CHAIRPERSON: Are we ready to begin Mr Mpshe?
ADV MPSHE: Thank you Mr Chairman, yes Mr Chairman. Mr Chairman, before we continue with the evidence of the applicant, I just want to put this on record pertaining to the subpoenas that were issued as directed by the Committee on Monday.
Mr Chairman, the people subpoenaed are present today. That is Mr Andre Beetge, Mr Nick Deetliefs and Mr Adriaan Pieter van Niekerk as well as Captain Holmes. Mr Chairman, what I am going to say excludes Captain Holmes, it applies to the first three I have mentioned.
I have had a talk with the three gentlemen and they indicated to me that they are not in a position to can testify today for the following two reasons: One - that this matter took place four or five years ago. They are no more in the Police Force and they did not have access to the documents nor the contents of the police docket. And that they were given a very short time within which they were to be at the Commission, indeed they were given only one day to be present at this hearing.
Two - they state that they needed their legal representative because certain allegations have been made by the applicant's team and they feel that is disparaging allegations done against them. And they did consult with their two Attorneys last night who unfortunately are unavailable to can be present at this forum today.
But they feel strongly that they need their legal representative because of things that have been said about them particularly Mr Nick Deetliefs and Andre Beetge.
As pertaining to the video cassettes Mr Chairman, I caused the Cape Town office to courier them down to me, they have since arrived, they are on the table. It is a total of 12 video cassettes that must be looked at by the applicants and Mr Bizos' team. And I received again this morning three video cassettes from SABC, these are the ones that I had requested for a subpoena once more and there are other audio cassettes that were referred to by Mr Prinsloo.
The audio cassettes are not yet available, but are surely to be here by this morning at about ten o'clock, eleven o'clock because I could only make arrangements yesterday at five to five with the Cape Town office and Cape Town office promised me that they would courier them down with the first flight from Cape Town to here and they will deliver to me today between ten and eleven o'clock.
That is the position Mr Chairman.
CHAIRPERSON: Mr Bizos, the calling of certain witnesses who have been subpoenaed to some extent, that is a matter in your hands as to when you would require them, whether they are required merely to produce documents, whether they are required to give evidence, those are matters that are in your hands.
MR BIZOS: Yes, they are matters partly in our hands Mr Chairman, but whether they are going to give evidence or not, will depend to a very large extent whether the applicant persists and gives at least some prima facie evidence that the statements in the R4 were not freely and voluntarily made.
I would respect the witness' request that they have been called upon on short notice and that they are entitled to have the advice of their legal representatives in view of the allegations made by the applicants' counsel against them.
In relation to the tapes, and the original documents, they are there. I suggest Mr Chairman, that the witnesses have the documents made available to them by the Commission in the immediate vicinity of the court for them to look at it and if their lawyers want to look at the documents as well, they should come along to the place near the hearing to look at the documents.
We will have no objection to the statements, to the documents being made available to the witnesses and to our learned friends. The same with the tapes in so far as they may be relevant or, well they can't really decide what is relevant until they have examined them.
But Mr Chairman, we respectfully submit that the preparation process by the applicants and the possible witnesses should run parallel to the proceedings before the Committee. It isn't, with the greatest respect, necessary for - we have to look at them as well, but it isn't necessary for us to have the whole team in court in order to examine documents and videos. Our learned friends have an instructing Attorney whose presence may or may not be necessary, they have to make a choice that the Attorney possibly could look at them.
I say this Mr Chairman, because the indication was given to me by our learned friend, that he is going to ask for a postponement whilst these preparatory matters are being dealt with. We will strenuously oppose such an application if it is made because we have set the period of time available, I have already given an undertaking that I do not intend examining the applicant on any matter related to the statements in R4 or refer to those documents in examining, or in the videos and the tapes or the original documents.
I will confine myself to testing the evidence that he has already given without reference to the documents in R4. There is sufficient material that I have to put to him which appears in documents others than those documents, and I would submit that we cannot afford, neither the Committee nor we, can afford to loose the two days, that is today and tomorrow, I understand that the application for a postponement is going to be until Monday, we will strenuously oppose that, we want to carry on.
There will be no prejudice to the applicant because when his legal representatives have had a look at the material that is now being produced, they can be granted leave to lead him in evidence before any questions are asked and may I remind the Committee of the obvious, that this is not a trial, but an inquiry and as invariably happens in an inquiry, there is no onus, witnesses may come and go or they may be interposed and I would suggest that we would proceed with my examining the applicant, both in his interest and in the interest of finality on the proceedings and in the interest of the Committee and ourselves.
I may place on record that the earliest possible opportunity that we have set this week and next week aside in order to deal with this matter as has the Committee and I may indicate that if we do not proceed during this period, then certainly we will not finish if we do not proceed during these two days, it may take a long time to be able to assemble the Committee and the legal representatives again in order to continue the matter.
Thank you Mr Chairman.
CHAIRPERSON: Mr Prinsloo, as far as people who have been subpoenaed and who are here, before I decide whether they should be excused from further attendance until they are required, if they are required, do you have any objection to my excusing them from further attendance at present?
MR PRINSLOO: I have no objection to that Mr Chairman. As Mr Chairman indicated, they are entitled to legal representation and to the indulgence.
CHAIRPERSON: Thank you. Well, will these gentlemen who are here, Mr Beetge, Mr Deetliefs and Mr Van Niekerk, they are here are they?
ADV MPSHE: They are present Mr Chairman.
CHAIRPERSON: Gentlemen, you have responded to subpoenas that have been served on you, it does appear that your presence will not be required for the proceedings at present.
