CHAIRPERSON: ... start now, but we thought we would come and explain to you the reason. We have been told that the victim's family have engaged the services of a lawyer to represent them at this inquiry. They were represented at a previous inquiry where the victim's name was mentioned. We have made enquiries and I understand from our evidence leader that the lawyer is supposed to have left Durban on Friday on his way down here. We are still awaiting his arrival but we have caused urgent enquiries to be made and we hope that within the next few minutes to discover what has happened to him. But I thought it only right we should let you know why we are sitting doing nothing. We hope that we will be able to start within a very short space of time. Thank you for your patience.
MR VISSER: Mr Chairman are you going to adjourn straight-away?
CHAIRPERSON: We are going to adjourn at this stage.
MR VISSER: Mr Chairman there is a matter which I wish to raise and bring to your attention. It may be convenient to do so now while we are waiting and seeing that, I respectfully submit that it does not affect the victims directly, I wonder whether I could have your permission to raise the issue.
Mr Chairman it is a matter of great concern to us, may I just say before we start, that in the Kondile application, Kondile incident, I appear for General Gerrit Nicholas Erasmus and Inspector Johannes Godfried Raath, for those two applicants.
Mr Chairman it is ...(intervention)
CHAIRPERSON: Well while we are about it, I think you ought to give your name as well.
MR VISSER: Yes.
CHAIRPERSON: Perhaps I could start and we can get that all on record ...(intervention)
MR VISSER: Yes that's a good idea.
CHAIRPERSON: This is a hearing of the Amnesty Committee. It is to deal with an application for amnesty of Mr Janse van Rensburg, Mr du Plessis, Mr Raath and Mr Erasmus arising out of the death of Mr Siswe Kondile.
The members of the Committee hearing the application are myself, Andrew Wilson, Mr Chris de Jager and Mrs Sisi Khampepe.
Would the counsel appearing please announce themselves.
MR VISSER: As it pleases you Mr Chairman my name is Louis Visser. I am instructed by Wagner, Muller and Du Plessis. I act on behalf of Erasmus and Raath.
MR BOOYENS: May it please the Commission Mr Chairman, Kobus Booyens, instructed by Van der Merwe and Bester. I appear on behalf of Nicholas Janse van Rensburg and Hermanus du Plessis.
MR JANSEN: Mr Chairman, Rudolph Jansen. I appear on behalf of Mr Dirk Coetzee on instructions of Mr Julian Knight, attorneys from Pretoria. Mr Coetzee being an applicant for amnesty in respect of the Kondile matter whose evidence has already been led.
MR MPSHE: Mr Chairman, Members of the Committee, J M Mpshe for the TRC.
CHAIRPERSON: Right. Mr Visser could you continue.
MR VISSER: Thank you Mr Chairman. May I reiterate, it's a matter of great concern to us Mr Chairman that we wish to arrive at the hearings of these amnesty applications properly prepared so as not to take up any time unnecessarily and to get on with the job in hand. However we find ourselves in the position where we unfortunately have to raise the issue that it is becoming more and more impossible for us to do our job properly for the simple reason Mr Chairman, that we are not given the necessary implements, the documentation, which are necessary for us to do a proper job.
Mr Chairman may I remind that at Bloemfontein, when this problem arose for the umpteenth time, you personally made a remark in the form of a ruling to say that from now on people have to be given longer notice, for obvious reasons Mr Chairman, it is because we want to get down to the business of hearing the amnesty applications and that documentation has to be supplied to them timeously.
Now Mr Chairman this morning we arrived here and at twenty to ten we were presented with a bundle. I will return to that bundle in a moment.
May I just refer you to three letters which were written by my attorney Wagner, Muller & du Plessis. The first we have marked P62 Mr Chairman, it is a letter dated the 14th of August. May I hand three copies to the Committee. Each set would contain P62, P63 and P64. Mr Chairman may I direct your attention to P62, it is a letter dated 14 August Mr Chairman, almost two months ago and specifically to paragraph 3. It is a letter addressed to Advocate J M Mpshe and it says in paragraph 3 -
"To enable us to prepared for the aforesaid hearings...."
which if you look at 2.4 just above includes today's hearing, Mr Kondile,
".... you are urgently requested to forward me copies of the following documentation
The records of the Human Rights Committee when evidence in respect of such incidents were heard in public. If the typed version is not available a computer disk will also suffice".
