CHAIRPERSON: Mr Dehal, yesterday I asked some of your clients, and all the people who are in the gallery who seem to be connected to the victims, to reconsider their position in view of what I told them. I did so, because I had serious doubt as to whether it was explained to them, that the applicants were in fact not the actual perpetrators. Have you got any instructions in that regard today?
MR DEHAL ADDRESSES: Mr Chairperson and Honourable Members, yes, indeed. We thank you for having drawn this aspect to their attention, we want to assure the Panel that ...
CHAIRPERSON: It is a pity I don't get paid for it.
MR DEHAL: Well, I was just about to embark on saying that we want to ensure the Panel that we had ...(indistinct) drawn this to the attention of all victims, they ...(indistinct) they are aware of it. When you as a Panel brought it to their attention, they had a lot of emotions bursting and misgivings about it, and we had lengthy meetings here, in fact we were locked out, locked in within these premises, and even after we left, we met on the outside and had lengthy discussions about it.
Judge, I want to say certain things about their approach to me, which is of concern to me. Some of them are of the view that perhaps I am not bringing their emotions, their lives, their problems, their desires, home to this Panel and have mandated me to say certain things which I carefully considered and wrote in their presence, and they have asked me to read this out as their appeal.
CHAIRPERSON: Mr Dehal, I am largely in your hands, are these relevant issues or personal matters?
MR DEHAL: They are largely relevant issues, Sir, because they home in directly in response to the request you have made to them. In short, they have difficulties about their general approach to this matter, in brief, what they are saying is that the Botswana raid is central and core to their very lives, to their very existence, to the extent that the actual perpetrators at grassroots level, have not brought in their applications.
This is perhaps their only chance to avail themselves at a forum, even at the tertiary peripheral level.
CHAIRPERSON: I still don't follow what you say.
MR DEHAL: Mr Chairperson, I think it will be prudent for me at this stage, to read their response, which goes as follows
"... The victims and the interested parties as presently represented here, are thankful to the Committee for drawing to their attention the position of these applicants. They have all carefully thought about this, and generally about much that was said yesterday, and discussed this amongst themselves and others, extensively. They want to say the following
(1) whilst they would have preferred to hear the application from those who actually executed the raid on the night of the 14th of June 1985, they are saddened by the news that such military people have possibly not applied for amnesty;"
CHAIRPERSON: Well, they can hear now, I have checked that none of them have at all.
MR DEHAL: Thank you Sir.
(2) the Botswana raid has affected their very lives and existence and attending these hearings, is in the circumstances, their only hope of getting nearer the truth;
(4) these applicants, in one way or the other, even if not as ideally desired, will hopefully reveal some details that will help them get closer to the truth, one of the very laudable objectives of the Truth and Reconciliation Committee;
(5) these applicants' applications being the only hearing on the Botswana raids, is therefore the only one, the only forum they can participate in to help them reconcile with the events of that dreadful night of the 14th of June 1985;
(6) they have long awaited this hearing and want to be allowed to play a meaningful role in it;
(7) they believe that these applicants can, may and ought to give them through this Amnesty Committee information amongst other things, (1) on how reliable or correct was their reconnaissance, (2) who if any, gave them information, (3) who issued the instructions for the raid to be carried out and (4) to whom did they give their information on the Botswana study which led to the raid, and several such questions which go to the heart of their very existence, these things, some of the searching questions that they have been grappling with over the past 15 odd years.
(8) these parties present, as victims, consist of two very old, infirm ladies who each walk with a walking stick, and one of whom is near blind, namely Sarah, the mother of the first victim enumerated in the list. They consider themselves as being near the end of their lives, and want to play a meaningful role in this matter.
(9) Sarah, the victim, who is semi-blind and one whose son died, who lost all her nine sons, but the one who is with her now, is a pensioner and her son is unemployed. She particularly would like the venue to be in Johannesburg, so travelling would be shorter, and less burdensome to her and indeed, less costly.
(10) they all want to unanimously express their considered view that (1) all the survivors in particular, including all the remaining victims, be properly and timeously notified of the next hearing; (2) that these hearings be adjourned to a later date, and to facilitate that all these parties be brought together; (3) that the venue be arranged in Johannesburg; and (4) that their travel arrangements be paid for by the TRC.
(11) they respectfully ask this Honourable Committee to be mindful of their continued painful plight, which in some cases, is far more worse now, than when the raid took place, and to hear them on their following cries: There is no obligation they say firstly, on them to notify each other or all the victims, that they say is the function of the TRC; (1) they, like the applicants, perhaps far more worse than the applicants, have been severely pained and prejudiced in being here the whole day yesterday, some at the real risk of losing their jobs, (3) they have not caused this scenario, where victims in the main have not been given notice, (4) they cannot see how any amnesty hearing can be fair and just if both sides are not first, fully and properly allowed to be heard, (5) they were hopeful that all victims would have been here, they were surprised that they were not all notified and they endeavoured on their own, regardless to pull together as many victims as possible, to collect and contribute the finances to help make these few attend yesterday's and today's hearings, and insist that all the victims be notified and be allowed to collectively decide on their approach to these applicants."
CHAIRPERSON: How many victims are they talking about, that must be by the TRC and the TRC be obliged to inform?
MR DEHAL: Judge, I think they are talking about those victims that we dealt with yesterday, that Ms Mohamed and I dealt with.
CHAIRPERSON: How many are we talking about, Mr Dehal? My next question, I want to ask you to define "victim" as in terms of the Act, but how many people are we talking about that must be obligation, be informed?
MR DEHAL: Judge, if I go by my list, which this morning in consultation with Mr Steenkamp, appears to be rather minimal compared to everybody else's list, this is a list contained in bundle 1, it has 20 names, but I think the eventual names were 23 on some later bundles.
One looks mainly at six additional persons that ought to be notified, and those would be number 7 on the list, being the six year old boy who died, Peter Mofoka and his mother who is in Lesotho.
CHAIRPERSON: She is a resident and a citizen of which country?
MR DEHAL: Lesotho.
CHAIRPERSON: Is she not a South African?
MR DEHAL: I seem to think from the little information that was given to me, that she is possibly a South African, but I don't have any clear instructions on that, Judge.
CHAIRPERSON: Would you agree that the Act deals with South African people only? A victim of apartheid, can never be a foreigner? Moreover, I just want to draw your attention to it, that nothing this Panel decides, binds a foreign government.
The applicants here, whether they like it or not, are still capable whether we grant them amnesty, are still capable of being criminally charged in that country, and being civilly sued, that is an undisputed fact. You can ask their representatives, that is so. I just draw those points to your attention.
That is why I asked you, this lady who is the mother of the deceased, Peter, of what country is she a national?
MR DEHAL: As I say, I don't know Judge, I don't have instructions.
CHAIRPERSON: Precisely, our information is that she is a Lesotho citizen? She got married to somebody and made her home up as a married woman in Botswana, and later, went back to her family in Lesotho.
That principle goes for everybody. If they are South African citizens, fine, fair enough, then we need to investigate that matter even closer.
MR DEHAL: I accept the sentiments you have expressed Judge, I have grappled with the definition of ...
CHAIRPERSON: Let me just correct you, it is not sentiments, that is the law as I see it.
MR DEHAL: Judge, that would then, accepting that, that would then confine us to Livingstone, the survivor who is in the United States of America, the Hamlyn family who is in Durban and the Zondi family, whom I am instructed, comes from kwaZulu Natal.
CHAIRPERSON: Yes.
MR DEHAL: Of course, apart from that, and I just want to mention this, Judge, please do not think that I am extending my arm unnecessarily, the family are very emotional about this, I've just got a note to say this, that the Dutch, the lady who is a Dutch, sorry, the lady who was six months pregnant and who is Geer's wife, is listed as a victim in the list in the bundle. The Dutch Embassy had intervened on her behalf, and they feel that she ought to be here because of certain circumstances that goes to the evidence that she can adduce.
Much of which is contained in the bundle in press clippings, particularly. I've got a note about the Somalian citizen, who was alleged to be the PLO activist, who is number 14 on the list and listed as a victim. I am just mentioning that because I've just got a note to mention that, but apart from that, I agree with you, that will then leave us with Livingstone, Hamlyn and the Zondi family.
I've just got another note from the other family members saying that Tobogo Gwabi, the five year old South African survivor of the incident is also one to whom no notice was given.
CHAIRPERSON: Mr Dehal, we've got to look at the test, and I am not at all being insensitive to laymen emotions, it must not be interpreted as such, I am trying to deal with this matter in terms of the Act.
Would you agree that the test on matters regarding notice, and informing people about the hearings and their interest, is whether the TRC did everything reasonable possible to comply with that rule? Would you agree?
MR DEHAL: I have no difficulties in agreeing with that.
CHAIRPERSON: The last name mentioned, is it possible for you to say whether the TRC officialdom, ought to have known that that person is a victim, by the time that this matter was being prepared?
MR DEHAL: Judge, he is cited as a victim in the list and they alighted, that is person number 20 on the list, and in fact, if you look at your bundle, it is said "South African, aged 5"?
CHAIRPERSON: Where does it say "South African, aged 5"?
MR DEHAL: Sorry Judge, in my copy of the list, I've got "Tobogo Gwabi, South African, aged 5".
CHAIRPERSON: In my list of victims, number 20 carries the name of Tim Williams?
MR DEHAL: Judge in fact, I agree with you, my list also says 20, Tim Williams, but there is another list which was faxed to Ms Mohamed, on her list, you are welcome to inspect, number 20 is Tobogo Gwabi, the name Williams has been removed.
Judge, I have just been handed a note here, it may help, from one of the victim's fathers, he's got a newspaper clipping which he says he got from the TRC, where it says amongst other persons the injured and survivors as Tobogo Gwabi, with the details as follows, "born 16 September 1980, a South African infant, the dependant of a refugee, injuries, treated for shock and discharged from hospital the same day".
CHAIRPERSON: After yesterday's issues that we dealt with, I would have thought that you would have consulted with all these people and avoided messages such as those that you are now receiving. I am going to adjourn again now, to give you an opportunity to establish exactly what the interests are that you represent.
I also want you to consider the following because I have difficulty applying the Act when you mention all these people, new names, etc, because yesterday I thought we had exhausted everybody now, so that it gave the Panel a chance to set investigations into operation. Now we've got new names?
I can criticise that as much as I want to, the name is here now. I want you to consider also what, on what basis can those people who consider themselves victims at present, have an interest in the issues which form the basis of those who are absent. On what basis can they raise the interest of others?
I want to also inform you, I was going to tell you this earlier, and I need you to investigate this if you think it necessary, that in the case of the Hamlyn family, they were approached by the Investigators of the TRC and those Investigators were told in no uncertain terms that those people have no interest in the goings on of the TRC.
That is our information and that is the report we got back from two Investigators, stationed in Durban. In as far as the Zondi matter is concerned, I am satisfied from the reports that I have, that the Investigators of the TRC have done everything reasonably possible to identify the deceased's family and victims of that person, or related to that person and despite all those efforts, were unable to identify these people. Lastly, before we adjourn again, it is my view and I think it is the view of the Panel, that the definition of a victim of the Act, is not the one that is found in any English dictionary.
Victim, in terms of the Act, is very narrow and there are reasons for that. Lastly, I want everybody to listen to this, this hearing and this process is not a criminal case. It ought not to be seen as a criminal matter.
It is an enquiry on the Truth and Reconciliation Commission Act, and as the name of the Act suggests, it is an attempt to acquire the truth or as close as we can get to the truth and to reconcile the people of this country.
I am going to adjourn now for half an hour in an attempt to give you sufficient time to deal with those issues.
COMMITTEE ADJOURNS
ON RESUMPTION
MR DEHAL ADDRESSES: Thank you Judge. Judge, the first question that you raised dealing with the basis that those persons here may have to actually say that there ought to be notices on those persons that are not here, can best be dealt with by those names that you dealt with subsequently, namely Hamlyn, Zondi and Tobogo families.
Judge, in so far and perhaps dealing firstly with Livingstone, who is a South African citizen and not here, and dealing with the test that the TRC ought to have done everything reasonable to make him available, or to give notice to him, the following has to be said: the person present here, amongst others, in so far as this person is concerned, is Haberone Pahle, she is the daughter of the deceased, enumerated 3 on my list of the victims.
