Amnesty Hearings — Ermelo — 1998-07-22

CHAIRPERSON: Then my initial question still applies.  Was his (indistinct) and his rights being protected when he made those pointings out?

ADV BOSMAN: I don't know whether you are understanding the Chairman correctly.  Are you tendering it as proof of the truth of the content?

MR HATTINGH: Mr Chairman, no I am not tendering it as proof of the contents of the statement, but for the purposes of comparing whatever he told in 1992 with what he is telling this Committee today, and to see whether he is making a full disclosure and whether he is telling the truth.

CHAIRPERSON: Which would you submit is the truth, what he is telling us today or what is contained therein?

MR HATTINGH: Mr Chairman, this witness already indicated during cross-examination that when his statement, the second additional statement was prepared, that was done at the time when he couldn't quite remember all the details of what happened during that period.
	Now, what I would like to submit is that we now have something, a document which where it was noted what he could remember in 1992.  A much better ...

CHAIRPERSON: So you are going to refer to the contents and you are going to confront him with obviously, what would amount to a contradiction?

MR HATTINGH: That is correct, yes sir.

CHAIRPERSON: So you are going to rely on the contents of that document in order to confront him with the contradictions?

MR HATTINGH: I am going to rely on the contents of the document to the extent that I am going to ask this applicant to explain the discrepancies.

ADV SANDI: But Mr Hattingh, I am not quite sure if I follow you.
	Why should you be allowed to cross-examine this witness on the contents of a statement which he is disputing, he is putting it in dispute.  He says I never - I was forced to say those things that are in there and you have said you do not wish to tender that document as proof of what he said.
	I just have a difficulty with what you are trying to say.	  By the way, what is the law today concerning such documents?

MR HATTINGH: Mr Chairman, obviously there were certain amendments to the Criminal Procedure Act or I am speaking under correction, the Act was not amended.  What in fact happened was there were certain reported cases in which the present constitution was interpreted.

ADV SANDI: Yes, there was a constitutional court decision, don't you think it has a bearing on this?

MR HATTINGH: It absolutely has a bearing on confessions being made today and what is required today, but I would submit that full disclosure by this applicant means that if he made a statement at the time and at the time his statement did in fact comply with whatever requirements there were at the time, and while this statement cannot go any way to finding him guilty and convict him on what was said in this statement, then there can be no reason why this cannot be put to him and for him to explain the discrepancies.

CHAIRPERSON: Mr Hattingh, the killers of Mr Steve Bantu Biko, many years ago lied.  They say today they lied in court at that inquest, and they now come with a different version.
	I am not too certain if that version is the truth or not, that is besides the point.  On your argument, it can again be said they are making full disclosure.  How do you explain that?

MR HATTINGH: The way I see it, if the perpetrators of the killers of Mr Biko now, today make full disclosure and say, we did lie at the time, it was a pack of lies, we are now telling the truth, that is full disclosure.
	If this witness says at the time when I made this statement, it was not quite the full truth, because there were various reasons, then that will be full disclosure.  But then we still need to deal with it.
	If we don't deal with it, then there is no full disclosure.

CHAIRPERSON: I gave you that example.  My interpretation of the Act is such that it leans in favour of the applicants.  The assistance must be given to full disclosure in a given time and on a particular aspect, particular incident.
	I do not think that we can throw the whole library at him, all the books and bring in the cavalry and the footsoldiers.  We intend to keep this simple, we are supposed to keep it simple and to the extent that you want to keep it simple to investigate whether full disclosure has been made.
	But to go to such lengths to determine whether full disclosure has been made, I am not too sure that that was the intention of the legislature.
	You may argue the point, I am not too sure whether you can persuade me, but I am just putting my concerns to you.  We are going to get into all types of traps and we don't want a re-run of the criminal trial.  That matter has gone by.
	What do you say about my comments?

MR HATTINGH: Mr Chairman, I do not want to go into the - not at all into the details of the statements, I am not even - would like to give you the gist of why I would like to use the documents, because that would then be to the disadvantage of the applicant if we are not going to use it.
	But what I say is, I am not - I do not intend to go back to his youth.  I do not intend to go back to a tremendous amount of background.  What I want to do is, this applicant is making application for a number of atrocities and actions that he took in the past.  On all of those on which he makes application, he was convicted.
	His reason today for saying I am entitled to amnesty, I comply with the requirements of the Act, is inter alia that at the time I did it for a purpose, a political aim, political motive.
	My opposing the applicant's application is based on the fact that it was not done at the time for a political motive and political purpose, if and this is just - I am not saying this was the position - but if ...

CHAIRPERSON: Where does full disclosure come into the picture then, if that is your basis for objecting?  Either it was for a political motive or not?  It's got nothing to do with full disclosure, which is factual.

MR HATTINGH: If his full disclosure of today as a fabrication of the event, then I believe that I would be entitled to argue and say this is not full disclosure, this is fabrication of the event, this is a pack of lies.

CHAIRPERSON: You can argue in that event, that he doesn't comply with one of the two main requirements of the Act.  You told me on Monday and you repeated today, that the gist of your opposition is that it was not for political reasons that this witness committed all these offences.
	But yet you tried your argument on the right to use that document, you are telling me that you want to use it for the purposes of proving that inadequate disclosure if you want to call it, has been made, or wrong disclosure, or not full disclosure.
	Now, the aspect of full disclosure is quite separate from the requirement of committing an offence for a political reason.  How do you marry the two?

MR HATTINGH: I would say that my main aim would still be whether this applicant acted with a political motive or not, but the only way that we can gauge that and come to a finding whether he acted with a political motive or not, is by way of full disclosure.
	I am not saying in the end that because I may very well say so, but at this stage is, we need full disclosure to get, to test his political aims and motives if they existed at the time.  Without full disclosure we cannot move on to his political aims and contest that whatsoever.