Amnesty Hearings — Ermelo — 1998-07-22

MR HATTINGH: Firstly, the incident I believe they refer to does in fact form part of the Black Cat incident to the extent that other matters relating to robberies where the allegation is made that robberies were committed with a view of obtaining money and/or weapons to fight the Black Cats, as a general statement.  This other incident boots and all forms part of this scenario in this area.  Perhaps if you can just remind me of the first part of your question.

CHAIRPERSON: According to the Act, information and factors pertaining to a particular incident remain privilege until such time that particular incident becomes a matter for public hearing.  I think I understand the law correctly.  We know now that in respect of one of the incidents mentioned in this statement that we are now discussing, that incident is still very much under investigation.  It is not ready for hearing.  It has not been announced or declared hearable yet.  Because of that, the applicant in respect of that particular incident acquires certain rights in respect of privilege.  How do you overcome that kind of problem in your attempt to cross-examine him on that issue?

MR HATTINGH: Mr Chairman, I believe that this Amnesty Commission hearing is conducted in terms of the Act and that we'll find whatever rules and regulations there are we will find in the Act and not beyond that, unless the Act specifically makes provision for another set of rules for a more practical execution of certain of the workings of the Commission.  However, if one has regard to section nineteen (19) of the Act, Promotion of National Unity and Reconciliation Act, it is stated that
"Upon receipt of any application for amnesty, the Committee may return the application to the applicant and give such directions in respect of the completion and submission of the application as may be necessary, or request the applicant to provide such further particulars as it may deem necessary.  The Committee shall investigate the application and make such enquiries as it may deem necessary."
Now, from the outset it would appear that we are dealing here with an application and not with an incident on my reading of the Act.  So, we're dealing with the application and we have the application of this applicant, six murders, and we have that application before this Committee today, number one.  Number two is, in section eight (8) ... (intervention)

CHAIRPERSON: Let me correct you.  We're dealing with two applications.  There is an application being processed in respect of an incident.  That is referred to in that statement we are discussing, but not yet declared hearable.  It is still in the process of being made hearable.

MR HATTINGH: Mr Chairman, yes, if one only has regard to the second statement of which the status is in doubt, that is true, but if one has regard to the legally competent application, the original application, the form that was filled in which is in fact dealt with before this Committee, then we have that is the application.  Whether the application or the hearing is premature I cannot say.  Whether the documentation is not complete I cannot say, but what I say, the application before this Committee is in fact for six murders.  So, when we deal with an application as set out in section nineteen (19) of the Act, we're dealing with the application, the proper application.

CHAIRPERSON: What if only five were investigated and those five are brought by the will of the Truth and Reconciliation Commission to this hearing, to the exclusion of the sixth one, are you entitled then to delve into the sixth one because it's still being investigated?

MR HATTINGH: Mr Chairman, obviously we were not aware of the fact that it was still being investigated.  I think until ... (intervention)

CHAIRPERSON: I accept that, and my sympathies lie with you.  The fact of the matter is we have now been informed that that is so and we're trying to establish the rules as to cross-examination on that issue.  And hence I ask the question, can we overcome those obvious rights that flow from the application being sub iudice at the moment?

MR HATTINGH: My short answer to that would be that the application, the formal application deal with that.  That application has been made available, a public hearing has commenced.  So, the documentation pertaining to the application has become public property.

MR SANDI: But is that application ripe for a hearing?  Is it ripe for a hearing?  Is it ready for a hearing?  Can it be heard?

MR HATTINGH: Mr Chairman, I'm surprised that it is not ripe for a hearing because there's nothing ... (intervention)

CHAIRPERSON: We all may be surprised, but the point of the matter is that it's not ripe for hearing.  That's what we've been told and it's not before this Committee.  The shortcomings of those who put matters on the roll is another matter.  We're dealing with the factual situation here.

MR HATTINGH: I cannot respond to the question by your learned colleague as to whether the matter is ripe for a hearing.  No, I cannot.

CHAIRPERSON: Now, we're informed that it's not ripe for hearing, it's not before this Committee.  The factors pertaining to that incident is subject to an application.  Because of that, the applicant acquires certain rights.  Can we overcome those problems because of those rights?  That's what I would like to hear you on.  Is it possible to just disregard those rights which he has in this hearing?  Is he not going to be put into a prejudicial position?  Is there no risk of that?  I think that's the art or the purpose of cross-examination in the first place, isn't it?

MR HATTINGH: Mr Chairman, I think and I respectfully submit that if this whole issue of the first statement which was annexed to the formal application was not made an issue and the document itself did not surface at this meeting, I would still have been entitled to cross-examine this applicant on any other issue which could have a bearing on his motives for committing certain acts of robbery which are not quite consistent with a political motive.
	I would not have been restricted only to the incidents for which he makes application.  So, I don't think that the fact that the document has now become available would restrict me from cross-examining without the assistance of the document.  But even so, if a public criminal trial was held, accused was found not guilty and I can get hold of the contents of the police docket, I can get hold of his plea proceedings in the Supreme Court, if I can get hold of the documents that were submitted to the Supreme Court, let's say pointings out or confessions, what would keep me from cross-examining him on those matters even let's say if I did not know about his application in that regard?  I say, "This happened.  I want to cross-examine you on your robbery on that date", and I make use of other documentation obtained from another source and not from the TRC, and I believe I would be entitled to do so and I cannot see on what basis I would be restricted because he made application and the TRC has not yet dealt with the matter.  We don't know how many matters there still are.  How should we tread in this matter.  Ask him first, "We would like to ask you certain questions about a certain incident.  Have you made application?"  "Yes, I have".  "Okay, we're not dealing with that".

CHAIRPERSON: Are you saying that he's not entitled to the right of privilege, that is the applicant?

MR HATTINGH: Mr Chairman, I have not prepared for that, but when one has regard to the Act where it is being dealt with, if you would just bear with me for one moment, I would just go back to the particular section.

MR SANDI: Are you not looking for section 19.8(b) of the Act?