It is likely that you may be called to give evidence at a later stage in these proceedings. I am prepared to excuse you from attendance this morning, on the understanding that you will appear here again on Monday morning, and it may be that we will be in a better position to tell you on Monday morning as to precisely on what date you should present yourself for the purposes of giving evidence if required to do so.
The documents that you might want to refer to, you will contact Mr Mpshe, the leader of evidence, your Attorneys can contact him and examine such documents as they think relevant to assist you in refreshing your memories. Gentlemen is there any question that you wish to ask or is that clear to you?
ADV MPSHE: Mr Chairman, Mr Van Niekerk has just indicated that he is not available on Monday, he will be attending court somewhere else again on Monday.
CHAIRPERSON: Would he be occupied the whole of Monday?
ADV MPSHE: He can be available at two o'clock on Monday.
CHAIRPERSON: Will he please do so at two o'clock, and we can tell him then when we will require him. In the meanwhile you will remember that you are still under subpoena. Is it clear? Thank you. What about the other gentlemen?
ADV MPSHE: Mr Chairman, the indication is that the other gentlemen that are sitting with him, they also understand.
CHAIRPERSON: Thank you very much.
ADV MPSHE: Thank you Mr Chairman.
CHAIRPERSON: Will you ensure that such documents as they may require, will be made available to them and their Attorneys?
ADV MPSHE: That will be done Mr Chairman. Mr Chairman, may I just mention further that there may be a need for them to have the legal assistance of the State Attorney because this was done when they were still in the duty of the SAPS and I will have to go and see the State Attorney today in order to discuss the matter with him, but that will be done. Thank you.
CHAIRPERSON: Very well, thank you. Thank you gentlemen.
Now, Mr Derby-Lewis, are we ready to proceed with your evidence?
MS VAN DER WALT: May I just address the Committee Mr Chairman. I did not have the opportunity at all to ask the Committee questions with regard to the documentation because Mr Bizos, it appears to me, is the person who takes the lead. He has taken it upon himself to tell the Committee that we would like to ask for a postponement.
What I would like to state to the Committee is that on Monday, as you are aware, and I am not going to repeat the whole story, we received the documents at quarter to ten and as far as my client is concerned, we really had to go on face value. In the copies that I have, and we detected irregularities, my client and I and we have been trying to clarify this since Monday, but it is impossible to clarify these matters without the original documents and access thereto. Mr Bizos, yesterday with many words, handed in documents from a pre-trial conference as well as the document addressed to Mr Mpshe regarding the documents which he had required.
On the 4th of August in the pre-trial conference, he also played on words and requested the original documents, but Your Honour, it is to me absolutely hair raising yesterday when I heard that the original documents and apparently the one in particular, Captain Deetliefs' which is the most problematic, from the 5th of June and I have to pick my words very carefully because Mr Bizos will lift up his hands again, and these documents have been in the hands of Mr Bizos' attorney since then, but the firm of Attorneys is misleading the Committee, because if on Monday they had submitted the documents in all honesty when I had stated my case, then there would have been no problems, and it would have been resolved.
But now the applicants' legal representatives are embarrassed every day because we have to ask every day for a postponement. Mr Bizos is the one who opposes everything, but Your Honour, it is these two applicants' right and their only opportunity afforded by this Act, and they have to avail themselves to the best of their ability, of this opportunity.
I have had insight into the docket and I have prepared myself for Mr Walus, but it is that document in particular which now covers a number of documents, which had not been contained in the docket. These are documents which Captain Holmes had handed to Mr Bizos. Apparently documents which the Police had kept in other files. Why were the Attorneys of Mr Bizos dishonest and hid this fact from us?
A further thing that was really scary yesterday afternoon at four o'clock, we first heard that the video tapes and the sound cassettes were in the possession of the Committee and Mr Mpshe, never disclosed this.
Can you think how much time has been wasted since Monday because these things have not been told to us? And I take with respect, what Judge Wilson has said. Why don't we just go and fetch these things? But since Monday we have been trying to find out where these things are and in the mean while these things are laying under our noses.
And then Mr Bizos comes and uses long speeches before the applicants, not the respondents, before the applicants, had asked for a postponement. He comes and he opposes this. Perhaps I don't understand it clearly, perhaps I don't understand clearly the procedure of the Committee, but this is very strange to me.
And before Mr Prinsloo addresses you because it is his client who is still testifying, I would like to state to you that I do not feel able to place this case of Mr Walus before this Honourable Committee if I don't have the original documents so that I can consult with him fully on this matter, thank you.
CHAIRPERSON: Just give me the precise description of the original document that you are talking about?
MS VAN DER WALT: Mr Chairman, it is a set of documents, it is a problem to me to describe exactly but these are documents that were used, cross-questioning, investigations of the Police contained in these documents, the statements were prepared by Captain Deetliefs.
CHAIRPERSON: Just hold on. I would like you to - I want to tabulate the documents that you want please.
MS VAN DER WALT: I would like to receive the notes from the questioning and the statements, I mean the written notes of the Police Officers as well as the typed statements made by my client, those are the documents that I require. Because portions of the handwritten notes are contained in the R4 volume, but a number of pages of the original handwritten copies are missing.
But there are typed versions of those handwritten pages.
CHAIRPERSON: Are these the documents or statements made by your client to Mr Deetliefs?
MS VAN DER WALT: Yes, that is correct. Together with that I noted that there were tapes, cassette tapes that accompanied these questioning sessions, documents and I saw one marked number 6.
JUDGE NGOEPE: I am sorry, we don't quite follow, some of us. Are you able to speak with reference to R4 and the pages thereof, please?
