Special Hearings — Caprivi Hearings — 1997-08-06

MR VAN ZYL: Mr Chairman, may I at this point in time - it's Mr Van Zyl speaking - before this witness testifies, there's just certain remarks that I would like to make, if you would allow me at this stage, please.
I understand from the Committee that the position is currently that a decision has been made, a final decision by yourselves to the effect that the witness, Mr Varney, should not be cross-examined and viewed in the light of the time available for his evidence and the time constraints occasioned by the fact that he is leaving the country tomorrow, there will be no time for cross-examination at this stage.  However, there are certain aspects which I would like to place on record in this regard and the first aspect is that the clients represented by myself, about nine in number and two of these have had their names mentioned by witnesses who have already testified.  I assume that there will be no further witnesses, other than Mr Varney, who could possibly implicate any of my clients.
The effect of that and this is my submission that the rest of my clients, other than the two whose names
 /have
2B have been mentioned, although one of them will also be implicated by Mr Varney's submission, that these people have been notified because Mr Varney was to testify before this Commission and during which testimony the persons would have been implicated and if that was not to be the case there would be no purpose in notifying these people.
The Commission this morning indicated ... [break in recording] ... and also in the search of truth.  It's my submission that in not being given the opportunity to cross-examine Mr Varney on certain aspects which relate to my clients and which implicate my clients is not, with respect, the correct way of pursuing the truth.  You have indicated that you will make no findings, but that a finding will be made at a later stage.
What is however worrying in this regard is the fact that a certain value must be placed or attached to Mr Varney's submission and at this stage it's very unclear how this will be done and what value will be attached to his evidence seen in the light of the fact that he will testify without having sworn the oath and without any opportunity for cross-examination.  It also creates a problem for those people who at a later stage must make a finding, seeing as they will not have tested evidence on which to base their decision.
As far as Mr Varney's submission is concerned, it is also my submission that that will be a mere interpretation of certain documents and testimony adduced during the so-called Malan trial last year and that is, in my submission, the function of the Commission and not the function of a witness who, by way of submission, an unsworn submission, then puts forward his version and
 /interpretation.
2B interpretation.
It is also my submission that with the benefit of instructions from certain clients who were authors of some of these mentioned documents that in all probability a very short period of time by means of cross-examination, the correct versions or the versions of our clients could have been put to this witness in order to arrive at the truth and that could also have had the effect that Mr Varney could in respect of certain conclusions and inferences which he has made could perhaps changed these or changed his views.  
It also would appear to a person that in the light of the fact that notice has been given that Mr Varney will testify and I assumed under oath, that such a notification was given to a colleague's attorney, to the effect that Mr Varney's evidence will be the only evidence which will implicate his client.  However, that letter was dated the 1st of August of this year and it would seem as if meanwhile a decision has been taken that Mr Varney will not testify under oath and I would like to enquire to enable me to evaluate his evidence.  I'd like to argue and take certain points of view and in order to be able to do that I would like to know who took this decision and why this was taken.
The prejudice to my clients is, with respect, not only a potential of prejudicial findings which could be made against them, but it's also seated in the fact that there's been wide media coverage of this matter and these proceedings, it will probably be broadcast on the news tonight and also broadcast abroad, also in the press.  Mr Varney's evidence will be quoted or will be referred
 /to.
2B to.  This will have the effect that the image created as regards my clients and insofar as they are implicated, that this could be very prejudicial to their interests and this could mean that they will be permanently implicated in a negative sense.

MR LYSTER: [Break in recording] ... twenty past two.  I understand the gist of the submission that you're making.

MR VAN ZYL: Accordingly they are prejudiced by the current procedure and I have understood that Mr De Vos intends making a submission after Mr Varney's evidence has been led.  As a result of the fact that I was of the view that Mr Varney was going to testify, I am now no longer able to make such a submission, which I would have preferred to do and also in that respect my clients are being prejudiced.
Thank you, Chairperson.