She, while she considers herself as a victim within the ambit of the definition of victims in the TRC Act, on the basis that she suffered emotionally and continues to do so, she believes that the proper victim in this matter, is her uncle, the deceased's brother, Livingstone Pahle, who is in the United States of America.
CHAIRPERSON: Mr Dehal, it is for this Panel to decide who are victims. We are guided by the Act. All I am asking, I am not asking the opinion of anybody, I am just asking you on what basis do those who are present here, feel them entitled to demand that this matter proceeds in the presence of others who did not receive notice, rightly or wrongly?
MR DEHAL: Thank you Judge. Haberone says that she will answer that question on the following lines: her uncle, Livingstone, who is in the United States of America, had contacted her in the late part of last week, I don't know whether it is Wednesday, Thursday or Friday and informed her that he has heard that this TRC hearing is about to begin. He is surprised that he was not told, and he has mandated her to come here and tell the Panel that he wants to be present.
CHAIRPERSON: Is he your client?
MR DEHAL: Yesterday I said no, because I don't have instructions from him, but I am answering the question that you raised Judge, about why Haberone would have the basis to sit here and tell this Panel about something relating to her brother.
CHAIRPERSON: Is the person in the United States or New York, her brother?
MR DEHAL: No, the brothers are Rose-Innes Pahle and Livingstone Pahle. Haberone is the daughter of the deceased and these two are the brothers of the deceased, and therefore Haberone's uncle.
On that basis, Haberone also says that she has been in touch with Rose-Innes Pahle, who is a lecturer at Vista University who has told her that he is not available to be at these hearings, he has heard on the last minute about the hearings, the TRC has not contacted him, they have his details. They have also told us, the lawyers, about his details, and we have talked to Rose-Innes after we got this letter from the TRC and he said he has been in touch with the TRC throughout from the Botswana raids till now, he has never known of the hearing, nor the dates. He has told the TRC he is not available, they have not consulted with him before they set this matter down. He has other commitments and he cannot break himself away from those other commitments.
He has therefore asked Haberone to be here, to make it clear through us, to this Panel, that he wants to participate in these hearings, he has not received notice, the TRC has always been aware of his details, and he would like to participate in these proceedings.
Judge, that is in regard to Livingstone and Rose-Innes. In so far - sorry, and before I proceed, perhaps I should just say that on the application of the test on whether the TRC has done everything possible to give notice to them, the answer is categorically no, because firstly, the lady Haberone has been well known through the TRC circles, the Investigators and the people who featured prominently in formulating the lists.
All they had to do was phone her, like we did, and she would have told them all the details, available contact details of Livingstone, Rose, and whoever else. In fact she features so prominently in this whole escapade that she has contact details of most of the others as well, and she says "if anybody asked me, I would have given it to them".
Then dealing with the Zondi family, Judge ...
CHAIRPERSON: Did you ask for it?
MR DEHAL: Did I ask for what?
CHAIRPERSON: Livingstone's contact address and telephone number?
MR DEHAL: I presume you mean from the family members, yes, I did. When this issue became evident, that is yesterday and today.
CHAIRPERSON: Are you able to give us the address?
MR DEHAL: Yes, certainly, and phone numbers. Certainly Judge, Fatima is just looking for them. I have also got Judge, as ideal, cellphone numbers of other victims here who are South Africans, like the Tobogo family that we talk about, there is such a dearth of information, all of the people have on the Tobogo family, and ...
CHAIRPERSON: Mr Dehal, I put certain issues to you, let's deal with that please. Every time I give you an opportunity, you come up with new victims.
MR DEHAL: Judge, perhaps I should just deal with this, least the record reads otherwise, it is not as though I come up with new victims every time. Yesterday we had a host of people who availed themselves at these hearings, and I ask you please respectfully to be mindful of the fact that we are working here under pressure with a lot of people that come here from time to time.
For example, we were given a lady, whose name is Rhoda, we have not given you her name. She is the wife of the first victim, but in that case it seemed nothing really turns on that. The grandmother, Sarah, is here. But Rhoda who is here, comes up to me every time after the hearing and on the adjournments to say "why aren't you telling the Panel about my name"? So there are things like this that we are dealing with. We are under fair pressure from the victims.
I must tell you after the last adjournment, the pressure is intense. Judge, on the Zondi family, you have mentioned that the Panel is satisfied that the Investigators have done everything possible to identify the deceased's family, or those related, and despite all the efforts, were unable to identify them.
Now, that on the instructions that I have, is not so.
CHAIRPERSON: How can you say we are not satisfied? I have just told you we are satisfied.
MR DEHAL: No, sorry, I am not saying that you are not satisfied, I am saying what is not true is that ...
CHAIRPERSON: You are saying ...(indistinct), it is untrue.
MR DEHAL: No, sorry, forgive me, that is not the interpretation that was intended, what was intended was this, my apologies, that is ambiguous, what was intended was that not everything reasonable has been done, and I want to demonstrate to you from what has been, what instructions have been given to me, that lots could have been done to find these people.
In Zondi, in that regard, Zondi is certainly and definitely in South Africa, he is a South African, he lives in kwaZulu Natal.
CHAIRPERSON: Where is he then? If he is an interested party, why isn't he here? Why didn't he phone you or the TRC to say "look, I know that this matter is being heard, why haven't I been informed"?
MR DEHAL: Because he does not know about this matter.
CHAIRPERSON: Who told you he does not know about it? Somebody must have spoken to him about it, to find out that he does not know about it, not so?
MR DEHAL: That analogy would appear correct, but I am putting it on the premise that had he known about it, and had he, if he knew about it being here, or being desirous of being here, then surely he would have contacted us, on the premises that he did not contact us and did not contact the others ...
CHAIRPERSON: Mr Dehal, thousands of people get informed and they simply don't pitch up or they tell us that they are not interested. By reason of the practise that we have experienced, it is not far fetched to think that people who are well informed, just pay lip service to the process.
MR DEHAL: Judge, I agree with you, but I don't think that analogy can, that has been my experience in TRC circles as well, I don't think that can be said about the Zondi family, because one would be acting on the premise that he has been informed, he has not been informed. I think it is common cause between the Evidence Leader and I that they could not trace him, and that is the premise on which we are acting on the Zondi family.
The submissions I made, on the instructions I have, is that he is traceable, in fact abundantly so, very easily so.
CHAIRPERSON: Have you traced him?
MR DEHAL: No, nor have I endeavoured to, with respect.
MR MALAN: Mr Dehal, excuse me for coming in here, you have put on record that I attended the pre-hearing conference. It is on record that you only got your bundle on the day after the pre-hearing conference that we had. The Zondi family would be one of the primary eight victims, surely you told us at the hearing that you would be representing all the victims, we are not talking end of June. If the Zondi family is so traceable, and so easily traceable, why didn't you trace them?
MR DEHAL: Judge, a few comments. Firstly, the only bundle that I received post the pre-trial hearings, was bundle 1. My bundle 1 that I received, does not even have a list of the victims, you are welcome to look at it. We subsequently received in the post a bundle. In fact, I have now made photocopies of the list of victims.
CHAIRPERSON: When did you get that list?
MR DEHAL: With bundle 2, last week.
CHAIRPERSON: Only last week, when it was in the post around the 28th of June?
MR MALAN: No, no, it wasn't.
MR DEHAL: Judge on the Zondi family, I am told that the, he is certainly in kwaZulu Natal.
CHAIRPERSON: But you were asked the question, why didn't you trace him, he is in Natal, you say he was easily traceable? You say you got this bundle last week, why didn't you trace him?
MR DEHAL: Judge, I mentioned this yesterday and I think again, at the risk of being repetitious with respect, I am going to mention this again. When at the pre-trial hearings, I mentioned that I have been asked to represent all the victims, I made it clear that I had not been in touch, at that time, with any of the victims. When subsequently I got a list of the victims, I endeavoured to trace them, yes, but I could not. I did not try to raise Zondi, because I acted on the premise that the TRC has sent notices to all and sundry and that in instructing me to represent all the victims, they have already placed the victims on notice.
I came here, sorry, Fatima Mohamed came here on Thursday last week, to consult with victims and then found that there is a host of people who presented themselves saying "we got a call from your office saying this matter is on, why were we not told about it", and then unearthed this whole aspect. The TRC offices in Johannesburg called Mr Paddy Prior who called me on Friday to say "we have also heard that there is a host of people who have not been given notice, and we are worried about this". Then we talked about this, and this is the first intimation that we had.
Then, when I came in here yesterday, I got to know about so many people who didn't get notices, and I have been trying to find out details on them, and now that you have raised it as an enquiry, I found that most everybody here knows about the Zondi family, and on the application of the test on whether the TRC has done everything reasonably possible, to actually trace them, all they had to do was call Sibusiswe Busisiwe, who is a survivor in the raid, she is cited in the papers as a victim, she knows the Zondi family, she knows their whereabouts in kwaZulu Natal, and she says if the TRC called her, she would have given it to them.
Rhoda ...
CHAIRPERSON: Is that what you call easy? Is that what you are suggesting ought to have been done and easily ascertain where the Zondi family is, is that what you are saying?
MR DEHAL: I am not saying it is easy, Judge, I am saying it was reasonably possible for the TRC to have done that, to trace the Zondi family.
CHAIRPERSON: To suck it out of their thumb, that they know who Busisiwe knows? Let me tell you what they did, they sent three Investigators from the kwaZulu Natal office to the last known address of the Zondi family, or the address that they have been provided with.
There are other people living at that address. Those people could not give them another address. Whether the address with which they were provided, is incorrect, is another matter that I am not too sure of.
MR MALAN: Mr Dehal, do you say that one of your clients or witnesses here, we could have phoned her, and she would have provided the address of the Zondi family, do I understand you correctly?
MR DEHAL: Yes.
MR MALAN: Can you give us the address then of the Zondi family, please?
MR DEHAL: I think there is a misunderstanding, I am not saying ...
MR MALAN: No, I don't think there is a misunderstanding.
MR DEHAL: Sorry Judge, can I just deal with this.
CHAIRPERSON: You have been asked a question, you said that the Zondi family are easily traceable, you have suggested how it could be done, Mr Malan, all Mr Malan is asking you is to give us that address?
MR DEHAL: Yes, what I wanted to say to you is that Busisiwe who is present here, the survivor, Rhoda Sigale, who is the wife of the first victim, and Haberone, who is the daughter of Pahle, are all three privy to knowledge on the whereabouts of the Zondi family, and will be able to help you find them. They know where they are, if they ask them, they will give you the details.
I am prepared to undertake to ask them, get the details, and give it to you. I did not get the address of the Zondi family, but I wanted to tell you that they are all aware of the Zondi family. May I just mention the query you raised, Judge, prior to Mr Malan speaking, I want to respond to that. I am surprised to note that we are now being told that there was an address in kwaZulu Natal for these people to be contacted, and that the Investigators went there, there is nothing in the bundle that says that these people are from kwaZulu Natal, or that I have seen, forgive me if I am wrong.
CHAIRPERSON: Well, Mr Dehal, I think you better mind your words. I never said that my information says or indicates that the address is contained in this bundle. Last night, I made investigations via the TRC offices and this is what I was told.
All I am doing is telling you what I was told by the office. I am not here to debate whether that is true or not, or whether anybody is lying or not, do you understand?
MR DEHAL: I understand and accept that Judge. The Evidence Leader indicated to me yesterday that the Zondi family, as far as he was aware, was in Botswana. It came to me as a surprise when you raised this about the kwaZulu Natal aspect, it is something that I established when I spoke to the victims.
On the Zondi family, my submissions are, on instructions that the TRC could reasonably have done a little more investigations, in fact just raised a phone and phoned one of these people like Haberone who features in this matter, and who has been in touch with the TRC all the while, and told them "listen, we cannot find the Zondi family", then she would have helped.
On the Tobogo family, the six year old boy who is a survivor, I am told that Busisiwe, the survivor lived with Tobogo in the house in Botswana, that Tobogo’s mother is a Tanzanian who is presently in South Africa, her name is Nompululeko Xabi, that Tobogo is also in South Africa, he lives here in Gauteng, he lived in his grandfather's house with Busisiwe, the victim, who is present here and in addition to Busisiwe, Rhoda Sigale, the wife of the first victim, says that she recently talked to Tobogo’s grandmother and if she knew that the TRC was looking for Tobogo, she would have given them this information.