MS VAN DER WALT: Yes, if you will allow me some time I will be able to give you page references in R4.
84, from 84.
JUDGE NGOEPE: And what is that? What is this document? Is it interrogation by ...
JUDGE WILSON: Is it page 84 to 86 and then apparently the typed version at 87 and 88?
MS VAN DER WALT: Then you will see that it continues in R4 from 294 through to, it continues and it is really a bit in disarray here, I can't follow exactly what is happening here, but it is a very long statement of which I require the handwritten notes.
The statement which I referred to now, 294, continues into interrogation as well. It continued over quite a long period, it also includes statements of Mr Clive Derby-Lewis.
JUDGE NGOEPE: 294 is Deetliefs' own statement, not your client's statement.
MS VAN DER WALT: Included we also have from page 301 onwards which also contains interrogation and if you were to look at the statement on page 296, you would see that at 301 it just starts with the word "correctly", it doesn't start with a sentence proper. It doesn't start at the beginning of a paragraph or anything like that.
JUDGE WILSON: That correctly is the end of the sentence on the previous page. You are not exclusive ...
MS VAN DER WALT: My bundle doesn't have those two pages. My bundle doesn't have those two pages.
JUDGE WILSON: You haven't got page 300?
MS VAN DER WALT: No, it seems to me there is two pages missing.
JUDGE WILSON: I thought you made a copy from the bundle I lent you?
MS VAN DER WALT: I will carry on using Mr Prinsloo's bundle now. But this whole statement and the interrogation that accompanies the statement of Captain Deetliefs, I want the handwritten notes, the original handwritten notes preceding this typed version, because I can't follow that at all.
JUDGE WILSON: Were there handwritten ...
MS VAN DER WALT: Yes, Judge, I will tell you why I refer to this. If you look at page 304, let me just find the other bundle, if you look at page 87 it is the same document, I have pointed this out before, but 87 has a handwritten interrogation, that is contained in the first three pages before 87.
JUDGE NGOEPE: What about them? What about the two pages 87 and 301?
MS VAN DER WALT: I would like to point out to you that the handwritten portion that you have in front of you, that is the set of interrogation notes of the Police. Page 84, 85 and 86, this was retyped, page 87 and 88.
You will see that the handwritten portion ends with the words "is possible". And that is also the end of the typed version, but then if we look at page 304, which is exactly the same set of data, it has the same heading as in Mr Deetliefs' statement and continues 304, then you will see if you look at 305, the last sentence ends on the words "is possible", but if you turn to the next page, the interrogation continues and now I would like to know where is that handwritten portion of the rest of that interrogation.
JUDGE WILSON: But it makes it clear if you look at the top of page 304, he refers to that particular piece having been written. "Mr Walus after that said the following which was also written down by Warrant Officer Beetge upon my request, namely -" and then what was written down was pages 304 and 305. The written copy of that is at page 86. The rest then goes onto tape again.
MS VAN DER WALT: But if you look at page 87, it is something which was tape recorded, that same thing was tape recorded.
JUDGE WILSON: But they've got that one written out, so they referred to it here. There is nothing to indicate, you may be right, I am just saying there is nothing to indicate to me, it appears if you look at the rest of this long document that it was all tape recorded, it is question and answer tape recorded, I (Walus) and then what he says. The next one (Captain), which would appear somebody was taking down this from a tape.
MS VAN DER WALT: Now you could perhaps see my problem. I have two documents and it appears to be one document but page 306 continues in the one case, but on page 87 it does not continue and therefore there is something missing.
And I either have to have the original handwritten version from 306 onwards or the tape. Because my client can for example, that which is written on page 307, which is written in the first person, that is in English, that my client cannot even speak. That is on page 307.
MS KHAMPEPE: Mrs Van der Walt, it would appear that even from page 84 to 86, including page 304 onwards, all these are recorded statements from cassette number 6.
Are these not all recorded statements from page 84 to 86, continuing from page 304 onwards? The handwritten notes were also recorded?
MS VAN DER WALT: The handwritten copies are only those three pages.
MS KHAMPEPE: Yes, but it would appear to form part of the recordings in tape number 6.
MS VAN DER WALT: If I could receive that tape, perhaps I could understand this and then perhaps I can make out what is going on here, but I cannot understand at this stage and this is what I told the Committee on Monday. I consulted with my client and he knows nothing about these interrogations.
CHAIRPERSON: Your client has made a statement to you about the evidence he is going to lead before this Commission, hasn't he?
MS VAN DER WALT: Yes, that is correct.
CHAIRPERSON: Well, you lead that evidence and if he is cross-examined on any documents which you do not have, we will deal with the problem at that stage. Your client is making an application for amnesty, he sets out the details as fully as you think he should set them out, you have a statement and you can lead that evidence.
If he is cross-examined on documents which you do not have, if that matter requires clarification, at that stage, we can clarify it. Otherwise this might just be a discussion about pages which might ultimately have no relevance to the issue.
MS VAN DER WALT: With respect Mr Chairman, it is relevant. Allegations are really made in these statements which do not appear in my client's application and my client will be prejudiced if I cannot consult with him in this regard.
I cannot allow my client to testify and throw him to the wolves. I am here to protect his interests and act in his interest. The documents are in the possession of the Mr Bizos' Attorneys, why can't we receive these documents?
CHAIRPERSON: Mr Bizos, is there anything that you wish to add that can throw more light on the problem we are confronted with?
MR BIZOS: Yes, I am instructed by my Instructing Attorney that we made available what we had to the Commission and took the trouble, at considerable expense, to make copies of those documents which we thought relevant and which we gave to the representatives of the applicants.
