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[1997] ZASCA 2
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Du Preez and Another v Truth and Reconciliation Commission (426/96) [1997] ZASCA 2 (18 February 1997)
Case No 426/96
IN
THE SUPREME COURT OF SOUTH AFRICA
(APPELLATE
DIVSION)
In
the appeal of:
JAN
ABRAHAM DU PREEZ
First Appellant
and
NICOLAAS
JACOBUS JANSE
VAN
RENSBURG
Second Appellant
versus
THE
TRUTH AND RECONCILIATION
COMMISSION
Respondent
CORAM:
Corbett CJ, E M Grosskopf,
Eksteen, Marais
et
Olivier JJA.
Date
of Hearing:
22 November 1996
Date
of Judgment:
18 February 1997
JUDGMENT
/CORBETT
CJ: ...
CORBEIT
CJ:
The respondent in this appeal, the
Truth and Reconciliation Commission ("the Commission"), was
established by the Promotion
of National Unity and Reconciliation Act
34 of 1995 ("the Act"). In terms of sec 3 of the Act the
objectives of the Commission
are to promote national unity and
reconciliation by (i) establishing as complete a picture as possible
of the causes, nature and
extent of the gross violations of human
rights which were committed during the period 1 March 1960 to 6
December 1993; (ii) facilitating
the granting of amnesty to persons
who make full disclosure of all the relevant facts relating to acts
associated with a political
objective; (iii) establishing and making
known the fate or whereabouts of victims of the violation of human
rights and by restoring
the human and civil dignity of such victims
by granting them an opportunity to relate their own accounts of the
violations of which
they are the victims and by recommending
reparation measures in respect of them; and (iv) compiling a report
providing a comprehensive
account of the activities and findings of
the Commission and containing recommendations of measures to prevent
the future violation
of human rights.
The
Act also establishes (in sec 3 (2)) three committees: the Committee
on Human Rights Violations, the Committee on Amnesty and
the
Committee on Reparation and Rehabilitation. The names indicate the
general sphere of the respective duties and functions of
each of
these Committees. This appeal is concerned with the activities of the
Committee on Human Rights Violations ("the Committee").
The powers, duties and functions
of the Committee are to achieve the objects of the Commission by,
inter alia,
(see sec 14 of the Act) -
(i)
instituting
inquiries into gross violations of human rights; the identity of all
persons, authorities, institutions and organizations
violations were
the result of deliberate planning on the part of the State or of any
political organization, liberation movement
or other group or
individual; and accountability for any such violation;
(ii)
gathering information and receiving
evidence which establish the identity of the victims of such
violations, their fate or present
whereabouts and the nature and
extent of the harm suffered by them; and
(iii)
recording
allegations and complaints of gross violations of human rights.
At
the conclusion of its functions the Committee is required to submit
to the Commission a comprehensive report of all its activities
and
findings.
On
Thursday, 11 April 1996 the Chairperson of the Commission addressed
to the Commissioner, South African Police Services, a letter
which
read as follows:
"Dear Sir
Re Brigadier JAN DU PREEZ
We have been advised that the
above person is/was in the employ of the Ministry of Safety and
Security and at the relevant time
based at Security Police
Headquarters in Pretoria.
In
terms of
Section 30
of the
Promotion of National Unity and
Reconciliation Act, No. 34 of 1995
, we hereby serve notice on you
that a witness will testify before the Human Rights Violations
Committee of the Truth and Reconciliation
Commission between the 15th
and the 18th April 1996 at the City Hall, East London. A written
statement was previously submitted
to us by the aforementioned
witness and the substance of the allegations made against the said
person is contained in Annexure
A attached hereto. The relevant
section of the Act is also annexed hereto marked Annexure B, for your
information. In terms of
the said
section,
we invite the
abovementioned person to submit written representations to us, no
later than 30 days from the date of this letter.
Please
attend to this matter and forward this letter to the abovementioned
person. Should the abovementioned person no longer be
in the employ
of the Ministry of Safety and Security, kindly advise us as a matter
of urgency. Kindly further let us have the present
address of the
said person.
Yours
faithfully."
Annexure
A to this letter read:
"The
allegations against Brigadier Jan Du Preez are that he was involved
in or had knowledge about the poisoning and disappearance
in Port
Elizabeth in 1981/2 of a person whose family has approached the
Commission for assistance. We understand that he was acting
as a
member of the South African Police at the time. The case is expected
to be heard at the Commission's hearings in East London
next week."
Annexure
B does not form part of the recor,1 before us, but evidently it
consisted of a copy of
sec 30
of the Act, about which more anon.
The
Brigadier Jan du Preez referred to in these documents is the first
appellant in the proceedings before us. He retired from the
South
African Police on 31 July 1982 and at the time when this letter was
sent was living in Pretoria.