May I interrupt myself Mr Chairman. A computer disk was provided and we are not complaining about that issue at all. We did receive a computer disk and we had a printout made so we had the evidence relating to all these incidents for the Human Rights Committee. We are not complaining about that at all.
Three says -
"3. All further documentation in your possession pertaining to these incidents.
4. In view of the urgency of these matters I look forward to receiving the said documents by not later than the 26th of August".
P63 is the next letter, it is one page Mr Chairman. 19th of August 1997, it is again - it is addressed to the -
"Amnesty Committee, Truth and Reconciliation Commission.
re: Eastern Cape Hearings".
and paragraph 1 is the only one that is relevant.
"I refer to my letter dated 14 August 1997, paragraphs 3 and 4, and look forward to hearing from you as a matter of extreme urgency".
The next letter Mr Chairman is dated 15 September and I would draw your attention to paragraph 3. This letter is addressed to the "Amnesty Committee, Truth and Reconciliation Commission" and it says in paragraph 3 -
"Regarding documentation I wish to confirm that I have received the computer disk containing the records of the Human Rights Committee when evidence in respect of the relevant incidents was heard in public. However no further documentation has yet been received from you and as the Mthimkhulu matter is scheduled to commence on 22 September I once again request your urgent attention in this regard".
Now Mr Chairman on Thursday last, that is October the 2nd my attorney's secretary telephoned the TRC and spoke to Mr Mpshe's secretary. She explained that we were concerned that we had received no documentation whatsoever in regard to this hearing and according to her she was promised that a bundle would be forwarded immediately. That was Thursday.
On Friday October 3rd my attorney personally telephoned when nothing had arrived and spoke to somebody who he says sounded like "Nuna", "Luna or Nuna" at the TRC office. He says that this lady promised that documentation regarding today's hearing would be forwarded by courier to him in Pretoria to be delivered not later than Saturday. My attorney then gave his cellphone number and address to this lady and arranged for him to be telephoned when the documents arrived. No documents arrived.
Now Mr Chairman I return now to the documents which have now been provided to us.
CHAIRPERSON: I was going to ask you what are those documents?
MR VISSER: Well Mr Chairman I received this at twenty to ten. It professes to be a bundle containing the application of N J van Rensburg; application of H B du Plessis; application of R G Raath; application of G N Erasmus and then Item 5 of that says
"Investigative Unit Report; Photo Album; Affidavit of Dirk Coetzee; Job Card of Dirk Coetzee; Media Coverage and Affidavit of Ginotry Danster".
ADV DE JAGER: Is it a bundle from pages 1 - 78?
MR VISSER: That is correct Mr Chairman.
CHAIRPERSON: The same as we have had for some time.
MR VISSER: Now Mr Chairman what we find disturbing is it appears that there is only 21 pages contained in this bundle which does not comprise of applications. I make no point of the fact that we don't necessarily have ...(intervention)
CHAIRPERSON: Are you saying there are only 21 pages that don't comprise applications ...(intervention)
MR VISSER: I am sorry, not 21 ...(intervention)
CHAIRPERSON: I get 48.
MR VISSER: I am notoriously bad at arithmetic ...(intervention)
CHAIRPERSON: The applications finish on page 30 don't they?
MR VISSER: Yes and it's 78, so it's 40....
CHAIRPERSON: 48.
MR VISSER: 48, thank you Mr Chairman. Mr Chairman, and one would be tempted to say well you've got 48 pages, go read through it this afternoon and you will be ready to go on tomorrow, but when one looks at the contents of - I just paged to page 37 Mr Chairman and I see an affidavit of one Dirk Coetzee in which he alleges that he was told that Mr Kondile had suffered serious head injury causing cerebral haemorrhage while he was being interrogated by the Security Police. And he refers to a doctor friend, who is apparently part of some cover-up but who had advised the Security Police of a potential Biko situation.
Now Mr Chairman just on this one issue it seems to us, with great respect, that this is of vital interest to all the applicants in the present applications because if Mr Coetzee, unbeknown to us gave this evidence during his amnesty application and if this Committee is satisfied that he told the truth, clearly Mr Chairman it would vitally affect the prospects of these applicants with their amnesty applications on the basis of a failure to make full disclosure.
CHAIRPERSON: Were your clients given notice that they were implicated parties in the Coetzee application?