My Instructing Attorney resents the suggestion that she has in any way behaved improperly and we are really surprised at the manner in which that address was delivered and the content of it.
Mr Chairman, we did more than we were obliged to do by making those statements, copies of those statements, available. We could have put those statements to the applicants without notice, but because we wanted to be fair in these proceedings, we served on them copies of statements which we thought relevant to the issues before the Committee.
We are not obliged to prepare the applicant's case. We heard from counsel for the second applicant that she had sight of the docket if I understood her correctly. Well, the documents that we had were copied from the Attorney General's file which was made available to us and it was made clear to us that we had to return the Attorney General's file as soon as we have made copies.
So it is quite incorrect for it to be suggested that we had original documents which we did not disclose. We thought of not only giving the typed copies of the statements, but also the handwritten statements which in some instances are signed by the applicants, I would submit with respect that it is open to them to say that those statements, it is not their signatures, they were not freely and voluntarily made, they can deal with it in whatever manner their conscience and their legal representatives may advise them to do. But to put the blame on us is not going to be of any assistance.
The other matter Mr Chairman is, yes I did tell the Committee that I was informed that there would be an application for a statement. I thought that once the Committee asked me the matters related to the witnesses, that that matter of the witnesses could not be divorced from the notice that I had that there would be an application for a postponement.
And in conclusion I would appeal to counsel for the second applicant, to refrain from making statements which impinge up on the manner in which our Attorney and we ourselves, are conducting ourselves in this inquiry, thank you Mr Chairman.
ADV MPSHE: Mr Chairman, may I come in here Mr Chairman. Mr Chairman, I just want to respond to the insinuation that I may have behaved unprofessionally by not disclosing to the Committee the presence of the audio cassettes.
Mr Chairman, I want to dispel that in that on Monday, this Monday, I was approached by the Instructing Attorney to Adv Bizos about the video cassettes only. And I indicated to her that I have in possession video cassettes which she was looking for, and I immediately caused them to be sent down to Pretoria.
Nothing was said to me about the audio tapes, neither did I know before or even at the time when the pre-trial meeting took place, that the audio tapes were in the Commission's possession.
I learnt about this only yesterday at twenty past four Mr Chairman. If the Chairman will recall, the Chair called me together with Adv Prinsloo when Adv Prinsloo approached the Chair and told the Chair that he learns from Captain Holmes that the audio tapes are with our Investigative Team.
And only at twenty past four pm I called our Investigative Officer, Mr Wilson Magadla, to confirm this because I was not aware of their presence in our possession, and only at that time did Mr Magadla confirmed that yes, we do have the audio tapes and then I caused them to be couriered yesterday at five to five pm.
Now, it is incorrect that I knew and they were under our noses all the time when this was the subject of a dispute. I want that to be dispelled Mr Chairman, thank you.
CHAIRPERSON: Mr Prinsloo, before the Committee takes a little time to consider what to do in this matter, and to avoid unnecessary interruptions, are there any points that you wish to make at this stage relating to this matter?
MR PRINSLOO: First of all, in as far as the sequence of events are concerned, Captain Holmes informed me ...
CHAIRPERSON: You told us that already.
MR PRINSLOO: Yes, but I just want to, with regard to the tapes Mr Chairman, that it was in possession of the Committee and I want to place on record that I did speak to Mr Chairman at the adjournment yesterday in order to ascertain where this gentleman Magadla could be located and that is when Mr Chairman approached Mr Mpshe and Mr Mpshe did communicate with Mr Magadla and Mr Magadla informed him that the tapes, that is now the audio tapes, were in Cape Town.
And it is correct that Mr Mpshe informed me that he had possession of video tapes which he told me this morning, are available here in the Committee chambers.
Mr Chairman, in as far as the documents are concerned, that was obtained by my learned friend's legal attorneys, which were obtained on the 5th of June, and Mr Holmes informed us that certain of the documents in the file which is in the possession of our learned friends, were removed from a docket, certain of them, and from what he informed us it would appear that is the same statement under discussion, so that statement as from the 5th of June, were no longer in possession of the Attorney General's docket and apparently that is the original docket in possession of the Attorney General.
So no one could have had sight of that statement in any event because it is in possession of our learned friends.
CHAIRPERSON: What document are you talking about?
MR PRINSLOO: I am referring to Captain Deetliefs lengthy statement Mr Chairman. At a glance, just at a quick glance at the file, that is what I referred Mr Holmes to this morning.
CHAIRPERSON: Thank you.
MR PRINSLOO: And Mr Chairman, there are other documents in the files which is now in possession of Captain Holmes. Those are the files which the Attorneys for the family had in their possession.
I had a discussion with Mr Mpshe with regard to this, that we will have to examine those documents in order to see which of those documents we require to use in this regard, because as Mr Bizos indicated, certain of the documents were removed from there and forms part of R4, which he deemed relevant.
I haven't had the opportunity to examine those documents at all. There are a number of files. Mr Chairman, I would also require the Section 29 detention files. What I quickly looked at this morning, it was at a glance, I didn't peruse them thoroughly, they do not appear to be part of that.
I was under the impression that documents such as the occurrence book, cell registers which pertains to Mr Derby-Lewis and Mrs Derby-Lewis would also be made available. I was informed that Mr Holmes had been subpoenaed for that purpose and he was to gather that information. It does not appear to be available at this stage.
Mr Chairman, the tape recordings are essential. If one looks at the documents, it is apparent some of it is transcribed to notes and does not give a verbatim conversation with the applicant. That is the applicant as well as Mrs Derby-Lewis where it is relevant and I respectfully submit it is essential for me to listen to those tapes, with the applicant, in order for him to at least refresh his memory to what took place four and a half years ago.
