Amnesty Hearings — Vanderbijlpark — 1999-05-19

MR LOWIES IN REPLY: Chairman, I would suggest - there's a lot of what Mr Mapoma said that I agree with, you are at this stage limiting cross-examination, I know from my own experience, when I want to cross-examine on certain aspects, which normally in a criminal court I would be entitled to, to start afresh on any aspect that Mr Strydom has covered, you limit us and everybody else down the line, so from that point of view I would say yes, there is.
	But my - where I also find common ground with the argument of Mr Mapoma is really, is it necessary to lead evidence regarding a sexual assault?  It reflects badly and that is definitely something which is irrelevant here because you can't get amnesty for it and the applicants are not applying for that.  So that is for instance one instance where I think it's completely unnecessary to lead such evidence.  I have nothing further to add.

CHAIRPERSON: Well you see what Mr Berger is saying as I understand the submission, is that one just can't call the witness into the witness stand and simply ask the witness about the issues that are in dispute, one has to lay some kind of, be it of a background.

MR LOWIES: Oh yes, there we are all ad idem.  I think all counsel is.

CHAIRPERSON: And also, he is also concerned about a witness not mentioning something in the evidence-in-chief and then to be taxed on why you didn't mention that.  Do you understand the ...

MR LOWIES: Ja, but on the other hand say for instance, to come back to the sexual assaults, who can say that that is strictly speaking relevant if we know that it's something that is from a victim's point of view, not nice to talk about.  We don't want to go into that, that I give you the assurance and my, speaking for my clients and myself, we don't want amnesty for something that happened like that, but you have listened to their versions, it's not their versions that they have committed it, unless of course a witness comes and identifies a specific witness, then it's a different story.  But I think strictly speaking we're all talking about the same thing.

MR BERGER: Chairperson, I'm sorry I have to differ.

MS PRETORIUS IN REPLY: Chair, my opinion is that we are being limited, that's why I don't ask many questions, not because I don't want to represent my applicant, but I don't want to repeat what Mr Strydom has said and get another version and test that again.  So we are limiting the time and the questions as far as we possibly can.

MR DA SILVA IN REPLY: Chairperson, I submit that Section 11 is to remind the Committee and the parties, that the victims in an application like this should be treated with compassion.  It is not the rule of law saying that they should be cross-examined any differently than any of the other witnesses that have testified.  If that was the rule it would mean that one set of rules is applied to an applicant, a different set of rules is applied to a witness that's testified.  And I submit with respect, that in the manner that this hearing has been dealt with, it's been dealt with correctly and it can't be dealt with in any other manner.  Unfortunately issues like credibility is an issue that is pertinent in this matter and it can't be dealt with in any other manner.  I can't foresee ...(intervention)

CHAIRPERSON: And there's reliability.

MR DA SILVA: And the reliability of a witness.  Mr Chairman, I can't see how a person can curtail the cross-examination other than what has been done in this Committee.

CHAIRPERSON: Okay.  What do you say about the suggestion by Mr Mapoma, that the witnesses be led only on the issues that are in dispute?

MR DA SILVA: Mr Chairman with respect, I don't think that is practical because an issue, for instance whether police were on the scene or not, that must be seen against the background of the global evidence, and it would be a farce, with respect, if only those issues were led, with respect.  I don't have any further submissions, Mr Chairman.
MR BOTHA(?): Mr Chairman, I align myself with the submission of Mr da Costa(sic) and I have nothing else to say.

MS TANZER IN REPLY: I also align myself with what Advocate Pretorius said and with what Advocate da Silva said, especially in light of the lengthy cross-examination that Mr Nosenga underwent and I do submit that witnesses certainly should be cross-examined to some degree on their credibility the way Mr Nosenga was.  	I also say that in trying to restrict the cross-examination it's really, they're not putting much faith in the Committee itself, the Committee is the body that is presiding over these hearings and they are the body that makes the decision on limitations or when evidence is beyond its reach or not.

CHAIRPERSON: Mr Mey?

MR MEY IN REPLY: Thank you, Mr Chairperson.  I am of the opinion that if I do understand the witness correctly, that her breakdown resulted due to the questions asked about Mita and she didn't mention anything about the sexual assault, that was mentioned by Mr Berger, but I do align myself with Mr Strydom and the others, that it is essential that the credibility must be tested and on her version, on the witness' version the only thing that was in dispute here, what resulted in the breakdown, was the fact that she was questioned about the injuries to the child and not to the sexual assault.

CHAIRPERSON: It seems to me that the problem with Ms Molete arose because she was asked about the baby, which she says she does not, which she says hurt her, but counsel has in the course of indicating the basis of her position, raised the issue of the limits of cross-examination.
	I have now heard the evidence, it seems to me that the Committee must now take a decision as to what would be the proper course to take in these circumstances, noting the objections by Ms Molete and her unwillingness to talk about the baby.  
	We will take a 15 minutes adjournment and then I will come back and make a ruling.
COMMITTEE ADJOURNS
ON RESUMPTION
MACHINE SWITCHED OFF

FLORENCE MOLETE: (s.u.o.)

CHAIRPERSON: Mr Strydom, Mr Lowies, Advocate Pretorius, am I correct in saying that the applicants deny that there were white persons during the attack, whether policemen or otherwise?  Mr Strydom?

MR STRYDOM: Yes, Chairperson.  I will put it this way, the applicants I appear for testified and already denied that white people or police were involved during the attack, but I must add a rider to that.  If some white people participated at some point in Slovo Park or Boipatong, at a stage when my clients weren't there, they won't be able to say if they did something wrong because they didn't see them.
	But my instructions are that there was nothing, they never saw white people and they never police vehicles but implicit in that is that a possibility cannot be ruled out that somewhere in Boipatong or in Slovo Park, whilst my clients were some other place in that area, a white person could have been.  That they can't rule out.  But I will add also that it's my clear instructions that there was nothing said beforehand or no discussions or anything that indicated that whites or police will be participating in the attack.

CHAIRPERSON: Yes, Advocate Lowies?

MR LOWIES: Exactly my instructions as well, Mr Chairman.  As to Mr Vanana Zulu, who is also my client, what I have put is also that he wasn't there at all.  So his is a complete denial and an alibi.

MS PRETORIUS: My position is exactly the same and also that Vanana Zulu was not part of the attack that night, Chairperson.

CHAIRPERSON: You're not representing Vanana Zulu are you?

MS PRETORIUS: I'm not representing him, but the applicant that I am representing also states that Vanana Zulu was not there that night.

CHAIRPERSON: There is the position with regard to the applicants that you represent, Mr Strydom.

MR STRYDOM: That they deny the presence and participation of Vanana Zulu, that is indeed so, yes.

CHAIRPERSON: Alright.  Ms Tanzer?