CHAIRPERSON: My name's Judge Pillay. I'm announcing myself for the purpose of the record. I'm going to ask my colleagues and the various representatives to do the same.
JUDGE KHAMPEPE: I'm Judge Khampepe.
ADV BOSMAN: F J Bosman.
MR HUGO: Thank you, Mr Chairman. My name is S W Hugo. I'm acting on behalf of the applicant, E A de Kock.
MR CORNELIUS: Thank you Mr Chairperson. Wim Cornelius. I act on behalf of the applicant David Jacobus Britz and applicant Daniel Lionel Snyman.
MR WAGENER: Chairperson, Jan Wagener. I appear for Isak Johannes Engelbrecht, Willem Helm Johannes Coetzee and Anton Pretorius. The first two clients of mine have received notices in terms of Section 19(4) being implicated persons. My submission is that Mr Pretorius is in the same category although, till date hereof, he has not received any such notice.
MS PATEL: Thank you Honourable Chairperson. Ramula Patel, Leader of Evidence and insofar as it may be necessary, the victims we haven't been able to locate, I will protect the interests of the victims insofar as I can. Thank you.
CHAIRPERSON: Now for some reason matters have only come to a head in this application or this Hearing of this particular application recently. I have been informed that certain issues only recently discovered, give rise to other matters, intricate matters, various serious implications and the implication thereof is that I'm given to understand that the various parties now need to re-assess their position in terms of preparing for the hearing and that they are contemplating - some of the representatives are contemplating asking this Panel to issue subpoenas in respect of certain individuals who are likely to produce evidence which is relevant to this hearing.
It will, of course, if such application is successful, mean that we'd have to allow proper time for such people to prepare themselves and to find out what they are expected to answer on and this, in turn, would necessitate a postponement. Given the crowded situation with the schedule of the Amnesty Committee, I am convinced that this postponement, if it does come down to that, will entail a long period and possibly a month or two. I want to find out from the representatives, is the position as I describe it, still the same?
MR HUGO: Mr Chairman, yes, that is correct.
MR CORNELIUS: The position is the same, Mr Chair.
MR WAGENER: Indeed Mr Chairman, but if I may be allowed? Prior to our meeting here this morning, I handed up affidavits by my clients, it's an affidavit by Mr Engelbrecht and attached thereto, affidavits by the other two gentlemen. May I request at this stage that we perhaps give this an exhibit number for preparation purposes?
CHAIRPERSON: A.
MR WAGENER: Thank you Chairperson. Then another matter, I don't know whether this is the correct moment or whether my colleague Mr Hugo will first address you on the issue of subpoenas or is it expected from me to respond thereto now? I'm not sure.
CHAIRPERSON: Now if there's a question of response, I think we'd better hear what Mr Hugo's got to say first.
MR HUGO: Yes, thank you Mr Chairman.
Mr Chairman as we have indicated to you, we only became aware of two affidavits contained in bundle 2 of the documents before you late last night, for various reasons which I don't want to go into at this stage unless you want me to explain that to you. Mr Chairman, we submit that those two affidavits - well it's specifically the first affidavit we deem to be of great importance, is an affidavit by a certain Mr Olifant. Now we have been, as I've indicated, been blissfully unaware of his existence and/or his affidavit, but we submit it is of paramount importance for Mr de Kock's application ...(intervention)
CHAIRPERSON: Why do you say ...
MR HUGO: Mr Chairman, that Mr de Kock's version is that an informer of a certain Mr Coetzee was about to divulge very sensitive information and that was really the reason as to why he was killed. Mr de Kock will testify that the sensitive information pertained to operations of the Security Police, and we now have a witness that will bear him out on this particular score. We submit that this actually supports his political motivation. It goes a very long way in supporting and underscoring his credibility as to what the reason was for this particular operation. Mr Chairman he also ...(intervention)
CHAIRPERSON: Whatever he is likely to testify, you are arguing, will have a profound effect on the decision that we will be required to make.
MR HUGO: Certainly so, Mr Chairman. In fact there is another compelling reason why it's very necessary for him to come and testify and that is, we have now been - affidavits have been submitted by Mr Engelbrecht, Coetzee and Pretorius and this particular witness incriminates Mr Pretorius and Mr Coetzee and he supports to a very great extent what Mr de Kock is saying. Now if we don't call this particular witness, we're going to have a situation where we don't have witnesses that can give oral evidence and be tested under cross-examination as to exactly what happened, what the reasons were for this particular operation. We submit that his presence at the hearing is of paramount importance.
CHAIRPERSON: Have you any idea where this Mr Olifant is to be found?
