Amnesty Hearings — Ermelo — 1998-07-23

MR HATTINGH: Mr Chairman, perhaps we should consider whether the unlawfulness should in any event fall under what is set out in the constitution?    Shouldn't we then say that if this - there is no provision made in the Act, this Act, we have to look at general rules, and as long as it was freely and voluntarily made, it doesn't require any warning regarding legal representation whatsoever, the normal way of proving a, what's called a "buite geregtelike erkenning", extrajudicial admission, the normal way of proving that, but I really do not wish to put a spanner in the works.   My aim would be as best as possible to put the complete picture before this Committee.

CHAIRPERSON: My problem is, and I'm leaning towards what was suggested to you, however not all the nuts and bolts have been cleared up, the problem I have is that if the witness says that this document was not supposed to exist in the first place, can you then continue on the basis that the contents is the truth and say, "Look here, but this is what happened, you say that's what happened, I'm putting it to you this is what happened", can you, as a member of the bar, then correctly say that what is contained in that document is the truth, are you able to put it as a proposition in that fashion, when you're not even sure if it's the truth, essentially two versions that is ostensibly forthcoming from the same source, I'll appreciate your point, one of it is not correct.   Now if that source says that what is in that document was not supposed to be in existence, how do we sidestep that, or how do we overcome that problem?   And in no formal court in our legal system would that be allowed, be it civil, labour, criminal, the lot.   And if we can overcome that, then possibly that suggestion made to you would be the appropriate one, hence I asked you in the beginning, if I were to allow you to put questions to the witness based on the contents of that document, would you be happy to be saddled with his answer, whatever it may be?   The way I understand your argument, you seem to suggest that, despite his answers you want him to go further.   Can I allow you to do that?

MR HATTINGH: Yes, what I would like to hear is his explanation for the discrepancies and the differences on ...(intervention).

CHAIRPERSON: Can we get to that step, if his answer is that, "Look, that document was acquired unlawfully"?

MR HATTINGH: Well, the applicant can say that document was acquired unlawfully, on the face of it, it wasn't, and then we're back to, we're going in a circle and it seems that then we say what - then we have to prove it, then we're back to a trial within a trial.

CHAIRPERSON: Precisely.   And isn't it correct, isn't the position here that you be allowed to put questions based on the contents of that statement to the witness, but then you're stuck with his answers, and if he says that it was acquired unlawfully or it is untrue, or whatever, then that's the end of that particular aspect.   I'm just suggesting to you.

MR HATTINGH: Would that then also be the end of cross-examination on the document altogether?

CHAIRPERSON: I would imagine that there are a number of aspects in the document.   I'm dealing with it aspect by aspect.   If he agrees to some, then you can go further, if he says it's unlawful in some, I would imagine that's where  one has to stop, you're stuck with that answer.   Otherwise we would have to go to this drastic situation of having to prove the whole document, or you can apply to do it, let's put it that way.

MR HATTINGH: Mr Chairman, one obviously is not only hesitating, but I don't think anyone would like to go through a trial within a trial.   However, at the same time, it is as important not to allow a criminal to be released on society if he is supposed to remain in jail for 55 years, that is as important, if he ...(intervention).

CHAIRPERSON: Mr Hattingh, we're not busy with that.   Those who wanted to criticise the process have done so long ago.  The fact of the matter is that all and sundry are taking advantage of the situation.   It was a political decision to have this mechanism, and if people are getting out of jail because of it, so be it, and that's - take my word for it, it's happening across the political spectrum, even those that criticised the process at the beginning, are now taking advantage of it.

MR HATTINGH: Mr Chairman, I know I accept that people will get out of jail, and I have no objection to that whatsoever, I think, I shouldn't take it any further, but what we shouldn't do is just allow a criminal, if it is proven to be a criminal, a criminal acts with no political motivational aims applicable whatsoever, then we shouldn't just say, "Well, ag, everyone's getting out of jail, we're just continuing..." ...(intervention).

CHAIRPERSON: No, no, nobody's going to do that.   We have to be satisfied that a crime was committed for a political reason, in the context of politics, in the context of political struggle.   In addition to that, once the applicant has passed that test, then we must investigate as to whether he's told us substantially everything that needs to be known about that offence, and that's the end of the matter. If he complies with those two requirements, he must be granted amnesty.   If he doesn't comply with the first requirement, then he doesn't get amnesty.

MR BLACK: Mr Chairman, before we, I'm sorry to interrupt, the nature is starting to take its toll on the applicant, he needs to be excused.
COMMITTEE ADJOURNS
ON RESUMPTION

MR HATTINGH: Mr Chairman, if you would allow me, I have made some further notes about - shall I take you through, perhaps they're not going to assist us at all, perhaps we've already dealt with it, but perhaps there may be some ...(intervention).

CHAIRPERSON: I'll listen to them.