And also to go through the documents in the files in order to prepare the applicant properly to present his case. He is entitled to a fair hearing and a fair trial.
CHAIRPERSON: Are you suggesting that he hasn't had that?
MR PRINSLOO: I am not suggesting Mr Chairman. I am not suggesting that he hasn't had a fair hearing, what I am saying Mr Chairman, he must be afforded the opportunity to proceed presenting his case on a fair basis.
JUDGE WILSON: Could I interrupt you for a moment. I had misunderstood the position. Mr Bizos, I understood that your Attorney got the docket or the papers on the 5th of June, copied them and returned them to the Attorney General. When were they returned?
MR BIZOS: There is a qualification in relation to page 353, the whole document Mr Deetliefs' document, it starts at 299 and finishes at 353 and which appears to be ... (tape ends) ... I beg your pardon, it is signed by Mr Deetliefs on 353 and goes on.
What I am instructed is that that is the document that we got from Captain Holmes. This is the document that we got on the 5th of June and it has the, appears to have the signature of Mr Deetliefs in its original form.
JUDGE WILSON: Was it returned or did you keep it? Your Attorney I mean, not you?
MR BIZOS: I am instructed that it remained in the possession of our Attorneys.
JUDGE WILSON: So the applicant could not have got hold of it?
MR PRINSLOO: That is correct, Mr Chairman. That is the point we are trying to make.
MR BIZOS: That is correct. May I just indicate Mr Chairman, that when this was disclosed to the applicant's Attorneys, I am instructed that they wanted the handwritten notes, that is really what they were interested in, which we have never had, which we have never had.
CHAIRPERSON: Mr Prinsloo, it is in answer to your question.
MR PRINSLOO: I would also like to just place on record Mr Chairman, that I did speak to the Attorney, Miss Nicholas and it was at the adjournment yesterday and she did show me the particular statement which is a signed one in the possession of the Attorney and that was the first time I had sight of that particular statement in a signed form.
It is a typed statement Mr Chairman, and it appeared to me from looking at it, I am not an expert, that the signature thereon appeared to be an original signature on a typed document. It also appeared to be an original document.
There is another document which could be a copy of it, it looked similar, I haven't compared the two of them. It was also purportedly made by the same person, Captain Deetliefs. But in addition Mr Chairman, there are numerous other documents which doesn't form part of the document R4 before the Committee Mr Chairman, which was until yesterday, in the possession of, or today rather, in the possession of the Attorneys, which is now in the possession of Captain Holmes and that apparently doesn't form part of the docket.
But from my experience Mr Chairman, the Section 29 detention files and that doesn't form part of the docket either and is normally kept separate from that.
I haven't had sight of that and numerous other documents and tapes. Mr Mpshe, for the Committee, I spoke to him this morning. In informed him that I would be seeking an adjournment at this stage and I explained my situation to him and Mr Mpshe indicated that he would support such an application and that he understood my situation.
That is merely what I debated with Mr Mpshe and I would like to place it fully on record as to what transpired Mr Chairman.
Mr Chairman, at this stage I am making an application for a postponement in order for me to obtain the documents, study the documents and the tape recordings, video recordings and to consult fully with my client in order to further present his case and to finalise his case.
I respectfully submit Mr Chairman, this would indeed save time, it is fair to the applicant so that this opportunity be availed and also in the light of, as my colleague already pointed out, the same Captain Deetliefs is also the person concerned in questioning the applicant.
Mr Chairman, I have up till now presented evidence as far as I could and I respectfully submit I am not in a position to further present evidence without that opportunity being available to me. It is essential that I be granted that opportunity.
JUDGE WILSON: Were any attempts made to get any of these documents from the Attorney General or from anyone else before Mr Bizos produced R4?
MR PRINSLOO: Mr Chairman, in as far as these Deetliefs documents are concerned, they were not in possession of the Attorney General. The documents were obtained from the Attorney General, but those documents doesn't form part of certain of the documents which was under discussion this morning, Mr Chairman.
So subsequent to the 5th of June, they were not longer at least in the possession of the Attorney General if they were in his possession at any stage.
CHAIRPERSON: Did you not consider it proper to get whatever documents you wanted, before the previous hearing?
MR PRINSLOO: I respectfully submit Mr Chairman, as we indicated in our presentation to the Committee, that we regarded Section 29 proceedings not to be relevant and not to be admissible. It was also the advise given to our client at the time Mr Chairman.
And the Section 29 statements, documents I am told, were in the possession in any event, of the Police, Mr Chairman.
JUDGE NGOEPE: Mr Prinsloo, for my part, I would like to have a clear picture of the documents that you want. I don't think it is good enough to say numerous other documents, because we wouldn't like to have the matter postponed with a vague request as to some documents which may or may not even exist.
And then we come back again for the same problem. I would suggest if you can, that you give us a neat list of the precise documents that you would like to have.
If you want a short adjournment, the Chairman tells me that he would be inclined to do that, and if you could write, perhaps write them out and specify precisely what documents you want and then we can take it further from there.
CHAIRPERSON: That applies to Mrs Van der Walt as well. I am going to adjourn for a short while. I would like you to present a document to us in which you will set out precisely what documents you have not got which you want.
MR BIZOS: Mr Chairman, may I clarify something first of the apparent confusion as to what we got from the Attorney General and what we got from elsewhere.
R4, first part, this is the part that we intended particularly to use and you will see on the first and second pages, and the third page and the fourth page, the first three pages of the index are the documents that are contained in the first R4 file.