Also
on Thursday, 11 April 1996 the Chairperson of the Commission
addressed to the Commissioner, South African Police Services,
a
letter in substantially the same terms as the letter concerning the
first appellant but this time headed "re Colonel Nick
van
Rensburg", who is described in the letter as a person who - "...
is/was in the employ of the Ministry of Safety and
Security and at
the relevant time based in Port Elizabeth, probably with the Security
Police".
Attached
to this letter was an Annexure A in terms identical (save for the
name Colonel Nick van Rensburg in place of Brigadier
Jan du Preez) to
the Annexure A to the letter concerning the first appellant and also,
apparently, a copy of
sec 30
of the Act.
The
Colonel Nick van Rensburg here referred to is the second appellant in
these proceedings. At the time of the letter he was living
in
retirement at Hartenbos, in the Southern Cape. On 8 March 1996 he had
suffered a burst appendix and had thereafter been hospitalized
for
three weeks, two of them in intensive care. As at 11 April 1996 he
was convalescing and was under doctor's orders not even
to drive a
motor car.
On
Saturday, 13 April 1996 the first appellant received the letter
concerning him from a General J van der Merwe, a former Commissioner
of the South African Police. He instructed an attorney, Mr J H
Wagener of Wagener Muller and Du Plessis, practising in Pretoria,
to
reply to the letter. Mr Wagener received similar instructions from
second appellant. On the same day Mr Wagener wrote to the
Chairperson
of the Commission referring to the letters of 11 April 1996, which
"purport" to be notices in terms of
sec 30
of the Act, and
stating:
"My clients are of the
opinion that the said letters do not comply with the said Section,
and for the reasons set out hereunder,
you are hereby formally
requested to postpone for a reasonable time the matter in which they
are to be implicated (Reference number
EL 34):
1.
Annexure
A to the said letters are vague in the extreme and my clients are
unable to identify the incident of which they are about
to be accused
by some unknown witness.
2.
My
clients have had no opportunity whatsoever to investigate this matter
so as to be able to protect their fundamental rights, and
will not be
in a position to do so before 15 April 1996,
3.
The
procedure presently adopted by your Commission is a procedurally
unfair action as contemplated in section 24(b) of the Constitution
of
the Republic of South Africa Act, 200 of 1993.”
Mr
Wagener's letter went on to demand that the addressee thereof should
indicate before 10h00 on Sunday, 14 April 1996 whether the
proceedings would be postponed as requested; to demand that his
clients be provided with copies of all statements in the
Commissioner's
possession pertaining to the matter; and threatening
legal action should this postponement not be granted, This letter was
transmitted
by telefax,
At 07h45 on Sunday, 14 April 1996
Mr Wagener was telephoned by the Vice-Chairperson of the Commission,
who informed him that because
of logistical problems ("logistieke
probleme") the Commission was not in a position to reach a
decision before 1OhOO
and asked that the matter be held over to
12h00. After a later request for further time the Vice-Chairperson
eventually (at 13h10)
informed Mr Wagener that the final decision was
that the Commission would not accede in any way to the appellants'
requests.
On
15 April 1996 the appellants launched an urgent application in the
Cape of Good Hope Provincial Division citing the Commission
as respondent and claiming, in substance, an order interdicting
the Commission from proceeding to hear the matter involving
the
appellants before (a) proper, reasonable and timeous notice had been
given of (i) the Commission's intention to hear evidence
in the
matter which would detrimentally implicate the appellants and of (ii)
the relevant facts of the matter; and before (b) appellants
had been
given access to relevant documentary evidence. The application was
opposed by the Commission. The application came before
King J who (on
30 April 1996) gave judgment in appellants' favour and issued an
order in the following terms (appellants being
referred to as
"applicants" and the Commission as "respondent"):
"IT IS ORDERED:
1.
That
Respondent through its committee on Human Rights Violations, is
interdicted and restrained from receiving or allowing evidence
during
its hearings which would affect First and/or Second Appellants unless
and until
(a)
Respondent
has given proper, reasonable and timeous notice to Applicants of
Respondent's intention to hear evidence to be presented
by any person
in Respondent's case, reference EL 34 - or in· any event -
whereby Applicants may be detrimentally implicated
or prejudicially
affected, and of the time and place of such proposed hearing.
(b)
Respondent
has furnished Applicants with such facts and information, by way of
witnesses' statements and/or other relevant documentation
as may
reasonably be necessary so as to enable Applicants to identify the
events, incidents and persons concerning which or whom
it is proposed
to present or allow evidence which may detrimentally implicate
Applicants.
2.
That
such notice and such facts and information are to be sufficient and
adequate so as to enable Applicants properly to exercise
their rights
in terms of Section 30 of Act 34 of 1995 (as amended).
3.
That
Respondent is to pay First and Second Applicants' costs of these
proceedings, including the costs of two Counsel."