MR HUGO: I don't have at this point in time, Mr Chairman, but we'll endeavour to try and find out where he is and from our side we'll also try and consult with him as soon as possible, get affidavits. And let me just put it on record at this point in time that we would regard him as our witness, we would lead him as a witness if this Panel decides to subpoena him or call him, and that's the way we will see his legal position. Obviously if he prefers to have his own legal advisor it's a different situation but we would like him to be called to confirm his affidavit because we feel it's very important for Mr de Kock's application.
Mr Chairman, that is as far as the one witness is concerned. There was also another witness, that is the deceased's brother who really gives hearsay evidence, but we submit the hearsay evidence is very important just for one reason and that is, he makes mention of a warden who told him that his brother was about to be killed. We would like to investigate this matter simply for the reason that we would like to find out who this warden was because we believe that he has very pertinent information pertaining to this specific situation and pertinent, we're saying, because there was this elaborate scheme that this particular person was to be killed and that he was to be killed as he was in the process of identifying or pointing out an arms cache and this particular brother confirms that he heard after the death of his brother that he was killed because he had done an "uitwysing" as he says in his affidavit, so we feel that it's also important for us to speak to this particular warden.
We're not asking Mr Chairman at this point in time for a subpoena obviously to be issued against the warden, but we would like to have the opportunity to at least investigate this particular matter and hopefully we might just come back with a witness and/or further affidavits that will shed some further light on the issue.
ADV BOSMAN: May I just ask, you are not at this stage applying for subpoenas in regard to Olifant? I just want to make quite sure. Will you first ascertain whether Mr Olifant will come out of his own accord? Did I understand you correctly?
MR HUGO: Mr Chairman, I would prefer to ask for a subpoena at this point in time. I don't think it would be necessary to issue it and have it served on him. We'll try and circumvent that process.
CHAIRPERSON: And make use of it if necessary.
JUDGE KHAMPEPE: Yes.
CHAIRPERSON: I think we accept about understanding. You will try to get an amicable sort of relationship going, failing that you would use the subpoena. Would that be in both cases?
MR HUGO: That would be in both cases, yes, Mr Chairman, except that in the second case we obviously, we don't think it would be prudent to issue a subpoena against the warden in that he can't, the brother, in that he was really giving hearsay evidence. We'll take it upon ourselves to try and find out what the situation was and to investigate that. I don't think it would be proper for this Committee to issue a subpoena.
CHAIRPERSON: In the case of the brother?
JUDGE KHAMPEPE: Yes. Do you know the name of the brother?
MR HUGO: No, Madam Chairperson.
MS PATEL: Its Masopha.
JUDGE KHAMPEPE: So you are only motivating for the issuing of a subpoena in respect of Mr Olifant?
MR HUGO: That's correct.
JUDGE KHAMPEPE: And not for Mr Masopha?
CHAIRPERSON: My Hugo, I mean just a bit of query come advice, in an attempt to curtail proceedings. Would it be possible for you to communicate to the Panel or whomsoever at the TRC and in the even of you needing a subpoena for the warden - let's assume your investigations lead you to this person, who's not inclined to come to the hearing, then I think you'd better contact us about it in respect of a subpoena, because I wouldn't like to come back here next time and you find yourself in the position of having to apply for the subpoena and then we waste another two or three weeks, unless anybody's got problems with that suggestion. Mr Wagener?
MR WAGENER: Chairman, not exactly on the same point but regarding Manuel Olifant, I may be of some assistance. As far as I know he's still a serving policeman. He has also applied for amnesty for a number of incidents and Mr Albert Lamey of Rooth and Wessels is his legal representatives, so I would suggest Mr Hugo or Ms Patel just liaise with Mr Lamey in respect of Manuel Olifant.
MR CORNELIUS: Mr Chairperson, as far as my view in this issue is concerned, if we look at the evidence placed before you now in the bundle at page 11, the statement of Olifant and we look at the affidavit given in by Mr Wagener, we can see there's a clear issue already in dispute, so we've got relevant evidence that's already been placed before you, so if you do need to make a decision in terms of Section 29(4), the evidence is already before you in that respect and it's quite clear that the causa causans of the killing is without doubt the consultations or the negotiations that took place between Coetzee and Olifant and the subsequent denial, so it's very relevant. So I support Mr Hugo in that request.
MR WAGENER: Mr Chairman, as I've indicated to you in Chambers, I do not have a brief at present to appear before you at the hearing of this matter. Hopefully, or maybe the situation may change in the future. Regarding Mr Olifant, we've cross-examined him before. I assume that should he be subpoenaed and I will have a brief to appear, I will have to cross-examine him again. I agree with what Mr Cornelius has told you. It's on the papers. I agree with that. All that I would like to know is what would then be the parameters of his evidence and would I, should I appear at that stage, be allowed to fully cross-examine him regarding credibility because that may entail a wider scope of cross-examination than what is usually envisaged in a subpoena where someone is subpoenaed to come and testify in respect of a single incident only, so on that score, I would, if possible, like to receive your guidance as to what would then be the parameters and should I appear, on what basis would I be allowed to cross-examine?