MR VISSER: I was just coming to that. None of the clients sitting here received notice, apart from, I am told, Van Rensburg doesn't remember whether he received notice, but for the rest none of them received notice. Mr Wagner who acts for a number of the applicants, as you well know Mr Chairman, did receive notification on behalf of Brigadier Schoon. And you might remind yourselves that Mr Wagner personally appeared at the time when the application by Dirk Coetzee was launched, was heard. At the time there was some question of how long he would need to cross-examine Mr Coetzee and he suggested two weeks upon which he was told that there was no way in the world that the Committee could allow him two weeks cross-examination. He then decided not to cross-examine at all and placed in dispute what Mr Coetzee said as far as Mr Schoon was concerned. That's just by the by Mr Chairman. But none of these other applicants, certainly not my two applicants were given notification.
We now have the situation Mr Chairman that with this one paragraph at page 37 of this bundle a whole hornet's nest has been stirred up, because Mr Coetzee gave evidence before the Harms Commission in London, I believe it is some 800 pages of evidence in total. I am not saying all of that was the evidence was the evidence of Mr Coetzee, but it is around 800 pages of evidence that was heard in London by the Commission. The evidence which he has given before this Committee now becomes relevant Mr Chairman as you can well understand. And what is more relevant than anything else is if this dispute is, proves to be a dispute, because we don't really know at this stage, if it does prove to be a dispute justice will only be served Mr Chairman if Mr Coetzee is properly taken under cross-examination and his version at least on this one issue is tested.
We suggest, with respect Mr Chairman, that justice will not be served in these applications unless Mr Coetzee is here and unless he is cross-examined, and we suggest that that should be done before we continue with our applications.
Mr Chairman but the matter does not end there. I was told this morning, I was shown this morning a bundle of documents by my learned friend Mr Booyens, I reckon it was about two inches thick, of evidence, I am not even sure what it was Mr Chairman, of evidence or whatever relating to this incident. Perhaps he will tell you what that is all about. With respect Mr Chairman we have a track record, I believe it is fair to say, of attempting to assist the Committee in whichever way possible, but when we arrive at the point where we are expected to compromise the interests of our clients Mr Chairman, then it becomes a problem. With great respect, however much the applicants wish to put their applications behind them and get on with their lives and however much we would like to get shot of these applications, we have reached the stage today where we cannot under any circumstances dare put our applicants on the witness stand because we simply don't know what is hanging in the air, what is lurking in the wings.
CHAIRPERSON: But isn't that one of the things Mr Visser that you are not entitled to have your go at cross-examining somebody first and then let your clients come and answer it after they've heard it? You are entitled to know what allegations are made and then if anybody is going to rely on them they must question your client, but I don't see this suggestion of yours that you should have the right of cross-examination first before your clients commit themselves in any way.
MR VISSER: On this, only on this basis Mr Chairman. Mr Coetzee has already given his evidence. We don't know what that evidence is ...(intervention)
CHAIRPERSON: Yes you can have a look at it.
MR VISSER: Yes, yes, indeed Mr Chairman, but in fairness to the Committee we must assume that Mr Coetzee - Mr Coetzee's application was heard before the Committee made the decision in principle to hear matters incident by incident. So we are not pointing any fingers of blame at anybody. It is quite clear how this came about. When the Committee started with its endeavours it started with applicants and it later changed to incidents, and this happened in that changeover situation, so I am not pointing fingers at anybody.
But in fairness Mr Chairman Dirk Coetzee's application, all other things being equal and if it had come a little later, would have been part of the application before you here today, and he would have been examined and cross-examined in sequence. And just on that basis Mr Chairman I am not insisting on a right I am just pointing out, with great respect, what is fair in the circumstances. I would suggest Mr Chairman that cross-examination of Mr Coetzee may sort the problem out there and then, and from a practical and a fair point of view we suggest Mr Chairman, that Mr Coetzee should be here and he should be cross-examined ...(intervention)
CHAIRPERSON: I agree with you that if his evidence is to be relied on against your client you should have the right of cross-examination, but I can tell you Mr Visser I feel very strongly against the idea of free cross-examination before your clients commit themselves.
MR VISSER: Mr Chairman I accept your ruling and I find myself in fact in agreement with what you are saying. What I was suggesting was from a practical point of view and from a point of view of fairness and I take it no further than that.
Mr Chairman with great respect I wish to conclude that we wish to assure you again of our cooperation in order to attempt to finish the job in hand as smoothly and as expeditiously as possible, but we are going to need some assistance from the administration of the TRC and it is at the moment not forthcoming Mr Chairman. I am sorry that I have to say this, but it is a matter that is going to have to be addressed if we are going to get anywhere. We have about 100 applicants still to come with about 70 incidents Mr Chairman. We are now looking already at a week per incident, where are we going to land, with great respect? Thank you Mr Chairman.