The mother, Nompululeko Xabi, studied with Sana Mtsweni who is present here in the Solomon Mhlangu Freedom College and is in constant touch with the mother. Sana Mtsweni who is present here, and gives me this information, is the daughter of Dick, number 11, on the victims list.
The grandfather, and this is another line the TRC could have used to contact Tobogo, the grandfather of Tobogo is Mr Joe Xabi, who was the Chief Whip, Chief ...(indistinct) of the ANC in Zimbabwe and he was killed in Harare in a car bomb in 1982, the ANC knows of him and the ANC knows of Tobogo, the young boy in this raid.
I understand from my learned colleague, the Evidence Leader, that they wrote to the ANC but there was no response from the ANC.
Now, if Sana Mtsweni, who is the daughter of Dick, and who possibly ought to have been contacted, because Dick is one of the victims, and Busisiwe who is a victim, who is cited in the list ...
CHAIRPERSON: I assume you are talking of all South African citizens?
MR DEHAL: Yes, correct Judge. The upshot of all of that is simply this, if any enquiry was made, even peripheral, at a phone call to these people whom the TRC are aware feature prominently in this matter, Tobogo would have been traced, due notice could have been given to him, and he would have been here.
Judge, that takes me to the Hamlyn family.
CHAIRPERSON: Well, before you go on there, if this Panel should grant you the request and postpone this matter, are these people willing to cooperate and give us that information because it would be pointless to postpone it if they are not going to be co-operative?
MR DEHAL: Judge ...
CHAIRPERSON: I remind you that you told us just now, that they felt that they were not obliged to do so, but anyway I am asking you the question.
MR DEHAL: Judge, perhaps I shall ask the second question first. They will bend backwards to help the TRC, secondly, the second aspect of that question, when they said they were not obliged to, all they were trying to bring to the Panel's attention was that there was no obligation on them, it was the obligation on the TRC to do so.
In fact, whilst I am on this score, I should mention this, because I am being provoked, if you will pardon the use of that term by the victims to bring to the Panel's attention that they are feeling very, very, very uneasy being here at this forum. They feel that they are being looked upon as the people who didn't do their job properly, that this Panel is accusing them of not having helped, they want to walk out en mass from this forum. Mr Coombes, who is sitting in here, has given me a very emotive statement, and insist that I read it to you in answer to the Hamlyn family, and he is feeling very strongly about this.
They say if they were ever asked, they would help, because they want to get to the bottom of this, too. It is not as though they all want to object, they probably will embrace the applicants if they get to hear things.
Judge, on the Hamlyn issue, the question was raised in regard to Coombes, why he is here. He has been cited as a victim. He has been in touch with the TRC.
CHAIRPERSON: Is he a victim? Never mind whether he was cited as one, is he one?
MR DEHAL: Judge, within the definition, yes. The definition includes - sorry, I am reading from the preamble, chapter 1 of the Act,
"... victims include (a) persons who individually or together with one or more persons, suffered harm in the form of physical or mental injury, emotional suffering, pecuniary loss or a substantial impairment of human rights ..."
and so goes on.
He is one who suffered harm in the form of physical and mental injury, emotional suffering. He was the best friend of the deceased, Hamlyn. He was in Botswana with Hamlyn. When - sorry, forgive me, he was not in Botswana with Hamlyn, he was the best friend of Hamlyn, they were at school together, they were best friends at school. When Hamlyn died, he was deeply disturbed.
He was not in touch with the Hamlyn family at that stage.
CHAIRPERSON: Let me ask you this question, if the parent, one of the parents of the deceased Hamlyn, were to accept the process and participate in the process, what would Coombes' status be?
MR DEHAL: Coombes' status would then be reduced to one who knew the deceased well, and ...
CHAIRPERSON: ...(indistinct)
MR DEHAL: In my view, no.
CHAIRPERSON: The accident of Hamlyn's parents not wanting to participate, does that improve and advance his status?
MR DEHAL: It does not approve it, except that he is here, and will tell this Committee that he does not believe that the Hamlyn family does not want to participate, in fact, on the contrary, he says after Hamlyn died, Hamlyn's sister contacted him and expressed the sincere wish that this entire matter be unearthed, in fact in his words, "wanted the applicants charged criminally". So intent is she on participating in this process, that she wanted to be here, and he says, Gregory Coombes says that the sister informed him that Gregory Coombes will be in touch with the TRC and whenever this process takes place, she will be notified.
He says he then got all the details of the sister and he faxed it to the TRC. The TRC according to him, has lost all these details. He says also there is a lady called Stephanie from the TRC, who contacted him and the Hamlyn family and he says statements were taken from them, but recently our office's endeavour to obtain copies of these statements, we were told by the TRC they could not trace it. He says it is not true, for he had been in touch with the Hamlyn family, particularly immediately after the raid and during the funerals and when all this was being unearthed, and the bodies were trying to be brought from Botswana to here.
But the Hamlyn family really and truly want to be interested, want to express their interest in this matter. He says he spoke to the Stephanie as well, and he also gave his input to Stephanie, and at the time when the sister gave her input, and he was there, he knows that the sister wants to participate in this.
CHAIRPERSON: Mr Dehal, do you know Ms Quinn? This is what she has to tell me, on investigation, she was the one who assisted the deceased, Hamlyn to leave South Africa, cross the borders illegally? That is how close she was to him?
In fact, I am in possession of her affidavit. They were both living in Durban in the late 1970's. She helped him leave the country for Lesotho, in order to avoid conscription. He then moved to Botswana, where he was killed in the middle of 1985. Contact with Michael's family, that is the deceased, has continued and when the Truth Commission process in 1996, was started, she attempted the Hamlyn family in order that they make a HRV statement, so that Michael could be included in the final report as a victim of a gross human rights violation. She traced him through her sister, Jane, and they wanted nothing to do with the TRC process.
A friend of the deceased was then requested to make a statement about his death as his family would not.
"... I have consulted (she says) with Stephanie Miller, who is a TRC investigator in 1996, and she largely confirmed my recollection as to the attitude of the Hamlyn family."
This is an affidavit, a proper affidavit, that is attested to. That is what I've got in front of me.
MR DEHAL: Judge, I thank you for drawing that to my attention, I know Debra Quinn as I said, and I have no reason to doubt anything she says. The statement that I have before me from Gregory Coombes, leads me to believe that there is much misunderstanding with respect, about the family's alleged disinterest.
He says, and as I said earlier, that the family do not want to participate in a TRC process, because they question the TRC process, as to its usefulness, but they would like to be present, so that they can hear what the applicants say and if necessary, decide their fate.
MR MALAN: Has he spoken to the family?
MR DEHAL: Gregory Coombes? Yes.
MR MALAN: When did that happen?
MR DEHAL: As I said earlier, at the time of the funeral, when the sister contacted him.
MR MALAN: At the time of the funeral? Of who?
MR DEHAL: Of Hamlyn, the deceased.
MR MALAN: We are talking about the TRC process, there was no TRC on the 14th of June 1985?
MR DEHAL: Sorry, when you asked the general question "has he talked to them", I answered it on that basis.
MR MALAN: No, you made the statement that he says that the family would want to be present here and attend the proceedings? On what basis is that statement made, I asked you "did he speak to them, where did he get the information from" and you answered "yes, he did speak to them". I assumed that refers to the discussion about their wanting to be present?
MR DEHAL: You will recall Mr Malan, that I also said earlier that he has also spoken to Stephanie, with the Hamlyn family, it is at that stage, Stephanie is of the TRC, when statements were made by both of them, to the TRC, that is the sister of Hamlyn, and Gregory Coombes. It is at that stage that he established all of this. That I am just being told now, was in 1997.
CHAIRPERSON: The fact of the matter is, like I have said, we are not here to debate the accuracy or the truthfulness, of whoever says what at this stage. The fact of the matter is, it seems to be developing into an issue as to whether the TRC is at fault or anybody else.
You have made a long statement about the attempts to obtain the presence of Mr Hamlyn's family or parents at this hearing. I have just read to you and you are at liberty to come and check this affidavit attested, from one of our investigators in the Durban office. That is completely, the contents of this is completely contrary in content to what you have told us. Maybe there has been a misunderstanding or not, I am not too sure.
The point of the matter is that in view of this, do you still say that the TRC did not do everything they could in respect of the Hamlyn lot?
MR DEHAL: Judge, I answered that aspect earlier, and what I have said was I have no difficulty in accepting what Debra Quinn says, but on what instructions I have, it appears as though there is a misunderstanding about her role-play, namely Jane's role-play.
Whilst Jane does not believe that the TRC process is useful, she wants to hear the applicants' version, and I don't know whether it would be prudent for you to have Coombes called, and hear him on this, because he says it better than I do, I must say.
CHAIRPERSON: The Jane that we are talking about, is Jane Quinn, not Jane Hamlyn? Anyway, have you completed?
MR DEHAL: Sorry, the sister that I am talking about is, forgive me for the use of the term Jane loosely, is Laura who made statements to Stephanie.
CHAIRPERSON: Laura Gotson?
MR DEHAL: Yes Judge. Judge, in summary what I am saying on the Hamlyn family is that Gregory Coombes were cited in the papers as a victim or interested party, had given the TRC the contact details of the Hamlyn family. Gregory Coombes tells me they had lost it, so they could well have used that details to contact the Hamlyn family.
I think perhaps we should look at the matter a little differently.
MR MALAN: Sorry, may I just for the record again, I understood you earlier to say that the Hamlyn parents made statements to the TRC and that went lost?
CHAIRPERSON: No. He said information about the Hamlyn information was given to the TRC and that was ...
MR MALAN: Thank you.
CHAIRPERSON: Apparently did not get lost, they followed it up. Anything more?
MR DEHAL: Yes, thank you Judge. Judge, I think with respect, the Hamlyn aspect should be looked at differently. Perhaps we should begin at the beginning and ask ourselves why despite Debra Quinn's affidavit that we see for the first time now, endeavours are not made by the TRC to place the Hamlyn family a notice?
I mean it would be better to place them on notice, let them tell us whether they are not interested or not, now, now that the hearing and this, following, than dealing with the statement made some time ago, and it is at that level that the submission can be made that perhaps if notice was given, it might have been a different scenario?
Judge, lastly ...
CHAIRPERSON: Mr Dehal, I am not going to answer that.
MR DEHAL: Judge, perhaps on the last aspect, Tim Williams is the other person we dealt with, who is number 20 on your list, and mine, but different on the others, this person, Tim Williams is cited as a victim, and the people present here, tell me that they have his cellphone number. They have given it to me, I can give it to you now.
Sorry Judge, I forgot to make this submission, if I can just go a little back, on the Hamlyn family, Sigale who is present here, Rhoda Sigale, she says she believes that the Hamlyn family would be interested, because she is in touch with a fellow called Blah, whose cellphone number is 082 969 9363 and that Blah is the person from the ANC, who tried to get all the bodies back from Botswana to South Africa, and was in touch with the Hamlyn family, and he is aware of the Hamlyn's interest in this matter.
At the level of contact details for the Hamlyn family, Blah would be able to give all the details.
On the Tim Williams victim, there is a cellphone available, and many of the people present here as interested parties and victims, are apparently constantly in touch with him on the cellphone. He could have been easily contacted as well.
Judge, then you raised two other aspects. One was the definition of victims. We have dealt with that, I think, briefly already. Without burdening the record, I rely on the definition of victims within the preamble to the Act, the TRC Act.
CHAIRPERSON: That is your first mistake. The definition of a victim, for the purposes of us declaring victims in an amnesty application, is different.
We declare victims for the purpose of them being dealt with by the Reparations Committee, and to see what reparation in terms of rands and cents, can be afforded to them. The victim you talk about, as contained in the preamble, is one that has an interest in HRV investigations, etc, which is a completely different forum, although falling under the TRC, from this forum. Do you follow what I am saying?
MR DEHAL: Judge, I follow and I accept what you say, thank you.
CHAIRPERSON: Therefore I asked you to explain to these people what a victim is for the purposes of this forum, it is quite different from the victim who may be emotionally affected, etc, in another forum, which I understand and I have sympathy for.
The victim that we have to deal with here, is a victim that we must be satisfied, ought to be declared as a victim for the purposes of reparation, which is somewhat different, and it is one per family, as I understand it, except where there are children.
