Amnesty Hearings — Ermelo — 1998-07-22

MS BOSMAN: Mr Hattingh, but surely the question whether he's made full disclosure should only relate to the particular incident.  Each incident must be treated separately unless there is a very, very narrow nexus between the other incident, and this is exactly what this is all about.  The matter was put down for hearing in relation to Black Cat incidents and unless you can show that these incidents are very closely connected it would not be relevant to the issue of full disclosure.

MR HATTINGH: Mr Chairman, I did not understand this hearing to be set down Black Cat incidents.  There's just a mentioning of amnesty applications for a certain amount of people.  We have the amnesty applications in the incidents of Mr Gushu for six murders.  That's what we have.  The fact that the Black Cats feature prominently, that is true, but the whole hearing, as far as we know, there was no indication that this was set down only for Black Cat incidents.  If that was the position then we only need to go to the matter of Mr Msibi.  There was no indication that Mr Msibi was in any way connected to the Black Cats.  So, why then would his incident then form part of this hearing?

MS BOSMAN: Let's assume for argument sake that the Amnesty Committee decided to put these matters down for hearing because they relate to the Black Cats or they relate more or less to the Black Cats perhaps in a different degree, what would your attitude be then?  Do you think that a matter unrelated to the Black Cats should then be relevant in regard to full disclosure of these matters?

MR HATTINGH: Obviously my response to that would be yes, it would be relevant.  I may just add that also the killing of Advice Gwala is absolutely not related to Black Cat activity.  So, that's also another incident which does form part of this hearing.  But be that as it may, what I would submit is that to enable us to test the motives of this applicant, you cannot just keep to only the single incident, you have to look at a wider perspective.  We've heard the background as well.  The background is not the incident itself, but we've heard it.  For the same token, there's no way that one can gauge the modus operandi of this applicant if ... (intervention)

MS BOSMAN: But surely, Mr Hattingh, I don't want to interrupt you unnecessarily, modus operandi may have a bearing on political objective, but full disclosure can only relate to a particular incident.  He's required to make a full disclosure in regard to a particular incident.  I grant you that you may use more incidents to establish political objective, but not full disclosure.  Isn't that so?

MR HATTINGH: I do not accept that, but I appreciate the argument, but at the same time I do not think one can take that incident or take part of the documentation or the formal application away from this hearing.  It should be part of the hearing.  One may be restricted to a particular incident and say, "Well, you're not entitled, this is going to form part of a later hearing.  You're not allowed to cross-examine on that incident", but you cannot take it out of the formal documentation and substitute it with something else, with another source or from another nature.

MR SANDI: Mr Hattingh, I think what is very, very fundamental in your argument is that this Committee does not have powers to determine its procedures to lay down the procedure as to how it will go about hearing these applications.  We're primarily dealing with incidents pertaining to the Black Cats in this hearing and the incident you are referring to seems to have nothing to do with the Black Cats, and that is why it was not going to be part of this hearing.  And I tried very hard this morning and before we adjourned to find out from you as to what exactly you wanted to cross-examine the applicant about, and I specifically asked you if you wanted to cross-examine the applicant to show that there was no political motive in the commission of these various acts, including those which have nothing to do with the Black Cats, and your answer to that was in the negative.  And now that you are arguing, you seem to change your proposition to say now you want to show that there was no political motive in the commission of all these acts for which the applicant has applied.  Is that what you're saying this afternoon?

MR HATTINGH: Yes, then perhaps I misunderstood you this morning.  But all along my aim is to cross-examine this applicant on all relevant facts to show that in his execution of those killings, robberies it was not done with a political motive with the aim of furthering the aims of - the motive of furthering the aims of a political party.

MR SANDI: Ja, but how are you going to do that without making him, in response to your questions, mention names of people in and adverse context?  We have an obligation in terms of the Act to inform implicated persons before a matter is set down and that has not been done in respect of other incidents which have nothing to do with Black Cats.  Sorry, not even victims for that matter in those incidents have been informed.  How are we going to do that?

MR HATTINGH: If I understand you correctly, you say that we may run into a problem where an applicant is forced or compelled to testify and incriminate himself?  Is that correct?

MR SANDI: No, I'm talking about this particular witness implicating other people who have not been notified of this hearing.  They read about it in the newspaper or they see it on TV and we have an obligation to inform those people before the matter is set down.  For that matter, there's even an AD decision on the point.

MR HATTINGH: Mr Chairman, no, I appreciate that and I think this can be avoided by not mentioning the names.  That would not in itself present a problem.  I think in essence I remain my ... (intervention)

MR SANDI: Wouldn't that be too artificial, dealing with such situations without mentioning names?  Wouldn't that be a very artificial situation?

MR HATTINGH: I do not believe so, no.  I think it could be done where the incident is being described and I think one should also keep in mind and not lose sight of the fact that this applicant cannot incriminate himself with regard to that incident because he's already gone through a criminal trial.  He's already been acquitted on this charge and now he wants amnesty for this matter.  So, there is no issue of him incriminating himself.  What I say is this applicant ... (intervention)

MR SANDI: No, I'm not talking about him implicating himself.  I'm not talking about him incriminating himself, I'm talking about him mentioning other people's names, saying they were involved in all sorts of ... (indistinct) in the incidents which are not part of this hearing.

MR MAPOMA: Excuse me, sir.  Just a point of correction, sir.  The incident spoken of here is an incident not where he was acquitted as such, it is an incident where charges were withdrawn against him.  So self-incrimination is very relevant in that particular incident.

MR SANDI: Thank you, Mr Mapoma.

MR HATTINGH: Thank you.  I was made to understood that he was in fact acquitted of those charges.  I think the most important thing is to keep in mind that in terms of section twenty (20), the granting of amnesty is clearly stated under what conditions amnesty can be granted.

CHAIRPERSON: Which are?

MR HATTINGH: The application has got to comply with the requirements of the Act.

CHAIRPERSON: Basically there are two requirements.

MR HATTINGH: And then you get subsection (b), that the act need to be associated with a political motive or objective and then subsection (3), the applicant has made a full disclosure of all relevant facts.  And nowhere in this Act it is stated.

CHAIRPERSON: All the?

MR HATTINGH: All relevant facts.  And my submission would be that nowhere in this ... (intervention)