Amnesty Hearings — Vanderbijlpark — 1999-05-10

MR BERGER: And you told Mongezi and Caroline about your involvement in the Boipatong massacre?

ANDRIES MATANZIMA NOSENGA: Yes, that is correct.

MR STRYDOM: Chairperson, I want to object at this stage, my learned friend is putting the one leading question after the other.  Normally that is the right of a person that cross-examines, I will concede that, but if the cross-examiner shares an interest with the witness, so what he wants to hear is Police complicity, and under those circumstances, he cannot put leading questions.  I haven't got authority with me, but I am aware of certain authorities that state exactly that.  I will go a little bit further by stating that it has been placed on record that my learned friend, consulted with this witness, and under those circumstances, I will also say that he won't be entitled to put leading questions to him.

CHAIRPERSON: Yes Mr Berger.

MR BERGER: Chairperson, do you want me to argue?  Chairperson, I don't share an identity of interests with this witness.  I represent certain victims of the massacre, this witness has been cross-examined on a statement that he made to Mongezi, statements which are before the Commission and I am attempting to ask the witness whose memory has been shown to be faulty, whether he agrees with certain evidence.  If he agrees with it, then there is no need to lead that evidence.  If I need to refresh his memory as is obviously the case, I submit I am entitled to do so.  I am not badgering the witness in any way, I am simply asking him in a very calm and ...

CHAIRPERSON: The objection is that you cannot just read to him everything and get him just to say yes, yes, to everything.  I think that is the basis.  What do you say to that?  Because you might as well just hand him the statement and ask him to confirm that.

MR BERGER: If there is something that he disagrees with, then he will say so.  My learned friends, when they cross-examine the applicants for example, when Adv Pretorius cross-examined some of the applicants led by Adv Strydom, put leading questions to the witness, isn't that so, and there was no problem with that?

CHAIRPERSON: You just have to respond to what has been said to you.  Very well, no objection was taken to the others, here there is an objection.

MS TANZER: Chairperson, isn't it my place as the legal representative to object, whether the leading question is not being placed fairly to the applicant or not?  I haven't raised such an objection and I don't think, as the legal representative, I submit the question should be continued.

CHAIRPERSON: What is your response Mr Strydom to what Mr Berger has said?

MR STRYDOM: Chairperson my response is that Mr Berger, or the people he represent, does share to some extent identity of interest and the basis of my objection is that if there is an identity of interest, then a cross-examiner cannot just put leading questions.  That is the first leg and the second leg, although he didn't get to that stage and I would probably object at a later stage if that is going to happen, if he is going to put certain things that happened during a consultation he had with this witness, but at this stage the objection is that, what I put is that there is in fact an identity of interest in that the family wants to show, to prove that the Police were involved, and this witness is saying exactly that in his evidence, and therefore I would say leading questions would not be allowed.  Chairperson, can I just add something ...

CHAIRPERSON: Mr Strydom, we are mindful of the fact that the witness is being led, we are mindful of his answers to these leading questions, it seems to me that that is a matter that should affect the weight to be attached to that kind of evidence.

MR STRYDOM: Yes Chairperson, if I can just add one thing and that is that if certain allegations can be put now, what happened during consultation when Caroline Nichols was present, this objection will be the same because Caroline Nichols is a partner of the firm that represents the witness.

CHAIRPERSON: We are mindful of the background to this case.  We are aware of that.

MR STRYDOM: Thank you Chairperson.

MR BERGER: Chairperson, could we take the adjournment now?

CHAIRPERSON: Have you finished covering this point?

MR BERGER: No, I haven't finished.

CHAIRPERSON: Well, just finish this point first before we adjourn.

MR BERGER: Chairperson, it relates to the objection taken by Mr Strydom, could we please have an adjournment at this stage?

CHAIRPERSON: What is the purpose of the objection Mr Berger?

MR BERGER: The purpose of the objection?

CHAIRPERSON: The purpose of an adjournment, because I am giving you the opportunity now to round up the point that you have just canvassed so that by the time that we take the adjournment, you can move on to another point.  Unless you are telling me you don't know whether to continue with the cross-examination or not?

MR BERGER: Chairperson, I just want to consider a position at this stage.

CHAIRPERSON: Yes, we will take the adjournment and come back at half past eleven.
COMMITTEE ADJOURNS
ANDRIES MATANZIMA NOSENGA

CHAIRPERSON: Okay, it has occurred to me that Mr Mey who appears for Mr Chaka and the Police Officer known as Rooikop, was not given the opportunity to cross-examine the applicant.  What we propose doing is to allow him the opportunity to do so once the victims' representatives have finished their cross-examination.  You may continue Mr Berger.

MR BERGER: Thank you Chairperson.   Chairperson, we have considered our position during the break and we considered our position over the weekend as well, and we have also taken advice from certain senior Counsel as well, the allegations made by our learned friends for the applicants against us as legal representatives, are very serious although at this stage ... (tape ends) ... and it places us in a very difficult position.  It means Chairperson in our view, that we have to put a version to Mr Nosenga, our version on what happened, he can either agree with it, he can deny it, but either we must put the version Chairperson, or else we must get legal representatives for ourselves to put that version.  Our learned friends have not once come to ask us what is our version, what do we say about these allegations.

CHAIRPERSON: This statement you are making, what am I supposed to make with the statement that you are making?

MR BERGER: It is in response to the objection from ...

CHAIRPERSON: I have ruled on that objection, but that the question is allowed, and that you will continue.

MR BERGER: Chairperson, also in your ruling you said that it will affect the weight of the evidence at the end.

CHAIRPERSON: Everyone knows that leading questions, if you put leading questions, whether in chief or anywhere, it is a matter which affects the weight to be attached to that evidence.  That is how one assesses the evidence.

MR BERGER: Yes Chairperson, but I tried to outline the particular peculiar circumstances in which we find ourselves.

CHAIRPERSON: I understand that Mr Berger, and I have ruled that you can continue cross-examining this witness.

MR BERGER: (continued)   As you please Chairperson.  Mr Nosenga, I want you to try and think back, I know it is difficult, to the time when you were in Leeukop at the beginning of 1996.  Do you remember how many times Mongezi came to see you?

ANDRIES MATANZIMA NOSENGA: I cannot remember very well.  Yes, he did come.