CHAIRPERSON: ...(indistinct - no microphone) application, the parameters in respect of the evidence in respect of the applicant, can be very broad because he's the person that's making application. I'd like to hear your views on the position of a witness that has been subpoenaed for a specific issue. It's an interesting issue that you bring up that if his credibility is to be attacked, is it not under those circumstances permissible to broaden the ambit of his cross-examination? Now my difficulty there is - like I said, I can quite understand that being the position of an applicant. Would you say the same position applies to an ordinary witness who has been subpoenaed?
MR WAGENER: Mr Chairman this has been one of the problems that we've experienced in this process over the last four years. I've been involved in a number of matters where we had to deal with this very same question and those different Panels. I can remember for instance where we were involved in lengthy hearings in the Free State two years ago before your colleague, Judge Wilson presiding, where we appeared for a number of implicated people and their evidence was also on the basis of being accepted that the applicant can't get amnesty. So, and again there are no specific rules to provide for this situation. Now what we experienced there was that your colleague Judge Wilson, he allowed wide ranging cross-examination of all witnesses because credibility, in the end, had to decide whether the applicant should be granted amnesty or not for very serious issues, but I may also add that since then we've had many discussions on this issue specifically how to curtail proceedings and whether that is the correct way to conduct hearings or not and I must say, I'm not very sure always where the line should be drawn, I'm quite frank with you because you've got opposing issues here. On the one hand, I can understand an applicant saying: "I would wish to cross-examine this witness because his evidence has a direct impact on my amnesty application, or not", on the other hand we've had matters where cross-examination was allowed for days and days on many, many, many incidents very far removed from what we were busy with, so I would think, to be fair to everyone is to allow cross-examination, but with Section 34 always in the back of your mind, where you have the power to curtail cross-examination should you feel and that the correct answer would then be a pragmatic decision from your side and it's very difficult from where I sit and I think my colleagues as well to tell you now in a very clear way that this is where you should stop or this is where you should start. I'm not sure either. I can't be of more assistance than that.
CHAIRPERSON: You see, what I want to put to you is that it may very well be the case that the broader ability or the widened ability to cross-examine exists in the case of an applicant, but in your client's particular position, he's not an applicant and we're talking about a witness who's also not an applicant. Perhaps what you say is very relevant because we're not talking of an applicant. We're talking about two separate witnesses, who haven't got an interest in this hearing, to the extent that an applicant may have. I'm just drawing that distinction. In fact I'm trying to bring in your argument to its logical conclusion.
MR WAGENER: Although, Chairman, I think it can also be problematic to try and differentiate between the different interests, merely to say that the interests of an applicant outweighs that of an implicated person. I think that can also lead to very unsatisfactory situations, so my own view would be to refrain from doing that but merely to say that you will exercise your discretion in terms of 34 in each and every single individual case where you should curtain cross-examination or not.
JUDGE KHAMPEPE: Shouldn't the overriding factor be what is sufficiently relevant to enable this Committee to decide whether an applicant should succeed or fail in his amnesty application? That to me would seem to be the overriding factor and with regard to a person who's subpoenaed in terms of Section 29, whether that person was initially an implicated person or not, I think it becomes irrelevant because he then appears as a witness of the Committee, notwithstanding the fact that he initially might have been implicated by an applicant, so that removes the weight of the Committee having to decide whether the interests of an implicated person should be equal to those of an applicant. He becomes a witness of the Committee and the question of relevance becomes very, very important in deciding how far any of the legal representatives should go in cross-examining that witness. I am aware, Mr Wagener, that I think you are referring to two cases, Mr Ngo and Mr Motsamai in Bloemfontein, which cases went on and on. I think they went on for months, if not nearly a year.
You will recall that we have since, as a Committee, adopted a different approach, simply because we also are faced with pragmatic issues of time. We've got time constraints, but that does not mean that we should not give due consideration to proper evidence having to be led before us, to enable us at the end of the day, to decide whether amnesty on just reasons, should be granted or refused to an applicant. So I think Section 34 does, in my view, play an important role whenever a witness, that being an applicant or a person subpoenaed in terms of Section 29, is involved. It becomes very relevant. We have, I think, been given the powers to curtail any examination or cross-examination of a witness, be it an applicant or a person subpoenaed in terms of Section 29.