All those documents were obtained from the Attorney General. We submit that the documents that we want to use are the statements that are set out on pages 1, 2 and 3 of R4 of the index. Those are the statements that we want to use.
The second part of R4 which is indexed on pages 4 and 5, those were documents which were obtained from Captain Holmes which deal with the manner in which the statements in the first part of the people concerned, were obtained.
So, I hope that that is clear that it is primarily the statements of the two applicants and Mrs Derby-Lewis that we are concerned with and we submit that we did our bit to inform them of what it was that we wanted to use.
JUDGE NGOEPE: May we, if you don't mind, impose the same obligation on you. You see this cross-references, there have been so many cross-references and at the end of the day one is not quite clear which documents and up to what page, were found in the docket or remained in the possession.
Would you be able to itemise the documents? I see your Attorney is nodding her head and I am sure she agrees with me in advance. I think that would help us a lot just for us to have a clear picture.
MR BIZOS: The other documents that we may use, of course depend upon what allegations are made against the Police Officers with whom we had a brief discussion, with Captain Holmes who assures us that these statements were freely and voluntarily made and that there are certain documents which may have to be produced in order to rebut anything that Mr Derby-Lewis and Walus say about their treatment.
It is very difficult to tie ourselves down until we hear what these two gentlemen, what allegations they want to make about the manner in which their statements that we want to prove, really came into being.
But in so far as we are now able to do, we will give a list but we will not, we cannot promise that this will be a complete list because it may well be that there may be other documents in order to ...
JUDGE NGOEPE: Sorry to interrupt, not a list of the documents you intend to use. There have been some accusations or to put it lower, there have been some suggestions that your Attorney has been in possession of some documents from a certain period. That is the list that I am talking about.
If you were to write out a list and say that the following documents were in our possession from the 5th of August, then give us a list of those documents. So that we could have a clear picture at the end of the day.
Not a list of the documents that you intend to use.
MR BIZOS: We will do that. But may I just make one submission that whether we had certain documents or not, it isn't our possession of any documents that really prevented the applicant from not being, or the applicants from not being ready.
The reason why they are not ready is not because we were in possession of any documents, but because as stated, they took up the attitude that the statements that they made to the Police and surrounding circumstances were not relevant to these proceedings. And if there is any blame, that is where the blame lies and not with us with respect.
CHAIRPERSON: Well, I think to put it fairly the contention on their part was that they were inadmissible. They thought that all the documents contained relating to Section 29 detentions were inadmissible in evidence and therefore they didn't have to concern themselves with it.
It now transpires and they now find themselves in a position where that evidence will have to be adduced if it is relevant before this Commission. And they haven't had sight of those documents.
MR BIZOS: If that is, with respect, if it is a correct summary of the situation, we are hardly to blame for their mis-advising themselves on the admissibility and the relevance of the documents. That is all I want to say.
CHAIRPERSON: That is so, yes. Yes, I think we will afford the parties an opportunity to do this and I am hoping that at the end of it we will be in a position to carry on with the evidence.
We will take an adjournment, will you tell us as soon as you are ready and call us please.
MR PRINSLOO: Thank you Mr Chairman.
COMMITTEE ADJOURNS
ON RESUMPTION
CHAIRPERSON: ... a list of documents?
MR PRINSLOO: Mr Chairman, we have prepared a list of documents and cassette and video recordings required. Would you like me to read this to you or may I just submit the list to you?
Mr Chair, it is a list and then there is a list on two pages of documents and cassettes taken by the Investigative Members of the Commission which I would also require. May I submit this to you?
Mr Chairman, in as far as the typed documents are concerned, those documents are in possession of the Committee, the gentleman mentioned this morning, Mr Magadla.
CHAIRPERSON: These are not documents, these are cassettes and videos?
MR PRINSLOO: Cassettes and documents, that is correct, Mr Chairman.
That is cassettes as well as - video tapes as well as documents, Mr Chairman.
CHAIRPERSON: Mr Bizos, have you had a chance of looking at these documents?
MR BIZOS: The list that you have was not tendered to us. CHAIRPERSON: Have you a list of yours?
MR BIZOS: Well, we have written out precisely what we got from whom and when we tendered it. I don't know if you want me to read it out, but I am prepared to hand it in.
CHAIRPERSON: Please hand it in to me.
MR BIZOS: The only matter that I wish to place on record is that we have never had sight of any audio or video cassettes. For the rest, the document sets out which documents were in the Attorney General's docket and which documents were in the docket of Captain Holmes.
CHAIRPERSON: Thank you.
MR BIZOS: And where they are to be found in R4.
CHAIRPERSON: I think that at some stage you should have a copy of the list prepared by counsel for the applicants and likewise you should have a copy of the document that has been handed in by Mr Bizos.
MR PRINSLOO: As it pleases Mr Chairman.
JUDGE NGOEPE: What is this typed ...
MR PRINSLOO: Mr Chairman, that particular list, those are documents and video and tape recordings which were taken from Captain Holmes. That is a receipt given by Captain Holmes to, at least Mr Magadla gave the receipt to Captain Holmes, Mr Chairman.
Those tapes, videos and statements are no longer in possession of Captain Holmes, that is why they are on a separate list Mr Chairman.
CHAIRPERSON: Mr Mpshe, have you seen the list of documents which are supposed to be in the possession of Mr Magadla? Do you know anything about them?
ADV MPSHE: No Mr Chairman, I haven't seen the list Mr Chairman. But what I can say is that the audio tapes are in the possession of Mr Magadla, as well as the videos.
CHAIRPERSON: Yes, you told us that.
ADV MPSHE: Yes.