The point is, Mr Chairman, we are not ready to proceed at this stage because we simply don't know what there is that we have to meet, how we have - Mr Chairman it is grossly unfair for a man to go into the witness box where there are people sitting around the room with information which colours the way in which they look and listen to the evidence of a witness.
Certainly Mr Chairman - may I just read to you what His Lordship Mr Justice Corbett said about this very point Mr Chairman, and I am referring to Du Preez and Van Rensburg and Another, the case which you know very well, reported in 1997 (3) SA 204 (AD), he says this Mr Chairman at the letter B -
"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".
Precisely the point here.
"As I have indicated the subject matter of enquiries conducted by the Committee is gross violations of human rights, many of such violations would have constituted criminal conduct of a serious nature and 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 it's report to the Commission may accuse or condemn persons in the position of the 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".
And Mr Chairman with great respect to expect the applicants today to walk into the witness box ...(intervention)
CHAIRPERSON: (Microphone not switched on)
MR VISSER: Thank you Mr Chairman. We would still like to get off the ground, although at this stage we cannot see how that is going to happen Mr Chairman.
MS KHAMPEPE: Mr Visser I am a little confused about where you stand at this stage. Are you saying you would like to have more time in order to prepare for your case? Are you in fact asking for some few hours? Can you give an indication of your exact request?
MR VISSER: Mr Chairman I thought I made myself clear, but let me say again, I do not see how, faced with the prospect of the evidence in London, the evidence given by Mr Coetzee before this Committee, to prepare all of that, to consult with witnesses and then to be ready this week is just, from our point of view, out of the question. We do not see that we can continue this week Mr Chairman.
CHAIRPERSON: But Coetzee's evidence on this is 35 pages.
MR VISSER: Referring to which evidence Mr Chairman?
CHAIRPERSON: His evidence relating to the Kondile affair, which we can make available to you now.
MR VISSER: Is that the evidence before your Committee or ...(intervention)
CHAIRPERSON: Yes.
MR VISSER: And what happens to the evidence before the Harms Commission Mr Chairman? What happens to contradictions regarding the Kondile matter in Mr Coetzee's evidence between his evidence in London and his evidence before you and his evidence in this affidavit and all sorts of other documentations, his Mauritius Declaration etc, Mr Chairman?
CHAIRPERSON: Well by the time we get to Coetzee's evidence then I think you can apply for an adjournment.
MS KHAMPEPE: Mr Visser if you think that that kind of evidence is going to be relevant wouldn't it be the right time to raise that issue if you have gone through the evidence of Mr Coetzee? From what you are saying is you have not been furnished with Mr Coetzee's evidence in respect of the Kondile matter?
MR VISSER: That's quite correct Mr Chairman, but look at the prejudice here. Already this morning on SABC we hear of brain damage sustained by Mr Kondile. That can come from nowhere else but from documentation which wasn't even presented to us before the report was made over - But you have already taken the point Mr Chairman, it is inexplicable.
And with respect Mr Chairman we maintain that we will be severely prejudiced if we are compelled to continue at this stage without at least studying the documentation and at least consulting properly with our clients before we put them in the witness box.
MR BOOYENS: Mr Chairman with your permission I would like to come in here. Our history insofar as the documents goes is we were handed the application papers on Thursday, we got them on Thursday last week after my learned friend asked and somebody kindly made them available to us. However, my attorney had written at an earlier stage to the Committee and indicated in fact that as far back as the 27th of August 1977, I don't know whether you want to see it Mr Chairman, perhaps I could just read the relevant paragraph
"Amnesty applications on behalf of R Venter as well as Dirk Coetzee have been heard in respect of the Pebco 3 as well as in the matter of the late Mr Kondile. It would be greatly appreciated if we could be furnished, as a matter of urgency, with the statements and transcript of proceedings in the abovementioned applications in order to prepare ourselves for the forthcoming amnesty applications on behalf of our clients".
What was forthcoming as far as the Dirk Coetzee proceedings is concerned is yesterday morning at approximately between 10 and 11 o'clock my instructing attorney succeeded in getting hold of a copy from my learned friend Mr Mpshe. We thereafter proceeded to photocopy this. It is, as is apparent to my learned colleague Mr Visser, it is apparent to us Dirk Coetzee will have to be cross-examined ...(intervention)
CHAIRPERSON: What are these papers that you got yesterday morning?