A cousin is not a victim, if a wife is available, and children. In the absence of children and a wife, maybe the parents. Do you follow, that is how the definition has developed over the last few years. I can well understand people saying they are interested and they are victims of apartheid, because a member of their family was killed. Yes, that is so for the purposes of investigating human rights violations, no problem with that, but for these purposes, this Panel must at the end of the day declare victims, if it thinks a person is worthy to be declared as such.
That is why it is important for people to understand and this Panel relies on representatives to do so, to explain to them that we are not being funny to them, it is just that they as victims, have a different role to play in this forum, than would otherwise be the case. Do you follow what I am saying?
MR DEHAL: I do Judge, and I am glad it came from you because I have dealt with this as well in discussions with the victims, it lends a weighty touch to it.
CHAIRPERSON: It is unfortunate that if they missed the boat with the human rights violation investigation, maybe they can write to Bishop Tutu if they want to tell him something, but I have an Act to follow and the State President has said we must finish as soon as possible.
MR DEHAL: Judge, then that deals with the last aspect you raised, namely that the, I don't think it is a question that you raised for me to respond to, but you mentioned that everybody should be aware that this is a process in the TRC and not a criminal case, is not a criminal matter, it is an enquiry.
CHAIRPERSON: Let me tell you why I said so. Very often, people come here and they think we are going to go through a criminal matter, or hear the hearing on a criminal basis. We are not fighting each other here. We ought not to fight each other.
If there are genuine disputes that arise, we have to deal with it. But when we walk in here, we walk in here intent on finding out what the truth is, and to reconcile with the issues. I don't know in this case whether any of the applicants, whatever they say, can be disputed. I am not saying it cannot, technically probably it can.
But I will be surprised if there are issues that are disputed because these applicants on their applications, are not the people who actually perpetrated the crime. They are technically guilty of that crime, and that is why I said had the military been here, another matter. They would have been the perpetrators. That is why I mentioned it.
Mr Dehal, you raise other issues here again, where obvious and apparent victims for the purposes of this enquiry, are possibly compactable now, it casts a different light on to what I was going to do before we resumed now. I just want to ask my colleagues here, before we proceed.
Do any of the other representatives, want to comment on this situation?
MR VISSER ADDRESSES: Thank you Chairperson, Visser on record. For obvious reasons, we have a very real interest in what is going to transpire. Chairperson, we have very little to add to what has already been thrashed out by yourself and the members of your Committee, with Mr Dehal, but if you would allow me very briefly just to make a point or two.
The outstanding point here appears to be the question whether the TRC administrative staff did their job properly, and Chairperson, having listened to what Mr Dehal had to tell you, the, it becomes inescapable that it seems that he has been instructed to act for all the victims, and at least by last week, at the latest, he apparently had the information on where to contact both the Hamlyn family as well as Mr Livingstone, and he didn't do so.
That brings us Chairperson, to the point which in my submission is really the crux of the matter, and that is an interpretation of the Act, to establish what the legislature intended. One starts with, and you will know Chairperson, that the history of the amnesty process, has been plagued by arguments on Section 19(4), what does it mean?
No decision has ever been made by any Committee on amnesty, nor by the original Committee on amnesty, but it has often been stated this subsection (4) of Section 19 never have been intended to mean that every single person who has an interest, must receive notice. It cannot mean that. It is like saying in the Road Traffic Act that you may not drive faster than 120 km/h and therefore if you go 121 km/h, you are guilty of an offence.
We know that is not the way Acts and the operation of Acts are interpreted. One has got to give leeway for the practicability of applying an Act, Chairperson. Mr Coombes here, he says he is a victim. If he is a victim, why is Ms Debra Quinn not a victim, that we have heard?
Where do we stop? We've got to stop somewhere, Chairperson. In my respectful submission, one looks at two other provisions of the Act to see, to establish, to try and establish where one draws the line. The first is Section 20(2), that Section deals with the referral to the Committee on Reparation and Rehabilitation. That deals specifically with the Amnesty Committee.
It says -
"... where amnesty is granted to any person in respect of any act, omission or offence (and I emphasise the words act, omission or offence) and the Committee is of the opinion that a person is a victim in relation to that act, omission or offence ..."
now, Mr Coombes with no stretch of the imagination can ever fall within these wordings, nor can the grandchild or my brother's wife's husband's child ever fall within that, you've got to draw the - and clearly Chairperson, what the Act has in mind is the close relatives, the mother, the sister perhaps.
CHAIRPERSON: Who probably struggles from a loss of their breadwinner?
MR VISSER: That is precisely the point of Section 20(2). And then coming back, and I do it this way around, Chairperson, for a specific reason, coming then to the Section (1) of the Act which deals with the definitions, it is quite clear, bearing in mind that what we have just read, the Section 20(2) is exactly what is intended here, because it speaks of gross violation of human rights, and it says it means - I am sorry, sorry, I should refer to victims
"... victims include persons who individually or together with one or more persons suffered harm in the form of physical or mental injury, emotional suffering, pecuniary loss or substantial impairment of human rights as a result of a gross violation of human rights as a result of an act associated with a political objective."
Our submission is it is no different from what we have already read in Section 20(2). It deals, as does the whole Act, with an act, omission or offence. What the definition says in (a) is that person must be directly affected by an act, omission or offence; (b) says who individually, etc, etc, who were persons who intervened to assist persons contemplated in (a) above and it again says, and then it says -
"... such relatives or dependants of the victims as may be prescribed ..."
so Chairperson, if one reads it, the Act, and if one bears in mind that there must be a practical workability of the Act, then we say it is quite clear that a victim is only a person who is directly affected by an act, omission or offence for which either amnesty is granted or refused.
The line must be drawn to encompass close relatives, and nothing further. Chairperson, that is the one aspect, if you will bear with me.
Chairperson, the other issue which is also a matter of interpretation is that I am told that the Amnesty Committee has a practice of wishing to have returns of service. I am told that, I wasn't aware of it, but of course the Act does not require that.
The Act require notice, and you know on the authorities, what notice could entail. It could entail a poster in a public place. As long as at the end of the day, the Judge hearing a matter, where other people who have interests, are concerned, is satisfied that it is reasonably probable that that person had knowledge, that is what the point is.
Now, we have heard here today that in regard to all these people, they have knowledge, perhaps excepting for the Hamlyn family, which may be doubtful, but the brother Livingstone Pahle, has knowledge.
CHAIRPERSON: In his case, Mr Visser, it depends when he got it. Let's be fair. He must have, in order to hold it against him, he must have received it reasonably, quite a period ago, so as to effect attendance.
MR VISSER: Chairperson ...
CHAIRPERSON: ... to hold it against him if he only found out on Monday morning?
MR VISSER: You are absolutely correct. That is a slightly different question, that is du Preez v van Rensburg which we had to argue in the Appellate Division to say notice is fine, but notice must also be reasonable.
But what we are saying is we heard, being told now, that by last week he knew. What we don't know is when he actually had knowledge in the first place. How do we know Chairperson, without evidence to sway you one way or the other?
He may have known all along, he may have known since the 29th. Why didn't the sister or the niece then, tell him? Some of the victims that are not here, on whose behalf objection is raised to continuation of this matter, are here. Chairperson, with great respect, can it really be expected of the administrative staff, if one looks at the bulk of amnesty applications and victims that we have gone through over the past three years, to have notified every single person personally, can it really be expected from any victim, even if one assumes he is a victim, to sit back and say "well, I know about the hearing, but I wasn't given formal notice, therefore I am going to do nothing and what is more, is I am going to send my grandchild or my niece or my uncle or my whoever, to go and appose the continuation of this hearing ..."
CHAIRPERSON: Until you get a formal notice?
MR VISSER: Until I am given formal notice. Well, we cannot be as ridiculous as that, Chairperson. With great respect, I have heard a lot said about financial hardships, it is a financial hardship to the applicants also to be here.
They are not being paid to get here, they are not being paid for being here. They have been carrying this burden Chairperson, for three years, they have been waiting their turn, this is their turn, Chairperson. We would submit that unless there is really compelling reasons ...
CHAIRPERSON: Mr Visser, when you finish I was going to put a question to you, just to assist us, I don't know whether you have finished your submissions?
MR VISSER: I basically have nothing to add.
CHAIRPERSON: Mr Visser, we have a, the Panel, we haven't fully discussed the matter, but I am sure you noticed that I whispered to my colleagues just before you started, we have precisely what you raise, we have precisely that problem.
It is a question of assessing whether the administrative staff of the TRC acted reasonably in the circumstances, or not and what was available to them when they did so. The issue that we have to grapple with and I need your assistance here, your comments, is that even if we find that in the circumstances, the administrative staff acted reasonably, we are now told that there are people who have a direct interest in the matter, who are "easily compactable". Assuming that that easily compactable, is reliable, should we refuse the request for a postponement in the light of that?
MR VISSER: That is of course the vexed part of the question, Chairperson, yes. We have had this before, and in fact, before you, we have had the same thing. At the end of the day, when it appears that the TRC administrative staff did not do their job properly, we can all be very cross with them, but at the end of the day, you are going to notify whoever, there is no issue about that, there can be no issue.
The question here really is, in this particular case is whether you have sufficient evidence or indication before you, which we submit, you haven't, to say that the TRC didn't do their job. The mere fact that a particular victim, even a direct victim, could not be traced at all, can never mean that the amnesty applications can never continue, obviously.
CHAIRPERSON: Let's go further and let us assume that the administrative staff did that as best they could, and we would find that they acted reasonably in the circumstances, and there is nothing wrong with the TRC, it is not criticisable, we now come to a process, today, which has some element of finality about it, we don't return to this thing again.
There is a direct victim as defined in the Act, we are convinced now is in fact traceable and is able to attend in some near future date, on some near future date, should we in the circumstances stick to the letter of the law?
MR VISSER: Chairperson, the answer is twofold. If you are satisfied that what was done by the TRC, was what they could reasonably do, then the second issue of what we hear today, does not come into the matter, and then we would submit, you should continue with the matter.
If what you hear today, convinces you that the TRC administrative staff did not do what they could reasonably have done, then we are back to the situation where the man is entitled to his notification. So the issue is still, has evidence been placed before you which convinces you that the TRC did not do their job, because if they did, we can all be cross with them, but we will have to accept that.
Chairperson, we are told that there are contact numbers and contact addresses for Mr Livingstone Pahle for example, my learned friend was asked twice to give it. It hasn't been forthcoming. Frankly Chairperson, we hear what my learned friend says, and we have no reason to doubt what he says, but there must be some evidence to say "hang on, you know, these people are here, they are easily contactable and therefore we cannot continue".
It is my submission Chairperson, that on what has been placed before you, does not change what you must prima facie accept, that the administrative staff did their job properly and that we should continue. Chairperson, we also have another practical problem. If we postpone this matter, when are we ever going to hear it? When are we going to fit it in, that is another issue.
Not that that necessarily has to weigh heavily with you, but it is a consideration. Thank you Chairperson.
MR DEHAL: Sorry Chair, could I just, before anybody else intervenes, give you the address in New York for fear that there might be any submissions on the failure to give it to you.
CHAIRPERSON: Mr Coetzee, have you got anything to add?
MR COETZEE ADDRESSES: Yes, thank you. Given the importance of the conflicting interests that are involved, I would with respect submit that before the Panel makes a decision on this issue, one needs to get more certainty than at present exist, because it seems to me that all the information supplied by my learned friend, is tantamount to hearsay or indeed double hearsay.
CHAIRPERSON: We intended to deal with that after we heard your comments. I must say secretly we are hoping that your comments would rather go one way, and there would be no reason to make a decision, but I suppose everyone hopes. Carry on, Mr Coetzee, if there is anything else you would like to add.
MR COETZEE: Yes, just to get down to hard practicalities. The point I would like to make is that although there have been hearsay indications that Mr Livingstone Pahle in America, wishes to attend this particular hearing, it would seem to me that it would be important to actually contact this individual. It would seem to be easy given the fact that he is contactable, and ...
CHAIRPERSON: If he is represented. We are not too sure that that is so. We will have to do it through that channel, I suppose.
MR COETZEE: In so far as the Zondi family is concerned, it is quite apparent that the TRC investigators did everything they could on the information available to them at the time that they conducted their investigations.