On 3 June 1996 the Commission
filed an application for leave to appeal against the judgment of King
J. The application was out of
time by seven court days. Accordingly
the Commission also sought condonation for this non-compliance with
the Rules of Court. The
application was opposed by the appellants. It
was due to have been heard by King J on 12 June 1996, but on ·that
date King
J (for reasons which need not be canvassed but which cast
no reflection whatever on King J) recused himself. Thereafter, on 21
June 1996 and by agreement with the parties, the application for
condonation of the late filing of the application for leave to
appeal
was heard and argued together with the merits of the appeal, by a
Full Bench consisting of Friedman JP and Van Zyl and Farlam
JJ, on
the basis that if the condonation application should be dismissed,
the appeal would fall away, whereas if the condonation
application
should succeed, the Court would consider the merits of the appeal
itself.
On
25 June I996 the Full Bench delivered judgment granting the
applications for condonation and for leave to appeal, upholding the
appeal and substituting for the order of King J an order dismissing
the application with costs. The judgment of the Full Bench
has been
reported (see
Truth and Reconciliation Commission v Du Preez and
Another
1996 (3) SA 997
(C) ). With special leave the appellants
now appeal to this Court against the whole of the judgment and order
of the Full Bench.
In
order to adjudicate this appeal it is necessary to examine the bases
upon which King J and the Full Bench came to their respective
- and
contrary - conclusions. Before doing so, however, I propose to take a
closer look at sec 30 and the context in which it appears
in the Act.
Chapter
6 of the Act, headed "Investigations and hearings by Commission"
comprises sections 28 to 35 inclusive. Sec 28
empowers the Commission
to establish "an investigating unit" with the function of
investigating any matter falling within
the scope of the Commission's
powers, functions and duties. Sec 29 defines the powers of the
Commission in regard to investigations
and hearings. Sec 30
prescribes the procedure to be followed at investigations and
hearings of the Commission and any committee
or sub-committee. ·
(Under sec 5(c) of the Act the Commission is empowered to establish
sub-committees to carry out duties
and functions assigned to them by
the Commission.) Sec 31 deals with the compellability of witnesses
and the inadmissibility in
subsequent criminal proceedings of
incriminating evidence given before the Commission. Sec 32 confers
certain powers of search
and seizure on members of the Commission.
Sec 33 provides that, save in certain instances, the hearings of the
Commission shall
be open to the public. Sec 34 concerns legal
representation for persons questioned by an investigation unit or
required to appear
before the Commission. And sec 35 makes provision
for a witness protection programme.
Sec
30, as amended, which is headed "Procedure to be followed at
investigations and hearings of Commission, committees and
subcommittees", reads as follows:
"(l)
The Commission and any committee or subcommittee shall in any
investigation or hearing
follow the prescribed procedure or, if no
procedure has been prescribed, the procedure determined by the
Commission, or, in the
absence of such a determination, in the case
of a committee or subcommittee, the procedure determined by the
committee or subcommittee,
as the case may be.
(2)
If
during any investigation
by or any hearing before the Commission -
(a)
any
person is implicated in a manner which may be to his or her
detriment;
(b)
the
Commission contemplates making a decision which may be to the
detriment of a person who has been so implicated;
(c)
it appears that any person may be a
victim,
the Commission shall, if such
person is available, afford him or her an opportunity to submit
representations to the Commission
within a specified time with regard
to the matter under consideration or to give evidence at a hearing of
the Commission,"
With
these sections of the Act must be read sec 1 (2), which provides that
for the purposes of,
inter alia,
chapter 6 of the Act
"Commission" shall be construed as including a reference to
committee or subcommittee, as the case
may be; and "Chairperson",
"Vice-Chairperson" or "commissioner" shall be
construed as including a
reference to the chairperson,
vice-chairperson or a member of a committee or subcommittee, as the
case may be.
The word "victim" in sec
30 (2)(c) must be read in conjunction with the definition of
"victims" in sec 1(1)
as including -
"(a)
persons who, individually or together with one or more persons,
suffered harm in the form
of physical or mental injury, emotional
suffering, pecuniary loss or a substantial impairment of human rights
-
(i)
as a result of a gross violation of
human rights; or
(ii)
as
a result of an act associated with a political objective for which
amnesty has been granted;
(b)
persons
who, individually or together with one or more persons, suffered harm
in the form of physical or mental injury, emotional
suffering,
pecuniary loss or a substantial impairment of human rights, as a
result of such person intervening to assist persons
contemplated in
paragraph (a) who were in distress or to prevent victimization of
such persons; and
(c)
such
relatives or dependants of victims as may be prescribed."
Sec
30(2) is awkwardly worded in several respects. One issue which has
arisen is whether the postulates contained in paras (a),
(b) and (c)
should be read conjunctively or disjunctively. King J adverted to the
problem, but found it unnecessary to resolve
it. In the judgment of
the Full Bench (delivered by Friedman JP) it is stated that paras (a)
and (b) -
"... are clearly conjunctive:
one cannot subsist without the other. Thus, once the situations
postulated in these two subparagraphs
arise, the Commission or
Commitee is obliged to afford the person concerned an opportunity to
submit representations to it within
a specified time, or to give
evidence at a hearing."
