Amnesty Hearings — Sebokeng — 1998-07-13

CHAIRPERSON: Good morning ladies and gentlemen.
	Mr Berger, I understand that the team is expanding.  Would you for the record just place Mr Malindi on record?

MR BERGER: Thank you Chairperson.  As from today, Advocate P G Malindi: M-A-L-I-N-D-I will be assisting in the representation of the victims.  As soon as we have finalised the list of which victims are represented by Advocate Malindi, Ms Cambanis and me, we will hand those lists up to the Committee so that we can have finality on who is being represented by whom.

CHAIRPERSON: You do confirm that Mr Malindi do you?

MR MALINDI: I do confirm that Chairperson.

CHAIRPERSON: Yes, very well, welcome to the proceedings.
	Mr Mthembu, may I remind you that you are still under oath.

VICTOR MTHANDENI MTHEMBU: (s.u.o.)

CHAIRPERSON: The one matter that was outstanding as from Friday was the issue of whether or not Mr Berger can make use of a confession in cross-examining the applicant, Mr Mthembu.  Mr Strydom was going to indicate to us this morning the basis of his objections to that line of cross-examination.
	Mr Strydom?

MR STRYDOM: Mr Chairperson, Mr Berger indicated to me that he only wanted to use the one confession of Mr Mkhize and I have had insight of the confession and apart from stating that that confession was made not freely and voluntarily but under duress, on behalf of the applicants we will have no objection is that document is used during cross-examination.

CHAIRPERSON: Mr Berger, do you accept that offer?

MR BERGER: Chairperson, there are two points I wish to make.  The first is that I informed Mr Strydom on Friday that Mr Mkhize's confession was the only confession from amongst the applicants that I had in my possession at the moment that I intend using but that I do have other confessions of people who are non-applicants whose I intend using.  In fact I think I made that clear during the proceedings as well on Friday.
	The second point is Chairperson, that after I showed Mr Strydom the confession on Friday after we had adjourned, he read through it and I asked him what his position was and he informed me that he was objecting to my use of that confession.  I'm somewhat taken aback by his attitude considering that I spent time having to research this point and I would have appreciated it if I could have been notified in advance.

CHAIRPERSON: I suppose you should be thankful of the fact that he has reflected on the matter properly and he has withdrawn his objection to the matter.  In regard to the other confessions perhaps we will follow the same procedure and that is make them available to your colleagues but I think whilst one doesn't want to curtail the cross-examination of the applicant and the use of any document that might be relevant for the purposes of cross-examination, I think one also has to reflect on what would be the fact of putting a confession by somebody else on these applicants and what would be the value of that evidence if any.

MR BERGER: Yes.

CHAIRPERSON: I think one has to bear that in mind in the interest of shortening the time and not burdening these proceedings with undue documents which in the end may or may not give any assistance in arriving at the decision which we have to reach.
	Mr Berger, you may proceed Sir.

MS PRETORIUS: Mr Chairperson, before we proceed, may I just suggest that before these confessions are used, whether we may have insight into them as well the statement of the witnesses that Mr Mthembu was cross-examined on Friday and who were nameless witnesses.  We do not have copies of those statements and I would like to ask Mr Berger if he can give us copies of those statements.

MR BERGER: I have prepared copies for my learned friends and for the Committee.  Perhaps this would be an appropriate point to hand them up.  The first document is a copy from Mr Mthembu's identity document.  You will recall Mr Mthembu said he had a licence for two guns, this copy shows that he has a licence for three guns.  If I may hand them in.  	Chairperson, I believe the last exhibit was Exhibit B so this would become Exhibit C.
	Another document which will then be marked Exhibit D is the confidential memorandum from which I got the information that someone had deposed to an affidavit concerning hitsquads that were operating from the Kwamadala Hostel.  If I could hand that up.  It will be Exhibit D, Chairperson.

CHAIRPERSON: Yes.

MR BERGER: Then as far as the confessions are concerned, Chairperson my submission is that ...[intervention]

CHAIRPERSON: As far as what exhibit?

MR BERGER: It's not an exhibit yet, the confessions.

CHAIRPERSON: Oh, yes.

MR BERGER: My submission is that it's a question of principle or it's a question of law whether or not these confessions are admissible in these proceedings and that it doesn't depend on the contents of the confessions, so I'm quite happy to hand in the confessions when I put them to the witness but I would be loathe, unless the Committee directs me to do so, to hand over all the confessions now because that would take away some of the advantages of cross-examination.

CHAIRPERSON: I think what everyone who is involved in these proceedings must realise is that the purpose of these hearings is to get to the truth as far as that is practical.  It is highly undesirable that this should be turned into either a criminal trial or a civil proceeding.  We will not as a Committee countenance any attempt to convert this inquiry into those proceedings because we do not believe that it is in the interest of everyone involved here that that should happen.  If there are documents that will be used, those documents must as far as is possible be made available to all the legal representatives so that they can prepare.

MR BERGER: I will then do so Chairperson.  If I can then, there are four confessions that I intend referring to and if I could hand them in as Exhibits E, F, G and H.

CHAIRPERSON: I think Mr Berger, you can only hand in these confessions as and when you come to deal with them.

MR BERGER: That's what I wanted to do Chairperson, yes, I perhaps misunderstood you.

CHAIRPERSON: No, no, I'm only referring in regard to making those available to your colleagues not to the Committee.  The Committee can have sight of those as and when you deal with them.

MR BERGER: Well I'm going to deal with all of them now so perhaps it would be convenient for me to hand them in.

CHAIRPERSON: Well if there's one that you wanted to deal with on Friday.

MR BERGER: Yes.

CHAIRPERSON: Hand that one in, let's deal with that one first and then once you've finished that one we can then go onto the next one.

MR BERGER: Chairperson, the next exhibit will then be Exhibit E and that is the confession of Mr Bhekinkosi Mkhize.

CHAIRPERSON: If I may know, how many of these confessions do you intend referring to?

MR BERGER: Four Chairperson.

CHAIRPERSON: Yes, very well.  Is there a way the contents of these confessions can be put to the witness so that we don't have to go tediously through each and every confession or to they not lend themselves to that procedure?

MR BERGER: Chairperson, as far as possible I will attempt to summarise what the confessions say but the whole point of the confessions is that they do say different things and that's what I want to canvass with Mr Mthembu.

CHAIRPERSON: What I want to avoid is having to repeat what each and every confession is saying

MR BERGER: No, I won't be doing that.

CHAIRPERSON: Yes, very well.