Amnesty Hearings — Durban — 2000-07-20

MR SAMUEL: Mr Chairman, before any questions are put to my client, we'd like to object to the cross-examination on the grounds that my client will say that he does not recall, there were a number of people who had asked him questions over various periods, and he can't recall specifically giving this statement to any particular person.  Secondly, he will say that this statement is not signed by him.  So if Mr Visser will lay some basis before putting any questions to my client, I'll appreciate it.

MR VISSER: May I reply to that?  Chairperson, first of all, this is a Commission of Inquiry, where we are trying to find out the truth of matters and where we are not strictly bound to the normal rules of evidence, although one stays as close to those rules as possible.  I'm not producing this document as a confession, I found this document Chairperson, in the docket which became available to us for the first time, yesterday.  It pretends to be notes taken of a consultation and I want to use it for no evidentiary value higher than that.  It's not as if we are asking you to accept this document as proof of the contents thereof, it is simply a document which I wish to use to ask Mr Mbane certain questions, and he can answer and at the end of the day you would be in the position, Chairperson, to weigh up the probabilities on the issues.  And that's as far as it goes.

CHAIRPERSON: Mr Samuel, any reply?

MR SAMUEL: There's no reply, except I'll leave myself in your hands, Sir.

CHAIRPERSON: Yes Mr Visser, you may ask questions on this document, on the basis which is stated by yourself and I can confirm that we will not be using this as evidence.

MR VISSER: Thank you, Mr Chairman.
	Now one of these people of the many people that spoke to you was, at least one of them was a policeman that spoke to you about the matter of Kubheka?

FRANK XHOLA MBANE: I cannot remember.  As I've already said there are a lot of people that asked me questions concerning what was happening in Vlakplaas.

MR VISSER: Did you no policeman ever tell you that they were investigating, the police was investigating the death of Ms Kubheka, and spoke to you in connection therewith?

FRANK XHOLA MBANE: Yes, there are a lot of them, it was not only one policeman.

MR VISSER: Do you know a Capt de Jongh?

FRANK XHOLA MBANE: As I have already said, there are a lot of people who asked me questions, so I cannot remember him.

CHAIRPERSON: No, the question - you say you can't remember, but do you know Capt de Jongh?

FRANK XHOLA MBANE: I cannot remember him.

CHAIRPERSON: Where is he from again, Mr Visser?

MR VISSER: That's the diary, C ...

CHAIRPERSON: Yes I know, but to which police station is he attached, or to which division or ...?

MR VISSER: Chairperson, we would have to speculate, we don't know where he was from, we believe it was the so-called D'Oliviera team, but I don't want to ...  But the point is that this conversation took place at, apparently, at CR Swart Square, but even that may be wrong.  I don't want to limit it too much on facts that I don't know, Chairperson.

CHAIRPERSON: In any event, Mr Mbane says he doesn't know a de Jongh, he can't remember.

MR VISSER: He doesn't know a de Jongh.
	Now would you have told Mr de Jongh that when you went to Durban, it was Andy Taylor and Botha who gave instructions?  Is that something you would have told him?

FRANK XHOLA MBANE: As I have already said, I cannot remember de Jongh, so it is difficult to say that I would have told him, because I can't remember him.

MR VISSER: Mr Mbane, that answer is not going to help.  I'm asking you on a facts of the Kubheka matter which you knew and which you testified to before this Committee, would you have told anyone that Andy Taylor and Botha gave the instructions?

FRANK XHOLA MBANE: I still say that I cannot remember.

MR LAX: May I can help you here.  Mr Mbane, it doesn't matter who you spoke to, I mean even if we were asking you here now, if you were telling us about this incident, and you have already told us about this incident, what Mr Visser's asking you, is it likely that you would have said to somebody that amongst other people, Taylor and Botha gave some of the instructions around this matter?  Is that correct or isn't it?  That's all you're being asked.

FRANK XHOLA MBANE: It might be so.

MR VISSER: Thank you, Mr Lax.
	You would have told any such person that you infiltrated Ntombi Kubheka, would that be correct?

FRANK XHOLA MBANE: Yes, it might be so.

MR VISSER: Wouldn't you have told somebody that, because that's your evidence here?

FRANK XHOLA MBANE: Sir, what I'm saying is, there are a lot of people who asked me questions about this case, so what I'm saying is that it might be possible that I would have said so.

MR VISSER: Well let's try to cut this short.

MR SAMUEL: Mr Chairman, if I may come in at this point.  This document was given to us at a very late stage and my instruction was to object to the document being handed in, and on that basis I have not consulted with my client properly.  I think, in order to take this matter forward, because it seems it's going to go around in circles, if I may have just five minutes to advise my client on this document ...(indistinct)

MR VISSER: Well Chairperson, ...(intervention)

CHAIRPERSON: It's during cross-examination and we've got that rule, but what's your attitude, Mr Visser?

MR VISSER: Chairperson, I wouldn't even object to that, but the point is, my learned friend is obviously doesn't understand what the basis of my cross-examination is, I'm not testing his memory as to whether he remembers a de Jongh, or whatever, I'm asking him basically, whether he would have told anyone else what he told this Committee.  But if my learned friend feels that he'll feel more comfortable if he consulted with the witness, I want to be fair to the witness, as fair as we can, I would have no objection.

CHAIRPERSON: Yes, but if we do that, I see this document contains a whole lot of incidents that wouldn't require any consultation with you, if we could perhaps identify those parts which Mr Samuel should go through with his client.

MR VISSER: Chairperson, I will ...(intervention)

CHAIRPERSON: That's the one that's headed ...(indistinct) Sbu.

MR VISSER: ... I will contain myself to the first, second ...

CHAIRPERSON: Number one, have you got that?  That's the first page and then number two ...

MR VISSER: Second page, the third page, over the page to before "Swartklip - start 1985."

CHAIRPERSON: Stop at Swartklip?

MR VISSER: Yes, just that.

CHAIRPERSON: Yes.  And then the rest is not of any interest to us.

MR VISSER: They deal with other matters, yes.

CHAIRPERSON: So have you got that, Mr Samuel?

MR SAMUEL: I have, Mr Chairman.  The reason why I ask for this adjournment is because the questions are straightforward, but it seems like my client does not understand.

CHAIRPERSON: Yes, I think the questions you could have been asked without any reference to this in any event.

MR SAMUEL: That's right.

MR VISSER: Absolutely.

CHAIRPERSON: Yes, but if you want that five minutes and if that will assist in speeding it up in the long run, we'll take a five minute adjournment to allow you to discuss that ...
COMMITTEE ADJOURNS
ON RESUMPTION

FRANK XHOLA MBANE: (s.u.o.)

CHAIRPERSON: Thank you.  Mr Visser?

MR VISSER: (cont)
	Mr Mbane, having now had an opportunity to consult with your attorney about this document, Exhibit J, ...

FRANK XHOLA MBANE: Yes.

MR VISSER: ... are you now prepared to answer some of the questions which I put to you?

FRANK XHOLA MBANE: I will answer what I know.

MR VISSER: Alright.  Let's just talk about Sbu.  You see, according to Exhibit J - Chairperson, may I suggest that the pages be paginated 1, 2, 3 and 4, it makes it very difficult if we don't do that.

CHAIRPERSON: Yes.