All we have at the moment is, it would appear, some members of the public who are present, who allege in a rather vague fashion, with respect, that they know where these people are. More information needs to be supplied, I would submit, before one can act on those submissions in relation to the Zondi family.
And then lastly, in so far as Mr Tim Williams is concerned, I am not quite sure what his status is, but my learned colleague indicated that there is a cell number. My practical suggestion is let's phone him and see what he's got to say. Thank you.
MR VISSER: Chairperson, I am not sure what Mr Williams' status is, first he was a victim, now he isn't a victim. Apparently he isn't a victim, but in any event, I am told he is three minutes away from us, in Wachthuis.
CHAIRPERSON: We will cross that bridge when we come to it, Mr Visser. Mr Cornelius?
MR CORNELIUS: Thank you Mr Chair. I concur fully with what my learned colleague, Mr Visser said, and I feel the hearing should continue. I don't have anything to add, thank you.
CHAIRPERSON: Mr Steenkamp?
ADV STEENKAMP ADDRESSES: Mr Chairman, basically the matters that were contentious yesterday, were dealt with, except three other matters, three other victims, that according to my learned colleague, was not contacted and notified.
The one being Mamokete Lydia Malaza. Mr Chairman, I've got a Return of Service issued to her on the 29th of June, the date indicated for the hearing was the 3rd of July till the 4th of August. This is the original document, Mr Chairman. With your leave, if you would like to have a look at it, to hand it in.
The other one, being Mrs Mthembu, Teddy Ester Mthembu. Mrs Mthembu, a document was sent to my learned colleague, Mr Dehal, on the 29th of June, it was faxed to him, to his office, the 13th of July, giving him the contact details of Mrs Mthembu. As general practice, as it stands now, Mr Chairman, unless corrected, I was under the impression that if you are dealing, you are representing all the victims, it only needs for me to inform the lawyer, at least, the minimum, where the contact details of the victims are.
The other victim that was contentious Mr Chairman, where there was the allegation that the TRC did not inform, was the case of Mrs Mtsweni. Similarly Mrs Mtsweni got a hand-written notice, Return of Service was signed the 28th of June as well, Mr Chairman. Furthermore - Mr Chairman, another, lastly maybe, I would like to add that over and above that, I last night, the statement you've got in your possession, I got this morning, I have asked for a written statement about the family, the Hamlyn family.
I checked again yesterday, the addresses, I phoned the police in the area, I checked the yellow pages, I phoned, I did enquiries, there are only two Hamlyns currently in Durban, listed. None of them are one of these family members. There are no telephone numbers whatsoever. We have never been given any information regarding any victims, or any telephone numbers, up until Friday.
I just want to put on record as well, on the 19th of June this month, I was informed by my learned colleague, I phoned him on a continuous basis, which I did, whether or not this hearing will proceed. He told me then that at that moment, he doesn't want, he cannot continue because he is under tremendous pressure from the ANC, whoever, that other legal representatives will be appointed.
Unfortunately I have to bring this up, I think it is part of the perspective here. I informed then the CEO, as Members of the Panel as well, about this situation, as well I left a message on the cellphone of Mr Wagener, because he is in Durban at this stage. I later contacted my learned colleague, I can just say I phoned him at 14H25 on the 19th, I made a note of it.
A few days later I contacted him again, he said to me that because of the difficulties we have explained to him, without speaking on behalf of the Chairman, I said it was highly unlikely that the Chairperson will definitely grant a postponement on that basis. Furthermore, later he informed me that he is ready to proceed, to continue with this matter.
I informed once again the CEO of the Amnesty Committee, as well as the legal representatives of the Amnesty Committee, as well as Mr Wagener, about the position. Up until yesterday, with the greatest respect, Mr Chairman, I was under the impression that this matter will proceed. I only got notice from my learned colleague yesterday that there is a problem. I even phoned Adv Prior on Friday to communicate with him whether or not this matter would proceed. He told me this matter was ready and we will proceed.
I don't want to go through this whole list of 23, if you would like, I will gladly do so, Mr Chairman, but taken what my learned colleagues have said, I can just add to say that all reasonable steps were taken to inform the victims. I can start from top to bottom.
I phoned ...(indistinct) who is not working with the Commission anymore, last night, we had a three hour consultation about exactly what was done, in each and every one of these cases, who was notified, who was not notified, what was done, what was not done.
But over and above those notices, Mr Chairman, because yesterday the contention of my learned colleague was that those victims were not notified. Those are the original Return of Services, although the dates are different, that can be explained, because at one stage the hearing was then moved, or shifted, and that was the reason that that was done.
I can just say that I have received a letter which I have asked for, which is dated the 25th of July from Mr Dehal's office, indicating that he is representing all victims. This is a letter which I don't think needs to be handed in, because these are ...(indistinct) legal fees, but basically saying that he is confirming that he is dealing and representing all victims.
Over and above that, except if you would like me to add anything, Mr Chairman, there is no submissions I can make further. Thank you Mr Chairman.
CHAIRPERSON: Mr Dehal, is it possible to ask Ms - is Haberone's surname Pahle, to ask her a few questions?
MR DEHAL: Judge, I have not checked with her prior, she is here. Judge, and while that is pending, can I just hand over the full details of Livingstone Pahle, his address, his telephone numbers and also a friend of his who lives in New York, and the friend's phone numbers and fax numbers. ...(indistinct) Panel, she is agreeable.
CHAIRPERSON: Ms Pahle, what language would you prefer to use?
MS PAHLE: English.
CHAIRPERSON: Are you comfortable with English?
MS PAHLE: Yes, I am.
HABERONE PAHLE: (sworn states)
CHAIRPERSON: Please be seated. How old are you, Ms Pahle?
MS PAHLE: My next birthday, I will be 31.
CHAIRPERSON: 31? Where are you presently residing?
MS PAHLE: In Alexandra township.
CHAIRPERSON: Is Livingstone Pahle related to you?
MS PAHLE: Yes, he is.
CHAIRPERSON: How is he related?
MS PAHLE: He is my brother's younger brother.
CHAIRPERSON: Are you in contact with him?
MS PAHLE: Every now and then, yes.
CHAIRPERSON: How regularly?
MS PAHLE: Not as regular as I would have desired to, which then means not necessarily every day.
CHAIRPERSON: Hm, but how often, once a week, once a month?
MS PAHLE: It depends, sometimes it would be two, three times a month, sometimes it would be once a month, so I cannot on average say what it is, but yes, I am in contact with him.
CHAIRPERSON: It is irregular, so you cannot really say that you are going to get a phone call tomorrow or next week or whatever?
MS PAHLE: It also is dependant on the job that he does, I must mention.
CHAIRPERSON: Okay, we will come to that. What kind of work does he do?
MS PAHLE: He is a pianist.
CHAIRPERSON: He is a?
MS PAHLE: Pianist, musician.
CHAIRPERSON: He is a musician?
MS PAHLE: Yes.
CHAIRPERSON: How often did you, did he contact you or were you able to speak to him in June?
MS PAHLE: I would say I spoke to him shortly after my return from overseas, which was roundabout the 22nd of June, and I spoke to him last Friday ever since, so as I mentioned before, that there are times when I would speak to him about two, three times in a month and there are times when I would speak to him once a month.
CHAIRPERSON: Now, in June, you spoke to him once, you say?
MS PAHLE: In June, I spoke to him once shortly after my return.
CHAIRPERSON: And in July?
MS PAHLE: Excuse me?
CHAIRPERSON: In July?
MS PAHLE: In July, I spoke to him on Friday, was it the 28th.
CHAIRPERSON: Was that the first time after ...
MS PAHLE: That was the first time since the last I spoke to him.
CHAIRPERSON: When were you informed of this hearing?
MS PAHLE: At the end of June.
CHAIRPERSON: Can we say the 30th of June?
MS PAHLE: No, it was later than that, I think it was roundabout the 24th, I think.
CHAIRPERSON: I said the 30th of June?
MS PAHLE: Roundabout that time, thank you.
CHAIRPERSON: It seems to me that you are fairly close to your uncle, Livingstone, although you don't speak to him as regularly as you would have wanted to?
MS PAHLE: Yes, that is true.
CHAIRPERSON: When you went overseas, did you go to visit him?
MS PAHLE: No, I went to Europe, United States.
CHAIRPERSON: Europe, okay. In June, after you returned to South Africa, were you in possession of these addresses and phone numbers that you provided to us?
MS PAHLE: Yes. Yes.
CHAIRPERSON: When you received notice of this hearing, by the 30th of June, did you make any attempt to phone him that this hearing is going on?
MS PAHLE: I didn't, on the assumption that the TRC would have done that, seeing that they had some contact with him. That is what I had assumed.
CHAIRPERSON: Now, on the 28th you say, last Friday, you spoke to him?
MS PAHLE: Yes.
CHAIRPERSON: How did this come up?
MS PAHLE: I found out from him whether he had received something from the TRC regarding a reminder and he had said that no, he had not.
CHAIRPERSON: What did he say about his interest in the hearing?
MS PAHLE: Well, since mid 1996, when the whole TRC process started, we had spoken about it every now and then, and we were hoping that we would have some bit of saying, seeing that we thought that you know, the raid was one of the highlights in the apartheid era and we had actually thought that the hearings would occur much sooner than what it has done now.
So, he has been expecting that the hearing would occur and he has in fact expressed in a number of ways, verbally mainly, that he would be part of the process.
CHAIRPERSON: Good. Do you understand that the process of the Truth and Reconciliation Commission has more than one facet .
MS PAHLE: In what ...
CHAIRPERSON: Sorry, one of which is the Amnesty Committee and another the Human rights Violations Committee. The third one is the Rehabilitation Committee. The purpose of the Amnesty Committee is to entertain applications by people who committed political atrocities, whereby they can apply for amnesty against prosecution and delictual litigation in respect of those political atrocities.
In the Human Rights Violation section, that forum provided an opportunity for people who were victims, real victims of apartheid, to go and tell the world what happened to them. Do you understand what I am saying, and therefore you have a difference of definition of the word "victim".
I am not saying that you should know that, I am just telling you this, to get you, to put it into perspective. In the Amnesty Committee, yes, victims as defined by the Act, for the purposes of amnesty, are entitled to be informed of this hearing. I said so yesterday, that those applicants are not the actual people who caused this problem. That does not detract from the rights of people who have an interest in the matter.
But being in contact with your uncle, do you think he would be interested in those people who actually committed the crime, or would he also be interested in those who contributed within South Africa, to the commission of that crime?
MS PAHLE: I think he would be interested in all.
CHAIRPERSON: In all?
MS PAHLE: Because at the end of the day, the deed was done. He lost his brother, so it is not to say who necessarily did it, but also what predisposed them to do what they had done, so to answer your question, it is a combination of all factors.
CHAIRPERSON: Now, on what basis does he think he is a victim?
MS PAHLE: He suffered psychologically, he was adversely affected psychologically.
CHAIRPERSON: Because of the death of his brother?
MS PAHLE: Because of the death and the fact that he had witnessed it happening, yes. And in terms of the Act, I think as previously read, he does fall within the framework of a victim.
CHAIRPERSON: The broad ...
MS PAHLE: In my understanding.
CHAIRPERSON: Yes, in the broad sense of the definition of victim?
MS PAHLE: And I would like ...
CHAIRPERSON: Was he injured?
MS PAHLE: Excuse me, I would like the Panel to really make me understand the narrow sense of the victim, if you may.
CHAIRPERSON: I will do that. Let me just ask, was he injured in this attack?
MS PAHLE: Psychologically?
CHAIRPERSON: No, physically?
MS PAHLE: No.
CHAIRPERSON: Does he, do you know whether he was a target of this escapade?
MS PAHLE: Yes, I do, because they knew that in that house lived three people, and when three people were killed, they weren't aware that a fourth person had come to visit.
So yes, he was targeted, because he was going to be eliminated, so when they killed the three, they were absolutely sure that he was the one.
CHAIRPERSON: Did he stay there?
MS PAHLE: Yes, full-time.
CHAIRPERSON: Okay. Now how long would it take him, if we grant this postponement, to come to South Africa? Would he come to South Africa?
MS PAHLE: He would come to South Africa. He would come to testify. We are looking at at least a week, a week and a half. It is, he doesn't, he is not a person that could just jump now, and just take a plane and just come to South Africa. In terms of logistics, it wouldn't make sense for him if he were to be given about a day or two's notice. There are a lot of other factors to consider, like financials for instance.
