Amnesty Hearings — Cape Town — 2000-10-03

CHAIRPERSON: Thank you, Mr Botha.  Mr van Eck, are you going to be calling any further witnesses?

MR COETZEE: No.  I beg your pardon Chairperson.  At a stage Mr Barnard's cross-examination was standing down with regard to certain documentation which I believe both Mr Wessels and Mr du Plessis ...(intervention)

CHAIRPERSON: ...(indistinct) to address that.  Mr Wessels, do you wish to have Mr Barnard recalled for further questioning?

MR WESSELS: Mr Chairman, those documents, those two boxes there arrived here in the course of today.  I'm told that those contain the evidence of the Barnard trial.

CHAIRPERSON: So at this stage the possibility still remains that Mr Barnard might have to be recalled, depending on what comes out of your reading of that.

MR WESSELS: Yes.

CHAIRPERSON: Are there going to be any further witnesses called on behalf of any of the applicants?  No.  Alright, that then brings us to the next stage.  Mr Rheede?

MR RHEEDE: Mr Chairperson, for the convenience of my client I'm just going to continue in Afrikaans.  My client has a reasonably serious problem, I must state from the very beginning that he is willing to testify here but he has been approached to make an affidavit in order to facilitate the procedure, but there were two reasons why he will not be making an affidavit.  Firstly, he has reading and writing problems and I would not want him to make an affidavit which he will have to read back in the future.
	Secondly, it is clear from the evidence that there are certain serious incriminating answers which will be requested.  He has not applied for amnesty and he has a certain reputation in the Western Cape, which could have serious problems for his rights and it is my instruction to request, in the light of the fact that the Commission has subpoenaed him in terms of Section 29, that a Section 31 Appeal be made for consultation with the Attorney-General within this jurisdiction or the Chief Attorney-General or the Director of Public Prosecutions, before he could actually be requested to answer these questions. 
	The second point that I would like to offer is that we would like direction regarding who exactly has subpoenaed him as a witness.  It would not appear to be the applicants because it appears as if their cases have been dealt with.  Would it be persons on behalf of the victims or is it the Committee?  This is my respectful submission that this indication will also influence who has the right to cross-examine him, upon which occasions he may be cross-examined.  If it is the Committee that has called him, then he should testify in the final instance, as it would be in a courtroom situation.  If it is on behalf of those persons who were involved in the Athlone Early Learning Centre, then it would be them who have subpoenaed him and they may cross-examine him and then be satisfied with the answers that he will provide.
	Similarly, this applies to the Committee who should be satisfied with the answers that he can provide.  It has emerged previously with this sort of application and I think specifically of Pik Botha's evidence that he gave, and this is an aspect to be clarified.

CHAIRPERSON: Yes, thank you.  Ms Coleridge, regarding the approach to the Attorney-General, has that been done?

MS COLERIDGE: Yes, Chairperson.  I'd just like to inform everybody that Mr Isgak Hardien has been subpoenaed by the Commission.  We have taken it up with the A-G, that is Head of Prosecutions, Chairperson, and as it stands there's no formal prosecutions pending against Mr Isgak Hardien to date, and that is basically the position in terms of prosecution, Mr Chairperson.

CHAIRPERSON: He didn't express any objection to Mr Hardien testifying?

MS COLERIDGE: I've received absolutely no objection, Chairperson.

CHAIRPERSON: Because I was under the impression that Hardien at one stage, although I'm aware that a subpoena was issued, actually volunteered to give evidence.

MS COLERIDGE: That is correct, Chairperson, Mr Hardien has on a numerous occasions indicated that he was willing to testify, but I just informed him that just to secure his presence and in order to also obtain legal representation which he deserves, we issued the subpoena, Chairperson.

CHAIRPERSON: Yes.  Sorry, just bear with us a moment.  So Mr Rheede, what is your client's ...(inaudible) then with regard to testifying?  Is he prepared to testify?

MR RHEEDE: As I commenced, he is prepared and willing to testify, the only problem is that he is afraid of prosecution.  And I state this as a consequence of his reputation in the Western Cape, there is a strong possibility that something like this may indeed take place.  He realises fully that whatever his evidence here, it cannot be used against him in criminal proceedings, but the broad coverage that the proceedings have enjoyed, could plant the seed for prosecution.  And the Act does not state anything specific about indemnity to be granted, but it is my submission that the only reason why there should be consultation with the A-G is for the exploration of the possibility of indemnity and that it indeed be granted.  Why else would there be consultation with the A-G?

CHAIRPERSON: I think another reason is, because the testimony in a forum like this might affect some trial currently on the go or a proposed trial.  But just to deal with that, I'm not arguing with you, is that if there's any possibility of prosecution the seed surely has already been sown by the evidence that has been given by various other people here relating to the activities of Mr Hardien, particularly in relation to the ELC.

MR RHEEDE: That may be so, Chairperson, but we have not yet found ourselves within a position where he himself has sat down under oath and stated precisely what took place.  As it has been indicated by my learned colleagues on my right, there are certain differences in the evidence which has been delivered and that may influence the opinion of the A-G.  If my client comes forward and states under oath precisely what took place, it may have serious ramifications or could influence the final decision for the instatement of prosecution.
	Chairperson, just to add to what my learned colleague has said, my client is not unwilling to testify, he has declared his willingness, however I would like to thank the Committee for the fact that they have obtained legal representation for him.  It is clear to me from the past week's consultation that he did not understand everything that is going on.  For example, it is my instruction that he didn't understand the meaning of the amnesty application and that he never applied, and this is due to basic ignorance.  He is one of the persons here who stands a lot to loose.  There could be very grave consequences that he may find himself in, purely because he was subpoenaed as a witness to testify here.

CHAIRPERSON: Although his role, particularly in the ELC incident has been very central, he's not just an implicated person who is on the fringe of matters, so the reason for subpoenaing him is understandable.  His evidence could certainly throw a light on events and possibly assist the Commission.  Taking that into account and also the fact that he's willing to give evidence, the fact that the Attorney-General has been consulted and the fact, the provisions of the Act which state that the evidence given here shall not be used as evidence in a trial, I believe we should proceed with his evidence.  I don't know if he's ready to proceed now, but when we do, who will lead the evidence?  Will it be Ms Coleridge, or yourself?

MR RHEEDE: Just before I answer that question, Chairperson, I just want to ascertain whether the Director of Public Prosecutions in the Western Cape has been contacted regarding this matter.

CHAIRPERSON: This is what I heard from Ms Coleridge.

MS COLERIDGE: Chairperson, it's Mr Sonn at the Super A-G's office, Chairperson.