MR BOOYENS: My Lord this is proceedings held at Durban.
CHAIRPERSON: Oh they are the ...(intervention)
MR BOOYENS: This is the two inch document my learned friend referred to that he saw from me this morning. This is the transcript of the evidence by Coetzee in his application.
CHAIRPERSON: Yes that's at page 241 of the papers.
MR BOOYENS: That's correct, that's correct. However Mr Chairman we find ourselves in a double predicament in this regard, actually I think it's now turning into a triple predicament.
In the first place one receives these documents cold, so you've got to start at page 1. Okay you get to certain pages where you realise you can ignore it, then you read through Coetzee's evidence and you start coupling it with a very brief handwritten statement which is included in the amnesty applications, and there are certain unclarities and uncertainties there.
The next problem that one has if you have now got to start taking instructions on things that you have now got to deal with cold again. Our next problem arises from the fact that throughout the document there are references to a manuscript in Book 1, Book 2 and Book 3 I think, I don't know how many books there are, it sounded like a library with respect - four, I am indebted to you - five, I am indebted to you Mr Chairman. Now the Coetzee library has not been supplied to us. I don't know what it is, I don't know if it is relevant.
Now I said I now found myself in a triple predicament. You would recall Mr Chairman that at a stage where we were still hoping that these matters would be - we would be able to proceed I indicated to you that I would be in a situation where I could lead my witnesses and excuse myself due to other professional commitments, the problem is that at this stage we have not got all the Coetzee papers, number one. I do not know if there are things in the other documents that we have got to cover, because it appears that Coetzee is in fact more important than any other evidence in this regard.
Number two, my clients have indicated very firmly to me at this stage now, at the stage when we initially discussed the matter with you they have indicated very firmly to me that they have procured the services of senior counsel for the reason that they feel that this is a matter of great importance to them and that if cross-examination of Mr Coetzee is going to become relevant, and I will submit it will be, they would request the Commission to grant them an adjournment at this stage.
The third problem is of course if the matter is to stand down at this stage we have got the further problem that then they may find themselves in the predicament that we, exactly the predicament that we tried to underscore by saying that we would try to start today. So although for different reasons than my learned friend Mr Visser I would also at this stage be compelled to request the Commission for an adjournment.
If I may just add one other aspect Mr Chairman, if I could refer the Commission to page 47 of the application we have also been supplied with a copy of - this is a minor issue indeed but also relevant, at page 47 we have been supplied with what purports to be part of a statement of one Danster, but what I've got doesn't make sense at all because it has not been properly copied at all and our impression is ...(intervention)
CHAIRPERSON: There's a big blank column going down ...(intervention)
MR BOOYENS: Not only that Mr Chairman, believe it or not this is a copy of four pages. So that was also an aspect on - I do not know what Danster says, I cannot consult about it. And this is also an issue that my attorney took up with Mr Mpshe yesterday, which was the first occasion - no on Friday, my attorney already phoned on Friday, we had received the papers on Thursday and we were told that they cannot find that document. Now I do not want to be placed in a situation where a document materialises at a late stage which I haven't covered in consultation, as you yourself are very well aware Mr Chairman we are talking about events that happened 15 years ago and Danster may say things, I do not know what they are, which clients do not readily remember and which are necessary in the interests of justice that they be consulted with.
So in the circumstances I make common ground with my learned friend Mr Visser, although for different reasons, that I hate retracting a previous stance that I have adopted, but in the circumstances I have got every reason to believe that my clients would be substantially prejudiced if this matter is to proceed now.
CHAIRPERSON: As I see it one of the problems, which is one that certainly struck me when reading the papers, is that Danster seems to introduce another version which may well affect Coetzee. So it is not as if it is an unimportant matter. He appears to, on that page 47, talk about travelling somewhere with Mr Kondile and may well refer to his condition and matters of that nature which may be of relevance and I can see your problem there that I do not think it is something that can be just brushed aside.
MR BOOYENS: I agree with you entirely Mr Chairman. And then also there is another story about Coetzee at page 48. But what really causes the predicament is unless you have got the statement in context the travelling may be irrelevant or may be relevant; the involvement of Coetzee may be relevant or irrelevant, we simply do not know at this stage.
So we find ourselves in an extreme predicament as a result of this and I would accordingly move for an adjournment of this hearing to a future date to be arranged.
CHAIRPERSON: Mr Jansen I take it you have nothing to say on this?
