Special Hearings — Caprivi Hearings — 1997-08-06

MR DE VOS: Mr Chairman, it's De Vos speaking.  I am virtually in the same situation as my learned friend, Mr Maritz, as instructed by my clients.  Thank you.

MR LYSTER: Thank you, Mr de Vos.  Does anybody else want to place on record what their attitude is?

MR VAN ZYL: Thank you, Mr Chairman, it's Mr van Zyl speaking.  We, of course, would also like to reserve the right to make written representations and arguments at a later stage and we would also like, depending on the questions being asked by Mr Maritz and other senior colleagues of mine, if they do that before me, we would also like to ask a few questions to Mr Varney in cross-examination.  It also will not be a lengthy process.  Thank you.

MR LYSTER: Thank you, Mr van Zyl.

MR OLIVIER: Mr Chairman, I also have no instructions at this stage, but I also reserve the right to make written representations at a later stage.

MR LYSTER: Thank you, Mr Olivier.

MR TOWEEL: Mr Chairperson, my surname is Toweel, on behalf of Colonel van der Berg, and I also reserve the right to make submissions, but I have no cross-examination at this stage.

MR LYSTER: Thank you.

MR GROBLER: Mr Chairperson, Grobler, on behalf of Major-General Joubert.  In the light of the fact that you regarded it very strongly as a submission and in the light
 /of the fact
4A of the fact that all the evidence on which this submission has been based has not been placed before you, we reserve the right to respond at a later stage to it.

MS H KRUGER: Mrs H Kruger.  I am in the same position as my colleague before, and I will deal with the submissions at a later stage.

MR LYSTER: Thank you, Mrs Kruger.

MR DE VOS: It seems I'm the one who is supposed to start, Mr Commissioner, thank you.

MR LYSTER: Thank you, Mr de Vos.

MR DE VOS: Mr Varney, due to the fact that most of the documents that you refer to are in Afrikaans, I'm going to start my cross-examination with Afrikaans.  You are well conversant with that, I believe.  Thank you.  Mr Varney, you were a member and convenor of the ITU.  Is that correct?

WITNESS:   I was on a body ... [break in recording] ... task board, which was a civilian body comprising three lawyers appointed by the Minister of Safety and Security to oversee the investigations of the Investigation Task Unit.  That body was headed up by Senior Superintendent Frank Dutton.

MR DE VOS: Is it correct that I've understood your evidence correctly - here I'm referring to several articles written by yourself, inter alia, the first document by yourself and Mr Jeremy Sarkin, as well as a document, which was furnished to us and that was the Marion report, as well as a second summary of the report, which was given to us about two weeks ago, as well as the last summary of the report, which was given to us on Monday, the 4th August this year, when the hearings commenced.  The information upon which you base your argument or arguments, has that

MR DE VOS: /been collected

MR DE VOS: 4A been collected, gathered by Mr Dutton - is that correct?

WITNESS:   Senior Superintendent Dutton was involved in the investigations and he was the investigation officer in this particular case, so obviously much of what is contained in these reports is as a result of his investigations, but it isn't only gleaned from the investigations of the ITU, much of it is gleaned from an analysis of the documents themselves.  In fact, you will find very little in terms of witness testimony in these various documents.

MR DE VOS: Would you agree that Judge Hugo found that Mr Dutton was not being entirely frank with the Court in the Msane case?

WITNESS:   Did you say Mr Dutton wasn't being frank?

INTERPRETER: The speaker's microphone was not on.

MR DE VOS: May I repeat?   And that he had ulterior motives, especially in his evidence regarding what happened at Iscor.

WITNESS:   With regard to his evidence at Iscor, those were findings that Mr Dutton, or rather Senior Superintendent Dutton made and which he passed on to the Attorney-General.  It was not Dutton's decision to lead that evidence at the hearing.  That was the decision of the Attorney-General and I don't believe that one can -I don't agree with the finding of the Court that because the Attorney-General led Dutton on that particular aspect that Dutton now had an ulterior motive to mislead the Court on the question of security measures at Iscor - he has a part.  I don't believe there's sufficient in there to make a such a finding and I would certainly disagree with it.

MR DE VOS: Would you agree that the Judge also found that some of the State witnesses were prompted and told what to say

MR DE VOS: /by members

MR DE VOS: 4A by members of your investigation unit?

WITNESS:   The Judge made no such finding in his judgment.  What he did do was he raised the potential for such things to happen.  If you read the judgment closely, you will find that he made no such positive finding that members of the ITU had prompted individuals to give certain evidence.

MR DE VOS: Sorry, I can't hear a thing.

MR MACADAM: Sorry, Mr de Vos, the Afrikaans is on channel 1.  The English is on channel 2.  What I'm doing is I'm surfing between the two channels so I can hear both of you properly, but you may want to do that.

MR DE VOS: Mr Varney, can you remember that the witness, Cloete, testified that he was told what to say by members of the task unit, the investigation unit?

WITNESS:   I wasn't in court at that particular time.  I didn't hear all of Mr Cloete's evidence.  I am aware that he proved to be a very poor witness and that he was broken down by the cross-examination of several senior counsel.  I don't recall him saying that he was particularly prompted to say certain things.

MR DE VOS: Would you dispute it if we referred to the judgment of Justice Hugo in this regard, that there was such a finding?

WITNESS:   Well, clearly I won't dispute that.

MR DE VOS: Mr Varney, you are not a military expert.  Is that correct?

WITNESS:   I'm not a military expert, as such, but I have over the past 2 1/2  years been studying these particular documents that I've been referring to for some time.

MR DE VOS: You are an ordinary attorney by profession.  Is that correct?

WITNESS:   Mr Chairman, may I make a suggestion in order to curtail these proceedings?  My learned friend,

MR DE VOS: /Mr de Vos,

MR DE VOS: 4A Mr de Vos, is going through this long-winded process of I am only an attorney, I'm not an expert, and so on.  Perhaps he should simply put his case down on record first.  Put his point to me and then I'll answer it.  I think this is a laborious process, which we really don't have much time for.

MR DE VOS: The witness can't tell me how I should cross-examine him.

MR LYSTER: Yes, you're quite right, Mr de Vos, he can't, but I may make some suggestions as to how to speed the process up, and I think in my initial remarks I said that cross-examination should, if possible, be limited to putting a client's version to the witness and asking whether he agrees with it or not, unless you obviously want to put documents which are not - which you would regard as in dispute, etcetera, but I think if you can try and do what you can to speed up the proceedings I would be grateful.

MR DE VOS: Thank you.  I am at the point where I would like to refer to the documents.  Before I refer to the documents, you were for a number of years an active member of the End Conscription Campaign in Natal.  Is that correct?

WITNESS:   I was, but I think you need to say what the relevance of such a line of questioning is all about.  Are you trying to infer that because I was a member of the End Conscription Campaign and other organizations that were involved in anti-apartheid work in those days that I am somehow not qualified to pass an opinion on these matter?  I think just get to the point.