Amnesty Hearings — Kimberley — 1997-10-27

MOKOTEDI MPSHE: That is correct, Mr Chairman.

CHAIRPERSON: Now, right up, up to that, up to there we have complied with the section of the Act.  What happens, what the individual does beyond that point, I do not think lies with us.  We have complied with the Act, we have given notice to him.  Now, we have acquitted our duty and obligations in terms of the Act.  We cannot get ourselves entangled in the situation beyond that, because we do not know what the terms of the employment agreement is between the United Nations and its, and the people that he employs.  Maybe in terms of, the terms of the employment, if they are injured in some countries, they are not supposed to go back to lay a claim or do anything.  We do not know and maybe the United Nations are acting in terms of some kind of agreement, we really do not know, but what I am saying to  you is that we can do no more than comply with the Act, which we are to administer, and we have done that.

PROF DE KOKER: Mr Chairman, you are quite correct and that is why I started out by referring to Mr Cassandra's position as extremely unfortunate.  He seems to be caught between the South African National Law, in terms of which this Committee is acting, and International Law of the United Nations and procedures of the United Nations to which we are ... (intervention).

CHAIRPERSON: Are you sure of what you are saying, Prof de Koker or are you speculating?

PROF DE KOKER: I am interpreting the letters and the communications made both to Adv Mpshe and to myself.

CHAIRPERSON: I would have preferred to be careful about expressing myself on situations which I do not know of and, certainly, I, if the suggestion is that we should convey to him that he can submit representations in writing which is, in fact, a mechanism created by our own Act, I have no problems with that.  We can convey to him that he can submit representations in writing in terms of the Act, but I do not want to find myself traversing areas which I am not sure of.

MOKOTEDI MPSHE: Mr Chairman, if I ... (intervention).

CHAIRPERSON: Anyway, I, sorry.

MOKOTEDI MPSHE: Mr Chairman, if I may, at this juncture.  It has just been whispered to me that Mr Rodney Isaacs is on his way.  Now, pertaining to Mr Cassandra's submitting an affidavit, this I have already done to him in writing, I have got a copy thereof.  I did this on the tenth of October. I will read the last important sentence of my letter to him.  I said,
"I request that you supply us with an affidavit outlining intentions and submissions to the application."
This was on the tenth of October.  It has already been done.  Thank you.

CHAIRPERSON: Well, I suppose when you started talking to us you were telling us about the reasons for the postponement last time and the various people have responded to that.  I do not know if there is anyone who still wants to respond to that.  Otherwise I am going to say we have noted the remarks.

MR TSHOLANKU: Mr Chairman, running the risk of being redundant, at the last appearing when the matter was postponed, a ruling was made by the Chairperson then, Judge Mall, that the so-called implicated individuals will only be allowed room to ask questions in as far as they are implicated.  Now, Mr Chairman, I am not well versed with the procedure that applies, but reading through the Act, it appears to me that each Committee can set procedures that will apply on a particular day.  The query that I want to raise is, is that ruling that was made by the Chairperson in the last postponed hearing binding on this particular Committee?
	My concern is that, my understanding is that a person will only be notified if implicated by the applications as they are sent to the Amnesty Commission.  I am not aware of any implications in the two applications that are made by Walter Smiles and Laurens Mbatha.  I am simply asking for direction in that matter, as to whether that particular ruling that was made in Bloemfontein will also be binding on this particular Committee.

CHAIRPERSON: I am not sure I understand you, but I understand the rulings which was made by the Committee.  In fact, the full Committee a long time ago was that implicated people do not have an automatic right of cross-examination and whether or not, in a particular case, they should enjoy such a right will depend on the circumstances of each case and if granted such a right, it will be enjoyed to a certain extent.  Now, I do not think the sitting in Bloemfontein could have set a new ruling which over, could have overridden the previous one, but if you are talking about this particular case whether, if what you want to know is whether, simply because the Committee in Bloemfontein had said that people would cross-examine, we are today duty bound to say to those people, well, look in Bloemfontein a ruling was made that implicated people could cross-examine and we, you must therefore, in line with that ruling in Bloemfontein, ruling in inverted commas, you are entitled to cross-examine. I do not think that that would be the case.  I do not think a previous, you see the truth of the matter is that whether or not a right of cross-examination can be enjoyed in a particular case would depend on circumstances of that particular case.  So, you cannot make that a ruling before  you are aware of the circumstances of the case and make it in advance.

MR TSHOLANKU: Mr Chairman, I fully agree with what you have just alluded to.  I think that that is exactly what the Chairperson in Bloemfontein said.  I might have put it in a very different fashion.  As I pointed out, Mr Chairman, I am not well versed with the procedure. I just wanted to establish if that is the position and it will also still apply today.

CHAIRPERSON: We are normally inclined to allow implicated people to cross-examine, you know, unless, really, I mean, but we have never really denied any implicated person the right to cross-examine, but the issue can only be properly dealt with after one shall have heard the extent to which a person is or is not implicated and then such a debate, I suppose, can arise when you want to contest the right of an implicated person to cross-examine and you say, maybe, well, he is not sufficiently implicated to warrant the right of cross-examination, but that can only arise after listening to the evidence supposedly implicating that person.

MR TSHOLANKU: Thank you, Mr Chairman.

MOKOTEDI MPSHE: Mr Chairman, if the matters have been cleared, I will now hand over to my colleague who is for the applicants.  Mr Chairman, Mr Isaacs is here in present.  I do not know whether the Chair would like him to come and take a seat and he be questioned about that or I talk to him and find out.

CHAIRPERSON: Talk to him and find out (...indistinct).

MOKOTEDI MPSHE: May I be allowed to ... (intervention).

CHAIRPERSON: Just ask him (...indistinct).

MOKOTEDI MPSHE: May I be allowed to go to him?

CHAIRPERSON: (...Indistinct).

MOKOTEDI MPSHE: I am indebted to the Chair and the Committee.  Mr Chair and the Committee members, Mr Isaacs informs me that they are still looking for that file.  He just contacted the office, the secretary there is still looking for the file and he intends going to the office himself to go and check if the file cannot be found and whatever happens, he will contact Melanie Bergs to inform her whether the file has been found or not.  That is where we are now.

CHAIRPERSON: Can I address myself to you Mr Isaacs, if you do not mind, please?  Maybe you can stand next to a mike.  How long do you think it would take you to, can tell us whether the file can be found or, more precisely, the statement can be found?