______________________________________________________ DECISION
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This decision emanates from an application to seek clarity on the matter of subpoenaing persons in terms of Section 29 read with Section 31 of Act 34 of 1995 as amended ("the Act"). During the hearing, the matter of securing a person, willing or otherwise, to testify at the hearing, was raised. In effect this would entail the making of certain rulings related to the said application.
The Act is silent on the procedure to be adopted in issuing a subpoena to secure the presence of any particular person. Neither does it refer to any authority through which such a subpoena should be processed.
We are informed (and it seems that this is common cause) that in practice, any party to an application, who wishes to secure the attendance of a person to testify, would have to submit a written request properly motivated for consideration by the commission. Upon receipt thereof, the Amnesty Committee would consider the request, assess it and make a decision on whether to issue a subpoena in respect of the person(s) mentioned in the motivation. This decision depends substantially on whether the proposed testimony of such a witness will in any way materially contribute to the ultimate decision.
Such a decision must therefore be made by the Committee within the context of the evidence before it at the time when the application is considered. At least two problematic aspects arise herefrom. Firstly, Section 29(1)(c) confer the power on the commission to call upon any person to testify before it on relevant issues. Relevant issues must be defined in this instance as being matters falling materially within the context of the hearing the Committee is dealing with at the time.
Section 31 deals with the compellability of such a person to answer relevant questions.
The Act also provides for person who have been implicated by Applicants to be notified of the fact so as to allow them an opportunity to deal therewith as he or she deems fit.
The question regarding the compellability of implicated persons, as defined, to testify and answer any relevant questions further complicates matters.
It is noteworthy also that sub-sections 31(3) and (4) provide for the protection from the future use of incriminating evidence of any person who testifies at hearings. On the other hand, it is trite law that any person has a right to remain silent in the face of prospects that an answer to a question may amount to self-incrimination. NOTE 1 (see next page).
In view of this provision, the right to the aforementioned protection against self-incrimination is not as weighty as it normally is, if at all. Therefore, the constitutional right of protection against self-incrimination cannot be involved when called to testify in terms of the Act.
RULING ONE
In the result, the fact that a person may be an implicated person does not preclude him or her from being a compellable witness in any hearing convened in terms of the Act.
From this flows the second issue which involves two legs.
The first one relates to the written motivation and in particular the aspect of relevance.
Given that the commission is one that has a limited life span and limited resources, one has to approach such matters with such limitations in mind not forsaking the quest to serve the process fully.
NOTE 1
It is precisely this tension between a person's right to silence and the protection provided by sub-sections 31(3) and (4) of the Act upon which clarity is sought. This provision is intended to encourage a person to tell the truth without risking future prosecutions based on that evidence. The right to remain silent in the face of self-discrimination in the context of the Act seems, by necessary implication, to be negated by this provision which is designed to facilitate the enquiry into the truth while protecting the right against self-incrimination.
The aforementioned limitations narrow the amnesty process in this regard to a fine line. It therefore becomes imperative to examine any motivation supporting the call for the issue of a subpoena very critically. Relevancy in this context relates to specific disputed matters raised in each specific application for amnesty.
It does not allow for general questioning on a variety of aspects but is restricted to clear issues pertaining to the specific disputes with the case of an amnesty applicant.
It follows, therefore, that questioning a witness in the hope that some information may be forthcoming, (either positive or negative) would not fall within the confines of this fine line.
It is also necessary to critically analyse how the proposed evidence, if produced, would impact on the amnesty application, if at all. The motivation must be clear, detailed and to the point especially as to relevance as defined above. There ought to be real prospects of such evidence having a direct and real impact on the application and in particular, materially contribute to its result.
Consequently, an application to have a subpoena issued would not succeed if the motivation falls short of the above contention.
This leads to the second leg of this aspect. If a request for the issue of a subpoena is successful to any degree, the question as to who leads the witness, rights to cross-examine and so forth arise.
For practical reasons, it is important to establish who in fact has "called" the witness.
It is true that the process of issuing a subpoena is conducted through the Committee and is based on the motivation of a party to the proceedings. It could be argued that strictly speaking, it is the Committee that has subpoenaed the witness who is consequently the witness of the Committee. All parties would then have the right to cross-examine the witness who is led by the Committee. (This would be the case if a witness was in fact called by the Committee). On the other hand it could be argued, as it was, that the Committee cannot be seen to be calling witnesses "on behalf of any party". It (the Committee) would then be seen as less than objective. This argument does not carry any weight in the circumstances. It must be remembered that it does not sit as a court of law but is in fact as a committee established by the Act. It's duty, therefore, is to establish the truth and then to decide on the question of amnesty.
In the circumstances, therefore, if the request to subpoena a person is granted then the Committee should then establish from such a witness what his or her evidence is in regard to the issues for which he or she was actually subpoenaed. Cross-examination by all the parties would then follow. It must be emphasised that the testimony of a witness so subpoenaed shall be strictly confined to the parameters of the issues for which such a witness was subpoenaed.
RULING TWO
Therefore, such a witness is the witness of the commission and whose evidence shall be confined to the relevant issues for which he or she was subpoenaed to testify.
SIGNED at CAPE TOWN this day of 2000
____________________JUDGE R PILLAY
____________________JUDGE S KHAMPEPE
____________________ADV F BOSMAN