MR JANSEN: No Mr Chairman, but maybe I should just explain the basis of our presence here.
Firstly it should be noted that we are not opposing the application of any of the applicants as such, we are merely here to protect the interests of Mr Coetzee insofar as there are factual discrepancies which relate directly to the motive or the reason for the killing of Mr Kondile.
Mr Chairman I have always gathered that these proceedings are very limited insofar as, or has been limited for obvious reasons as far as the right to cross-examination is concerned. We do not intend putting questions relating to general aspects of credibility as such, we intend only to go into the point itself, placing our client's version to the different applicants and showing them certain documents which relate directly to the incident itself. We certainly do not go further than that.
CHAIRPERSON: Your client's version is completely contradictory to their's, you agree?
MR JANSEN: Yes, as to the underlying reason as to why Mr Kondile was killed ...(intervention)
CHAIRPERSON: As to motive.
MR JANSEN: Yes certainly, and for that reason it is important for us to at least protect ...(intervention)
CHAIRPERSON: Your client.
MR JANSEN: ... his version in that respect. But maybe I can put it in simple terms. We can live with the situation where a finding cannot be made either way but at least it is accepted that our client's version can be a possibility ...(intervention)
CHAIRPERSON: They may not be able to in the requirement for a full disclosure if one feels that your client's version maybe it puts the applicants in a very difficult position so they would want to investigate it fully.
MR JANSEN: Yes. Mr Chairman maybe I should also place on record in that regard. We made a decision that we are satisfied in protecting Mr Coetzee's interests that we come down here, place certain things on record in cross-examination and go no further. We have no interest in calling Mr Coetzee for any reason or calling him in opposition to the application. That would, with respect Mr Chairman, we have to justify all the expenses that we make, we have to justify to Mr Coetzee's employer and with respect that would have to be arranged - sorry Mr Chairman....
CHAIRPERSON: Well my view and those of the members of the Committee on this aspect Mr Coetzee would be an essential witness.
MR JANSEN: Yes....
CHAIRPERSON: And if you do not call him the Committee will have to call him.
MR JANSEN: Yes, and on that basis the Committee would have to call him and arrangements would have to be made through the TRC channels, with respect Mr Chairman. But I accept that there is obviously, on the Committee's side, there may be compelling reasons to call Mr Coetzee.
CHAIRPERSON: Now you referred to documents, are these fresh documents that have not as yet been made available?
MR JANSEN: Mr Chairman they are all documents that form, that are annexures to Mr Coetzee's application. I do not think those annexures are in the possession of the applicants. Of course the applicants themselves I do not think can be strangers to these documents because it was in fact - these documents all come from the Harms Commission, it was in fact these applicants and their legal representatives that introduced most of these documents to the Harms Commission so I do not think they can be strangers to the documents ...(intervention)
CHAIRPERSON: Would you make them available for the applicants to copy?
MR JANSEN: Yes Mr Chairman we have copies of our bundle and we will make it available.
MR VISSER: Mr Chairman may I be allowed - I think Mr Jansen has finished. Mr Chairman three new, brand new dimensions have now been added which did not even occur to me when I addressed your earlier Mr Chairman.
The first is that apparently the intention is that questions in cross-examination will now be directed to the applicants should they go into the witness box about which they have not been forewarned, which they have not consulted about, which perhaps they know nothing about or perhaps they have forgotten about, with all due respect Mr Chairman that must be a very profound reason for not allowing that to happen.
The second Mr Chairman is that it is said that the applicants are no strangers to the documents, well Mr Chairman with respect my two applicants were not part and parcel of the Harms Commission and ...(intervention)
CHAIRPERSON: Surely you must wait until you have seen the documents, they might be reports that your clients prepared day after day.
MR VISSER: Absolutely Mr Chairman, the only point being made now is that now we really do not know what this is all about and we need to know that.
CHAIRPERSON: Yes, but the question is in my view you do not know how long you need to know at the moment. If your clients tell you this is absolute nonsense, Kondile never fell through a wall, he never suffered any injuries, this whole thing is a fairy tale, what further instructions do you need? I am not asking you to commit yourself at the moment but I am suggesting that we should, once we have what information is available, give you an opportunity to have preliminary discussions with your clients, to then come back and tell us if you need more time rather than at this stage merely assume that you do.
MR VISSER: Mr Chairman I cannot argue with the reasonableness of what you are suggesting. From my point of view we have no problem with that. Mr Booyens has another problem with that.