That will also address - I'm anticipating your argument, with regard to Mr Engelbrecht, but we haven't actually come to Mr Engelbrecht, because Mr Hugo or Ms Patel has not yet addressed us with regard to the need for Mr Engelbrecht to be subpoenaed in terms of Section 29.
MR WAGENER: Mr Chairman yes, I fully agree with what has been said by Commissioner Khampepe. I think that is the proper approach, so I don't know whether you expect me now to address you on my clients, maybe I should just put on record that my clients have elected to exercise their rights in terms of Section 19(4) by filing the affidavits marked Exhibit A at this stage. That was their wish. Thank you.
JUDGE KHAMPEPE: You may proceed, Ms Patel.
MS PATEL: Thank you, Honourable Chairperson. Given that the affidavits of Engelbrecht, Coetzee and Pretorius were received by us only today I would, in light of what is stated by these three implicated parties, make a request that they all be subpoenaed for the following purposes, Honourable Chairperson. Gen Engelbrecht has denied categorically the allegation by de Kock that he was authorised to embark on this operation or to assist in the murder of the deceased, Mr Bambo. He is supported, Engelbrecht is supported in his view, or in his approach to this by both Coetzee and Pretorius who have stated that they at no stage felt that Mr Bambo, the deceased, had posed a threat to the Security Branch at all, that at no stage did they feel that he was going to reveal sensitive information about his dealings with the Security Branch as alleged by Mr de Kock. It places into question the political motivation of the applicants in this matter, Honourable Chairperson.
And then also, if one looks at the statement of Olifant, he states - inasmuch as Mr de Kock would seek to rely on that, he states that there was - I think he was approached by Pretorius at some stage saying that because Mr Bambo the deceased who's posed a threat, that there was a request for him to be killed. Mr Pretorius, in his affidavit to us, has denied that allegation, Honourable Chairperson, and I do believe that if we're going to come to the truth of what happened regarding this incident, we need to test the evidence of the parties involved and of the persons who have submitted these affidavits and also it needs to be tested against the evidence of Mr de Kock before us.
If these subpoenas are not issued, all that we're faced with on record, is these affidavits. The validity or the weight to be attached to that, would arguably be substantially less than the tested evidence of Mr de Kock who will no doubt testify under oath.
CHAIRPERSON: The normal practice for assessing relevancy before testimony is the probabilities of what is going to be said. One can never control what is actually said by these witnesses when they sit in front of that microphone. I think witnesses must rank as the most unstable entity, other than typhoons, I suppose.
On what we've got before us, is it likely that either or all of those witnesses will contribute to the evidence in a material way, so as to influence our decision-making process?
MS PATEL: Yes, absolutely, Honourable Chairperson. My submission, respectfully is that it actually goes to the heart of this application before you.
CHAIRPERSON: How?
MS PATEL: To the extent that the entire motivation upon which Mr de Kock is relying, is refuted by the persons whom he seeks to rely on.
CHAIRPERSON: And you say that we should call them to repeat what is in their affidavit?
MS PATEL: Not only that but to place you in a position where this is going to be challenged, what is said in the affidavit is going to be challenged - and I have no doubt in my mind that on the papers before us, that it will be challenged, that you are then placed in a position upon which you can weigh up the testimony of all those who were involved in this incident.
JUDGE KHAMPEPE: Particularly, Ms Patel - I'm not trying to support your case, that would be the case, particularly if one has regard to the affidavit of Mr Olifant.
MS PATEL: Absolutely. Absolutely.
CHAIRPERSON: You say for all three of them?
MS PATEL: That is correct, Honourable Chairperson, especially in the light of the fact that there's been an application now for Mr Olifant to be subpoenaed and Mr Olifant makes direct reference to Mr Pretorius and the circumstances surrounding the death of Mr Bambo. I believe it's crucial that we call him.
JUDGE KHAMPEPE: Isn't he making reference to both Mr Coetzee and Mr Pretorius?
MS PATEL: Absolutely, he does, but the reference to Mr Bambo being killed, comes in no uncertain terms from Mr Pretorius, according to Mr Olifant.
CHAIRPERSON: And you want them subpoenaed to also contradict or rebut what Mr Olifant is likely to come say?
MS PATEL: And so doing, hopefully to come to the truth of the matter, Honourable Chairperson.
CHAIRPERSON: What would the ambit be?
MS PATEL: Well I would bow to your judgment in respect of the ambit of the subpoena, Honourable Chairperson.
JUDGE KHAMPEPE: But Ms Patel you are requesting us. You are making a motivation. Even though, at the end of the day, we have to make - issue the subpoena, you should be able to guide us with regard to how far you want to have the ambit incorporated in the subpoena.
