Amnesty Hearings — Bloemfontein — 1988-01-19

CHAIRPERSON: You'd could serve them with subpoenas?

ADV MEMANI: No, M'Lord, it was ...(intervention)

CHAIRPERSON: And call them as witnesses.

ADV MEMANI: That is correct M'Lord.  Now, whilst they're here we would like an opportunity to speak to them and hear if they are not prepared to testify on the basis of corroborating our versions.

CHAIRPERSON: Well, haven't you been aware of the discussions that have taken place all morning about Mr Stander's position?

ADV MEMANI: I have been aware M'Lord.

CHAIRPERSON: But why didn't you do something about it then?

ADV MEMANI: M'Lord, it was never contemplated that they would withdraw abruptly.  I don't you expected the witnesses themselves - the victims, to withdraw.  The expectation was that they were going remain as victims and be represented under the auspices of the TRC.

CHAIRPERSON: Well, they have now left.

ADV MEMANI: I believe that they may still be outside M'Lord.

CHAIRPERSON: Do you want a five minute adjournment?

ADV MEMANI: That is correct M'Lord.

CHAIRPERSON: We'll allow you a five minute adjournment now to see if they're still here, could you tell us when you've spoken to them?

ADV MEMANI: That is so.
COMMITTEE ADJOURNS
ON RESUMPTION

CHAIRPERSON: Have you anything to report?

ADV MEMANI: Yes, M'Lord.  We have spoken to the victims, the victims have chosen to remain as victims in these proceedings and they wish to be represented by Mr Mthembu - as victims.  That they will therefore have to - they also wish to apply for Legal Aid Board, on the basis that Mr Mthembu will represent them.

CHAIRPERSON: Where is he?

ADV MEMANI: He was outside a few minutes ago, I don't know if the victims have spoken to him about their desire to be represented by him.

CHAIRPERSON: So, there's not indication that he has agreed?

ADV MEMANI: Well, M'Lord, I don't think that he will have difficulty with agreeing to represent them.

BERNARD MAKGABO NGOEPE: Mr Memani, I'm not so sure - where is Mr Mthembu?

ADV MEMANI: He is outside here M'Lord, I can send the attorney for him.

ADV DE JAGER: Mr Memani, I don't know whether they've - you've considered, or whether he had the opportunity to consider all the consequences of this.  I don't know whether they may be a conflict of interest between the victims and the applicants and he's acted for the applicants up to now - okay, he's with withdrawn, but I think at least he should apply his mind to it.

CHAIRPERSON: Mr Mthembu, we've just been told that the victims have said they will continue and they now want you to act for them.  I don't know if they've spoken to you but Mr de Jager has just raised the very cogent point, that there may be a very grave conflict.  You have up to now, acted for the applicants and taken instructions from them and obtained information from them, it might b completely improper for you to act for the victims.

MR MTHEMBU: Mr Chair, I do agree with you.   I also do foresee a conflict in that I have acted for Mr Motsamai and Ngo previously and I did consult with them and now if I have to act for the victims, I also foresee a conflict.

CHAIRPERSON: So you would not ...(intervention)

MR MTHEMBU: I don't think it would be proper under the circumstances.

CHAIRPERSON: I don't know whether the victims heard that, but Mr Mthembu quite properly in my view, foresees the possibility of a conflict and is not prepared to act for them - a conflict of interests and information, do you understand what I'm saying to you and what he said?
	Could you explain to them?

BERNARD MAKGABO NGOEPE: Let me try to explain in Sotho, although I'm not proficient in Sotho, but you will understand.  I will start from the beginning about Mr Stander's case.  You were here this morning - are you?

VICTIMS: Yes.

BERNARD MAKGABO NGOEPE: You understood that Mr Stander wanted the Truth Commission to pay, or let me say - the Truth Commission helps people like you to pay for your legal fees, it's all over the country.  The Truth Commission says it pays a certain amount per day and Mr Stander wanted the Truth Commission to pay higher.  The Truth Commission said: "We cannot pay higher because all our lawyers would demand that amount as we pay per individual case".
	Mr Stander said: "If you are not going to pay me the amount I've demanded, it is better for me to withdraw because the Truth Commission cannot pay that amount because it will cause problems - that lawyers all over the country would demand that amount Mr Stander was looking for.
	The Truth Commission has it's own layers who are permanent employees of the Truth Commission, who help victims without lawyers.  The other one is Mr Mpshe, the other one is Mr Brink and they are employed by the Truth Commission for victims who come here without lawyers will be helped by them.  
	In other cases you'd find that there are victims who have lawyers but don't have money, therefore the Truth Commission will be able to pay that lawyer but that lawyer should accept the money or the amount paid by the Truth Commission.  Mr Stander didn't agree with that part of payment, then we told you that lawyers who are employed by the Truth Commission would be able to represent you, then you said you don't want that lawyer.
	Again after that, you said you are withdrawing, then you spoke to Mr Mthembu.  Mr Mthembu was representing Mr Ngo and Mr Motsamai and he's afraid that if he's going to represent you, further down the evidence of the two applicants will be in accord with your evidence and in that case there will be a problem of conflict of interest, do you understand?  
	I'm not deciding on your behalf.  If you want your evidence to be in front of this Committee, it would be better to use the lawyers who are hired by the Truth Commission.  They go to all the sittings around the country to represent victims like you who are not able to afford lawyers.  If you want that lawyer to represent you, it's up to you.  
	You should understand why Mr Stander withdrew - the money he wanted or he claimed was too much and the Truth Commission was not able to pay.  If the Truth Commission agreed to pay that amount to Mr Stander, it would create some problems in the future because all of them - all lawyers who are representing victims, should be paid equal amounts.  
	What do you think now?  Do you want to ask something?  Is there anything you want to ask - to know, you want to ask for clarity?

VICTIMS: (No English translation)

BERNARD MAKGABO NGOEPE: Some of these lawyers went to other cases but this one has always been around - present in this case, so you won't be able to start with somebody new who has not been here to listen to this case - he does not know what happened before.

VICTIMS: (inaudible)

INTERPRETER: The speaker is not at the microphone.

BERNARD MAKGABO NGOEPE: (No English translation)

VICTIMS: (inaudible)

BERNARD MAKGABO NGOEPE: Sorry?

VICTIMS: (inaudible)

BERNARD MAKGABO NGOEPE: Yes.  Those who are present - no problem, we will start with them if they are willing to give evidence, but you should understand that Mr Brink is here to work.  You understand his duty?
	Yes, Mr Brink is one of the people who have been hired by the TRC and he's paid by the TRC but the TRC is prepared to pay for other lawyers but only if they agree to the amount set by the TRC.  Now, do you agree to be represented by Mr Brink?  Do you want us to adjourn for a few minutes so that you can decide?

VICTIMS: (inaudible)

INTERPRETER: The present speaker is not at the microphone.

BERNARD MAKGABO NGOEPE: Is what I'm saying put across to them?.  May I just - the gentleman, yes?

WITNESSES: ...[inaudible]

ADV DE JAGER: I think it's not coming through the record, what they're saying and I don't know whether it should be on record, if so we'll have to arrange for a microphone please.