(See reported judgment at 1006 D.)
There
are problems with this interpretation, which was not supported by
respondents counsel in oral argument before us. I mention
but one. It
is not suggested - and cannot, in my view, be suggested - that para
(c) should be read conjunctively with paras (a)
and (b). The
interpretation adopted by the Full Bench thus involves the untidy,
and unlikely, conclusion that paras (a) and (b)
should be read as if
linked by the conjunction "and", whereas para (c) should be
read as if linked to what precedes it
by the word "or". Had
such an unusual syntax been intended one would have imagined that the
draftsman would have expressly
used these conjunctive words. The
absence of any conjunctive word suggests that all three paragraphs
were intended to bear the
same relationship to one another, either a
disjunctive one or a conjunctive one. Since the relationship of para
(c) to paras (a)
and (b) is clearly disjunctive, it would follow that
the relationship
inter se
between paras (a) and (b) was
intended also to be disjunctive.
On
the view I take of the case, however, it is not necessary to resolve
this issue; and I refrain from doing so. I come now to the
reasons
given by King J for granting the relief which he did. I preface this
by some further reference to the facts.
It
appears from the answering affidavits filed on behalf of the
Commission (and deposed to by Dr W Orr, a member of the Commission)
that in the performance of its functions and with the mm of gathering
information and receiving evidence from persons, including
persons
claiming to be victims of gross violations of human rights, or the
representatives of such victims, the Committee scheduled
certain
public hearings, which were to take place in East London as from 15
April 1996. Preparatory to these hearings members of
the public were
invited to approach the Commission with information concerning gross
violations of human rights. Statements were
then taken by specially
trained statement-takers employed by the Commission. Where necessary,
further investigations were conducted
by an investigating unit
(established in terms of sec 28 of the Act) to verify the correctness
of the information provided and
to obtain further details. Thereafter
the Committee conducted a screening process to establish which
matters would be dealt with
at the public hearing and to identify the
witnesses who would testify thereat. (See paras 3.7 and 3.8 of Dr
Orr's affidavit.)
It is further alleged (in para 3.9
of Dr Orr's affidavit) that the Committee, on the strength of the
statements which it had in
its possession, foresaw that the persons
who were scheduled to testify before it between 15 and 18 April 1996
would implicate to
their detriment certain alleged perpetrators of
gross violations of human rights. These alleged perpetrators included
the appellants.
The Committee accordingly sent to the appellants (
and others) the letter of 11 April 1996. This was done in compliance
with sec
30 of the Act and in order to afford them an opportunity to
submit representations, as contemplated in sec 30 (2), to the
Commission.
Annexure
A to the letter of 11 April which, in the case of the appellants, was
supposed to comprise "the substance of the allegations"
against them, has been quoted above.
All
that it tells each of
them is that it is alleged that he was "involved in" or
"had knowledge about" the poisoning
and disappearance in
Port Elizabeth in 1981/82 of "a person"; and that he was
acting as a member of the South African
Police at the time. In order,
it would seem, to explain this manifest paucity of information Dr Orr
stated the following in para
3.10 of her answering affidavit:
"... Many, if not most of the
persons whom the Committee proposes to hear, were victims in one way
or another of these violations.
Many of them were and remain
traumatised by their experiences and fear the prospect of testifying
against the alleged perpetrators
and the prospect of intimidation
befalling them or their families should it be made known that they
intend so testifying. In order
to meet this fear, the Respondent
considered it prudent to withhold the identity of the proposed
witnesses as well as their statements
from the persons whom they were
likely to implicate in their evidence, until such time as they had
testified before the Committee.
This procedure, I submit with
respect, is authorised by Section 11 of the Act. Having now taken
legal advice, the Committee has
no objection to providing so much of
the statements of any witness who has testified, which implicates any
person so as to enable
such person to exercise his rights in terms of
Section 30 of the Act."
Sec 11 of the Act, entitled
"Principles to govern actions of Commission when dealing with
victims", provides,
inter alia,
that when dealing with
victims the Commission should take appropriate
measures
in order to minimize inconvenience to victims and, when necessary
,
to protect their privacy, to ensure their safety, as well as that
of their families and of witnesses testifying on their behalf,
and to
protect them from intimidation (see para (e) ).
In
para 3.11 of her affidavit Dr Orr further stated that the witnesses
"who would in all likelihood implicate" the appellants
were
scheduled to be heard on 17 April 1996. She accordingly averred that
the letters of 11 April 1996 complied with sec 30(2)
as the
appellants were informed of the nature of the allegations against
them and were further afforded an adequate opportunity
to take
cognisance of the evidence at the hearings and thereafter to submit
their representations to the Commission. The deponent
further
emphasized that such representations did not have to be made prior to
the hearings: on the contrary such representations
were only due some
three weeks after the scheduled hearings concerning the appellants.
