TRC Final Report

Volume 1

Chapter 7

Subsection 7

Gideon Nieuwoudt v the Truth and Reconciliation Commission⁹

Background

59 Mr Gideon Nieuwoudt, a member of the Security Branch in the Eastern Cape brought an application requesting that the Commission be interdicted from allowing evidence which would affect and/or implicate him, until and unless he had been given proper, reasonable and timeous notice of any evidence presented and until he had been provided with copies of all relevant documentation.

The decision of the court

60 In delivering judgement, Judge Buchanan commented on the first ground for argument by the applicant, that is, the judgement of King (above):

With the greatest respect to the learned judge in that matter, I am not at all convinced that the provisions of the Act or of the Constitution necessarily require the form of prior notice and disclosure envisaged in the order granted in that matter and also sought in this application....

It seems to me that Section 30(2) of the Act does not, on a proper construction thereof, require prior notice to any person who may be implicated during the course of a hearing by a witness, even should the Commission itself have prior notice of such implication. Section 30 (2), in my view, merely requires that if a person is so implicated such person shall be afforded a proper and appropriate opportunity to submit representations to the Commission to answer and deal with any such implications.

Furthermore, it does not seem to me that the Constitutional right to procedurally fair administrative action entitles the Applicant to the relief sought in this application. It seems to me that it is inappropriate to equate the hearings of the Commission’s Committee on Human Rights Violations with an administrative or quasi-judicial hearing. The Act envisages rather a procedure which is unique and which, in the national interest, is designed to investigate and establish as complete a picture as possible of the nature causes and extent of gross violations of human rights committed during the relevant period.

61 Judge Buchanan went on to state that it would be undesirable, except where absolutely necessary, to place procedural obstacles before witnesses wishing to make full disclosure:

Whilst this may cause prejudice to a person who may be implicated is unfortunate... Such prejudice, however, should in my view, nevertheless be weighed against the laudable and important objects which the Act seeks to achieve. In addition, the prejudice which may be caused to persons should, at least to an extent, be offset by the opportunity for reply and answer entrenched in the Act itself.

62 Commenting on the second ground relied upon by the Applicant (the written and unequivocal undertaking), Judge Buchanan noted that, in terms of section 30 (1), the Act provided for the Commission to establish a prescribed procedure. Although it appeared that the Commission had determined no specific procedure in respect of the Committee on Human Rights Violations, in this particular case the letter of the Commission dated 6 May 1996 indicated that the Commission had bound itself to a procedure in respect of the applicant.

The agreement

63 The matter was settled by agreement between the parties on 5 June 1996 on the basis that no evidence would be received or allowed to be presented during the Commission’s hearing, until and unless:

a the respondent had been given proper, reasonable and timeous notice of its intention to hear evidence which might detrimentally implicate or prejudicially affect him, and

b the Commission had furnished the applicant with such facts and information necessary to enable him to identify the events, incidents and persons concerning which or whom it proposed to present or allow evidence that could detrimentally implicate him. In other words, such notice and facts as were sufficient and adequate to enable the applicant properly to exercise his rights in term of section 30 of the Act.

c in the event of any person testifying before the Commission, who had not furnished a statement affecting or implicating the applicant, the Commission would ascertain beforehand whether the person testifying would mention the applicant. If so, the witness’s evidence would be postponed and stand over until the above provisions had been complied with; and

d where, in the course of testimony, a witness attempted to implicate the applicant, the Commission would immediately prevent the giving or receiving of such evidence and would take reasonable steps to prevent a recurrence of this provided that such testimony could be admitted once the aforementioned provisions had been compiled with.

64 The agreement was made an order of the court.