADDRESSES COMMITTEE: Chair, except to mention that this aspect of not disclosing has been seriously taken into account between myself and Mr Pitsi and he believes that the act of disclosing amongst other things, this would amount to him passing the buck whereas he has come here and accepted full responsibility for the murder of the three officers. So he believes that the disclosure will not be in the furtherance of reconciliation
which this Commission seeks to promote and that's amongst other considerations. The rest is just the legal argument which would be brought at the end of the matter.
CHAIRPERSON: Thank you, Mr Mohlaba.
ADV DE JAGER: Except, Mr Mohlaba, he must realise and that's what we've told, I hope he's fully aware of it, that this may be a consideration against the granting of amnesty. That would be a factor that would be considered and he's aware that we've made it quite clear to him that this could be a factor weighing against him.
MR MOHLABA: That is well appreciated by Mr Pitsi, thank you, Chair.
CHAIRPERSON: Thank you, Mr Mohlaba. Well then, Mr Pitsi, that then finally concludes your testimony. Thank you, you may stand down now.