In
regard to
this
there are two
comments
to be made. This
is the first mention of 17 April 1996 as the scheduled date for the
hearing concerning the appellants. At all times
prior to this the
appellants were entitled to infer that the scheduled date could be as
early as 15 April 1996. The second comment
is that in para 3.11 Dr
Orr does not appear to regard the letters of 11 April 1996 as
notification to the appellants so as to enable
them or their legal
representatives to be present at the hearing at which the relevant
evidence is to be given. Later, however,
(in para 5.7.2 and 3) she
does aver that the appellants were notified of the hearings
concerning them and were "at liberty"
either personally or
through some person, to attend the hearings and take cognisance of
the evidence implicating them.
After the hearing of the evidence the appellants would be provided
with the statements of the witnesses "who testified against
them" and copies of transcripts of the relevant evidence. Dr Orr
further averred (in para 5.8) that the appellants did not
have the
right to test or in some way challenge, at the hearing of the
evidence, the admissibility or probative value thereof.
(See also
para 5.9.2.)
Shortly before the hearing before
King J and after the filing of appellants' replying affidavits, Dr
Orr filed a further affidavit
from which it appears that the witness
who was going to implicate the appellants was a Mrs Joyce Mtimkhulu
and that her evidence
related to the death of her son.
In
his judgment King J referred to certain provisions of chapter 3 of
the interim Constitution, Act 200 of 1993, as amended, in
particular
to sec 8, which affords every person equality before the law and
equal protection of the law; sec 10, which accords
to every person
the right to respect for and protection of his or her dignity; sec
23, which relates to the right of access to
information; sec 24(b),
which gives every person a right to procedurally fair administrative
action where any right or legitimate
expectation is affected or
threatened; and finally sec 35(3), which enjoins the court, "in
the interpretation of any law and
the application and development of
the common law and customary law" to have due regard to the
spirit, purport and objectives
of chapter 3.
Quoting
Administrator, Cape and Another v Ikapa Town Council
[1990] ZASCA 34
;
1990 (2)
SA 882
(A), at 889 I, King J held that the appellants' legitimate
expectation was to a fair hearing, including the application of the
audi alteram partem
principle. He further concluded as
follows:
"In my view a fair hearing in
the context of this matter includes due notice of the hearing at
which Applicants are to be detrimentally
implicated, timeous receipt
of implicating statements and/or other relevant documentation with
sufficient particularity so as to
enable Applicants to identify the
incident, and also as to enable Applicants, either personally or by
legal representation or both,
to be informed of and be present at
such hearing".
Later
in his judgment the learned Judge elaborated upon this:
"S 30 does not specifically
provide for the giving of notice, but neither does it dispense with
it and not only does an opportunity
to be heard presuppose adequate
notice, but it is consonant with the rules of natural justice (i.e. a
fair hearing) that personal
notice of an impending hearing be given
to persons who may be adversely affected thereat. It will occasion
neither hardship nor
prejudice to respondent to adopt this procedure
of prior notification and it could be the means of avoiding damage to
the implicated
person. One example should suffice - suppose an
implicated person was to attend the hearing and submit
representations establishing
beyond doubt that he could not have
committed the act which is alleged against him, because e.g. he was
out of the country or in
prison or in hospital at the material time."
In
the judgment of the Full Bench (delivered by Friedman JP) the appeal
against the judgment of King J is characterized as essentially
involving the interpretation of sec 30 of the Act. It was argued, on
behalf of the appellants, that before a witness testified
the person
to be implicated should be informed of the proposed hearing and be
given access to the relevant statements and documentary
evidence. The
judgment points out that counsel for the appellants (respondents
before the Court
a quo)
conceded that sec 30 (2) did not
expressly provide for such rights; and the judgment further concludes
that such rights could not
be implied in sec 30(2) since such an
implication would run counter to the express wording of the
subsection. (See reported judgment,
at 1006 F - 1007 A.) The judgment
also deals with secs 23 and 24(b) of the interim Constitution and
concludes that they too do
not require such prior notice. (See
reported judgment, at 1007 J - 1008 H.)
In
my view, the solution to the problems raised by the issues in this
case may be found in the common law, and more particularly
the rules
of the common law which require persons and bodies, statutory and
other, in certain instances to observe the rules of
natural justice
by acting in a fair manner. In recent years our law in this sphere
has undergone a process of evolution and development,
focusing upon
that principle of natural justice encapsulated in the maxim
audi
alteram partem
(which for the sake of brevity I will call the
"audi
principle"). In this process the
classification of decisions of a person or body into quasi-judicial
on the one hand and administrative
on the other as a criterion for
determining the applicability of the rules of natural justice has in
effect been abandoned (see
Administrator, Transvaal, and Others v
Traub and Others
[1989] ZASCA 90
;
1989 (4) SA 731
(A), at 762 F - 763 J;
Administrator Cape and Another v Ikapa Town Council,
supra,
at 889 G-I;
South African Roads Board v Johannesburg City
Council
1991 (4) SA 1
(A), at 10
J - 11
B;
Knop v
Johannesburg City Council
1995 (2) SA
1
(A), at 19 H - 20
F).
