Special Hearings — Mandela United Football Club Hearings — 1997-11-24

CHAIRPERSON: The point is of course - again this is a public hearing and we have no right - unless we do in fact have very cogent reasons, we do not have any right to exclude anybody.  That is why I am saying that it will important as far as it can be possible for people to be identified who may in fact be guilty of that particular thing.  We will put our limited witness protection in place.

MRPETER SOLLER: ...[inaudible]

CHAIRPERSON: Yes.  I mean otherwise you can ask the Department of Justice to assist in that matter.  Hanif?

MR VALLY: Mr Chairperson, we have got Mr Koch here from our witness protection grouping and maybe he can assist us in the interim, he can assist with Mr Soller's client or sit next to the family for a while to provide the necessary protection.

CHAIRPERSON: Thank you very much Hanif.

MR VALLY: However, I want to make this point to my colleague Mr Semenya.  We have asked his client to identify members of the Mandela United Football Club to us and under oath she has told us that she couldn't identify them and that she only had nicknames for them.
 There are two things that worry me here Sir.  The one thing is we have been told that there are members of the Mandela United Football Club who have been attending this hearing.  It's a fair question: "Are there any ex-members of the Mandela United Football Club who here?"   We have previously requested his client under oath to identify them for us because she's only given us nicknames and she can tell us unequivocally yes or no whether she can.
 Number two Sir, is this issue of intimidation of witnesses.  We have kept quiet, we have had private reports on Commission level that Mrs Madikizela-Mandela has been contacting witnesses who have been subpoenaed.  We have tried to provide them with witness protection, we need an unequivocal statement from her that she will not contact any witnesses who have been subpoenaed by this Commission.  Thank you Mr Chairperson.

CHAIRPERSON: You seem to have put together two things and I think we should excuse Mr Dlamini for the moment and have him consult with his attorney and we try and find a time when we recall him today.
 You may stand down.

MR MOHAMMED: Thank you Mr Chairperson.

CHAIRPERSON: Now Hanif, you have raised ...[intervention]  Yes?

MR SEMENYA: Chairperson, now we are really calling for some form of protection.  In a large measure it will be considered at least that the accusations in the main have found existence around perceptions that were there but perhaps ...[intervention]

CHAIRPERSON: Sorry.  Order please.  Can people try to settle down, thank you.

MR SEMENYA: Chairperson, perhaps there may be a place ...[indistinct] very limited for those type of perceptions to be somewhere around there in the public domain and in the media domain.  What we're calling for is that for Mr Vally in his position would know a number of things.  Firstly: even as we speak today he's talking about people who are members of the football team - this is now 1997.
 Secondly:  he is making reference that Mrs Madikizela-Mandela was invited to identify - and I use the word, identify members of the football team in a closed Section 29 hearing - I don't know how that was supposed to happen.  Thirdly, surely Mr Vally knows he is going to get an opportunity to put all these things at the time Mrs Mandela takes the stand.
 Fourthly:  now he's making a very profound statement that Mrs Madikizela-Mandela has been contacting witnesses who have been subpoenaed to attend.  I have read the Act - clearly if he has any legitimate basis for the belief that he's now articulating, there are criminal prosecutions which he can start himself without necessarily going into what I believe is just a sensationalism.  
 He's not even disclosing to yourselves Chairperson, that this is the basis upon which he holds that view and to call for your ruling.  If he had information, he is obliged I would submit, to make that information available to the Commission and for the Commissioners to take appropriate measure around those allegations.   Thank you Chairperson.

CHAIRPERSON: I think that the first point is taken with regard to identification in a Section 29 hearing, that I think is a very fair point.  The second matter is - Hanif, are you able to indicate whether there is a basis for your second allegation?

MR VALLY: Very briefly on the first aspect, very briefly Archbishop.  I ask Mrs Madikizela-Mandela - besides the people she produced at the press conference and besides Sizwe Sithole, if she could give me the names of any of her other people and she said she used nicknames for their own protection.
 I said: "Can you give us any help in identifying them"? and she said: "I'm afraid not, I have explained myself here and I cannot go further than that".  Now I'm saying that on the one hand you have the same people I asked her to help me identify being here and on the other hand under oath she said she only knew their nicknames -  I leave that as it is.
 Regarding the second allegation, I notice Mr Semenya has been very careful not to unequivocally say: "I have not contacted your witnesses who have been subpoenaed".  I have got reports regarding Mr Morgan having been contacted, I have got reports that Mr Sithole was at a meeting with her, I have got reports that she contacted Mr Ntombeni and I can possibly go further  - I think I will stop there, thank you Mr Chairman.

MR SEMENYA: Chairperson, maybe if I may, the last thing is that we request Mr Vally to take statements of these witnesses and open criminal prosecutions, I think that's the right thing for him to do.

CHAIRPERSON: It is a very interesting situation and I think that perhaps I need to take counsel with my colleagues and we will probably do that during the lunch break.   Yes?

MR VALLY: Can Mr Semenya not give us an unequivocal answer that his client has not and will not contact persons who have been subpoenaed?

CHAIRPERSON: Will you be able to give that?

MR SEMENYA: I'm able to do that Chairperson.  One day I think my learned colleague will say: "These are the people who have been contacted by your client, these are the circumstances under which they say they were contacted and this is the statement that confirms that they were", I will take that information as I'm professionally duty bound to say:  "Here is the substantive allegation, what is our response" but for now he just mentions two names.  I don't know what Mr Vally thinks I must say about those things.

CHAIRPERSON: We will have to be consulting ourselves and we need to perhaps have fairly substantive material.

MRPETER SOLLER: Mr Commissioner may I - as it pleases you Mr Chairperson ...[intervention]

CHAIRPERSON: I change your name.