MS PATEL: In respect of Mr Engelbrecht, Honourable Chairperson, my interest would be for him to testify on his knowledge and involvement surrounding the incident. In respect of Coetzee and Pretorius, it's not only their knowledge and involvement surrounding the incident, but their knowledge and their dealings with the deceased, Mr Bambo.
CHAIRPERSON: Anything else?
MS PATEL: No, that's all, thank you Honourable Chairperson.
MR WAGENER: Mr Chairman, your Act, that is Act 34 of 1995, is not clear on the question whether an implicated person can be subpoenaed at all. On the one hand there's the argument that such a person has the right to elect, in terms of Section 19(4) what he wants to do and if he decides not to attend the hearings or, as in this case, where my clients have elected to file affidavits, that that right should be respected and that they can therefore not be subpoenaed and thereby be compelled to attend the hearing and compelled to answer questions put to them.
On the other hand there is also the argument that you as an Amnesty Committee, have the power in terms of I think its Section 19(6), where it says that you have the powers of the TRC as such in terms of amongst others chapter 6 and 7 of the Act and in Chapter 6 there's the authority to subpoena people. You have also heard earlier in the week that I myself and my learned counsel, who is an SC, that even we differ on the correct approach in this regard.
I would suggest, Chairman, that the time has come that we all be assisted by way of a judgment or a ruling in this regard, that we know where we stand, where we represent implicated persons, because I can tell you, my clients, specifically Coetzee and Pretorius, they've also applied for amnesty, they have co-operated with the whole process of the TRC all along. To an extent the same applies to Gen Engelbrecht, he testified, I think he was the very first policeman who ever testified before the TRC, in October 1996 on subpoena and they wouldn't like to be seen as being obstructive to the process that we are busy with, but my first issue that I would like to raise is, I think the time has come for a ruling to be made in this regard, then we know and we all know how to approach the matter from there onwards.
CHAIRPERSON: Have you finished? I'm sorry, Mr Wagener.
MR WAGENER: That is the first issue. I have a second issue, but now's convenient.
CHAIRPERSON: Your first point you make about the status of your client, he's first of all an implicated person for which he's been notified etc. As I understand you've got no quarrel with that. He seems to be a person who may and according to the Evidence Leader, is a person who could give testimony on very crucial issues. Let's test your argument. Does the one's status, because the one's status is a witness, the other one is an implicated person, in both instances he carries different rights. Does the one's status override the other? I ask the question in rhetoric. Does it matter that he may be an implicated person, if he is a witness that according to the Committee, is able to throw light onto the actual occurrence?
MR WAGENER: Chairman, I think ...(intervention)
JUDGE KHAMPEPE: Before you proceed, Mr Wagener, or to put it the other way, does the application of one provision, which in this case is Section 19(4), exclude the operation of the other provision which is Section 29?
MR WAGENER: Mr Chairman, that is exactly the question to be answered by you as a Committee. What I can say is that one must never forget that my clients are seen as suspects regarding the criminal investigation. Two of them Engelbrecht and Coetzee, were in fact approached by the Attorney-General and were compelled to make warning statements as being suspects of the crime of murder.
CHAIRPERSON: One would have thought that the Attorney-General would have known better than to compel them to make statements.
MR WAGENER: Well, compel them to make a warning statement, even if it's saying: "I'm not prepared to make a statement", but what I'm trying to say, they are regarded as suspects in respect of a crime of murder. Now, I think ...(intervention)
CHAIRPERSON: Is that a relevant factor that we ought to burden ourselves with?
MR WAGENER: Mr Chairman, I ...(intervention)
CHAIRPERSON: In determining this issue?
MR WAGENER: I would say yes, because I think in the end it will be a constitutional argument in terms of the right of a suspect, in terms of the Constitution of our country where the right to remain silent for instance, comes into the whole ambit of this argument, so I would say yes, it's very much relevant to what we are busy here with. The question of your colleague, Commissioner Khampepe, as to which right should supersede which one, once again, I think if one goes to the Constitution of our country, you may well find that the Constitutional right of a suspect of an accused person to remain silent, that that may be the overriding one. As I sit here today, I'm not sure.
CHAIRPERSON: I've got no doubt that that is the foremost right of any accused. My question on that score is, let us put it into context. A person arrested, for the sake of the argument let's assume he's arrested, once he's arrested he's classified as a suspect, he's entitled to remain silent thereafter in respect of the process of preparation for trial and investigation and prosecution of a particular crime and that right to remain silent, as I understand, pertains to that offence in the trial and what precedes the trial. This process is not preparation for a trial, nor is it a trial. In addition to that, the Act protects a person from being victimised for what he has said in these proceedings. I see you're frowning. You don't agree. Is he not ...(intervention)
MR WAGENER: I'm just, I'm not sure.