The
audi
principle was described in the
South African Roads
Board
case,
supra,
(at 10 G - I) as being -
" . . . a rule of natural
justice which comes into play whenever a statute empowers a public
official or body to do an act
or give a decision prejudicially
affecting an individual in his liberty or property or existing
rights, or whenever such an individual
has a legitimate expectation
entitling him to a hearing, unless the statute expressly or by
implication indicates the contrary;
... "
This formulation treats the
principle as a rule of natural justice which comes into play when the
circumstances stated above exist
and is contrary to the view which
requires the
audi
principle, if it is to apply, to be
impliedly incorporated by the statute in question. The latter view
which was followed in, for
instance, the majority judgment in
South
African Defence and Aid Fund and Another v Minister of Justice
1967
(1) SA 263
(A), at 270 B-H, has also been discarded (see
Attorney-General, Eastern Cape v Blom and Others
1988 (4) SA
645
(A), at 661 C - 662 l;
South African Roads Board
case,
supra,
at 10 H-1).
In
R v Ngwevela
1954 (1) SA 123
(A), at 131 H, Centlivres CJ
stated that the
audi
principle should be enforced unless it is
clear that Parliament has expressly or by necessary implication
enacted that it should
not apply or that there are exceptional
circumstances which would justify the Court's not giving effect to
it.
The
audi
principle is but one facet, albeit an important one, of
the general requirement of natural justice that in the circumstances
postulated
the public official or body concerned must act fairly. (
Cf
the remarks of Farlam J in
Van Huyssteen and Others NNO v Minister
of Environmental Affairs and Tourism and Others
1996 (I) SA 283
(C), at 304 A - 305 D.) The duty to act fairly, however, is concerned
only with the manner in which decisions are
taken: it does not relate
to whether the decision itself is fair or not
(Traub's
case,
supra,
at 758 H - I).
What
does the duty to act fairly demand of the public official or body
concerned? In the answering of this question useful guidance
may be
derived from some of the English cases on the subject. In
Doody v
Secretary of State for the Home Department and Other Appeals
[1993)
3 All ER 92
(HL) Lord Mustill stated the following in a speech
concurred in by the remaining members of the Court (at 106 d-h):
"What does fairness require
in the present case? My Lords, I think it unnecessary to refer by
name or to quote from, any of
the often-cited authorities in which
the courts have explained what is essentially an intuitive judgment.
They are far too well
known. From them, I derive the following. (1)
Where an Act of Parliament confers an administrative power there is a
presumption
that it will be exercised in a manner which is fair in
all the circumstances. (2) The standards of fairness are not
immutable.
They may change with the passage of time, both in the
general and in their application to decisions of a particular type.
(3) The
principles of fairness are not to be applied by rote
identically in every situation. What fairness demands is dependent on
the
context of the decision, and this is to be taken into account in
all its aspects. (4) An essential feature of the context is the
statute which creates the discretion, as regards both its language
and the shape of the legal and administrative system within
which the
decision is taken. (5) Fairness will very often require that a person
who may be adversely affected by the decision will
have an
opportunity to make representations on his own behalf either before
the decision is taken with a view to producing a favourable
result,
or after it is taken, with a view to procuring its modification, or
both. (6) Since the person affected usually cannot
make worthwhile
representations without knowing what factors may weigh against his
interests fairness will very often require that
he is informed of the
gist of the case which he has to answer.”
(See
also
R v Secretary of State for the Home Department.
ex
parte
Hickey and others
(No
2) and
other appeals
[1995] 1 All ER 490
(QBD),
at 497 a-h.)
Though Lord Mustill was dealing with the power of the Secretary of
State to release on licence prisoners who had received
mandatory
sentences of life imprisonment, I understand his statement to be of
general application. Other English cases have emphasized
the need for
flexibility and for each case to be considered individually (see
R
v Monopolies and Mergers Commission,
ex pane
Elders
IXL Ltd
[1987] 1 All ER 451
(QBD), at 461 b-f and the authorities
there cited).
It is the appellants' contention
that in carrying out their statutory functions the Commission and the
Committee were under a duty
to observe the principles of natural
justice and, therefore, to act fairly. I did not understand
respondent's counsel seriously
to dispute this. And indeed the Court
a quo
appears to have accepted this to be the position and to
have held that the procedures adopted by the Committee were
"perfectly
consonant" with the rules of natural justice.
(See reported judgment at 1007 B-H.)
