Amnesty Hearings — Pretoria — 1997-02-26

JUDGE MGOEPE: Mr Du Plessis, I have no doubt the Committee will make your ruling but speaking for 
myself, I really don't see any difficulty about that, I can hardly imagine - take an extreme case, take a case 
where a person is according to him, wrongly and falsely implicated and maybe he wasn't even there on that 
day, and yet according to him nothing to do with the incident, you cannot seriously suggest that that person 
couldn't have the right to cross-examine those people who say that he was involved?   Now, I am just 
making my point.  That is the one, that is the extreme case.

ADV DU PLESSIS: I take the point.

JUDGE MGOEPE: I understand your difficulty with regards to, for example, a case and I myself would 
remain curious to what extent Mr -  without intimating that one would limit him, I would remain curious to 
see to what extent a person who admits that he was there, is going to cross-examine the witness when that 
person agrees entirely with the allegations.  But that does not affect the fundamental question of the right to 
cross-examine the person, it only affects the question of the reasonable limit to which that person would be 
entitled to cross-examine.  And I think we should maybe leave it at that point.

ADV DU PLESSIS: Yes, Mr Chairman, in that regard I just want to make this clear, and that is the 
procedure that Mr Visser is following is that he is providing us and the Committee with affidavits, either 
admitting that what was said about his clients are true, or otherwise disputing certain aspects of the 
applicants' evidence. Now if Mr 
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ADV DU PLESSIS: 210

<UNKNOWN>: Visser is allowed, in respect of a dispute, if we take that, because where they admit the correctness of the 
applicants' evidence I don't have a problem.   But if there is a dispute of one of his clients with the 
applicants' evidence, if he is allowed to cross-examine an applicant it would mean that he could place his 
client's version before this Committee by way of affidavit which would not give me the opportunity to 
cross-examine that witness, but he can cross-examine the applicant on that version and put his witness' 
version to the applicant without the applicant having the opportunity to do it vice versa. I haven't 
considered that position yet, but that seems to me to lead to a direction where there might be prejudice for 
the applicants, Mr Chairman, and I am raising that now although that hasn't occurred yet, but it is going to 
occur.  Tat situation is going to occur.

JUDGE MGOEPE: The point is important you're making because it may just happen that even though Mr 
Visser's clients agree in broad terms they may not differ with your clients' version on an important aspect of 
the matter, but that problem, let's see whether that kind of problem arises. Because the fact that he agrees 
with, his clients agree with your clients' version does not mean that there may not be other things on which 
he is not entitled to put questions because they may agree, he may agree but find it necessary to put a 
slightly different complexion on the matter or emphasise in one or two other things and under those 
circumstances he would be entitled to put questions.

ADV DU PLESSIS: Mr Chairman the only reason why I am raising the problem that is going to occur in 
respect of disputes is the fact that, that it is intricately bound to the question, does Mr Visser have the right 
to cross-
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ADV DU PLESSIS: 211

<UNKNOWN>: examine.

UNKNOWN: Yes, I think that this is a matter of some importance, it is a question of interpretation to 
be placed on this Act, and I don't think that any of us can pretend that we have applied our minds in 
interpreting every section or every phrase in the Act.   There will come an appropriate time when we will 
have to take a decision in this matter. Whether that appropriate time is now or at some stage in the future, is 
a matter of which I have not made up my mind.

ADV DE JAGER: Mr du Plessis, a person who gave a command an instruction who is implied, 
implicated in the matter certainly has a right you should be allowed to protect, now if he has a right, what is 
your juridical objection against questions being posed?

ADV DU PLESSIS: Mr Chairman, yes,  like I said, I am not trying to make the point that he does not have 
the right, the point is that the Committee may limit cross-examination in terms of the Act and the point that 
I am trying to make Mr Chair is that should Mr Visser in this instance be allowed to cross-examine will he 
also be allowed to cross-examine in a case where his client has a dispute with one of the applicants?  
Because the Committee has also made this decision.   Should this happen, Mr Chair, the applicant or 
applicants may be in the situation, problematic situation, where they will be confronted by an affidavit from 
the side of Mr Visser's clients, if those persons aren't here, we cannot cross-examine them but he has the 
right to cross-examine the applicants on exactly the same facts.

ADV DE JAGER: You will have the right also to cross-examine him should the facts be disputed, but we 
are trying to limit matters and streamline the procedures and not to become too 
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ADV DU PLESSIS: 212

<UNKNOWN>: technical in the matter and we are trying to keep the process going and to complete it in everybody's 
interest as quickly as possible.

ADV DU PLESSIS: Naturally, yes, Mr Chair, but I have to raise this point because I cannot simply let the 
process, should it be contrary to the provisions of the Act, simply continue and should it later become 
apparent and I don't foresee the problem now that it will be to the disadvantage of or the prejudice of my 
clients, I can't turn around later and say that I have a problem, I have to put it on the table now.

UNKNOWN: We accept the fact that you are placing this on record and my Committee is of the view 
that for present purposes, at any rate at this stage, having seeing the kind of affidavit that has been 
presented on behalf of his client, that if questions are asked, those questions may not go beyond what he 
said in that affidavit. For present purposes we are going to allow that and I am going to appeal to Mr Visser 
to confine, if he has any questions which are relevant, to confine them to what is contained in the affidavit.

JUDGE WILSON: Could I raise a further matter which I think there seems to be some misunderstanding 
about. I understood Mr Visser to agree yesterday, I think when I put something to him, that if there was a 
substantial dispute of fact, he would not be entitled to put up an affidavit from his client, he would have to 
call his client to give evidence which appears to be the problem that Mr du Plessis is now contemplating 
that a dispute of facts will arise on affidavit as I understood the position, it was agreed yesterday that would 
not happen, that where there was to be 
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ADV DU PLESSIS: 213

<UNKNOWN>: a dispute of fact the witness, who was going to dispute the fact, would have to give evidence and you 
would have the right to cross-examination.

ADV DU PLESSIS: Mr Chairman I am not sure that everybody understood it that way, if that is the case, 
if that is the case then obviously I will be entitled to cross-examine any witness who contradicts any of the 
applicants and I am totally happy. I won't have any problem.

UNKNOWN: If I may respond very shortly.   Commissioner Wilson is of course, quite correct, that was in 
relation to paragraph 4 at page 3 of the written representation which we handed in.   I am just beginning to 
wonder whether one shouldn't perhaps give these documents some sort of identification, perhaps "W" for 
Wagenaar 1, 2, 3 and 4.  It may facilitate reference to these documents.  May we mark this exhibit "W 1" 
Mr Chairman?