Amnesty Hearings — Vanderbijlpark — 1999-05-19

MR MAPOMA: My submission, Chairperson would be that the witnesses who are called must be the witnesses who are going to testify about the issues which are in dispute and be led only on issues which are in dispute and such issues be dealt with without going into the injuries suffered.
	The applicants have in their applications mentioned that they attacked people there, and the question of whether those people were injured or not is not in dispute.  So I think one of the measures would be for the legal representatives to agree that evidence which must be led here must be evidence which deals with the issues that are in dispute.

CHAIRPERSON: From the very beginning I made that clear but that has not worked out.  Okay, so you say the witness has to be led on issues that are in dispute?

MR MAPOMA: Yes, Chairperson, as far as ...(indistinct) and cross-examination be confined thereto as well.

CHAIRPERSON: What other measures do you have in mind?

MR MAPOMA: Well that is all that I have in mind at this moment, Chairperson, I may think of some other measures as the hearing goes by.

CHAIRPERSON: Yes.  You see because what concerns me is even if you lead witnesses only on the disputed facts, when you're testing the credibility of the witness you are bound to go beyond those issues.  The question is, how far do you go?

MR MAPOMA: I appreciate Chairperson, it's very difficult but I think ...(intervention)

CHAIRPERSON: Because it doesn't help me or anyone to say that there should be compassion.  I don't think that there's anyone who can dispute that.  The only question is, how does one regulate to the cross-examination when one's dealing with matters of credibility, without hampering the right of the applicants to a fair hearing?  How does one draw the line?  Where counsel goes beyond what I consider to be the bounds ...(indistinct), what should be the, you know how does one determine what questions to ask when one is testing the credibility of the witnesses because some of the evidence that we hear is the evidence that I would have thought is common cause or is not in dispute, but nevertheless we have to listen to that evidence.  Issues relating to the poles, you know the Apollo lights, I would have thought that those are matters which ought to be common cause unless the suggestion is that since the attack the lights have moved or are no longer located where they were located at the time, but nevertheless we still have to go through that evidence.  Do you understand what I'm saying?

MR MAPOMA: Yes, I understand.

CHAIRPERSON: I understand the point you are making, that the witnesses be led on the issues that are in dispute, but simply where does one draw the line?

MR MAPOMA: I think, Chair, cross-examination must be limited in whatever manner ...

CHAIRPERSON: Yes, I understand that.

MR MAPOMA: That's one of the measure that can be employed.  Thank you, Chairperson, I don't take it any further.

CHAIRPERSON: Mr Berger, what is your submission on the proposal made by Mr Mapoma?

MR BERGER IN REPLY: Chairperson, I agree fully with the position that you have stated, that even in respect of issues in dispute, cross-examination must go beyond those issues in order to test credibility.  That must be the correct position in law, but  ...(intervention)

CHAIRPERSON: You see the difficulty really that I see is, to the extent that those extent that those are collateral issues, where does one - it's easy to say there has to be a line, and I don't think there is anyone who will disagree with the fact that, with the proposition that there has to be a line and I've talked to counsel in chambers and I have made this point, that people have to be - I understand people may be longwinded in their cross-examination, I can't stop a person when he is just laying a foundation, but how does one limit the cross-examination in a manner which does not interfere with the right of these applicants to a fair hearing?

MR BERGER: Chairperson, yes.  The general rule in cross-examination is that any question asked on an issue which is a collateral issue, the answer that is given to that question is final.

CHAIRPERSON: Yes.

MR BERGER: So there can't be endless cross-examination on collateral issues, that position is clear.  The second thing is, when we lead a witness and we lead a witness on a full story, we do that because we don't want to be seen to be leading in the unacceptable sense of the word, so we say tell your story, and in the process of telling a lot of things which are common cause, so the issue in dispute gets dealt with in a way that isn't leading the witness in the unacceptable manner.  So that's why we ...(intervention)

CHAIRPERSON: Because the - you know the other difficulty that may arise is that you will then have to put a witness onto the witness stand and you'll simply say to her: "Did you see the police and where did you see those police?".  We've got to lay some kind of foundation so as to introduce the witness.  I think it's, there's a difficulty in simply saying you lead the witness on those issues whilst one can safeguard the problem of "why didn't you mention this in evidence-in-chief", on the basis of "I wasn't asked that", but still when that's the very issue that's disputed you can't just get the witness in and say "Did you see the police?"

MR BERGER: No, you can't.  Chairperson, you asked what measures can be taken.  The first is, when it's a collateral issue the question is asked, the answer is given, it's final.  The second thing is that cross-examination shouldn't be repetitive.  And I know it comes back "well, we're laying a foundation", but there's a limit to laying the foundation as well.  And the third point, ...(intervention)

CHAIRPERSON: Well it depends on how ...(intervention)

MR BERGER: How long winded?

CHAIRPERSON: No, how deep your foundation wants to be.

MR BERGER: Yes.  But the third thing about credibility, I understand fully that credibility has to be tested, but it's got to be seen in context, and here we have the context of a woman who is being treated like a rugby ball being ...(intervention)

CHAIRPERSON: No, I think that's just an overstatement.

MR BERGER: Well she's been thrown and she's ...(intervention)

CHAIRPERSON: ...(indistinct) to suggest that.

MR BERGER: No, no, no, I'm not ...(intervention)

MR LAX: He's not talking about counsel.

MR BERGER: I'm not talking about counsel.

CHAIRPERSON: You are talking about the woman.

MR LAX: Yes.

CHAIRPERSON: ...(indistinct)

MR BERGER: No, no, I'm suggesting my learned friend ...(intervention)

MR LAX: It's in the context of the attack.

MR BERGER: I'm not suggesting my learned friends are doing that, I'm saying the attackers.  Sorry if I was misunderstood.

MR LOWIES: ... apologise for misunderstanding.

MR BERGER: The attackers are treating her like a rugby ball and she's being thrown and kicked and punched and all sorts of things are happening to her in a very, very short space of time.  So one has to assess her credibility in that context and one can't, I would submit, keep going into minute detail on and on and on.  That's where, I submit, there has to be a limit to the cross-examination.

CHAIRPERSON: Mr Strydom?

MR STRYDOM: Continue cross-examining?

CHAIRPERSON: No, no, just ...

MR STRYDOM IN REPLY: Oh.  Chairperson, what is also important is her ability to observe because she made certain observations and she said that she saw white people under these circumstances, so I'll have to test her ability and then I'll have to ask her certain questions about other aspects as well just to test that.  That maybe is not a credibility issue, but there's a chance that she can make a bona fide mistake and I must also test that possibility.

CHAIRPERSON: Yes.