In
the English case of
Re Pergamon Press Ltd
[1970] 3 All ER 535
(CA) the Court was also concerned with procedures in an investigative
inquiry conducted in this instance by inspectors in terms
of the
Companies Act. The directors of the company concerned claimed that
the inspectors should conduct the inquiry much as if
it were a
judicial inquiry in a court of law. Lord Denning MR said of this (at
539 a-f):
"It seems to me that this
claim on their part went too far. This inquiry was not a court of
law. It was an investigation in
the public interest, in which all
should surely co-operate, as they promised to do. But if the
directors went too far on their
side, I am afraid that counsel for
the inspectors went too far on the other . . . he did suggest that in
point of law, the inspectors
were not bound by the rules of natural
justice . . . He submitted that when there was no determination or
decision but only an
investigation or inquiry, the rules of natural
justice did not apply . . . I cannot accept counsel for the
inspectors' submission.
It is true, of course, that the inspectors
are not a court of law. Their proceedings are not judicial
proceedings . . . They are
not even quasi judicial for they
decide nothing; they determine nothing. They only investigate and
report. They sit in private...
But this should not lead us to
minimise the significance of their task. They have to make a report
which may have wide repercussions.
They may, if they think fit, make
findings of fact which are very damaging to those whom they name.
They may accuse some; they
may condemn others; they may ruin
reputations or careers. Their report may lead to judicial
proceedings. It may expose persons
to criminal proceedings or to
civil actions . . . Seeing that their work and their report may lead
to such consequences, I am clearly
of opinion that the inspectors
must act fairly."
(See
also judgment of Sachs U at 541 h - 542 d, and
R v Secretary of
State for Trade,
ex parte
Perestrello and
another
[1980] 3 All ER 28
(QBD).)
I am of the view that likewise in
the present case the Commission and the Committee are under a duty to
act fairly towards persons
implicated to their detriment by evidence
or information coming before the Committee in the course of its
investigations and/or
hearings. As I have indicated, the
subject-matter of inquiries conducted by the Committee is "gross
violations of human rights".
Many of such violations would have
constituted criminal conduct of a serious nature, or at any rate very
reprehensible conduct.
The Committee is charged with the duty of
establishing,
inter alia,
whether such violations took place
and the identity of persons involved therein. The Committee's
findings in this regard and its
report to the Commission may accuse
or condemn persons in the position of appellants. Subject to the
grant of amnesty, the ultimate
result may be criminal or civil
proceedings against such persons. Clearly the whole process is
potentially prejudicial to them
and their rights of personality. They
must be treated fairly.
But
what does fairness demand in the circumstances of the present case?
That is the critical question. Sec 32 requires that persons
detrimentally implicated should be afforded the opportunity
subsequently to submit representations to or to give evidence before
the Commission. But does that exhaust the requirements of fairness?
The appellants say "No; we require, in the first place,
reasonable and timeous notice of the time and place when evidence
affecting us detrimentally or prejudicially will be presented
to the
Committee". King J was of the view that fairness required such
notice to be given. I agree.
I have already emphasized the very
serious nature of the allegations likely to be made against persons
detrimentally affected by
evidence to be heard by the Committee. In
the case of the appellants these allegations related to the
"poisoning and disappearance"
of a person, evidently a Mr
Mtirnkhulu. This vague allegation has overtones of murder. Unlike the
inquiry in the
Pergamon Press
case,
supra,
hearings by
the Committee are normally conducted in public; and certainly in the
case involving the appellants that was to be the
procedure. This is a
very important factor because it means that allegations made by a
witness implicating the appellants would
immediately gain wide
publicity.
There
are important advantages to be gained by having reasonable and
timeous notice of such a hearing. The person likely to be implicated
is thereby enabled to be personally present, and/or to be legally
represented, at the hearing. This will enable him and/or his
legal
representative to actually hear the implicating evidence and see the
demeanour of the relevant witness or witnesses. Conceivably,
as
pointed out by King J, the implicated person might be able readily to
rebut the allegations of the witness. In such a case the
Committee
might well be under a duty to hear the rebutting evidence forthwith
or to permit immediate cross-examination.
Normally
the giving of such reasonable and timeous notice would not occasion
the Committee any difficulty or inconvenience. The
fact that a
witness to be called at a hearing before the Committee was to
implicate detrimentally a third party would be apparent
from the
statement taken from the witness and if those responsible for leading
the evidence make proper arrangements beforehand
there should be no
problem about giving notice. It may be that, exceptionally,
reasonable and timeous notice is not practically
feasible. For
instance, a witness might implicate a third party for the first time
when giving
viva voce
evidence. And one can visualize other
cases where the exigencies of the situation might prevent the giving
of such notice. There
is, however, no suggestion that this was the
position in the case before us. Had there been a practical problem in
giving timeous
notice to the appellants I would have expected this to
have been canvassed in the respondent's affidavits.