CHAIRPERSON: Let us hear what Mr Mpshe has to say. Mr Mpshe what is the reason that the papers were either not delivered or delivered so late?
MR MPSHE: Thank you Mr Chairman. Mr Chairman first I must admit that the letters, the three letters sent over to the Committee were received by the office and these were directed to the relevant officer to despatch the necessary documentation, that is the executive secretary, but I am not passing on the buck. But Mr Chairman the documentation was sent to Mr Wagner's office, although late but it was sent, I had to phone the office now, they have sent me the courier document to indicate that the documents were sent off. I have it here in my possession. I must admit ...(intervention)
ADV DE JAGER: Could you kindly tell us when was it sent off?
MR MPSHE: According to the document which was faxed to me now I see the date the 3rd of October, that must have been on Friday when they were sent off.
ADV DE JAGER: Mr Mpshe do they state the time there on the document?
MR MPSHE: Shouldn't I just hand it over. About the documents given to Mr Visser these did not come from me. He may have received them from the logistics officer, I did not give him any documents this morning.
The documents that Mr Visser alleges are in the possession of Mr Booyens he is referring to the evidence of Dirk Coetzee in the matter which was heard in Durban, and whilst on that I want to link in Mr Booyens when he says that the documents were received yesterday in the morning. Indeed it is true Mr Francois got them from me yesterday morning but we spoke during the week wherein he said I must courier them. Then I said to him no, no, I will be coming down, I will be there as early as Saturday afternoon. Then we agreed that rather than courier them down I may as well bring them along, and that is why he got them yesterday.
We have nothing to do with the Harms Commission in this matter, neither was this ever used when we were dealing with Dirk Coetzee's matter in the Kondile matter. Perhaps this would best be sorted and it has been sorted by my learned friend Jansen.
Mr Chairman the page 47 referred to, it is true as indicated by Mr Booyens that his instructing attorney contacted me during the week about this statement which cannot be read and no sense can be made therefrom. I informed his instructing attorney during the week, I think it was on a Wednesday if memory serves we well, that this document comes from the Investigative Unit of the TRC and I will have to revert back to them to get the original. The Investigating Officer concerned is Raji and I got in touch with Raji on the same, on Wednesday, and Raji informed me that he cannot find the original, whereupon I said to him he must find the original because what is in the bundle does not make sense. The matter ended there with him having to come back to me with the original. I immediately instructed one of our officers to contact Mr Booyens' instructing attorney to inform him of the developments pertaining to Mr Danster's statement which information I want to believe was received by Mr Francois van der Merwe because ten minutes later he came back to me on the phone and told me what has been conveyed to him. Me and him said if we do not find the original statement then it will mean that the statement included in the bundle will have to be ignored, and that was the end of the matter.
This morning I approached Mr Francois van der Merwe about the same thing, the same problem on page 47 and page 48, and I informed him that I think in the circumstances the best thing to do would be to get Mr Danster himself to come and testify because the statement has been tampered with and it does not make sense, whereupon Mr Francois said to me no, if you call him I still want the original document. I said but this is what we have and it is not clear so the best thing is to have the man to come and testify. He insisted that if he comes he wants the statement.
I then again phoned Cape Town and told Raji, the Investigative Officer, that he must look for the statement because I intend calling Mr Danster to come and testify ...(intervention)
CHAIRPERSON: Who took this statement?
MR MPSHE: The statement Mr Chairman was taken by one of our Investigating Officers, Mr Raji, who is based in Cape Town.
CHAIRPERSON: So he's lost it, is that what you are saying?
MR MPSHE: He said he has lost the original.
MS KHAMPEPE: Mr Mpshe does he have a legible copy because we are not sure whether page 47 relates to a page, one page of that statement or affidavit or refers to a number of pages. I mean ...(intervention)
MR MPSHE: It would seem Raji when he made these copies he forwarded to us only the copies in the report but he kept all the other originals with him and he informed me that he has lost the originals. He made the photostat copies for us, hence the statements are in all the bundles are all the same. I have contacted the office again this morning to tell him to supply me with a statement as to what has happened in full. I have done that this morning.
ADV DE JAGER: Mr Mpshe it seems, I may be wrong, but it seems as though the papers were sent to Wagner and Muller, 3:40 on the 3rd of October, so that would be what twenty to four in the afternoon, the three is very - I can't see whether it is in fact so, if that is so it couldn't even have arrived in Pretoria from Cape Town ...(intervention)
MR MPSHE: On the same day it couldn't, it couldn't.
