Amnesty Hearings — Cape Town — UNKNOWN

MR DONAN: They are, the Committee will recall that on the previous occasions that I was here and I cross-examined Mr Benzien I cross-examined in relation to crimes against humanity and the crime of torture and I put to him that when he was testifying at the trial of Tony Yengeni it was specifically put to him by counsel who led me, De Villiers QC, that charges of crimes against humanity were being laid or had been laid against him abroad, because while he could not be prosecuted in this country he had committed an international crime and if he ever, the purpose being if he ever stepped over the borders of this country he would be prosecuted for that crime.  And he was given an opportunity before the cross-examination continued to take legal advice and to decide whether he wished to continue to give evidence because he was warned in terms of the common law that what he said could be used one day to incriminate him.  That is what I put to him and he acknowledged more-or-less that that arose and he acknowledged that he then elected to continue to testify, without legal representation he continued to lie, and he was not clear as to whether or not he continued to perpetrate torture.
	What I am proposing to hand in, for the sake of clarity, is the document which was directed to the general secretary of the anti-apartheid movement by my attorneys at the time requesting steps to be taken in London to make it impossible for Mr Benzien ever to leave this country without being prosecuted for the international crime of torture.  
	It is relevant to the attitude that my clients are taking to Mr Benzien and we say that Mr Benzien's case is an individual case in the sense that he was warned that there was such a crime and he took a particular course of action after that.

ADV DE JAGER: But even so torture is a crime in our country and he elected to torture.

MR DONAN: With respect the crime is a - sorry torture is a crime in our country and we have elected to forbid it.  I submit that it will be relevant when the Committee comes to decide whether or not to grant amnesty to torturers, to take into account the fact that what they are indemnifying is an international crime which they may or may not have jurisdiction to indemnify.  They cannot indemnify an international crime, they can indemnify the crime in South Africa, so that if Mr Benzien ever leaves this country, and torture is an international crime, wherever he goes he may be prosecuted and he may be sued.  The leading case in regard to the latter is the case of Pena Arila(?) in the United States' Court of Appeals which deals with the subject, the effective customary law and how people in that position can be sued anywhere else in the world, so that whether - though Mr Benzien may be indemnified here Mr Yengeni and Mr Kruser could take him on anywhere else in the world if he ever stepped over these boundaries ...(intervention)

CHAIRPERSON: I do not think for present purposes we need that document.

MR DONAN: As the Committee pleases, thank you.  Then that is that.  Thank you very much.
WITNESS EXCUSED

CHAIRPERSON: Mr Cook what can you tell us about the availability of your witness?

MR COOK: I tried to phone her over lunch, she was unfortunately attending a meeting and I will have to try and contact her at home tonight, but I doubt whether she'd be available this week, I really have to try my best to get her here.

ADV DE JAGER: Mr Cook, could we perhaps just spell out what the implications are.  You want to use her evidence.  The victims are entitled to test her evidence and to cross-examine her.  Should they not be given that right and if she doesn't appear here we cannot use the evidence which you have handed in.  So it's for you to decide whether you are going to call her or not.  If you don't call her I must just point out to you that we will not be able to consider her evidence and we will have to exclude it.

MR COOK: No it's not my attitude that I don't want to call her, the problem is one of availability.  If she's not available within a day or two or this week I will have to ask for a postponement.

ADV DE JAGER: Mr Cook as psychologists do not perform emergency operations as far as I know, this is a trial which is a - or hearing which is a serious matter, there can be no question of a postponement, we have many, many other cases to deal with.

MR COOK: I will do my utmost best to be able to get her here tomorrow but I can only contact her later tonight.  Please just understand my difficulty.  From my side we had the pre-trial conference on Thursday.

JUDGE WILSON: How much notice did you have of this hearing, a month, two months?

MR COOK: She was available Chairperson to testify today ...(intervention)

JUDGE WILSON: Then why did you release her?

MR COOK: Because Mr Brink said it wasn't necessary.

JUDGE WILSON: But he's only one of the parties, you knew there were other parties involved Mr Cook.

MR COOK: They didn't have instructions at that stage and Mr Donan ...(intervention)

JUDGE WILSON: No, they were appearing on their own ...(intervention)

MR COOK: ...who appeared for the victims wasn't even there.

JUDGE WILSON: The victims were appearing on their own, weren't they, and you knew that that they had been participating and you just ignored them.

MR PAPIER: Mr Chairman if I may just confirm and get the record straight, I'd like to confirm that I had a discussion with Advocate Cook on Thursday, we spoke about this issue thrice, I spoke to him in English and in Afrikaans and with respect he does not seem to have understood my request, it was expressly stated to him that the witness must be here, it is important for the witness to be here, we need to test the validity of her statements.  In fact Advocate Robin Brink's assistant, Advocate Mtanga also made it abundantly clear to Advocate Cook that the victims are not present and they have the right to in fact ask questions and the psychologist must please be here today.  It was said to him thrice by me Honourable Chair in both English and Afrikaans, and I am surprised that my learned colleague has adopted the attitude that he has today.  I thank you.

SISI KHAMPEPE: Mr Cook in the interests of facilitating these proceedings are you not in a position to phone your expert witness with a view of ascertaining whether she indeed will be able to be here tomorrow or the day after tomorrow?

MR COOK: I did phone her over lunch, I spoke to her secretary, she is in a meeting until this afternoon late, I left a message that she should try and phone me back as soon as she finished the meeting otherwise I will try and phone her this evening.  I will do my utmost best, if she can be here tomorrow she will be.

CHAIRPERSON: Just remember Mr Cook unfortunately time constraints on this Amnesty Committee is a very, very important factor.  We have a great deal to do within a very little time and the last thing that we want to do is go around easily agreeing to postponing matters.  We will never be able to finish our work if we are going to be faced with this kind of situation.  So I think that you must try your best and impress your witness ...(intervention)

JUDGE WILSON: It can't be a very important meeting if she thought she was going to be here today, can it?

MR COOK: I don't know what the circumstances are.

JUDGE WILSON: Can you get on to her secretary now and find out?

CHAIRPERSON: If we take a short adjournment would you try and phone her now ...(intervention)

MR COOK: I will phone, yes.

CHAIRPERSON: We will take a short adjournment, try your best and get hold of her and see what you can do.
HEARING ADJOURNS
ON RESUMPTION

CHAIRPERSON: Mr Cook.