CHAIRPERSON: I think he's protected, especially if we ask him to come here and testify. The understanding in terms of the Act is that whatever he answers here cannot and never can be used against him in any criminal trial or any trial for that matter, that may subsequently be held in respect of what is testified. I think I've got it right.
JUDGE KHAMPEPE: Yes, Section 31, Mr Wagener.
MR CORNELIUS: Mr Chairperson, may I see if I can uncompound the issue a little bit? If we look at Section 20(4), it says
"If an application has been dealt with in terms of (3), the Committee shall conduct the hearing, contemplated in Chapter 6 and shall..."
Alright so that is - I mean we're forced to do it, subject to provisions in the prescribed manner notified. Now they create categories, the applicant, the victim and the person implicated and then we go to (b). It says:
"Inform the persons referred to in paragraph (a)".
So they're referring to ...(intervention)
CHAIRPERSON: I'm lost, where are you reading now?
MR CORNELIUS: I'm reading from Section 19(4)(a).
CHAIRPERSON: 19(4)(a).
MR CORNELIUS: Yes. In the prescribed manner, notify the applicant, the victim or the person implicated and then in (b) it says
"Inform the persons referred to in paragraph (a)."
So they've defined the meaning of persons. Now an implicated person comes and he elects and chooses his rights which have now been given to him in this paragraph, then we can't come and say in Section 29, we have now the right to subpoena him as a witness. 29(6):
"By notice in writing, call upon any person to appear before the Commission."
That should have been any other person excluding 19(4), otherwise we are allowing a person to exercise the right as an implicated party and we're taking it away from him in the next ambit of the argument.
JUDGE KHAMPEPE: So what are you saying, Mr Cornelius? Are you saying the reading of Section 29, if one has regard to the provision of Section 19(4) as you have alluded to, would therefore automatically exclude an implicated person from being amongst the cluster of persons referred to in terms of Section 29 as those whom the Committee can subpoena in terms of that section?
MR CORNELIUS: Quite correct, Judge Khampepe. The reason why, Section 20(4) says
"Shall,"
19(4)
"shall, subject to the provisions of Section 33..."
so, the minute we're in a hearing, we are compelled to inform the victims and the implicated parties and the applicants, so we can't give a right and take a right away, that's why I'm saying, we don't need to look at Constitutions, Constitutions and protected rights and so forth as far as possible criminal activities are concerned. In the Act itself lies our answer.
CHAIRPERSON: Yes, well, I don't think it's as straight forward as you put it. Yes, there are certain obligations on the part of the Commission to do certain things for applicants in favour of victims and implicated people. Does the fact that these obligations on the part of the Commission accrue to any one of those sets of people, preclude the Committee from saying: "Mr X, you are able to throw light on this. Please come and do it" and he says: "No, because I'm an implicated person." We say to him: "Look yes, we know you're an implicated person and the reason why we're giving you notice because you're an implicated person, because you have certain rights and certain interests to protect." The most important interest that he or she wants to protect, is the fact of self-incrimination so that the prosecuting authorities can take advantage of it and prosecute that person, but I'm saying that that possibility is catered for in the Act so that it encourages people to come testify without fear of any prosecuting authority relying on the evidence of that person testifying in these hearings and I would like to argue that because of that protection, the rights of an implicated party are not burdened as some people may think, but given that, we have on the other hand a very compatible requirement of the Act of obtaining the truth as to what happened.
You've got to balance that against the interest of the person concerned and if it so happens to be that the person who is implicated, is the only person who can throw light on the events whether it is the truth or not is to be decided thereafter, should the process be hampered by a status issue behind which some people may choose to hide, I would like to argue that that cannot be true, cannot be correct. Because he's an implicated person, he or she still is afforded the rights in terms of obligations of the Commission and is protect in terms of law in respect of self-incrimination. It doesn't exclude, it doesn't destroy the rights of the Committee, I would argue, to call any person to come shed light on a particular offence or occurrence. That that person may coincidentally also be an implicated person, I don't think matters.
I don't know, well we can debate it, but I really don't think that we can say, as Judge Khampepe said, rule that one section in the same Act overrides another, unless there are clear cogent reasons for finding that and probably correct - I think Mr Wagener's correct that if it's clear in terms of constitutional law, then you have a clear guideline to go one way or the other, but if it doesn't destroy each other, then both must necessarily be applicable or capable of being applied.
MR CORNELIUS: Just to finally answer, I think it would become applicable if this witness refuses to testify. That will be quite interesting to see what the position would be then because I think, if he does come and he says: "Look, I'm prepared to testify", that totally alleviates our problem.
