Amnesty Hearings — Johannesburg — UNKNOWN

ADV DE JAGER: You're only now answering on their arguments. Shouldn't you perhaps consider arguing at the end of your case?

UNKNOWN: Mr Chairman I would prefer to do that. All I wanted to do, all I wanted to do is I wanted to make itclear that the submissions made by the representatives of thefamilies that full disclosure was not made is not entirely, atthis stage, a correct submission to make, and I wanted to preventa wrong impression in the media and otherwise about this situation,and about the position we find ourselves in pertaining to thisapplication.  I will make full submissions and I will argue fullyon this matter at the end of these hearings.
 And to the Committee member, His Lordship Mr Justice Wilson,he's 100% correct in saying that one obviously has to argue thismatter after all the witnesses have been heard.  I agree fullywith him.  I just wanted to correct the statements so that theydon't stand uncontradicted at this stage.  Thank you Mr Chairman.

BERNARD MAKGABO NGOEPE: I am sorry, I may be a little bit confusedhere, are we expecting more witnesses in respect of this incident?

UNKNOWN: Not from the applicant's side, the applicantssay they have made full disclosure of whatever they know aboutthis incident Mr Chair.

BERNARD MAKGABO NGOEPE: Well from whom are we expecting more witnesses?

UNKNOWN: I don't know.  It is possible if the
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application is granted pertaining to the use of State witnessesthat Joe Mamasela might shed light on this because he was oneof the askaris who was present apparently when the interrogationstook place.  We don't know.

BERNARD MAKGABO NGOEPE: Well then argument by counsel on behalfof the families is premature.

UNKNOWN: Yes.

BERNARD MAKGABO NGOEPE: If we are still going to hear any evidence.

UNKNOWN: Yes, that's the point His Lordship MrJustice Wilson made, I think.

BERNARD MAKGABO NGOEPE: I mean they shouldn't have argued.

UNKNOWN: Yes.  They will have to come back at theend of the case if other witnesses are called in respect of thismatter to argue the matter fully.

BERNARD MAKGABO NGOEPE: Mr Mpshe are there more witnesses expectedto come and testify in this case, in respect of this incident?

MOKOTEDI MPSHE: I am not going to call any witnesses in respectof this incident.  The legal representatives of the affected familyalso indicated to me that they are not going to put them in thestand.

BERNARD MAKGABO NGOEPE: So for all intents and purposes evidencein respect of this, the Pepco 3 is complete, it's finished?

MOKOTEDI MPSHE: That would be implied.  They are not callinganybody.

BERNARD MAKGABO NGOEPE: Mr du Plessis?

UNKNOWN: Yes Mr Chairman.

BERNARD MAKGABO NGOEPE: For all intents and purposes, as far asapplicant is concerned, with regard to the Pepco 3 the evidenceis complete, there isn't any more witnesses.

UNKNOWN: Mr Chairman there is only the one possibility,as I have mentioned to you, that if the
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application which I lodged yesterday with the Committee pertainingto State witnesses ...(intervention)

BERNARD MAKGABO NGOEPE: No, no apart from that.

UNKNOWN: Apart from that, no, no, it doesn't seemto be that there will be any other witnesses pertaining to thisissue.

BERNARD MAKGABO NGOEPE: So the evidence is closed for this?

UNKNOWN: Yes.

ADV DE JAGER: No, with respect, we haven't given judgementon the Mamasela case, whether we are granting the applicationor not, so I don't think it's a fair question to put at this stage.

BERNARD MAKGABO NGOEPE: No I mean subject to our ruling.

UNKNOWN: Mr Chairman I want to keep that optionopen because Joe Mamasela was present with this whole operationand he might be able to shed a lot more light on the truth andon the facts of this matter than Colonel Venter was able to do.

BERNARD MAKGABO NGOEPE: Mr du Plessis what I am saying is that ...(intervention)

UNKNOWN: I understand exactly what you are saying.

BERNARD MAKGABO NGOEPE: And there is no ruling yet.

UNKNOWN: I understand.

BERNARD MAKGABO NGOEPE: But assuming that the ruling comes to saythat we don't want to subpoena those witnesses there isn't anymore witnesses coming.  We are not going to hear any more witnessesin respect of Pepco 3, I want to understand that.

UNKNOWN: The applicants don't intend to call anyfurther witnesses.

BERNARD MAKGABO NGOEPE: Well that is my impression, my impressionwas 5A that/...
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that subject to that, the evidence is complete.

UNKNOWN: Yes.  If the applicants don't want tocall any further witnesses, and the families don't want to callany further witnesses the only other possible witnesses who mightbe able to shed light are the Attorney-General's witnesses.

JUDGE WILSON: The Attorney General's witnesses are five,he has named other people hasn't he, who were present?

UNKNOWN: Colonel Venter?

JUDGE WILSON: Yes, who are not part of the Attorney General'switnesses who are potential witnesses.

UNKNOWN: Who are potential witnesses that is correct.

JUDGE WILSON: For anybody who wishes to call them.

UNKNOWN: For anybody who wishes to call them, forme as well.

JUDGE WILSON: You don't need our permission, the Committeemay call them.

UNKNOWN: Yes.  Mr Chairman I wanted to add now,while I was saying that there is obviously the section in theAct dealing with the hearing, if I can refer you to the specificsection, section 30 which deals with the procedure to be followedat an investigations and hearings, which says that,
  "If during any investigation by or any hearing before theCommission any person is implicated in a manner which may be tohis or her detriment the Commission shall, if such person is available,afford him or her an opportunity to submit representations tothe Commission within a specified time with regard to the matterunder
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  consideration or to give evidence at a hearing of the Commission".
So it is possible obviously, and that is what I wanted to addto this.  It is possible that the Commission could decide thatcertain of the people named might be offered an opportunity ofpresenting the Commission with representations.  As I understandthat the Commission can decide if it should be written representationsor if it should be representations at a possible further hearing. That is how I interpret the Act.  So I do not want, at this stage,to finally commit myself on saying that everything is closed exceptfor Joe Mamasela.  I cannot do that in the light of this section.

BERNARD MAKGABO NGOEPE: Then I have serious problems.  I don't understandwhy I should in the middle of the hearing and of evidence listento anybody's argument.

UNKNOWN: Mr Chairman I don't either.  There wasa request that there was argument. Mr Chairman I further justwant to stress one point, and that is that we read section 30as saying that in respect of a person that is implicated in amanner in a hearing which may be to his detriment the Commissionshall afford him an opportunity to submit representations or togive evidence.  We do not read it as the task of the applicantsto subpoena or see that any persons who are implicated are subpoenaedto come and give evidence in support of the applicant's application. I just want to make that point clear.

CHAIRPERSON: (Inaudible)...is that the position?

MS HARTEL: That is correct Mr Chair.

CHAIRPERSON: So you can't take this matter any further atthis stage?
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MS HARTEL: No we can't.

CHAIRPERSON: And you didn't propose calling any witnesses?

MS HARTEL: No, those are not our instructions.

CHAIRPERSON: Thank you.  You are excused from further attendance. Mr Mpshe can the speaker of the house not be persuaded to comehere tomorrow morning?

MOKOTEDI MPSHE: Mr Chairman I have made that attempt but I failed. Perhaps since he's in here if he may be called to the fore andthe request be made by the Committee, but I have already indicatedto him and he said it is not possible.