CHAIRPERSON: Now, please understand the following question in terms of the context of which I ask it. Are you finding it difficult to hear me?
MS PAHLE: A little, yes.
CHAIRPERSON: Can you hear me now?
MS PAHLE: Yes.
CHAIRPERSON: When did you consult with Mr Dehal?
MS PAHLE: What is today, today is Tuesday, on Thursday.
CHAIRPERSON: Not before then?
MS PAHLE: No, not before then.
CHAIRPERSON: Were you available to be consulted before?
MS PAHLE: Yes, I was. Yes, I was, except then we would have to reschedule.
CHAIRPERSON: Yes, I understand all that, but you would have been available? I am told that you are one of the people that are able to provide the addresses and contact numbers for some other people?
MS PAHLE: Yes. I could try and do that. I don't have them readily available as in now, but yes, it could be arranged.
CHAIRPERSON: Why I ask this question, I want to be sure that involving ourselves in that exercise, we are going to get results, we are not just going to take flyers.
MS PAHLE: I think, I speak not only for myself, but for the other members of the families as well, that through collective teamwork, it would be much speedier for us to get that sort of information to you. If you think it is impossible, I would then reply that no, it isn't, it is possible to get it to you.
CHAIRPERSON: Through your Attorney, we were told that yes, the administrative staff of the TRC didn't do all that was necessary or could possibly have been done. I say what I am going to say now, I say for your benefit and the others, because apparently you labour under some impression that the administrative staff did not do all that they ...
MS PAHLE: Yes, we do.
CHAIRPERSON: You know, when people who are interested in the TRC are contacted by the administrative staff, very often they have been accused of interfering with some party to the hearing.
MS PAHLE: By?
CHAIRPERSON: And what should have been done, they should have contacted their representatives. I hope you understand, I am not saying it would have been the case.
MS PAHLE: With all due respect, yes ...
CHAIRPERSON: That is the reason that they don't go to clients of Attorneys.
MS PAHLE: With all respect, I do understand that, it is almost fatal that it has happened, and I mean, assumptions are assumptions, just because X = Y in a certain case, doesn't necessarily mean that it will always apply.
CHAIRPERSON: I am not saying that it must always apply, I am saying that you've got to understand that those people are dealing with thousands of people, and they have had these allegations thrown at them on more than one occasion, many occasions.
That is why they have accepted to deal with Attorneys only.
MS PAHLE: I accept what you are saying, I understand what you are saying, but I don't accept it.
CHAIRPERSON: Why don't you accept it?
MS PAHLE: Because I feel that we deal too much on assumptions, that shouldn't be. I understand that in the line of work that they tend to experience such things, but I tend to think that they would then be over lenient to sort of assume that do happen on a regular basis.
CHAIRPERSON: What would be wrong for them to contact the Attorney who says he represents you?
MS PAHLE: I don't think, look, I don't think it would have been a problem if any of the TRC members asked me whether I had any contact with any other person that they have had difficulties in reaching. I would have done, I was in Botswana over the weekend, and I met with people and we sort of revised the whole thing, and I know of people that actually do come in contact with members of the victims.
Had I known that from the TRC, I would have done something reasonable possible to try and assist them in that regard.
CHAIRPERSON: But Haberone, listen to me. I am saying that you've got to understand that those people have to take a general instruction and that instruction was no longer must we deal with individuals who have an interest in any particular hearing, because you may be seen to be taking sides, rather deal with their Attorneys, and you seem to have a problem with that?
MS PAHLE: No, if that is the case, then if that is the case, then well, I suppose I should have been, I would have been informed ...
CHAIRPERSON: By your Attorney if he was approached?
MS PAHLE: If he was approached, yes.
CHAIRPERSON: I am just raising that for you to tell your colleagues that they must be understanding about it, because this is not the only case those people have to deal with. I hope you understand that? I am not trying to be funny about it.
MS PAHLE: I understand it, I just do not condone it. I look at the process and how things have gone and we have sat here and listened to arguments and hear and then we have seen that there are a lot of loopholes. Yes, I understand where you are coming from.
Every job is like that. I also suffer the same sort of thing, but you try and make it in such a way that your backside, sorry to say it, is protected at all sides, and I do not think the TRC did that. I do not condone it, and I speak on behalf of the other members as well.
CHAIRPERSON: I have taken the opportunity to try to explain to you.
MS PAHLE: With all due respect.
CHAIRPERSON: There was one other issue. You asked me to explain to you the difference between a victim in respect of the Amnesty Committee and a victim in general.
In general, for the Truth and Reconciliation Act, a victim is a victim of apartheid, which includes many people, types of people, many categories.
For the purpose of the Amnesty Committee, that victim is not a victim purely because that person has been a victim of apartheid. That person is a victim because he or she is a victim as a result of an act or omission, for example if a person's father had been killed through an act on the part of a politically motivated person, that person, the deceased's daughter or son, will be a victim not because that person was a victim of apartheid, but that person was a victim of that act, of the father being murdered.
That is what our job is, to determine whether you in fact, in question, is a victim of what happened in Botswana that day. Not whether you were a victim of apartheid. Do you follow what I am saying? That is the difference between a victim for the Amnesty Committee purposes and a victim for the whole process. Having heard that, have you got any other questions?
MS PAHLE: Yes, then how would you define Levi as a victim, in a general sense or would he form part of ...
CHAIRPERSON: Who is that?
MS PAHLE: Livingstone?
CHAIRPERSON: Well you say he was a target?
MS PAHLE: Hm, yes, he was.
CHAIRPERSON: Then he would be a victim in terms of the amnesty definition.
MS PAHLE: Okay.
CHAIRPERSON: But I was not a party to, I was not involved in that act, I was not a target in that act.
MS PAHLE: Let's say for instance he was not a target, I just would like to understand the definition if I may, let's say for instance he was not a target, and he witnessed the whole thing, then what, would it still be a victim?
CHAIRPERSON: No.
MS PAHLE: The victim that is referred to as having some psychological suffering, would he not, would it not be applicable to him?
CHAIRPERSON: That would be in the general term of apartheid. People who were tortured, people who were phoned by the Security Police and threatened, and that type of thing, those people who suffered psychologically because they were put into solitary confinement for five years, that would fall in the general category.
MS PAHLE: In other words Levi is only applicable as a victim in this particular Committee, because he was a target?
CHAIRPERSON: Because he was a target, yes. He is personally linked to the action.
Are there any other question you need to ask on that?
MS PAHLE: No, not in that. I don't know if - I would like to make a comment please.
The, we feel and it is me and I speak on behalf of the families as well, we feel and if it counts for anything, it will be of gross injustice if this hearing could continue when we only have parties that were involved in the whole act, but we don't have people that actually witnessed the whole process in the way that it could probably contradict some of their claims, if any.
We feel that for any hearing to occur, there has to be both sides of the parties, and in this particular case, irrespective of whether the TRC had not done their job or in terms of logistics, things didn't occur the way we would have liked them to, but we tend to feel that in order to have a just and fair hearing, as it is the objective of the Amnesty Committee, it would be grossly beneficial to have both sides of the parties for equal representation to occur.
CHAIRPERSON: I have a couple of comments to make on that, just to satisfy you and put you into the picture.
As I have said just now, we are not busy with a criminal matter of they and them, okay. That is the first point.
The second point is that we as the Amnesty Committee cannot force anybody to make an application for amnesty. That is their choice. The perpetrators, that is the military, chose not to make an application, we cannot do anything about that, we cannot force them. If they choose to run the risk of being criminally prosecuted, that is their business.
Yes, we would be interested in witnesses to the event, definitely. Even if nobody calls them, we would call that person if we have aspects of what occurred there, vaguely put to us.
It is in fact our duty to call such a witness, if no such witness can describe what happened there. I have difficulty in explaining to you that this equality of representation. In this forum, if there is anybody who disagrees and put it into dispute, anything that the applicants may say on how these things occurred, fairly enough, bring it, take the oath, testify, be cross-examined, and we will have to make a decision, but where there are no disputes, or where, what the applicants say, cannot be disputed, then it would be, there would be no purpose to dispute something. Do you follow what I am saying, or don't you?
MS PAHLE: Hm.
CHAIRPERSON: And that is the issue that you and your colleagues must examine. It is one thing to oppose an application, it is another thing to dispute what is said.
If you are in a position to dispute, fine, then by all means, but if you are not, then reconsider what your position is. It does not mean that you are not entitled to come and listen to what they are saying.
But don't build up your expectations if you are unable to dispute what these applicants are saying, because it is difficult to handle at the end of the day, when you are unable to dispute what they are saying. It would be different if the military was here and the military said "we had balaclavas" and some witnesses say "no, we saw who it was and they didn't just shoot us, they bombed us". That is a different scenario.
That is a real dispute. Do you follow what I am saying?
MS PAHLE: Yes.
CHAIRPERSON: And I would be grateful if you would be able to talk in calm circumstances to your colleagues as to actually what this process is about.
It is not a fight like we normally experience in a criminal court.
MS PAHLE: No, that is not our understanding and intention as well. But, you know, I suppose when you really look at it, whether there had been perpetrators or whether they actually thought about perpetrating, the deed was done.
CHAIRPERSON: I understand that, and people are angry and heartsore and one cannot take that away.
MS PAHLE: It is because of that reason why we feel that certain members that are key and pertinent to the whole process also, should be there. It is for that reason only.
CHAIRPERSON: Okay. Is there anything else that you would want to say?
MS PAHLE: Not at this stage, thank you very much.
MR MALAN: Ms Pahle, thank you for your information tendered here. I want to ask you a question or two concerning Livingstone Pahle.
You said that he was a musician, a pianist. That seems to be his active profession?
MS PAHLE: Sorry, yes, it is.
MR MALAN: Then I also, I would also then assume that he would be a pianist on contract or concert tours or whatever?
MS PAHLE: Yes. He does his shows every now and then out of town and that.
MR MALAN: And they are booked in advance, I would assume?
MS PAHLE: I suppose so, I speak under correction.
MR MALAN: You see the difficulty that I have is, if we should decide to postpone the hearing in order to give him a second bite so to speak to be able to come here, he may be otherwise occupied?
MS PAHLE: No, he may not. As far as I know, he would have people filling in for him, to be able to attend such an occasion.
MR MALAN: So he is not a concert pianist?
MS PAHLE: It doesn't mean that, no.
MR MALAN: He is a pianist in some band?
MS PAHLE: Yes, yes, that sort of thing.
MR MALAN: Okay, that could take care of this. The second question, the name was also mentioned here of Mr Rose-Innes Pahle, who is at Vista University?
MS PAHLE: Yes.
MR MALAN: What is your relation to him?
MS PAHLE: He is my uncle, he is my father's elder brother and Levi is my father's younger brother.
MR MALAN: So, Levi and ...
MS PAHLE: And Rose-Innes are brothers.
MR MALAN: Brothers?
MS PAHLE: Yes.
MR MALAN: When you spoke to Levi, did he have knowledge of the hearing coming up?
MS PAHLE: Only, he only heard of it on Friday when I spoke to him about it.
MR MALAN: Were you the first person to inform him?
MS PAHLE: It looks like it, because he hadn't received the notice, as I had asked him whether he did from the TRC.
MR MALAN: Are you saying that Levi and Rose-Innes wouldn't be in touch with each other?
MS PAHLE: They would be, but how they are is, is of no interest to me. I have never really ...
CHAIRPERSON: In other words you cannot say whether Rose-Innes informed him?
MS PAHLE: ...(indistinct)
MR MALAN: Well, if I understand you correctly, what you in fact can say is that Rose-Innes did not inform him, because he did not know when you spoke to him on Friday?
MS PAHLE: When I spoke to him on Friday and he had said that he had no knowledge of the TRC hearing, it then meant that Rose had not informed him, and I know because Rose is a person that has been busy. Mr Steenkamp, it is, did confirm that yesterday, because he was very angry at the TRC process that he had been given short notice, and no notice was served on him, he was just phoned up, I think a week and a half after I had received notice on behalf of Mrs Hilda Pahla, who is now late, and that he had a lot of business issues to deal with.
He's got delegations from the United States, and those have been the ones that have been keeping him busy. If he had not communicated this to Levi, it is solely to the fact that he has been too engrossed in his business activities, I assume.