CHAIRPERSON: Perhaps you would have a look at the documents as well that are in the list, in the possession of Mr Magadla.
ADV MPSHE: I will do so Mr Chairman.
CHAIRPERSON: Now Mr Prinsloo, what is the next step?
MR PRINSLOO: Mr Chairman, as you were told in Chambers, Captain Holmes, he's got the certain tapes, videos and certain documents in his possession which pertains to the list handed in list, the first list Mr Chairman. What I respectfully submit and suggest to the Committee that we be given the opportunity to go to the offices of Captain Holmes which is in Pretoria and examine those documents he's got and then obtain copies from those documents.
And at least Mr Chairman, it will expedite the matter. The documents will be obtained. The other documents on the list are in the possession of Mr Magadla which I am sure will be easily obtainable.
Mr Chairman, and then as I already addressed with regard to my earlier request for the matter to be adjourned in order for us to prepare the case, as already suggested.
CHAIRPERSON: We do not know how many of these documents will prove to be relevant for the purposes of the present hearing. It may be that counsel for the applicants themselves may find that some of these documents are not relevant.
There may be some that are. Our prima facie view is that it is important for them to listen to what is recorded on those cassettes whilst their clients were being questioned or interrogated and primarily for that purpose, it does seem that some latitude should be allowed for counsel for the applicants to have an opportunity to listen to those cassettes. To what extent the videos assist them, or not, is something that I am not aware of but at any rate, if they are available, and I understand that they will be available, they should be afforded an opportunity to do that.
Now, you have indicated earlier that you are going to oppose an application for a postponement which you got wind of early this morning. The Committee is extremely unhappy that its work is interrupted almost on a daily basis, sometimes twice and thrice a day for short adjournments and postponements and this is not how we visualised that our work should be done.
However, these are matters of great concern to the two applicants. They are indeed matters of considerable importance to them - far more important than anybody else that might be involved in these matters and we are of the view that they should be afforded this opportunity so that they can better prepare themselves.
It does seem that despite your undertaking that you will not cross-examine them on the documents contained in R4, there might be other material in the cassettes which they might want to adduce in evidence in chief rather than allow it to be brought out in cross-examination or questioning by you.
And that is a matter of importance because it ought not to be said at some stage, that they didn't freely and voluntarily make a full disclosure and that this was merely extracted from them under questioning and cross-examination.
And we would like to avoid finding ourselves in the position of having to decide at some stage when we will have to decide this question of whether there has been a full disclosure or not. It is a matter of some importance in all these cases and my Committee is of the view that we ought to afford them this opportunity so that they can be better prepared.
We are prepared to grant their request. If it is within my power I would like to say that I am earnestly hoping that this is going to be the last request for a postponement.
JUDGE WILSON: One comment I would like to make and that is that this list has obviously been prepared in some hurry, but that there should be some attempt made to specify what documents are required.
For example, to merely asked for the cell register from Benoni and Edenvale, does that relate to the last 97 years? These documents are put away by the Police and by the Prisons and everybody else they are filed. I would suggest that you put the date, the precise dates you want the documents rather than just a general request of that nature.
MR PRINSLOO: Mr Chairman, may I just respond to that. The list was compiled with the knowledge of Captain Holmes and he said that particular cell register and occurrence book is indeed in his possession. I ought to have specified a date Mr Chairman, but it is with that knowledge that he has got it available, I did not specify a date.
JUDGE WILSON: Yes.
MR PRINSLOO: There is no date, it is correct Mr Chairman. Thank you Mr Chairman.
CHAIRPERSON: Before I take a decision as to the length of the adjournment, what do you have to say in the matter?
MR PRINSLOO: Mr Chairman, I respectfully submit the time that we require would be tomorrow, the rest of today and tomorrow and by the weekend we will have it finalised Mr Chairman.
Tomorrow is Friday. We will have to look at tapes, video recordings Mr Chairman and tapes and documents.
CHAIRPERSON: You know that burden can be shared. You don't all have to do that, somebody has to listen to the tapes and check them against the documents whilst others read through other documents.
And I think that we have to be a little more expeditious in matters of this kind. We have lost a great deal of time in this matter and seeing videos and so on, can't take a great deal of time, apart from whatever entertainment value they have.
JUDGE WILSON: None of the videos are Police, they are all SABC.
CHAIRPERSON: So I think Mr Prinsloo and Mrs Van der Walt, I am constrained to grant your application for an adjournment, but I would like to fix a time tomorrow by which we can commence.
Would it be convenient if we commenced at eleven o'clock tomorrow?
MR PRINSLOO: Mr Chairman, with the qualification, I don't know how much time is going to be required. I haven't listened to those tapes, what length they are and with the videos as such Mr Chairman, and documents.
CHAIRPERSON: I think your Attorney can listen to those whilst you are doing the other things you know.
JUDGE WILSON: The videos are mainly SABC news, Agenda, matters of that nature. What conceivable interest can they be?
MR PRINSLOO: Mr Chairman, Captain Holmes informed me that he is in possession of certain other videos. Those I don't know to what they pertain, that is why they are on the list Mr Chairman. The others are there on the list which are in the possession of Mr Magadla.
Those have been discussed Mr Chairman. There are two lots of tapes Mr Chairman, one in Mr Magadla's possession, the other in Mr Holmes' and then the videos Mr Chairman.
JUDGE NGOEPE: The list that I saw of the tapes supposed to be in the possession of Magadla, they refer to people like Maria Ras and oh, no, these are the audio tapes and to all this type of people.
You see, one doesn't really know how these sort of things become relevant and we don't even know what the contents thereof is. And whether you propose that you are going to listen to every tape that is there on earth, as long as it relates to this incident, it is really problematic Mr Prinsloo.
