TRC Final Report

Volume 6

Section 1

Chapter 2

Subsection 7

Sixth stage: Hearings

56. The hearings of amnesty applications were the only publicly visible part of the amnesty process. Not only did they physically take place in public, but the hearings were also extensively covered by the print and electronic media.

57. The Act provided that the Committee should determine the procedural rules regulating public hearings of amnesty applications. This was done over a period of time, taking into account the practicalities of the process. In general the guidelines were as follows:

a Any person giving evidence was required to do so under oath or affirmation .

b The first to testify were the applicants, followed by any witnesses they wished to call.

c The next to give evidence were the victim(s) or the relatives of the victim(s) and any witnesses they wished to call. Victims who were unable to contribute towards the merits were allowed to make a statement rather than testify if they so preferred. These statements normally dealt with contextual or background factors and subjective views and experiences, often critical to issues of reconciliation and closure for victims.

d If applicable, the Committee could then call witnesses, either of its own volition or, if it was seen to be in the interest of justice, at the request of any person who had a material interest in the proceedings. The Committee could also allow any implicated person an opportunity to rebut any allegations against him/her.

e The Committee had the discretion to allow cross-examination of any person giving evidence before it by any interested person or her/his legal representative. The Committee could limit the scope and extent of crossexamination .

f At the conclusion of the evidence, the applicant or his/her legal represent a t i v e was entitled to address the Committee. This would be followed by an a d dress by the other interested parties or their legal representatives. The Committee could, within reasonable limits, restrict the scope and duration of the addresses, which were required to be succinct and to the point.

g A person giving oral evidence was entitled to do so in any of the official languages.

h Any person who wished to make use of any document during the hearing had to ensure that sufficient copies were furnished to the Committee and to all other known interested parties in good time. This rule was more strictly applied where the person was legally represented .

i Evidence was limited to issues that were material to a proper consideration of the application.

58. The Committee could, in its sole discretion, vary any of these procedures, which did not in any way detract from the general competence of the Committee or its inherent powers.

59. The decision to allow cross-examination of any applicant or witness could be influenced by the following factors: a whether or not the cross-examiner was opposing the application; b whether or not the concerns of implicated persons could be adequately met by an affidavit in which they stated their version; c whether or not the purpose of the cross-examination was to show that the applicant was not entitled to amnesty; d whether or not the cross-examination was directed at specific requirements prescribed by the Act in order to qualify for amnesty; and e whether or not the interests of justice demanded that cross-examination be allowed and to what extent it should be allowed.

60. The decision not to promulgate formal rules of procedure allowed the Committee to adopt a flexible approach that was more appropriate to the unique nature of the amnesty process. The guidelines adopted by the Committee enabled it to use its sole discretion in determining the order of proceedings and to rule on any relevant point of law or matter during the course of a hearing. It was thus able to allow: a affidavits to be submitted to the panel from persons not present at or avail able to attend the hearing; b documents to be submitted as evidence during the course of the proceeding s ; c hearsay evidence to be heard and its evidentiary value determined; and d c ross-examination, having due regard to time constraints, fairness, relevance and the purpose of such cro s s - e x amination .

61. Moreover, persons (or legal re p resentatives acting on their behalf) who challenged or contested the allegations contained in affidavits submitted to the Committee could do so by filing written representations or by submitting an affidavit within a reasonable period of time after the hearing.

62. The Committee could, on application by a party, take cognisance of evidence given at judicial proceedings, provided that the party sufficiently specified the relevant portion of the evidence concerned, and allow persons implicated by evidence given during the course of the hearing to make re presentations within a reasonable period of time after the hearing.

Seventh stage

63. The final stage in dealing with an application was the delivery of a decision by the Committee and the consequent notification of all parties concerned .

64. In certain instances, the Committee gave ex tempore (immediate) decisions at the conclusion of a hearing. In the majority of the cases, however, the Committee only decided the matter at a later stage.

64. The reason for this is that many of the hearings stretched over a period of days and the evidence ran to thousands of transcribed pages. Thus, both the Committee and the legal re p resentatives needed time to go through the evidence. In certain instances, legal re p resentatives re q u i red a reasonable period to submit written heads of argument and Committee members needed time to discuss the evidence and prepare a decision.

66. As soon as a decision was reached, it was handed to the executive secretary, who promptly notified the applicant and all other interested parties of the outcome and provided them with a copy of the decision as well as a copy of the proclamation that would be published in the Government Gazette. Known victims and implicated persons were notified through their legal re p resentatives. Where applicable, notifications were also sent to the Department of Correctional Services, the head of the prison concerned, the National Prosecuting Authority and the registrar of the court concerned. The Commission was similarly notified.