TRC Final Report

Volume 6

Section 1

Chapter 3

Subsection 5

Hearings procedure

55. Although the Act gave the Committee the latitude to prescribe a formal set of rules to govern hearings, the Committee decided, after some consideration, that it would be in the best interests of the unique process created by the Act not to opt for a set of rules in advance.^{3 6} It settled instead on the more flexible approach of determining the hearings procedureas the amnesty process unfolded, taking into account the practical demands of the process itself. This enabled the Committee to ensure procedural fairness in all cases, even where this required deviations from the procedures followed in the majority of cases. In the end, the procedure followed in most cases did not differ substantially from that which applies in a court of law.

56. It must be noted that there were those who criticised what they described as the ‘judicialisation’ of the amnesty process, arguing that the Committee was under no statutory obligation to adopt the process it followed: one which, even in the setting and formalities of hearings, very closely resembled the court approach.

57. A further and related criticism concerned the membership of the hearings panels. Although the Act required only that the Committee and the hearings panels be chaired by judges, the membership of the Committee consisted exclusively of lawyers. Critics argued that the exclusion of persons skilled in other disciplines – for example the social sciences – from Committee membership, impoverished the process. It was their view that multi-disciplinary panels would have diluted the legalistic process adopted by the Committee and introduced, instead, a rich variety of perspectives.

58. This criticism is reproduced here without analysis or comment, save to offer the Committee’s view that, in a process requiring adjudication, lawyers will inevitably play a significant if not leading role and that the process will tend, therefore, to be judicial in nature. While it must be accepted that any system designed by humans will always leave room for improvement, it is the Committee’s view that the adopted process did not result in prejudice to any party.

59. In general, the Act provided for a process with clear inquisitorial elements. The Committee was expressly required to conduct investigations in respect of amnesty applications^{3 7} and to ensure that the fullest possible picture emerged of the particular incident forming the subject matter of the application. This process had, moreover, to be undertaken within the context of the new constitutional system, which requires that administrative bodies such as the Committee should engage in fair administrative action.^{3 8}

60. Within the broad parameters set by the legislation, the Committee endeavoured to steer a middle course between a purely inquisitorial and an adversarial procedure^{3 9} in its hearings. The guiding principle followed was to allow every interested party the fullest possible opportunity to participate in the proceedings and to present a case to the panel. Every party that participated in the hearings had the right to legal representation, and even those who were indigent were always afforded some form of legal re presentation .^{4 0} This enabled the hearings panels to adopt a less inquisitorial approach during the course of the hearings, which eventually became predominantly adversarial in nature. In some exceptional cases, and where it was demanded by the interests of justice, hearings panels acted proactively by postponing hearings (even when they had already been partly heard) to allow a party the opportunity to investigate or deal with material issues that arose in the course of the hearing. This meant that parties were allowed the fullest possible opportunity either to present or oppose an amnesty application. While endeavouring to make the process as fair as possible, the Committee was cognisant of and guarded against the possible abuse of the flexibility of the adopted procedure to the detriment of one of the parties or the process as a whole.

61. Throughout the process, the Committee was faced with the challenge of having to balance the need to allow applications to be fully canvassed with the need to conclude the process within the shortest possible time and with ever- dwindling resources. To this end, the Committee was authorised by the provisions of the Act to place reasonable limitations on cross-examination and the pre sent a t i o n of argument at hearings.^{4 1} Hearings panels were, there fore, in a position to direct c ross-examination and argument towards only those elements of a case that w e re relevant to assessing the factors to be considered in deciding the amnesty application. In many instances, the incidents in question had already been fully canvassed at court hearings – particularly in criminal trials – which had alre a d y established the objective facts surrounding an incident (such as the date, time, place and nature of the incident, the identity of the victims and the like).

62. T h e re was, however, a significant limitation to the degree of assistance that could be obtained from the records of many criminal trials in cases where an amnesty applicant had appeared as the accused. The striking difference between an amnesty application and a criminal trial lies in the fact that, in a criminal trial, the accused invariably try to exonerate themselves, while at an amnesty hearing they incriminate themselves. This latter factor is, of course, one of the legal requirements for qualifying for amnesty. The Committee was often struck by the extent to which both defence and prosecution had perverted the normal course of justice in earlier criminal trials. Not only did amnesty applicants who had earlier been accused admit to having presented perjured evidence to the trial court, but similar admissions were often made by amnesty applicants who had appeare d as prosecution witnesses at criminal trials or who had investigated cases as members of the former South African Police. A similar situation pertained to official commissions of inquiry, such as the Commission of Inquiry into Certain Alleged Murders convened in 1990 and chaired by Mr Justice LTC Harms.

63. With a few notable exceptions, the Committee generally received the cooperation of legal representatives in confining cross-examination or argument to strictly relevant issues. As the amnesty process progressed, oral argument at the conclusion of hearings became the norm. It was only in particularly complex cases, or where extensive evidence and other material were presented to the hearings panel, that the parties were called to give written argument. In some exceptional cases, hearings panels had to reconvene to receive oral submissions on the written argument that was presented to the panel.