Special Hearings — Caprivi Hearings — 1997-08-04

MR COETZEE: If I may put the following on record.  The
 /time now
1B time now is half past two.  These proceedings only started at 12 o'clock through no delay of any of the other people involved in the proceedings.  The time now is half past two.  I am requesting the matter to stand down till tomorrow to take instructions from General Liebenberg, to decide whether we are going to exercise any other remedies or not.  In light of the time period left over for the rest of the afternoon, I feel that the request is reasonable and if this hearing continues at this stage it is highly prejudicial to my client.  If it just stands over till tomorrow morning it is not going to delay the proceedings any more than they have already and at this stage I beg leave to hand up a written request for reasons from the committee.

MR LYSTER: Please feel free to hand up that written request for reasons.  Reasons will be made available in due course.  We have made a ruling that we cannot accede to a request that the matter be stood down and we will now proceed.  We believe that there can be no possible prejudice to your client.  This is an information-gathering or receiving exercise and there can be no prejudice to your client, and I would now insist that we continue.  But we will gladly receive the written request for reasons now.  We will not respond to it now.  Mr Macadam, please.

MR MACADAM: Mr Chairperson, I wish to commence the evidential matters which form the basis of this hearing first by not calling a witness.  I would like to commence by way of a submission from an interested party, Mr Howard Varney, a qualified attorney and duly admitted in the Supreme Court, a person who has experience in the
 /political unrest
1B political unrest that has plagued the Province of KwaZulu/Natal.  He will be making a submission from the Bar.  I will ask not that he be called as a witness, that he take the stand and give evidence under oath.  Had the time constraints been different I would have been constrained to request that the submission be heard from him at the end of the evidence, together with the submissions which may be made by all the legal representatives of persons who are affected by the evidence, but I propose to do so at this stage, firstly because Mr Varney is due very shortly to return to America, to commence full-time studies.  If he is not available when he has to register, those studies will not be permitted to take place.  Secondly, his submission will, of necessity, merely highlight and bring together the enormous amount of documentary evidence which forms the basis of this hearing and it will be convenient for those members of the community, who wish to follow these proceedings, simply to gain the issues in a nutshell, and this could be most adequately expressed by Mr Varney in the course of his submission.  I stress ... [break in recording] ... to give evidence on any aspect.

MR DE VOS: Mr Chairman, before my learned colleague calls Mr Varney to testify, we only received this document a couple of minutes before the lunch break.  We object hearing this evidence in public before we had time to study this.  In terms of the Act, we should be given a reasonable opportunity to obtain documents.  This is, in fact, the third document supplied by Mr Varney.  In fact, it's actually the fourth, and our clients are sitting up in Pretoria and other places.  We beg leave to have time
 /to study this
1B to study this document before Mr Varney starts giving evidence.  We don't know what's in it.  We don't know whether there's any false allegations in it, whether we should ask for an interdict, interdicting him from giving this type of evidence, because we've got more than enough evidence already placed on record in the KwaMakutha trial that apparently, we think, differs from the contents of this document.  Therefore we ask for an adjournment until at least tomorrow morning to study this document, to get instructions from our clients, in order to prepare ourselves.  Thank you.

MR LYSTER: Mr de Vos, the document that you have in front of you contains no further allegations than those which your client already has.  The only reason why we - please let me finish - the only reason why we allowed Mr Varney to make this document, because it was a convenient way for him to draw facts together in order to make his submission.  I can assure you it does not contain any new allegations.  Your client or yourself will not be taken by surprise on any issues.  You will be given a full opportunity to make a submission in rebuttal or otherwise in relation to this document and you cannot or your client cannot be in any way prejudiced by Mr Varney making his submission today.  I stress he is not giving evidence.  He is making a submission and the document can be studied overnight and you will be given an opportunity tomorrow and at the end of the hearing to make a response to that submission.

MR MARITZ: Mr Chairman, I am afraid I have to join the fray.  I don't really understand what's going on here.  It places us in an invidious position and we are being
 /prejudiced.  The
1B prejudiced.  The fact of the matter is that Mr Varney is not going to testify, ergo he's not a witness, ergo he cannot be cross-examined and his opinions, which are obviously subjective opinions, cannot be tested.  Now, we don't know what his expertise is to be able to render these opinions, No 1.  No 2, we do not know who he represents, other than that he is a member of the public, as I am, for all intents and purposes, but which is a bit upsetting is the intimation that Mr Varney will set the stage.  Now, to set the stage one needs an objective person to do so and, by definition, Mr Varney is subjectively involved in the matter and he has his subjective opinions, which may be very detrimental to my clients, those that I represent, and I will have no opportunity of testing those opinions in any way whatsoever.  Furthermore, they can be of no value whatsoever and if you wish to take his submission as a submission on paper, you are free to do so.  We cannot stop you from doing so at all, but to introduce any sort of subjective element into the whole inquiry, I'm afraid won't do.

MR LYSTER: We intend to receive a whole range of submissions relating to the matter which is under focus here and you will be given an opportunity - every interested person here will be given an opportunity to make a submission which will contain perceptions and views different, I have no doubt, to those that Mr Varney will present.  This is a submission based on examination of documents and, as Mr Macadam said, it would have been perhaps more ideal if he had been able to make his submission at the end of or towards the end of this
 /hearing, when
1B hearing, when no doubt you will be making submissions - you, as counsel, will be making submissions as to the interpretation to be placed on these documents, but he cannot do so because he is required to be elsewhere and we are giving him this opportunity to make this submission now.

MR MACADAM: If I could just add one other aspect.  We will give Mr Varney's submission the appropriate weight and evidenciary value or probative value, as we would give any other submission and as we would give any other evidence tested or untested as may come before us.  So the issue - we can't take it much further than that at this stage, but it's a question of giving it it's probative value in due course that it will deserve.  We will weigh up all the evidence and all the submissions and all the other factors.