Amnesty Hearings — Johannesburg — 1998-04-23

CHAIRPERSON: The first request you make entails postponing the matter or at least not finalising the matter. Which is something that we, unless something extraordinary happens is not likely to happen. We are not likely to grant that. For a variety of reasons. Firstly we were told that your client had been informed some time back about the possible incriminatory evidence against him. And unless we have got sufficient explanation as to why since then he did not make use of the opportunity as he was entitled to in terms of the Act, we see no reason why we should be driven to a point where we should not finalise these proceedings this week as we intend doing.
	A secondly and turning to the nature of the evidence which incriminates your client is not any different from the one that you know of. Namely the kind of evidence that you would expect to be incriminating from Mr Kloppers. Because in most instances, all the previous witnesses did not deport to be testifying directly as to what they heard from your client. They were conveying to us as to what they were told by Mr Kloppers and they were therefore secondary witnesses in that respect. So they are not the primary source of the incriminating evidence against your client. And I think that whatever prejudice your client may suffer as a result of incriminatory evidence that prejudice will be taken care of if your client is given the opportunity to cross-examine the primary source of incrimination. 
	You will recall that the Act gives your client or any incriminated person the right to present their case if not only if they are incriminated. The Act says if they are incriminated to their prejudice. So it is not sufficient simply to say they are incriminated. It must be an incrimination to their prejudice. And therefore as I have said I think that whatever prejudice your client may think that he may suffer as a result of incrimination by secondary evidence that will be taken care of if he is given the opportunity to cross-examine the primary source of incrimination. It is precisely the same nature of evidence that you know of. 
	At any rate yesterday to the best of my ability I took note of aspects of the evidence which could be said or be it in a secondary sense be incriminating of your client. And I had in mind to bring them to your attention. And I have tried to pick them up and to systematise them as far as possible so that if you came in I would read those things to you, those aspects to you and I think they will be of assistance to you. And I would suggest that at an appropriate stage, if you so wish, I could read those areas to you and then you will consider your position as to whether really you want, you think of having the matter postponed so that you ask for the record. And in my mind that does not justify that.
	At any rate I will provide to you those aspects. I have tried to take note of them yesterday. I am going to give them to you. You will consider that and then you will see how far you can take the matter. For now we are dealing with Mr Matthews. And I do not know whether you would like to put him in the same category with the other witnesses. In other words you refrain from whether you want to refrain for now from putting any questions to him until I am going to give you a summary of what they said in incriminating your client. And then possibly if you are so advised, ask them to come back to have questions put to them. In which case we will proceed and finish with him. Then we have to take a short adjournment. Then I give you a summary of the incriminating evidence against your client. Then you take the matter further.

MR DREYER: Mr Chairman if I may just reply? There is only one aspect that I would want to raise again and that is simply the question of my client having had prior notification of the incrimination. It is my clear instruction that when he received such notice it was expressly limited to the evidence of Kloppers and he was only furnished with the application of Kloppers. He was not furnished with any of the other applications. That is why I said at the outset that he did not receive prior notification of the incrimination by the other witnesses. But I have taken note with respect of what the Committee has relayed to me. As far as this witness is concerned I will obviously listen to his evidence and once his evidence is concluded I would appreciate if I can then just look at the note as the Chairman pointed out. And that I think would then put me in a position to make a proper decision in that regard.

CHAIRPERSON: Mr Knoetze?

MR KNOETZE: Mr Chairman if I may? Could Mr Dreyer also please indicate to the Commission whether he is opposing the application for amnesty made by my client, Mr van der Schyff. The reason why I asked this Mr Chairman is we would like to know on what basis that is done if that is the purpose of his presence here. And then also of course whether he tends to call his client so that he can in turn also be cross-examined.

MR DREYER: Mr Chairman and members of the Committee, first of all concerning the first question by my learned friend. My instruction is not on the basis of opposing any of the applications. My appearance before the Committee is simply on the basis at this point in time, to properly see to the interest of my client in view of the possibility of incrimination and on that basis my cross-examination of any witnesses who in fact do so is based. That is the first point.
	Secondly as far as my learned friend's question in respect of the possibility of Oelofse appearing for purposes of giving evidence it is my instruction at this stage in time that he is not going to appear as a witness. He is not one of the applicants for amnesty. If the Committee is of the opinion or anyone of the other members that they have any basis upon which he should be called then those steps must be taken. I would also like to indicate that, that is my instruction at this point in time. Obviously that might change in view of the evidence as it transpired before the Committee. But that is my current instruction. That he is not going to appear as a witness.

MR KNOETZE: Mr Chairman if I may just respond to that. I think that is not the way things ought to be done. I mean it is unfair towards anybody testifying here to be subjected to cross-examination and not have the right to retaliate. I mean one do not have to have a broad imagination to know that any sort of thing can be put under cross-examination and if that cannot be tested then the value of the cross-examination is nil.

CHAIRPERSON: Just on that point. Doesn't that also answer the very curiosity if he puts questions to the applicants, he cross-examines the applicants and he puts his client's version. Eventually his client does not testify, what weight do we attach whatever version was put to your client and how adversely does that affect your client? What weight do we attach to a version which was simply put by counsel but not confirmed under oath?

MR KNOETZE: Well I will argue eventually Mr Chairman that you should attach no value to cross-examination but you will in the mean time be wasting this Commission's time and money.

CHAIRPERSON: We cannot know that because we do not know what concessions the applicants are going to make during his cross-examination. They may agree with him under oath, may agree and confirm certain things which he is going to put across on behalf of his client. And in that sense that is evidence.

MR KNOETZE: Well with respect Mr Chairman I think it will be unlikely in view of what has been said here already but can we then accept Mr Chairman that should they disagree the Commission will rule or you will rule that Mr Oelofse testifies so that he can be cross-examined?