Amnesty Hearings — Kimberley — 1997-10-27

SISI KHAMPEPE: Mr Visser, are you able to say, you have just conceded when the Chairperson asked you whether he was saying things in that statement as he is saying in his affidavit before us, are you able to say whether the same affidavit made then is similar to the application that he has made now?

MR VISSER: I am precisely saying the opposite, Mr Chairman.  We just do not know what is in that statement and that is the real reason why we really should have that statement.  If we cannot obtain it, we will, obviously, have to go on without it.

ADV DE JAGER: But, Mr Visser, can't we get the statement from the Attorney-General?

MR VISSER: Mr Chairman, if that existed in the Attorney-General's staff, you would have had it.  We have made enquiries from the very first moment we got involved in this matter and they do not have that statement.  Mr Chairman, in fact, we hoped that it might be in the police docket and we have not seen the police docket yet.

ADV DE JAGER: That is very surprising.  They have studied the statement, they have come to a conclusion on the statement and they discuss the whole statement, so there must have had it in their possession for quite a time and I cannot imagine the Attorney-General giving back a statement that is relevant, he would have kept it in order to cross-examine Smiles whenever he is called.

MR VISSER: I have no doubt, Mr Commissioner, that you are correct.  The only point is that from our enquiries we could not obtain a copy.  Well, they are in Kimberley, if you want to direct questions to them, we can have them brought here and they can answer your questions, but we fully agree with you, Mr de Jager.  The only point that I am making is we could not obtain a copy and what is strange is that it seems that everybody had a copy.

CHAIRPERSON: Apparently, the court did not call him either.

MR VISSER: The court did not call him, no, Mr Chairman.  It was left to Mr Potgieter to call him, obviously, as a witness, who would prove the innocence of the two accused and he was not called.

PROF DE KOKER: And, in particular, Mr Chairman, the defence, who were involved in the drafting of the affidavit of Mr Smiles also did not call him as a witness in the prosecution of their two other clients.

CHAIRPERSON: They might have felt that we had this affidavit here and we will not call him as a witness, it is up to the court to decide whether it wants to call him, because the court is aware of an affidavit in terms of which somebody says, well, I am the one who committed the offence.

PROF DE KOKER: I am not aware, Mr Chairman, that any information about the affidavit was given to the court by the defence lawyers either.  ... be so I have not yet had access to the record which is, apparently, available this morning.

MOKOTEDI MPSHE: On the (...indistinct), Mr Chairman, if I am allowed, the court was aware, because Adv Potgieter, during the cross-examination of this witness Nele, did make mention of it and he was overruled by the court that he cannot admit it.

PROF DE KOKER: So mention was made, but the chief witness, then, the person who accepted responsibility for the incident was not called by the defence, but they simply alluded to the affidavit during cross-examination.

CHAIRPERSON: All right, let us not get bogged down on this.

PROF DE KOKER: Mr Chairman, just the last matter and that is in respect of Mr Cassandra.  Mr Cassandra seems to be in a very unfortunate position as representative of the United Nations.  In that capacity he was injured in the attack while he was acting as an international observer to our country.  As a matter of fact, he appears to be the only international observer to South Africa during the run-up to the elections who was hurt in political violence.  He was informed of the proceedings informally by us and by Adv Mpshe's office too, but it seems, in International Law, as if informal notification is not sufficient to get the attendance and participation of a member of the United Nations.
	Now, I would like to leave his predicament to the Committee.  I was only instructed to argue on his behalf in August, so I have no instructions now, but I would like the Committee to consider his predicament.  Personally, he was very eager to participate and personally he made it clear that he has information which he would like to convey to the Committee, but formally he cannot do so as a representative of the United Nations unless approached formally and through our standing Commission at the United Nations.

CHAIRPERSON: Sorry, I do not understand that.  Can he not, in his personal capacity come and participate?  Could he not, in his personal capacity?  Does he have to come in an official capacity?

PROF DE KOKER: Apparently, that is the stance taken by the United Nations because he was acting as an United Nations observer when he was injured and that seems to leave very little room for him to also act in his personal capacity.

ADV DE JAGER: The trouble is, I think, we have not got jurisdiction outside the boundaries of the Republic of South Africa to enforce people to come and give evidence, but I think it is common cause that he was injured.  Is there anything in particular that would be relevant, and I do not think even if there is we could do something about it, but it is not denied that he has been injured, so he is a victim and he is a, as far as I can see, and it is common cause that a hand grenade was thrown by somebody, at least, and that he was injured while observing.  So all those facts we could, I think it is common cause and we could accept that.  Is there anything apart from that that is relevant?

PROF DE KOKER: It seems, Chairperson, as if the main evidence that could be delivered by Mr Cassandra would be in connection with the negotiations in terms of the peace accord, in terms of which the march was planned.  The assurance is given by the full leadership of all the organisations involved and also communications by the leadership to him personally afterwards while he spent time in hospital.  He was very seriously injured in the attack and he has sustained a limp which he will have for the rest of his life.

SISI KHAMPEPE: Prof de Koker, I think in August the agreement was we would postpone the matter and that if Mr Cassandra was still unable to personally appear before this Committee, we would be willing to accept representations made by him in writing.  I think that that was the agreement and I do not see why that cannot be effected now that he is unable to appear before this Committee personally.

PROF DE KOKER: That is still standing and I believe that is the best solution to our present problem, but the approach would then have to be in terms of our commitments to the United Nations in terms of International Law.  So, it will have to be formal.  Specific questions, they may be broad, but specific questions will have to be formulated in a formal rogatory which will be sent to the United Nations and, as I understood from the summary, although they felt that the approach was informal, they made it clear that they cannot be forced, as you pointed out correctly, to participate, but they will clearly facilitate the process as far as possible if approached in that matter, manner and I would request the Committee to consider doing so.

CHAIRPERSON: I do not, we do not follow the procedure of the United Nations, we follow our own procedure and as I see, from what Mr Mpshe has said we have given due notice, proper notice to Mr Cassandra, I suppose you call him that.  In terms of the Reconciliation Act, we notify victims and that notice has been conveyed to him.  The fax was sent and Mr Mpshe, if what he is saying is true and you have no reason not to believe him, somebody in the office, in the Angolan Embassy told Mr Mpshe that the fax had been received and Mr Cassandra had taken notice of it.  Am I right, Mr Mpshe, in that regard?