Amnesty Hearings — Johannesburg — UNKNOWN

DR PRETORIUS: If it pleases the Committee learned CommissionersI appear on behalf of the Attorney General, Pretoria office. Since late 1994 the Attorney General's special investigation unithave been involved in an investigation and enquiry concerningthe aspects relating to these three applicants.  I have also seethe heads of argument by my learned friend today and I would liketo refer to these later, if it pleases the Committee.
 Firstly, my learned friend perhaps conceded and that was alsothe attitude of the State right from the start, I must make itclear that the Attorney General is not opposed to any amnestyapplication or the hearing of the amnesty application here, itis simply the integrity of the prosecution which is in issue. So we would like to oppose
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the application for subpoenas, firstly on the basis that it ispremature.  His five applicants are now applying for amnesty. At this stage it is totally premature and I would like to sketchthe potential prejudice which could follow this kind of procedure.
 The history of the criminal procedure in South Africa has clearlyproved in the past, you might for instance recall we had preliminaryinvestigations in the past as a result of the suggestions andrecommendations of Judge Hiemstra inter alia, that potentialprejudice which could result due to the exposure of too much Stateevidence has been emphasised.  I have also had the privilege ofbeing involved on more than one occasion where evidence, witnessestestified before a Committee and later that led to criminal proceedings. I take here as an example the Boipatong investigation and forinstance the case currently before the Goldstone Commission.
 The potential prejudice locked up in this approach where Statewitnesses are unnecessarily exposed is that we can then obtaina previous record which in later criminal proceedings may be usedto in a tactical and contextual way enquire and investigate theissue and to say you use this and that word before the Truth andReconciliation hearing and today you use a different word andin such a way one can continue ad nauseam to refer to discrepanciesand the minutes tick by as an attempt is made to find discrepanciesbetween the evidence of the State witnesses in the one forum andthe evidence given later.  
 So it is not an issue of the State witnesses not speaking thetruth.  None of us are capable of using exactly the same wordson two different occasions.  So in the 
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history of the South African criminal procedure system and theabolition of the provisional enquiries, it is only too clear thatthere is the possibility of potential prejudice if State witnessesare unnecessarily exposed.
 The first point that the State would like to make is that itis a totally premature application.  The other point which mustbe made is that the office of the Attorney General.. (Tape 1 ends)
TAPE 2A DAY 1
...to be called and then the question could be put to the InvestigatingOfficer, that which you heard from the applicant is that in linewith the image, the picture created in the docket that the Statehas or not?  Are there differences of nuances etc?  In this wayrepetition could be avoided.  
 If my learned friend simply wants to use this evidence for corroborationfor a repetition it is not necessary and I maintain that it ispremature.  At the end of their case, if there are then certainproblems, omissions, for instance if there are certain answersonly to be given by Jaap van Jaarsveldt there are methods, thereare ways in which the office of the Attorney General could beapproached to seek a solution for that situation without the necessityfor the witnesses testifying viva voce and be subjectedto long and protracted cross-examination.  So the State is formallyopposing application for the subpoenas.  
 In the same breath we have to say that you must be aware thatthe Attorney General will give his full support to help you inyour very difficult task.  So that must also be stressed.
 As far as the second application is concerned I don't 
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want to dwell on that for too long, that is the application tohave insight in the docket, the Tshabalala decision isreferred to.  This is the wrong forum to bring such an applicationand the Tshabalala did not abolish the State's privilege. It would not be valid for you to say that the docket should nowbe disclosed.  I don't say that it is relevant to this particularcase.  It's obvious that the five applicants in this case areaccomplices and with your experience in the courts you will knowthat there are certain dangers regarding the evidence of accomplices. The cautionary rule, that is a rule which has taken shape inan evolutionary way over a process of time for a very good reasonand it is possible that applicants such as these could stay onthe line of truth because they have such an intimate knowledgeof the facts and simply where it suits them or where it is essentialor crucial you then have an aberration in their evidence.  Soit's imperative that the State looks at the interests of justiceand that the integrity of the prosecution must constantly be guarded. 
 So we therefore formally oppose this application that subpoenasbe issued at this stage for the State witnesses.
 I must tell you I only received the heads of argument this morning,and before I deal with those very briefly it must also be understoodthat each of these witnesses has his own individual interestsat heart.  I went to a great deal of effort to contact all theState witnesses and to ask them what their attitude would be inthis particular case, and here we must make a distinction betweenthe attitude of Mr Joe Mamasela, for instance, and the attitudeof Mr van Jaarsveldt.  And I would like to explain Captain vanJaarsveldt's attitude to you and refer to a letter which I 
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received from his attorney and I would like to hand that in tothe Bench and allow me to just read it into the record.
  "The Chairperson, Committee on Amnesty, Cape Town.
  Sir
  re: Amnesty applications Brigadier Cronje, Colonel Venter, CaptainHechter, Captain Mentz and Warrant Officer van Vuuren.
  We act on behalf of Mr J J H van Jaarsveldt and our client'sname is mentioned in the media as a State witness who will appearbefore the Committee in the interests of truth and reconciliation. It is so that our client is a State witness in the criminal caselaunched by the Attorney General of the Transvaal against theabovementioned people for a case which is contemplated againstthem.  We understand that the Attorney General proposes objectingany application to an application that our client be asked totestify as a witness.  Although we have understanding for thefact that the Attorney General does not want to prejudice thefuture prosecution it is our client's approach that he, at thefirst possible opportunity, will make a full disclosure regardingcertain events and you are therefore notified that our clientis at all times willing to testify before the Commission.  This,however, is based on the State's possible opposition to that andespecially the decision to which your Committee, after considerationof all submissions may reach.  Our application for amnesty hasbeen sent to the Attorney General today and it has been signedby
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  his attorney".
 The reason why I've found it necessary to read this letter toyou is to indicate the attitudes of the State witnesses to showthat they are only too willing to help if necessary.  Neverthelessit is the State's argument in this particular case that it isa premature application and that in truth there will be prejudiceif you accede to this demand at this stage.  
 If there is anything in particular you might wish to ask me aboutthe Tshabalala decision or the disclosure of the docketsyou could perhaps give me an indication.  I ask permission tohand it in to the Bench.