MR PRINSLOO: With respect Mr Chairman, we will indeed sort them out as soon as possible. No doubt, what is irrelevant, we will leave out.
JUDGE NGOEPE: But you must also remember that you are actually, strictly speaking, you are asking for an indulgence, these things you ought to have done a long time ago. And we are trying to balance the interest as best as we can, to assist you, but surely there must be some limit somewhere along the line.
We need to deal with this matter. We said this before, earlier on and we are saying it again, the Amnesty Committee does not have an indefinite lifetime, by statute by law, we must wind up our business by a certain period.
And you know, all these factors must come into consideration. You are asking for an indulgence and we are trying to lean backwards to accommodate you as far as we can.
But it seems to me, looking at the list one can't help getting the impression that here you seem to be engaging in some kind of fishing expedition as well.
MR PRINSLOO: Mr Chairman, with respect, the benefit of that is to speak to Captain Holmes and there is reference made to tapes which were retained with regard to the questions in terms of Section 29.
JUDGE WILSON: It is not the video tapes that my brother is talking about.
MR PRINSLOO: Mr Chairman, it is not clear to us. Mr Chairman, I have been informed by, with respect Mr Chairman, I have been informed by Mr Mpshe, although it appears on the list as such, that as for instance he mentioned a video tape which refers to the questioning of Mr Walus, which is amongst that, it doesn't appear on the list so specified.
That is the difficulty we have. Mr Chairman, it is mainly to safeguard that we don't say we didn't ask for tapes, but it pertains to the Section 29 issues exclusively.
We won't refer to any other issues.
CHAIRPERSON: I think you should also remember the point that has been made and that is that the Act imposes no obligation on people who object to the granting of amnesty, to be furnishing you with any documents.
MR PRINSLOO: We appreciate the situation Mr Chairman, but indeed, and we also appreciate the Commission's indulgence in this regard, this was unforeseen circumstances.
CHAIRPERSON: Yes, well now, I am going to grant you an adjournment Mr Prinsloo and Mrs Van der Walt, but we are going to begin tomorrow morning at eleven o'clock.
MR PRINSLOO: As you please Mr Chairman.
CHAIRPERSON: And I want you to seriously consider the matter and work on the basis that you will think very, very hard before you make a further request for adjournments during the hearing.
I would like to avoid any delays once we have commenced at eleven o'clock tomorrow morning.
MR PRINSLOO: Thank you Mr Chairman, I am indebted to your indulgence.
CHAIRPERSON: Yes.
MR BIZOS: Mr Chairman, may I mention something in view of the indication that there is going to be an adjournment in order to get these documents which we fully accept in the circumstances.
We would be the last to stand in the way of the applicants having every opportunity to try and prove their case with in reason. I want to revert to a matter in which the question of onus on the statements that we want to use, having been freely and voluntarily made and without undue influence.
Our learned friend said that the onus is on us to prove that they were. In an inquiry there are no questions of onus and why I raise it now is could our learned friends please prepare their clients and lead evidence in the evidence in chief of the first applicant, as to why he says these statements are not admissible, so that we can canvass that issue as well as part and parcel of the whole inquiry.
Otherwise I hope that it is not going to be contended that we must have a trial within a trial before we can make use of these statements in cross-examination.
JUDGE WILSON: What do you say Mr Bizos, where the statement says "sir, I do not think I can answer without speaking to a lawyer. I am tired and could leave out something. You understand Sir, I cannot answer."
MR BIZOS: That will be taken into consideration in way the validity of the answer. It doesn't make it inadmissible.
CHAIRPERSON: It doesn't place an onus on anybody either.
MR BIZOS: It doesn't place an onus and I may also say with respect that the mere fact that there may be matter in there which may appear to have been uncomfortable for the applicants, the final issue is going to be, are they going to be able to persuade the court that their treatment was such that their statements are false?
All those factors have got to be taken into consideration, even in cases of confessions. I don't want to argue the matter now. What I am appealing Mr Chairman is that we mustn't come back tomorrow and say well, we cannot make use of the statements of the applicants in determining firstly whether they were freely and voluntarily made, having regard to what they have to say about it and whether or not they are admissible.
That will be the question at the end of the proceedings, I submit, and this is not the sort of criminal trial where we have to have a trial within a trial. Let them say what they have to say. They can be cross-examined on it and the Police Officers will be called in order to confirm or negate their complaints.
This is what I suggest ought to happen because I foresee another trick for touch in relation to it and because I indicated originally that I will accept the onus, or that we will accept the onus of proving that they are freely and voluntarily made, I thought it opportune to make this clarification in order that the work of the Committee may proceed in a more orderly fashion.
CHAIRPERSON: I don't want to hear any further argument on this matter. I think Mr Prinsloo and Mrs Van der Walt, it is quite clear that when the representatives of the family of a deceased come here to oppose the granting of amnesty, there is no onus on them to prove or disprove anything. They are here to point out that an applicant's case does not meet the requirements of the Act, they have not made a full disclosure or they are concealing facts, arguments of that kind.
There is no onus under the Act on them to prove or disprove anything. So, I think you should bear in mind that whatever documents are going to be used, maybe used, we are concerned with how much weight we are going to attach to any evidence which has been extracted unfairly or evidence which did not correctly reflect what was said by the witness and so on, we will after hearing the evidence, decide how much weight to attach.
It does not involve the question of onus. This is not a criminal litigation or a civil litigation. I think one should bear that in mind.
Very regrettably I now adjourn this hearing until tomorrow morning eleven o'clock.
COMMISSION ADJOURNS
