Amnesty Hearings — Johannesburg — UNKNOWN

MR DU PLESSIS: Yes.  The answer to that question is the
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following.  If criminal proceedings should commence, if amnestyis not granted later, those applicants who have been prosecutedalready or have been brought before the court, namely BrigadierCronje, Captain Hechter and Captain Mentz will, in the light ofthe Tshabalala case, in all probability be entitled tohave sight of the statements and documents in the docket.  Ifone reads the Tshabalala case the State has to providevery good reasons why that should not happen.  
 Therefore my submission is that if the dockets are provided tothem now, or if the dockets are provided to them at a later stagewhen they make application to a criminal court to be providedwith the information in the dockets it would make no difference. The only possibility might be, and I must concede that, is thata court might refuse them access to the dockets.  Now the possibilityof that seems, in my submission, remote.  The possibility seems,in the light of the Tshabalala case and the rights of anaccused in terms of the Constitution, remote.  
 Our submission is that the possibility of the availability ofthe dockets to the applicants being refused by a criminal courtin future is so remote that one could actually accept that thedockets would be made available to the applicants in that if theyhave now sight of the dockets or in future sight of the docketswould make no difference.

BERNARD MAKGABO NGOEPE: The other point which I want to ask youabout is that the basis really of your argument is that thesewitnesses could provide corroboration to the applicants.  It soundsa little bit funny that somebody who committed a crime wants tocall witnesses to come and corroborate and confirm that he committeda crime, but
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perhaps that's the nature of proceedings before us.  And the questionof the subpoenas being issued prematurely comes to mind becauseyou see that's the point Dr Pretorius was making I suppose.  You may, you may not beat(?) that corroboration if that is notcontested.  Secondly, you mentioned another ground, you say thatit may be that those witnesses, the applicants may forget certainevents and those witnesses would fill them - would mention certainthings which they would have left out.  I am not sure whetheran applicant is expected to - in making a full disclosure - todisclose anything that he cannot remember.

MR DU PLESSIS: Yes, Mr Chairman thank you very much. That was a very heartening comment. The applicants are so desirousof making full disclosure that they, it seems from your pointof view, want to go further than is necessary and than is requiredfrom the Commission.  The applicants are so bona fide inmaking full disclosure that they say that we don't necessarilywant to stand or fall by our applications.  We want to do everythingin our power to place the truth before the Commission.  And thatis why we say that for the sake of truth we regard it as importantfor the Commission to hear evidence of some of these witnesses. One must remember that in certain instances some of these witnesses,and I am thinking of Joe Mamasela specifically, was involved ina way where the other witnesses weren't present.  I don't wantto disclose evidence but for example he would have spoken to certainpeople to whom the applicants haven't spoken.  So all the applicantscan testify about that is what Mamasela had told them.  Now ifMamasela comes and he testifies and he tells the Commission exactlywhat did he speak to these witnesses about?  What transpired whenhe did 2A certain/...
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certain things alone?  It could help to paint the full pictureand that is what the applicants say. 
 In respect of the question of applicants not being able to rememberyou would have noted that in some of these applications, especiallyCaptain Hechter says that he starts with the background and thefacts of certain matters and he says, I cannot remember anythingabout this matter.  The version that I place before the Commissionin my application is the version of my involvement in this mattertold to me by Paul van Vuuren. I know Paul van Vuuren so wellthat I accept the truth of what he says.  If he says I did somethingthen I believe that and then I apply for amnesty in respect ofthat deed even though I can't remember a thing.  That just goesto show the problem in dealing with matters which occurred tenyears or more ago.  And it is possible that some of these Statewitnesses might throw light upon some of the actions of the applicantswhich might be important in respect of certain of the factorsthe Commission should take into account when the Commission hasto consider amnesty.  
 I specifically want to refer to the grounds in section 23 wherethe Commission has to take into account certain factors to decideif an act was associated with a political objective.  And there,for instance, the legal and factual nature of the act should betaken into account.  The object or objective of the act.  Andthen specifically in paragraph (e) the question of the act wascommitted in the execution of an order.  All these issues we saymight, or the evidence that these witnesses might give might assistthe applicants in firstly remembering certain incidents whichthey haven't remembered up to now, and secondly, in painting afuller 
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picture than they have been able to paint to the Commission becauseof the fact that they can't remember everything.

BERNARD MAKGABO NGOEPE: Just one last thing. I am not trying toinvite you into that argument, you have dealt with that, but it'snot clear to me from the question which was asked by Mr de Jager,I thought I had understood you but perhaps not.  Were you suggestingas the last resort that we could possibly, as the Committee callfor the docket and in the quietness of our chambers, the fiveof us read the docket and then go through the statements by thesevarious witnesses and then decide whether or not a subpoena shouldbe issued.  That is not what you want but were you saying thatas a last resort we could possibly do that?  And would you beprepared to go along with that set-up?

MR DU PLESSIS: Yes we say that if the Commission or theCommittee should not want to make a decision to subpoena thesewitnesses right from the outset and if they want to consider theapplicability of some of the statements of the State witnessesand if they want to take the contents of those statements intoaccount in making a decision if these witnesses should be subpoenaedor not, we say that we have trust in the Committee, we have trustin the procedure and even though we don't know what is containedin those statements we say that if it differs from our versionit would not be the truth and we believe that if those witnesseshad spoken the truth they would corroborate our versions.  Andon that basis we do not have any objection if such a procedureis followed.
 Mr Chairman may I just make one further submission on this point.
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...of the affidavits for purposes of the amnesty applications. That would only relate to the questions should the witnessesbe subpoenaed.  The reason for this is that the applicants obviouslyif there's a discrepancy between their evidence and the Statewitnesses' evidence would obviously want to cross-examine theState witnesses if they give evidence.

CHAIRPERSON: ...indicate that you are prepared to lead theevidence of a witness before you deal with the case of the applicant.

MR DU PLESSIS: Yes Mr Chairman.

CHAIRPERSON: We would require time to consider this applicationwhich you have just made, and what I would like to know from youis would it be possible for you to proceed with the calling ofyour witnesses, not the applicants, but the witnesses?

MR DU PLESSIS: Yes, yes, without a doubt Mr Chairman,yes.

CHAIRPERSON: So that we may not find that we are wastingtoo much time.

MR DU PLESSIS: Yes.