TRC Final Report

Volume 1

Chapter 7

Subsection 5

Brigadier Du Preez and Major General Van Rensburg: second application

37 Brigadier Du Preez and Major General Van Rensburg brought a second application in the Supreme Court, Cape of Good Hope Division⁴ in which they alleged that the Commission had acted in contravention of the judgement of Mr Justice King.

Appeal to the full bench of the Cape Provincial Division: first appeal

38 The Commission requested that Judge King recuse himself from the appeal hearing. Following the recusal, the Judge President directed that the appeal be heard by a full bench on 20 of June 1996.⁵

39 The court held that, in the context of its objectives, functions, powers and the limited time frame within which it had to complete its work, the Commission was not obliged to give prior notice to any person who might be implicated in a human rights violation hearing. However, if and when the Commission contemplated making a decision that might be detrimental to an implicated person after a hearing, that person should be granted an opportunity to submit representations or give evidence to the Commission. Moreover, at that time, the Commission should give the person involved whatever information it had at its disposal in order to enable him or her to answer the allegations.

40 Brigadier Du Preez and Major General Van Rensburg petitioned the Appellate Division in Bloemfontein for leave to appeal against the judgement.

Brigadier Du Preez and Major General Van Rensburg: appeal to the Appellate Division⁶

41 The appeal was heard before five judges of the Appellate Division, with Chief Justice Corbett presiding.

42 The Commission argued that Brigadier Du Preez and Major General Van Rensburg had ignored the fact that the hearing was an investigative procedure and not a judicial matter. It noted, however, that even where a witness may be implicated in impending legal proceedings, he or she has no right to prior notice or an opportunity to be heard at the hearing. The appropriate remedy where adverse publicity might result is afforded by a defamation action.

43 In support of this argument, the Commission’s counsel submitted a paper by Sir Richard Scott who argues that the fundamental and significant differences between litigation and enquiries make comparisons unsafe.⁷ Counsel also cited an earlier article by Sir Louis Blom-Cooper QC⁸ who rejects the adversarial procedure adopted in the legal system as wholly inappropriate to an enquiry.

The decision of the court

44 Judge Corbett stated that the solution to the issues could be found in the common law which requires persons and bodies (statutory and other) to observe the rules of natural justice by acting in a fair manner. He held that the application of the audi alteram partem (hearing the other side) principle was applicable, irrespective of whether the body was quasi judicial or administrative. He supported the view that the principle comes into play whenever a statute empowers a public official or body to give a decision that could prejudicially affect an individual. He stated further that the audi principle would be enforced unless Parliament expressly or by necessary implication enacted that it would not apply, or if there were exceptional circumstances justifying the court in not giving effect to it. He held that there was nothing in the Act that expressly or by implication restricted or negated the duty to give reasonable and timeous notice; nor did he consider that there were exceptional circumstances in the present case.

It seems to me that in a case such as this, procedural fairness demands not only that a person implicated be given reasonable and timeous notice of the hearing, but also that he or she is at the same time informed of the substance of the allegations against him or her, with sufficient detail to know what the case is all about. What is sufficient information would depend upon the facts of each individual case (page 41).

45 In answering the question, therefore, as to what the duty to act fairly demands of a public body, Judge Corbett held that, in the present case, this meant reasonable and timeous notice of such a hearing, so as to enable the persons or their legal representatives to be present to hear the evidence, to see the demeanour of the witness(es) and to provide the implicated person with an opportunity to rebut the evidence. In these circumstances, he said that the Commission might well be under a duty to hear the rebutting evidence or permit immediate cross-examination.

46 Judge Corbett held further that such granting of reasonable and timeous notice would not inconvenience the Commission, save in circumstances where a witness implicates a third party for the first time in viva voce (oral) evidence.

47 Judge Corbett allowed the appeal with costs and reinstated the order of Judge King with the addition of a new paragraph that stated that nothing in the order should be construed as necessarily obliging the Commission to disclose the identity of any witness.

48 The implications of the court’s decision were that the Commission was now compelled to give prior notice to alleged perpetrators of human rights violations before evidence was heard publicly, and to provide them with sufficient information about the allegations against them to enable them to make representations.

Follow up by the Commission

49 On the 9 May 1996, the Commission provided Brigadier Du Preez and Major General van Rensburg with relevant extracts from the statement implicating them. On 15 May, at their request, a full copy of the witness’s statement was issued to them. The hearing was set for the 23 May. In an attempt to accommodate Brigadier Du Preez and Major General Van Rensburg, the Commission undertook that the witness, Ms Mthimkulu, would not mention either applicant by name at the hearing.