ADV DE JAGER: Ja.
MR MPSHE: It may have arrived on the following day, the Saturday.
MR VISSER: Mr Chairman it has just been confirmed telephonically by my attorney who has just left the room, that the papers were served by courier on his office at 10:20 this morning.
CHAIRPERSON: It seems, if I may also had that they were only sent overnight express on the Friday afternoon, so they were never going to arrive there on Friday.
ADV DE JAGER: My problem is that in fact I think it is policy of the Amnesty Committee that documents should be given to applicants and persons involved if possible a month before the time but at least say three weeks or 14 days, that's not been complied with, due to - I do not think it is your fault, it is a fault of the office wherever it may be.
I have got another problem and I do not know if you could help me here, as far as the implicated persons are concerned in these documents, have they been given notice? Have you got any - and as far as I could see in reading through the documents we have got Schoon, Neethling, Flemington, Dietleefs, Paul van Dyk and Roy Otto, at least, who are very implicated, can you perhaps advise us whether they have been given notice of this hearing?
MR MPSHE: Mr Chairman as I indicated at the beginning that since now the office has been divided we have people who are issuing out notices, we have people who take documents to come and lead evidence like I am now today, I cannot tell now as to whether these are the people who are implicated, but inasfar as the last person mentioned by yourself, Mr Otto, Mr Otto is no more, but the other three people I cannot tell whether they have been notified or not, but I can phone the office to find out from the officers who are charged with this job. It has been demarcated in such a way that I am not in a position now to can tell whether this has been done or not, an officer has been assigned to do that.
MS KHAMPEPE: Mr Mpshe just to assist you, those people would have been, I think, served with such notices pursuant to the affidavit of Mr Dirk Coetzee, and if you want some assistance you must refer to page 35 of Mr Dirk Coetzee's affidavit, those names appear from Mr Dirk Coetzee's affidavit.
MR MPSHE: Mr Chairman and Member of the Committee, as far as I am concerned when it comes to the Dirk's application I remember that they were all served with the notices but the one on which I could lay my hands when I was going through documents in my office, that of Nick van Rensburg to the fact that he was served and he did receive notice thereof. The others I was not in a position to find, but that of Nick van Rensburg I do have wherein he was informed as an implicated in Dirk Coetzee's matter, I have a copy thereof.
CHAIRPERSON: Has further investigation been done into this matter? We have an investigative unit. Amongst the papers put before us is an affidavit by Mr Dirk Coetzee in which he says that - other people, and he names them, were present at the scene of the killing and played an active part in it. Isn't it essential that they must be notified or that they should have been questioned and statements taken from them and that they are potential witnesses?
MR MPSHE: Mr Chairman investigation was done, that statement emanates from the Investigative Unit, it is them who compiled the investigative report.
CHAIRPERSON: But don't you ask them, don't you when you get these papers say to them, well what about it, have you spoken to Flemington, have you spoken to these other people?
MR MPSHE: No Mr Chairman that was not done.
CHAIRPERSON: I think we will take a short adjournment to consider the position.
HEARING ADJOURNS
ON RESUMPTION
CHAIRPERSON: I do not know how much of the prior discussions was transmitted or translated to members of the audience. If it was you will have heard that there has been a grave misunderstanding about the supplying of the application papers to the applicants and to their legal advisors. In these circumstances the applicants have been unable to prepare for the hearing of the evidence which is now going to be led in this regard.
It also appears that the advocate who was appearing on behalf of the victim is not present today but we have had an opportunity of talking to Mrs Kondile and explaining the position to her.
It also seems to us that in the light of the affidavits filed and the evidence given on other occasions there are certain persons who are essential as witnesses or as interested parties, and it would seem the arrangements have not been made to have the witnesses here or to notify the interested parties.
In those circumstances it will be impossible to proceed with this hearing.
We have discussed the matter with the legal advisors of the applicants of the interested parties and the evidence leader and have been unable, as of now, to determine a date to which the matter can be adjourned. It will be impossible to proceed with it either this week or next week. In those circumstances it will be necessary for us to adjourn the hearing of this application to a date to be arranged in the future.
I apologise to all of you who have sat here today waiting to hear the start of it, hoping to hear something of what happened in our past, of learning more about it, and I apologise to you that you have wasted your time in that regard, but thank you all for having come and shown an interest in the proceedings. Thank you. We will now adjourn.
HEARING ADJOURNS
