Mungo Soggot
THE truth commission could be paralysed by being forced to operate like a normal court after the Cape Supreme Court’s decision this week to allow retired policemen access to truth commission documents, lawyers said this week.
They said the decision could set a precedent which opened the gap for other judgments to order the commission to cross-examine witnesses – a move which would slow down the commission’s proceedings considerably.
Judge E King on Tuesday ordered the Truth and Reconciliation Commission not to hear any evidence affecting the two policemen – retired police Brigadier Jan Abraham and retired General Nicolaas Jacobus Janse van Rensburg – until they had been given advance warning of any evidence which might implicate them. The policemen were also granted access to the commission’s documents.
Lawyers, who cautioned they had examined the controversial judgement, said it appeared the policemen and others could now seek interdicts ordering the commission to gag or censor witnesses.
In letters to the policemen, the commission has alleged that they were connected with the disappearance or poisoning of someone in Port Elizabeth in 1981. Sapa reported Judge King said: “This is a test case and if it has far- reaching implications then so be it.”
One prominent constitutional lawyer said the judgment appeared to have struck a balance between ensuring the commission carried out its exposure of apartheid’s horrors as dictated by the interim Constitution, and protecting the right of individuals not to have their reputation assaulted.
He said that although the Cape Supreme Court decision set an important precedent, it did not mean that other provinces could not take a different line. There was also a chance the commission could appeal against the decision.
Another lawyer said there was a danger the decision set a precedent which would make the commission function like a court, slowing down its proceedings considerably.
He pointed to the ominous reaction to the judgment by four former national police commissioners, who warned the commission that it would be hit with similar court applications if it did not allow the cross- examination of witnesses.
Mike Geldenhuys, Johan Coetzee, Hennie de Witt and Johan van der Merwe told Sapa: “The way in which members and former members of the police have been placed in a bad light by some vague allegations, generalisations, hearsay evidence and apparent untruths cannot be tolerated any further.”
The legislation which set up the commission does not stipulate that witnesses should be cross-examined and it provides witnesses with a qualified privilege. This gives them a defence to defamation providing their evidence is not motivated by malice and providing it reflects their honest belief.
Judge King’s judgment, which was still being examined by the truth commissioners at the time of going to press, is not the first legal challenge to the commission.
Last month the families of several leading apartheid victims sought an interdict against the commission’s amnesty committee, arguing that the granting of amnesties violated their constitutional right to civil actions against their relatives’ killers and torturers. Judgment in this case has yet to be given.