CHAIRPERSON: Let's deal with that as a matter of course. If he comes here and says: "Look, I'm an implicated person. I'm electing, by right, not to testify", what happens if one of us or I say to him: "Look you're not being called here as an implicated person, you've been subpoenaed as a party or a person who has particular knowledge. You're not sitting here in your capacity as an implicated person" and I think Mr Wagener's right, we need to get some clarity on the whole thing once and for all, because it does relate to the status of that particular person.
MR CORNELIUS: And we've had that matter of Mr P W Botha so ...(intervention)
MR HUGO: Judge, may I just come in here. It's really none of our business to a certain extent in this particular matter. I think one aspect that should also be considered, maybe pertaining to the present situation is, once a witness, implicated party, has elected to file an affidavit, he comes into the fray, to a certain extent, I think it can be argued then he forfeits his right to self-incrimination and then he's in the arena as such.
CHAIRPERSON: I think, not his right against self-incrimination but I think what it's called in Afrikaans "swygreg". I think I was going to raise that just now with Mr Wagener that he's elected to testify by way of affidavit, so he's waived his right, his "swygreg". I take that point. What do you say about that Mr Wagener?
MR WAGENER: Mr Chairman, if you will allow me, the question you initially put to me first, the question of protection in terms of Section 31, the only issue that I would like to raise is that of course you are correct that Section 31 protects a witness in respect of criminal proceedings, but not in terms of delictual accountability.
CHAIRPERSON: Is it?
MR WAGENER: That's the way I read Section 31, so as a matter of interest, the protection that you are referring to doesn't seem to cover the whole sphere of our law.
JUDGE KHAMPEPE: I'm sure that must have been an oversight on the part of the Legislature because the whole thrust of protection afforded to applicants in particular and one would assume that all parties who are relevant to an application where an act is associated with a political objective, would be in terms of criminal and civil liability.
MR WAGENER: Mr Chairman, I totally agree, but merely as a matter of interest, that's the way I read the section. There doesn't seem to be that protection in the wording of the section, although I think we may all agree that that should have been the original intention.
CHAIRPERSON: It fits in certainly with the spirit of the Act.
MR WAGENER: Of course, of course. Your second question, Chairman, the matter whether my clients have now decided to give away their right to remain silent, I think one should have a look again at Section 19(4), which and Mr Cornelius has already referred you to that, it gives an implicated person the right to a number of things, alternatives. He may decide to do absolutely nothing, to ignore the notice he receives. He may decide to instruct his lawyer to sit in on the hearing on the basis of a watching brief and from there onwards there's a number of different alternatives possible and I'm not so sure whether it can be said that because my clients have now filed these affidavits, that they are now compelled to even answer questions which may incriminate themselves, as what is envisaged in Section 31. I don't think that necessarily follows.
CHAIRPERSON: I don't think that the comment or the submission was made in that context. I think it was said in the following context that they had - you submitted that they are right to do certain things once they received notice. One of the things they could do adduce evidence according to the Act. Once they do that, then their "swygreg" has been waived which is also a right that he or she had at the beginning, but once they enter the fray of testimony, the "swygreg" is gone.
MR WAGENER: Mr Chairman, all I'm saying is, I don't think that follows that you can now say that they are now compelled to answer all questions and even questions that may incriminate themselves. I don't think that follows.
CHAIRPERSON: What if your client, never mind the subpoena compelling them to come testify, what if they told you look, we would like to come give evidence, like Botha did, like Coetzee did in the other matter and everything is hanky dory, there's no tension, there's no question of whether they can give evidence or not. They have elected to testify. Are they not subject to the possibility that incriminating questions can be put to them?
MR WAGENER: In the present matter, most definitely Chair.
CHAIRPERSON: Now if that is the case, that had they come freely, we agree now that they would be capable of being questioned along the lines of incriminating evidence, especially that they would be protected by the Act, is it any different then when they elected to enter the fray of testimony?
MR WAGENER: Mr Chairman, maybe I should make this very clear to you. I have advised my clients in the way that I thought was the proper, correct way of doing. I advised them that should they be subpoenaed, there is at present uncertainty in respect of this whole issue that we've been debating the last few minutes and in view thereof, I can tell you now, my clients are not, they're not really unwilling to come here, but I've been requested to obtain a ruling from the Committee in this regard because they say they think then they would know exactly where they stand in this process and that is why I made the request to you earlier.
