Amnesty Hearings — Johannesburg — 1999-04-13

CHAIRPERSON: Yes.  No, that is something that you might have to deal with outside of these proceedings.  Mr Hattingh, you know, as I have indicated, we have to complete this matter.
	We have provided sufficient time to do so in this session.  It appears to us as if it might very well be in the best interest of the applicant, that he should be represented in the normal course of events.  I understand what you are saying, I understand that you say you can't give a guarantee, but if we were minded to stand this matter down, it would only be for the purpose of allowing sufficient time for the matter to proceed when we reconvene, and to proceed to its finalisation.
	So, you know, I mention this to you just to emphasise that if you request time until Thursday morning, we regard it as a serious request and we regard you as we should, as an Officer of the Court who appreciates the practicalities of the process that we are dealing with.
	We accept the request as being addressed to us not in a light fashion, in a serious way after you had reflected on this matter, and after you had formed some idea as to how much time you would need to be in a fair position to do justice to your client's case.
	We assume that that is the basis upon which you had made the request for the matter to stand down until Thursday morning.
	I think it is just fair that I should mention that to you, that is the way in which we regard your request.  Is there anything else that you want to add before I hear the other parties?

MR HATTINGH: Thank you Mr Chairman, there is nothing that I would like to add, thank you.

CHAIRPERSON: Mr Trengove?

MR TRENGOVE: Mr Chairman, we oppose the request, but let me say at the outset, we have the greatest of sympathy for the predicament in which my learned friend, Mr Hattingh finds himself, and nothing that I say should in any way be interpreted as reflecting on or doubting his predicament as he describes it.
	But, the hearing is not here in the first place to protect his interest, it is here to protect the interest of the applicant and of the other parties participating in this hearing.
	There are a number of us, we all convened on months' notice, for a hearing to commence today.  It would cause all of us expense and inconvenience if the matter were to be postponed.  As far as our side particularly is concerned, in the discussions that I have had with my learned friend, Mr Chaskalson, we thought that the hearing should finish this week, but may run into next week, so that we were quite confident that the two weeks set aside would be more than adequate.
	As far as my own personal position is concerned, I am available this week, I am not available next week, I have to attend a hearing of the Judicial Service Commission in Cape Town for the whole week.  My own position is not important because to be perfectly frank with you, our own planning has been that my learned junior would even for this week, be running, and next week, be running the case on our behalf.
	But his position is that he is clear until the second half of next week, when he also runs into difficulties.  If the matter had proceeded as was planned, those difficulties would not have occasioned my client any inconvenience or prejudices, because we were confident that we would finish before the middle of next week, when his difficulties arise.
	If the matter were however, to stand down until Thursday and then run for a week as we had thought it would, with the possibility of a day or two, then serious prejudice may arise.  There is in the first place, as far as our side is concerned, in the second half of next week, at least Thursday and Friday, my learned junior is not available which would mean that our side would not have an Advocate available to represent us if this matter were to run for a week, as is expected at this stage.
	But as you well know, we always underestimate the duration of these hearings, and when the lawyers' estimate is a week or possibly a bit more, then invariably these things take longer than expected.  If that were to happen in this case, to a hearing which commences only on Thursday, then there is a real risk that the hearing might not finish at all in the two weeks set aside for it. 	
	It is in nobody's interest, not the interest of the Commission, the applicant or any of the objectors, that we should run any risk of failing to complete the hearings in these two weeks.
	So, there is a real risk of very real and serious prejudice to all concerned, if we were to stand down until Thursday on the one hand.  What do we have on the other?  What compelling consideration is there for the request?
	Again, I understand my learned friend's position entirely, but what about his client?  All his client is telling us is that my Advocate withdrew, I cannot or will not offer any explanation for his withdrawal and I now want a postponement to the prejudice and inconvenience of everybody else.  That is simply not good enough.
	If and to the extent that their predicament is of their own making, they don't deserve any sympathy and indulgence.  If for some reason, the predicament was forced upon them for no fault of their own, then you might balance that consideration against the inconvenience, expense and prejudice to the other side.
	But until they explain why the Advocate withdrew and persuade you that it was not a predicament made - of Mr Bellingan's own making, there is no reason to grant them any indulgence at all.
	I understand that my learned friend, Mr Hattingh, who discussed the case with his predecessor, may well have received information in confidence and that information may well be privileged and that he is therefore acting entirely properly when he tells you that he cannot explain to you why Adv Du Plessis withdrew.
	But the same doesn't apply to his client.  He is perfectly at liberty to tell you why his Advocate withdrew, and why his Advocate found it ethically intolerable to continue acting for him.
	If from that explanation it should appear that the predicament is of Mr Bellingan's own making, then there is simply no merit in his request for a postponement.  If on the other hand, it appears that he was the victim of some fortuitous circumstance beyond his control, then that would be a different matter.
	I would submit, I am not going to ask anybody to give evidence and I am not going to suggest that they do, but let's be quite clear, he is at liberty to give you an explanation if there is one.  For as long as he doesn't give you any explanation, you are not required to assume that this predicament is not of his own making.
	So that we have on the one hand no explanation at all for the predicament in which they find themselves, and on the other hand, a serious risk of prejudice and inevitability of costs and inconvenience for all the other parties involved.  On that balance, I submit that there is no justification for a postponement.
	We are in any event busy with the cross-examination of Mr Bellingan, there is very little assistance that he can get from his counsel during that cross-examination.  He has an Attorney who has been involved in the matter from the outset who can assist in the protection of the client in the meantime.  So it is not as if my learned friend will be required immediately, to perform any function which requires him to be steeped in the facts of this case.
	So that no serious prejudice can result.  I would propose that we proceed and complete the cross-examination and re-examination of Mr Bellingan and proceed with this case.
	If along the way, it appears that my learned friend has to perform some function for which he is ill-prepared, if at that stage there is a proper explanation as to why this switch of horses midstream was necessary, the matter might be reconsidered, but I propose that at this stage, we proceed with the hearing.  Thank you sir.