In
my view, there is nothing in the Act itself which, expressly or by
implication, restricts or negates the general duty to act
fairly and
in particular the duty to give reasonable and timeous notice. Nor do
I consider that there are any exceptional circumstances
which would
justify such restriction or negation. In her affidavit Dr Orr did
emphasize the legislative time limits set for the
completion of the
work of the Commission and the volume of that work, but I do not read
her affidavit as pleading exceptional circumstances
or as attempting
to make out the case that the giving of reasonable and timeous notice
to persons in the position of the appellants
was not practically
feasible.
In this case prior notice was
actually given to the appellant. This incidentally seems to indicate
a recognition on the part of
the Commission of a duty to do so. Be
that as it may, there is no doubt in my mind that such notice was not
reasonable or timeous.
Notice received on Saturday that evidence was
to be given as from Monday, possibly on Monday, was, in my opinion,
in all the circumstances
not reasonable or timeous.
It
was not argued on behalf of the respondent that if the Commission, or
the Committee, had failed in a duty to give reasonable
and timeous
notice, the Court of first instance erred in granting the relief
contained in para 1(a) of its order. Nor do I think
that it erred. I
tum now to the relief granted in para l(b).
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.
I
have already quoted the passage from Dr Orr's affidavit in which she
explains the need to withhold the identity of proposed witnesses
as
well as their statements, from persons likely to be implicated until
the witnesses have testified before the Committee. There
may be a
need for such protection in particular cases, but I do not agree that
this justifies the paucity of information given
in annexure A to the
letters sent to the appellants. Assuming that such protection was
necessary in the case of Mrs Mtimkhulu,
it seems to me that, without
disclosing her identity or otherwise endangering her, the Commission
could have disclosed to the appellants
the substance and much of the
detail of the allegations against them, as contained in her
statement. Certainly no cogent case to
the contrary has been made out
by the respondent.
In
the judgment of the Full Bench (see reported judgment at 1005 F -
1006 A) some reference was made to the provisions of secs 28
(5) and
29 (5), which read respectively as follows:
"28(5) Subject to section 33,
no article or information obtained by the investigating unit shall be
made public, and no person
except a member of the investigating unit,
the Commission, the committee concerned or a member of the staff of
the Commission shall
have access to such article or information until
such time as the Commission or the committee determines that it may
be made public
or until the commencement of any hearing in terms of
this Act which is not held behind closed doors."
"29(5) No person other than a
member of the staff of the Commission or any person. required to
produce any article or to give
evidence shall be entitled or be
permitted to attend any investigation conducted in terms of this
section, and the Commission may,
having due regard to the principles
of openness and transparency, declare that any article produced or
information submitted at
such investigation shall not be made public
until the Commission determines otherwise or, in the absence of such
a determination,
until the article is produced at a hearing in terms
of this Act, or at any proceedings in any court of Jaw."
I do not think that it is
necessary to analyse these subsections in any detail. They deal with
the making public of information
obtained by an investigating unit
and access by persons outside the Commission to such information. I
do not think that a private
disclosure of information to a person
implicated would amount to making that information "public".
And, in any event,
the subsections would not prevent a determination
to disclose information to such a person in this way. I do not read
these submissions
as overriding the common law obligation to act
fairly or as precluding the Commission, in the discharge of that
obligation, from
giving relevant information to the person
implicated. And in fact by the time that the information relevant to
the case concerning
the appellants was due to be disclosed to them,
the Commission (and the Committee) had obviously decided to make it
public at the
healing scheduled for the following week.
Para l(b) of the order granted by
King J interdicted the Commission (through the Committee) from
receiving or allowing during its
hearings evidence which would affect
the appellants unless and until it had furnished the appellants with
such facts and information,
by way of witnesses' statements and/or
other relevant documentation as might be reasonably necessary to
enable the appellants to
identify the events, incidents and persons
concerning which or whom it was proposed to present or allow evidence
which might detrimentally
implicate the appellants. In so far as this
order would result in compelling the respondent to disclose the
identity of a witness
in circumstances where such disclosure would be
contrary to the guidelines contained in sec 11, particularly those in
sec 11(c),
it goes too far. Subject to an appropriate qualification
to cater for this eventuality, the appellants were, in my judgment,
entitled
also to the relief contained in para 1(b) of the order of
King J. That qualification does not merit any special order in regard
to costs.
The following order is made:
(1)
The
appeal is allowed with costs, such costs to include the costs of two
counsel.
(2)
The order of the Court
a quo
is altered to read:
"(a) The
order made by King J is altered by the addition of a new paragraph
l(c) reading:
'(c) The
order contained in paragraph (l)(b) shall not be construed as
necessarily obliging the Respondent,
in complying therewith, to
disclose the identity of any witness whose evidence the Respondent
proposes to present or allow to be
led.'
(b) Subject to the
aforegoing, the appeal is dismissed with costs, such costs to include
the costs of two counsel."
M M CORBETT
E
M GROSSKOPF JA)
EKSTEEN
JA)
CONCUR
MARAIS
JA)
OLIVIER
JA)