CHAIRPERSON: No, I quite understand that, Mr Wagener. I think what we are doing now is getting clarity and debating legal issues, what we can do and what we can't do as best we can. I'm just trying to put into perspective the position of your clients and their status as to being witnesses now. Had they been willing to come here and say: "Look, we'll testify freely and willingly", we agreed there would be no question, no quarrel that they could be asked certain questions that may or may not be incriminating, as happened with Coetzee, as happened with Botha in the last hearing. If they had elected not to testify at all and exercise their "swygreg", then we go into another avenue, maybe to subpoena them or whatever. We're not busy with that now. They've elected to enter the category of testimony, albeit on affidavit. Does that not mean that they have waived, they've elected what to do, they've waived their "swygreg"? They only had two choices, to "swyg" or to testify. If they "swyg" then they've got other alternatives, to appoint an attorney with a watching brief and all other types of things, but basically they had one of two choices, to testify or not.
MR WAGENER: Mr Chairman yes, should you make a ruling that you are empowered to subpoena individuals like my clients in this matter and they have taken legal advice thereon and accept that ruling. Of course they realise that when they would thereafter appear before you on subpoena, that questions would be asked of them, incriminating them, and most certainly they will answer that. If that's the problem, that need not be a problem. If I understand you correctly. That should not be a problem. The only problem then may arise as to the parameters of the cross-examination because we have seen in previous matters where a witness is subpoenaed or where he comes before a Committee in respect of incident 1 and in the end he is cross-examined on incidents 2 to 300 and it takes days and it may become very unfair, specifically if he was not - if he had not prepared on that basis, so then I would only like to have an indication, even if it's not exact, as to what would be expected from my clients because you have the situation where a man was a policeman for 40 years and he was involved in hundreds and hundreds of incidents and it can be very unfair to now start cross-examining him years after he's retired already. Start cross-examining him on all those individual incidents without prior warning.
CHAIRPERSON: I take your point. I think I must commend you on doing everything a representative should in protecting the interests of your clients, ...(indistinct - no microphone) of the ethics but I want to point out to you, about ten minutes ago, no a little bit more, you were the one that raised the issue of parameters when Mr Hugo made the application about credibility and we can cross-examine him on anything because we want to attack his credibility. Now on the other hand, when it comes to your client's issue, so now we need to narrow these parameters because we can carry on for days and days, but this Committee here doesn't see this case from your eyes or Mr Hugo's eyes, Mr Cornelius's eyes or Ms Patel's eyes. We have to be as objective as we can and whatever ruling we make must in most circumstances apply to everybody concerned. So maybe we must make up our minds whether we want to have narrow parameters or not. I've heard argument in favour of wider ones and I've heard argument in favour of narrow ones. Obviously we're not surprised from whence the request comes.
MR CORNELIUS: Mr Chair, I think it will be very wide, if we look at Exhibit A on page 4, there's a statement - and this is comments on the applications before you. Page 4 of Exhibit A, the last three lines on the page. I think this will just make it easier for us.
"Apparently this is just another attempt by de Kock to involve me and attach a political motive in a murder that he was involved in".
Now this is a wide accusation cast towards applicants and some against my applicants as well. Obviously procedurally we'll be entitled to cross-examine and we'll have to cross-examine quite wide in this specific averment, so I think what Judge Khampepe said is the proper thing. Let's cross the bridge when we get to it, curtail it to relevancy and keep it within the Act. I've had experience, I listened to Mr Bizos for three weeks in the London Bomb, only three weeks, where he wasn't opposing the application but the cross-examination was allowed purely because he was testing credibility and that was your brother, Judge Wilson.
CHAIRPERSON: Are there any other submissions that we need to listen to?
MS PATEL: No, Honourable Chairperson except, just for the record, in respect of the argument that has gone before you, I would like to state that my opinion is that you are not precluded from subpoenaing an implicated party, especially if one, having heard all the arguments by all the legal representatives and the opinions stated by the Panel, if one looks at the preamble to the Act and if one takes into consideration why amnesty is granted, it is stated here that the purpose of granting amnesty is in order to advance reconciliation and reconstruction and that cannot take place without the truth coming to the surface and germane to amnesty applications is the truth, Honourable Chairperson and we should therefore accordingly not be precluded from inviting parties to testify before us, who are able to facilitate us coming to what the truth is. Thank you, Honourable Chairperson.
ADV BOSMAN: May I just put one question to Mr Wagener? Mr Wagener you do accept that these affidavits have evidentiary value?
MR WAGENER: Of course, Chair.
ADV BOSMAN: Well, does it not flow from that that where it has evidentiary value, the value of this would be nullified if it is not tested in some way or other?
MR WAGENER: Mr Chairman, not necessarily nullified, but yes, it's trite law the weight that should be attached to affidavits compared to the evidence as a whole as compared to viva voce evidence tested etc., I think it's trite law and I accept that, yes.
CHAIRPERSON: Submissions? We hope to be in a position to make a ruling by tomorrow morning. Half-past nine? COMMITTEE ADJOURNS
