Amnesty Hearings — Ermelo — 1998-07-22

ADV BOSMAN: Just on a more or less technical point.  The fact that the confession formed part of the trial proceedings, does that not make it a public document of which you as legal representatives can take judicial notice?

MR PATEL: Madam, my problem is this.  I have not seen the document.

ADV BOSMAN: I understand your problem.  I am perhaps looking at it a bit legalistically and then we can move to a solution, but from a purely, strictly legal point of view, it is a public document to which every legal representative here would be entitled, do you agree with that?

MR PATEL: I agree with that.

ADV BOSMAN: As soon as Mr Hattingh became aware of the document, and as soon as it came into his possession, yes, I think it may be argued Mr Hattingh should have given proper notice to both the Committee and his colleagues, and he does give raise to concern that we are not making progress in this matter.  Perhaps this is a matter which we should leave to the Chairman.

MR PATEL: Let me just add which I have forgotten.  During the course of this morning, Exhibit A as I understood, the piece of the Citizen was understood, I was furnished with another batch of documents this morning which I presume is going to be used at some stage, by somebody.
	This morning, during the course of the proceedings.  These documents I have numbered, number 48 pages.  Am I suppose to read these documents, listen to the evidence at the same time, anticipate what is going to be used from here?  It is just not on.

MR HATTINGH: If I may respond, my bedside manner may be lacking, I had no intention of doing something which is incorrect.
	The same bundle that Mr Patel is talking about, is the bundle which I also received this morning.  That same bundle which was distributed.  I did see it beforehand, but it was taken back from me at some stage when there was still some problem whether it should be made available to us or not.
	But at the same time it was made available to me, it was made available to Mr Patel.  Mr Patel, the way I understand it, he does not represent the applicant and for that reason, I did not go out of my way to discuss it with him beforehand.  However, as far as Mr Black is concerned, I had it that the same firm of Attorneys attended to this matter at both the criminal trial as well as the application now, and I just thought that if they were to prepare for this matter, then they might as well look at their, what happened at the criminal trial because that is all, this application is about, is where this applicant was convicted on what happened at the criminal trial.
	Then they obviously should have a look at whatever happened there including the confession as well as the pointing out.

MR PATEL: Mr Chairman, I don't want to labour this point.

CHAIRPERSON: It appears that what I had to say just after lunch, fell on deaf ears.  What is happening now here is a exercise that is creating tension where it shouldn't be.
	I asked very honestly for representatives to assist us in this - it certainly isn't happening.  We have to be realistic in this whole issue and Mr Hattingh, I raised the issue with you just now.  From my interpretation of this Act, I think it is designed to be conducive to reconciliation rather than the opposite effect.
	While people may feel morally bound to oppose, it is my view that there must be concrete reasons for doing so and that goes for both sides of the divide.   I am rally concerned that your instructions were such and you have to carry out your instructions as far as you can, was to come and oppose but really you are not given any reason, concrete reason to come and oppose.
	Perhaps you are expected to go through a full blooded opposition, I just want to remind everybody that that is not the intention of the Act.  Now, can you refer me, I know you have asked me to make a ruling, and while you people have been talking and being spoken to, I have tried to locate a Section of the Act which deals with the submission of documents.  I am unable to find an appropriate Section to deal with this matter.
	Can anybody help me?

MR HATTINGH: Mr Chairman, if I may just interrupt, it is almost half past three, I thought it was half past four.  I may just add that this applicant is one of two perhaps three more important applicants that I would be dealing with at this hearing.
	This issue at stake at the moment, is very important to me.  If need be, I would request an opportunity, I haven't done so before, but I would request an opportunity if we are not going to allow this, or I don't want to jump the gun, but it is so important to me that I would then request an opportunity to really study the whole issue and then make propositions to you as to on what basis one can either admit it or not admit it.

CHAIRPERSON: You want till tomorrow morning?

MR HATTINGH: I would appreciate it, yes.

CHAIRPERSON: Mr Black, are you going to prepare argument also?

MR BLACK: I will prepare, I won't be able to have written argument, but I certainly will attend to this issue Mr Chairman.

CHAIRPERSON: I want you people to deal specifically with the following:  Whether this Act makes provision for the admission of such a document, similar to that is to be found in the Criminal Procedure Act; to what extent or which law present, the law that was applicable then, the one appropriate to decide on the admissibility of that document.  In the event of the contents of that statement of the document, being denied or the truth thereof, or in any way contest that it has been involuntarily, what would be the status of that document now, given the fact that there is no procedure similar to that of the Criminal Procedure Act in the Act with which we are busy with.
	The last point, to what extent are persons willing to oppose an application, allowed to come and argue without concrete reasons to do so?

ADV SANDI: I am not sure if you have dealt with that one specifically.  I think the other question would be if this document is accepted, what would be its status?  Would it be accepted as a confession or an admission in the event of it being accepted, what is its status?

ADV BOSMAN: Possibly the same question that my colleague has raised, the evidential value of the document I think is really crucial.

ADV SANDI: And can common law, the provisions of common law and not the specific statute that we are referring to here, that is the Criminal Procedure Act and the TRC Act, whether a common law has any answer for this type of situation.

CHAIRPERSON: Is it possible for us to have a copy of that document, just to peruse in the meantime?  Shall we adjourn until 9 o'clock tomorrow morning?
COMMITTEE ADJOURNS