MR MALAN: I just also want you to understand that the notice was intended for Mrs Hilda Pahle, according to the records of the administrative staff, she was still alive. That is why the notice went out to her, that would have been due notice. There was no need to advise every member in the family. So you received notice on her behalf, and again it was assumed by the administrative staff that that would go to the family.
That does not include though a notice to Livingstone as a, call him a victim in the narrow sense, as has been explained to you. But certainly, there is no reason for, as I can read it, for Livingstone to be upset, for Rose-Innes to be upset for not having received notice.
MS PAHLE: Well, as I said and mentioned earlier, I had assumed that seeing that he was also contained in the TRC reports, as much as Hilda had been, I had assumed that they would also serve notice on Levi, seeing that he was key to the whole process.
MR MALAN: When we talk about Livingstone, yes, I accept that, but he wasn't, sorry, if I may just point out to you again, which is part of the problem, he wasn't a victim in terms of the communication, he was simply listed on the statement read out by Mr Dehal, where he referred to the New York address as a witness. Mrs Hilda Pahle made a statement on behalf of George and Lindiwe, and on that statement she filled out that Livingstone is a witness. Livingstone wasn't listed by the HRV process as a victim in the narrow sense, and that explains why it wasn't followed up further.
MS PAHLE: Would you perhaps know why he wasn't listed as a victim?
MR MALAN: Because the statement, the original statement to the HRV was a statement to say that, and this is simply from the data base extract, which Mr Dehal read from, was simply to say that George and Lindiwe were killed. Then there is a special section that say "do you have any names of witnesses to the incident" and there it was filled out Livingstone is a witness.
It wasn't said in that statement that Livingstone was a target. That was said in the follow up, which became part of the bundle at a later stage.
It could have been detected there.
MS PAHLE: By who?
MR MALAN: By ourselves, by the TRC. It could have been detected, but so could a number of other things have been picked up. I am just mentioning this to have you to understand why Livingstone was listed from the first HRV statement simply as a witness.
MS PAHLE: It is actually understandable that things like these could happen, I mean there are flaws that happen on a day to day basis, and we are all human, and I suppose that is also how we base our pleadings, to say you know, the reasons why we feel that there should be a postponement is because is because of such flaws.
MR MALAN: May I, sorry Chair, with your permission, just point out one last thing to you. Again, if you read the applications of all the applicants, the Chair has alluded to that, they are all saying that "we did some surveillance on a number of people, we shared information, the military finally took a decision, decided the targets in Cape Town, it was clear that the highest level and the raid was officially acknowledged the next day, it wasn't hidden, so it was clear where it came from", but they cannot say anything more than that they were part of the process of identifying certain targets, not necessarily even all of the targets.
They may tell us more, when they give the oral evidence. I am not necessarily sure that everybody really wants to be present. They may exercise their option of not coming, because they won't hear anything more about what actually took place on the other side, but that has been explained to you. Thank you.
CHAIRPERSON: I don't suppose any of you want to ...
CROSS-EXAMINATION BY MR VISSER: Yes Chairperson, if you would allow me a few questions, Visser on record. Ms Pahle, when did you hear for the first time, that you are going to
be legally represented at these hearings? Can you tell us more or less precisely when that happened?
MS PAHLE: I would presume, when I got notice on the 20 whatever of June, at the end of June.
CHAIRPERSON: I think we have established by the 30th, she had received notice.
MS PAHLE: Hm.
MR VISSER: And who then told you that legal representation had been arranged for you?
MS PAHLE: The person that served the notice, had said that we could get legal representation.
MR VISSER: I see. So you didn't speak to whoever the lawyer was going to be at that stage?
MS PAHLE: No. No, because we didn't know who it was.
MR VISSER: Alright. How long after the 30th of June, were you contacted by the lawyer who was going to represent you?
MS PAHLE: There was somebody that contacted me in July, mid-July, from the lawyer's office. I wasn't able to secure an appointment with that person, because I was heavily involved in work commitments and could only make it a week after.
MR VISSER: Were you at that time, was this telephonically?
MS PAHLE: Yes, that was telephonically and I only met them then a week later.
MR VISSER: Yes. You don't remember who you spoke to?
MS PAHLE: No, not off hand, I don't.
MR VISSER: Were you asked for contact numbers?
MS PAHLE: Only, I only remember the person that I spoke to, the week after was Prabahle. That is the only name that I remember.
MR VISSER: Yes. Were you at that stage asked for contact numbers or addresses for your uncle or anyone else?
MS PAHLE: Not at that stage, no.
MR VISSER: You have heard the Chairperson explain to you that the present applicants were not the ones who perpetrated the raid into Botswana, you understand that? Bearing that in mind, will you tell us why it is important, why you think it is important for your uncle to be here?
MS PAHLE: Basically because of the reasons that I cited before, basically because I feel that he is key in the whole process. Basically because I know that in terms of the psychological scarring that he had been put through, this process would then help him to come to terms with what actually happened, because then he would have more perspective into the whole process.
MR VISSER: Yes. You see when you are told that these applicants that are appearing here, that the only part that they played in this raid, was to provide information as to names and addresses of people to the South African Defence Force, were you told that?
MS PAHLE: Excuse me, I just got distracted for a little while, can you repeat that?
MR VISSER: Were you told that the applicants who had come to appear before this Amnesty Committee, are going to say that the only part that they played, was to provide information as to names and addresses in Botswana?
MS PAHLE: I think that was mentioned in the report, yes.
MR VISSER: Yes. Now, how is that going to help, do you think, yourself or anyone else, to come to terms with what happened there?
MS PAHLE: I think I will answer it the same way as I did before, I think at the end of the day it probably doesn't even really matter that much whether there was anybody that perpetrated and there was anybody that thought about it and there was anybody else that brought milk and cheese, at the end of the day, at the end of the day it happened.
When the deed was done, it doesn't say there is a first degree killing and there is third degree killing, you don't break it down.
MR VISSER: No, no.
MS PAHLE: At the end of the day, killing is killing. At the end of the day death is death. At the end of the day a deed is a deed.
MR VISSER: Yes.
MS PAHLE: I tend to think that we are probably trying to intellectual - and I am probably speaking at a very emotional level, but I think we are trying to intellectualise this process too much, to a point where it probably isn't necessary.
MR VISSER: Yes, I hear what you say, thank you. There were hearings by the Human Right Violations Committee, do you agree in regard to some of these people who were victims, who were killed?
MS PAHLE: Not in this particular one, no. If it happened, it probably did at the time when I was at Cape Town.
MR VISSER: Do you know a person ...
CHAIRPERSON: Mr Visser, where is this getting us to?
MR VISSER: Chairperson, I want to know from this witness whether either she or her brother went to the Human Rights Violations Committee to tell their story, which is directly relevant to their insistence that they want to be present now.
CHAIRPERSON: The point of the matter is, your questioning started off by the reasons for Livingstone wanting to be here. I don't know if she is able to answer that correctly, the fact of the matter is that it is being established, has been established, that he is a victim and entitled to be here.
MR VISSER: No Chairperson, we will come to that in a moment.
CHAIRPERSON: Was he not a target?
MR VISSER: There is only one sentence Chairperson, that is what I am coming to right now. Can I ask this question? Who was Hilda Pahle?
MS PAHLE: My grandmother.
MR VISSER: Do you know that she went to appear before the ...
MS PAHLE: Yes. I do. It was at the time when I was in Cape Town.
MR VISSER: Did you also go and appear?
MS PAHLE: No.
MR VISSER: Why not?
MS PAHLE: Well, she had informed me that she was going to go, and I think I was highly pregnant by then, if I seem to recall. It wouldn't be, not beneficial for me to have travelled at the time.
MR VISSER: Was your uncle, Livingstone, aware of these hearings?
MS PAHLE: I don't know.
MR VISSER: He wasn't there either?
MS PAHLE: I don't know, I was in Cape Town, he wasn't there either.
MR VISSER: Yes.
MS PAHLE: I don't know.
MR VISSER: If you look at bundle 2, Chairperson, page 22.
I want to put it to you that at the bottom of that page, Hilda Pahle said the following, I am going to read the whole paragraph to you so that there is no misunderstanding -
"... later in the day Levi phoned to break the news, telling us that Joseph was also killed, and that he had survived because he was hiding. He survived because he was hiding. They killed Joseph, thinking it was Levi."
Is that the evidence upon which you say that Levi was a target, Livingstone, or is there something else why you or anyone else says that Livingstone was a target of the raid?
MS PAHLE: Yes, I do. Unless, if I ask you a question then, why would they have killed Joseph?
MR VISSER: Just answer the question.
MS PAHLE: I have done that.
MR VISSER: No. Is there any reason, any evidence which you can provide to this Committee why you say that Livingstone was a target, because I am going to argue that he was not.
MS PAHLE: Well, I am arguing that he is.
MR VISSER: Alright, is that the best that you can do?
MS PAHLE: Yes.
MR VISSER: I will tell you why I say that it is not so. Of course the applicants sitting here, wouldn't know, so we are, we have to look at whatever evidence we can find, to find answers. One of the answers that we find in a book written by a person by the name of Peter Stiff, which is bound into Volume 2, and Chairperson, at page 82, I am not going to read it all to you, your legal representative can read it to you, I will argue it later. This is target 14 being described by Mr Stiff and what he did is he described what happened there that evening, after speaking to the people from the South African Defence Force on the scene, and I want to put it to you that there is no indication whatsoever that Mr Livingstone Pahle was ever a target.
It is really argument Chairperson, but I thought in fairness, to put it to the witness. Page 83, over the page to 84.
MR DEHAL: Sorry, with respect Mr Chairperson, I cannot see why this witness should be answering to a book written by somebody else. She has already answered to yourself Chair, that she has been in touch with her uncle and her uncle regards himself as a target. She answered pertinently to you saying that her uncle had reported to her that he was a target.
MR VISSER: We will argue that Chairperson. In the meantime I don't have any further questions.
NO FURTHER QUESTIONS BY MR VISSER
CROSS-EXAMINATION BY MR COETZEE: Ma'am, do you know, or can you say whether your uncle, Livingstone, has been appraised of what this particular application is all about and that he understands what this particular application is all about, or has that not yet been explained to him?
MS PAHLE: No, I don't think, all I asked him was that there was to be a hearing, they have identified about, and I said about 12 people that were involved in the raid. I didn't say that they killed or they were strategically involved, I just said the 12 people that were involved in the raid, "there was going to be a hearing, have you received your notice", and that is when he said no.
CHAIRPERSON: What did he say else to you? He said "no, I did not receive a notice"?
MS PAHLE: Just said that is funny, because in the prior discussions that we have had, he had mentioned, and he had expressed a verbal interest as I have indicated before, that he would like to testify and he would like to be present in the hearings.
CHAIRPERSON: Did he tell you on Friday "look, I still want to go there and oppose it and ask for a postponement"?
MS PAHLE: No, he didn't say "I want to ask for a postponement", he mentioned the fact that he wanted to be present in the hearings. In terms of his ...(intervention)
CHAIRPERSON: That is previously, I am talking about Friday?
MS PAHLE: No, Friday, on Friday.
CHAIRPERSON: He said ...
MS PAHLE: Yes, yes. On Friday. So, as much as I cannot quote his exact words, but it gave me in that conversation absolute impression that he wanted to be present, as much as we also, as a family, would like him to be here in order to testify. Not because he has to come for a holiday.
MR COETZEE: Ma'am, is it possible that at this moment in time, he might be under the misapprehension that there are applicants in this particular application, asking for amnesty for being directly and physically involved in the attacks on the houses concerned?
MS PAHLE: I think he could have that impression as much as he could not have that impression.
MR COETZEE: Yes. The other question I want to ask you is, it would appear apparent that he was aware of this matter on Friday, you have been in contact with your legal representative since Monday, at least, at the start of this particular hearing. Would it have been possible and is it still possible for your uncle, Livingstone, to provide a short affidavit to this Committee, concerning what his attitude is about attending this particular hearing?
MS PAHLE: Only about his attitude?
MR COETZEE: Well, there may be other matters that the Committee might consider relevant, but is it possible for him to secure an affidavit, maybe fax an affidavit to the Committee, so that we have directly from him, what his attitude is concerning this particular application and whether he actually wants a postponement or whether he is happy to accept, for these applications to continue in the circumstances?
MS PAHLE: At this point, I cannot answer that. All I can answer is that, all I can answer is what I have heard from him directly, saying that he wants to be present. Perhaps that could be arranged, yes, but I cannot give a yes or a no, where that is concerned. The only one that I can give an answer of absolutely and surely certainly, is that he would have wanted to be present at the hearings.
MR COETZEE: You see, this is my difficulty I have Ma'am, with all due respect, because it is quite apparent to me that the full ambit of this particular application hasn't been explained to him. You have conceded he may be under a misapprehension and in these circumstances, I cannot understand why any effort has not been made to get an affidavit from him. I mean there has been plenty of time since Monday to do so, and then we would have had firsthand evidence from him as to what his attitude is in this matter. Why is it that the applicants in this matter, whose interests are also very, very important, must continue, even as late as one o'clock on Tuesday, to rely on hearsay evidence on this every important issue?
MS PAHLE: I - sorry, you might not perhaps be able to answer this, maybe the Panel would make a decision on that, but then I would ask that if he was approached to say "fine, this is a possibility of you, no, is there any possibility of you making an affidavit for instance" and if he declined, then what would the implications be?
MR COETZEE: Ma'am, just as a last question, I won't continue, am I the first person that has asked you whether Livingstone actually understands what this particular application is all about, am I the first person that has asked you that?
MS PAHLE: Well, I suppose so, because I mean, as I have said that the only thing that I told him was that they had identified 12 people that were involved in the process and whether he had received any notice and he said no, and then he still reiterated on his importance to attend the hearing. That is how I could answer your question.
MR COETZEE: Thank you.
NO FURTHER QUESTIONS BY MR COETZEE
CROSS-EXAMINATION BY MR CORNELIUS: Final conclusion, Ms Pahle, if the contents of the applications are made known to Livingstone, there is a possibility that he might elect not to testify?
MS PAHLE: No, I think where this whole raid is concerned, there is no way that he would only be part of a process, there is no way that he would want to be part of the hearing. He would want to see the process from the beginning as opposed to end. More so, more so now that it is not like the hearing where his mother submitted statements, but more so now, that it has actually gone a step further, where there have been people that have been identified to be involved, and I will just say involved in the process, I am not saying that they perpetrated the act, I am saying that were involved in the whole process, he definitely would want to be here.
MR CORNELIUS: Did he indicate if he was opposing the applications?
MS PAHLE: Sorry?
MR CORNELIUS: Did he indicate if he is opposing the application, or not?
MS PAHLE: No, he has never indicated of opposing any application.
MR CORNELIUS: Thank you.
MS PAHLE: I was saying he has never indicated that he was opposing, in fact, he has just directly affirmed every single time that he had wanted to be part of the process, which is why we have had an emotional, not an emotional one, but a sentimental reason of having to want him to be part of the process because we know what his standpoint has been all along.
MR CORNELIUS: Thank you Mr Chair.
NO FURTHER QUESTIONS BY MR CORNELIUS
CROSS-EXAMINATION BY ADV STEENKAMP: Thank you Mr Chairman, just one issue. Ms Pahle, just for information from people who were investigating or analysing and preparing this matter, they have informed me that they even checked the international directory of New York specifically, and no Pahle or any person of that name could be found in New York or the surrounding areas, whatsoever?
MS PAHLE: I think that number that I gave ...
CHAIRPERSON: Maybe they were looking for an Englishman.
MS PAHLE: I think the number that I gave you is a payphone that he normally uses, because the other, the two numbers that I gave ...(indistinct), the only thing that I didn't give you is an E-mail address, which I will forward if needed. The two numbers, the two other numbers that I gave you before, I am absolutely sure he can be contacted by, as and when.
ADV STEENKAMP: Thank you. Thank you Mr Chair.
MS PAHLE: The apartment that he lives in, doesn't have a phone.
NO FURTHER QUESTIONS BY ADV STEENKAMP
EXAMINATION BY MR DEHAL: Mr Chairman, I wasn't given the opportunity, there was just one thing that I wanted to clarify. Thank you Sir.
Ms Pahle, is it correct that the notice you say you signed for, is the notice that was addressed to Hilda Pahle?
MS PAHLE: Yes, it is.
MR DEHAL: Thank you. And secondly, when you spoke on Friday with Livingstone, did he mandate you to come here to seek an enforcement of his rights to be present at these hearings, whenever they are?
MS PAHLE: Yes.
MR DEHAL: Thank you. That is all.
NO FURTHER QUESTIONS BY MR DEHAL
MR MALAN: Ms Pahle, may I ask you, your information is that Levi was present in the room when his brother, sister-in-law and Malaza was killed?
MS PAHLE: Yes. Yes, he was present in the room.
MR MALAN: And secondly you assume he was a target, or he assumes he was a target because they killed three people?
MS PAHLE: Yes, because they knew three people lived in the house and when they had killed three people, there was no way that they would have seen that he was hiding under the bed, so when they killed three people, they were satisfied that it was the three that was living in the house.
CHAIRPERSON: Was he a permanent resident of that house?
MS PAHLE: Sorry, yes, he was living there for quite a while, for about 10 months, I think, doing shows and concerts in Botswana.
MR MALAN: You know of course that in many of the other homes they went in and when people were not targets, they were allowed to leave?
MS PAHLE: I suppose so.
MR MALAN: Was he active, was Levi active in the ANC?
MS PAHLE: No.
MR MALAN: Why would he have been a target?
MS PAHLE: For the simple assumption that there were three people and then they knew that three people were there. Joseph wasn't an activist, but he was killed, why is that?
MR MALAN: So you say that Joseph was in any event ...
MS PAHLE: He wasn't an activist, he had come to visit.
MR MALAN: Joseph was in the cupboard?
MS PAHLE: Yes.
MR MALAN: My question relates to George and Lindiwe.
MS PAHLE: Well, then my argument would be that if that is the case, then they would just as well have killed George and Lindi and left Joseph Malaza.
CHAIRPERSON: Was George an activist?
MR MALAN: According to your mother's evidence, he was shot through a cupboard, through a cupboard door, they didn't know that he was there. Bullets were simply pumped into the cupboard door, and he fell through. That is what Levi told her.
CHAIRPERSON: She cannot say.
MS PAHLE: No.
CHAIRPERSON: I am trying to establish why this house was attacked.
MS PAHLE: I suppose that is what I would like to ask, I mean I would like the members, the applicants to answer.
CHAIRPERSON: Is that one of the reasons that you want ... You see, it relates to the question of targets. If there was a person who was active in that house, a known activist, and whomever decided that that person must die, but he is living with a wife and ...(intervention)
MS PAHLE: Children.
CHAIRPERSON: Or children, and because they may be there when we shoot, when we shoot them, the other three are also targets, and we must shoot them also?
MS PAHLE: Yes.
CHAIRPERSON: That is why I am asking who in that house could have been the target?
MS PAHLE: Oh, I see what you mean. Where that is concerned, I really would like to leave it to the applicants to respond. I mean, coming to Mr Malan's point, I mean the six year old was there, Lindi was killed, that wasn't an activist.
MR MALAN: I don't want to really go into the evidence, but if you look at the bundles, the six year old was according to records and reports, wounded by accident and died.
MS PAHLE: That is ...
MR MALAN: I am talking about reports, I am not talking about the applicants.
MS PAHLE: Okay. That is arguable.
MR MALAN: One would never know.
CHAIRPERSON: Yes, thank you Ms Pahle. We will make a decision after this.
WITNESS EXCUSED
CHAIRPERSON: Does anybody want to further argue on any point, before we make this decision?
MR VISSER: Chairperson, Visser, on record, if you will allow me just to take Mr Coetzee's point one step further. It is now twenty passed ten in New York, if we have a telephone number for him, cannot you Mr Chairman, phone. There is nothing wrong with you phoning?
CHAIRPERSON: But there is. We have been accused in the past of interfering with people's clients.
MR VISSER: Well, not if ...
CHAIRPERSON: Mr Visser, that is a question of policy of the TRC.
MR VISSER: Right Chairperson. Well, his lawyer can phone him then, Chairperson.
CHAIRPERSON: I am not too sure whether Mr Dehal is his representative or not? Is there anything else anybody else wants to say before we make a decision?
MR COETZEE: With respect Mr Chairman, if Mr Dehal is not Mr Livingstone's representative, if the TRC feels that it cannot ethically phone this gentleman of its own accord, it sounds to me like a catch 22 situation, with respect.
Surely I would with respect submit, in these particular circumstances, nobody can accuse the TRC of acting in an impartial manner in phoning, contacting Mr Livingstone in the USA to advise him and educate him as to what this application is all about and request him whether his attitude is whether he wishes a postponement?
CHAIRPERSON: Mr Coetzee, I have empathy for what you say, but and I don't want to go into the reasons why certain people raise objections to that and criticism but it has happened to many times before, and the image of the TRC is further attacked.
Like I say, I have empathy for what you say, but these are the factors that we have to contend with.
MR COETZEE: Mr Chairman, in finishing off, might I perhaps just suggest considering one factor, and that is that certainly the TRC would need to take into account attitudes and concerns of those who are reasonable, I would submit that the TRC does not have to react and adjust what it has to do, with regard to the attitudes of people who are clearly unreasonable.
CHAIRPERSON: We will adjourn for lunch until about quarter past two.
COMMITTEE ADJOURNS
ON RESUMPTION
R U L I N G
CHAIRPERSON: We have considered this matter and I might add that we are not comfortable with the decision that we have made, but because matters have been so confused, and we are not really sure who of the alleged victims are really victims, who appears for them, and what was done by the administrative staff of the TRC, in order to secure their attendance, we have adopted a robust approach and in so doing, we are going to postpone this matter. But as I said, we do it very reluctantly.
I have also decided not to, or that it wouldn't serve any purpose by referring to the attitudes of certain people, suffice to say that because we are unable to really assess what really happened in preparation for this hearing, we are going to postpone it for one week, to the 2nd of October.
ADV SIGODI: October?
CHAIRPERSON: October. That seems to be the only date in which we can squeeze this hearing in. It seems to be the last week for the scheduled hearings of the Amnesty Committee.
There are other matters that I need to deal with also, raised by interested parties in this hearing, some of whom are defined victims.
I am told that victims strictly speaking, and not family members, are being paid, reimbursed for travel and accommodation. Mr Dehal, that is why it is important to define victims. It does not include the whole family, an extended family. Secondly, I am told that it is possible to transfer the venue of this hearing to Johannesburg and when those investigations have been completed, and a decision has been made on the venue, Mr Dehal will be informed of it.
It seems to me that certain names of alleged victims are being bandied about and ever so now and then, these names are being raised as members of the victim community in this application.
In order to assist us, that is the TRC administrative staff, obtaining the names of all these victims forthcoming from the interested parties here today, Mr Dehal, we would like a list of the names of people who are victims in the narrow sense, the names together with their addresses and telephone numbers.
Would you accept service of these notices on behalf of those people or not?
MR DEHAL: Judge, I would have to confer with them, I have difficulty with the New York person, because if I accept service of that, then I've got to bear the cost of talking to him in New York, etc.
CHAIRPERSON: Other than him?
MR DEHAL: Judge, principally, I have personally no objections on it. I think to facilitate the process, it should be that way, but I think I am duty bound to actually confer with these family members before I actually commit myself.
CHAIRPERSON: I think you better leave it. We want a list of addresses, names and telephone numbers to be delivered to Mr Paddy Prior, by no later than twelve o'clock, next Tuesday. I hope you can explain to these people that in fairness to everybody concerned, that we cannot allow any amendments then thereafter.
As I have said, we have reluctantly acceded to this and we are loathe to further postpone the matter. I hope it is appreciated, what has been done and the expenses of the applicants and the TRC, that has gone wasted.
I might as well say now, that our attitude is going to be that once those notices have been properly served, in terms of the practice that has been established, it may not be possible to personally serve certain notices. Once acceptable service has been effected, it will be taken as served, and anybody who does not pitch up here that day, we assume that they are not interested in the process.
I hope on that day, we are not going to hear more names that come up as victims. These notices will be issued as soon as we can settle the venue aspect. Thank you, this hearing is adjourned.
HEARING ADJOURNS TO 2ND OCTOBER 2000
