Human Rights Violation Hearings — Durban — 1996-05-09

WITNESS:   I thank you.  Through you, Mr Chairperson, I think even until this morning I had a great deal of doubt myself as to whether I should actually come and say what I said.  I thought of even withdrawing, because I felt that why should I say it.  There are hundreds of very prominent lawyers and organizations of various types that should have indicated that they would want to produce this kind of evidence or say something about this - what I thought needed to be said - but I couldn't be sure and one really didn't know whether this may pass through Durban and maybe elsewhere and it may not be said, but yesterday I read the same article that you referred to Mr Ntsebeza in the Daily News, and I brought it along with me in case I needed to refer to it, and I believe that we in this country, all of us, are not defending any wrong-doings of individuals and  /I wholly

MR NTSEBEZA: 14B/30 I wholly believe that the Commission, for that matter, is not a commission that is taking sides.  We will want history to judge the moral correctness and the justification of the people who embarked on this struggle, but the bottom line to what you have raised as a question is this, that this is the Commission that is hearing everybody and, I believe, anybody who has a serious story to tell or a point of view to make and I think this very same article is an important point of view for the interests of the IFP and these are lawyers as well, and I would believe that they have a moral obligation themselves to come to the Commission, and the last thing they should do is judge the Commission.  The history will judge the Commission as well, and I think the people on the Commission will be judged as individuals as well but, certainly, they should present the same submissions that they make, their point of view, their political party - if it's a party - political perspective, but I believe I am not just putting an anti-apartheid view from a limited South African perspective.  I would say that there have been jurists all over the world who have in many ways criticised this process that we are going through, because they believe that the Nuremburg trial process of bringing the perpetrators of violence to trial, to justice, from political leaders, judges and so on, to trial should have been the way to go, but I think we are showing the world and Africa, for example, the African experience - what has taken place in Zimbabwe and the ... (end of tape)

MR NTSEBEZA: 15/0 ... want this country to be plunged into death and destruction.  So I would say everybody would appeal to anyone with a point of view to come forward and I hope

MR NTSEBEZA: /that Advocate

MR NTSEBEZA: 15/1 that Advocate Kieron O'Malley would be the first to say that they still have this opportunity to put this case before the Commission from their point of view.

MR NTSEBEZA: Now, you must have read that when the Commission sat in Johannesburg one of the witnesses, Miss Friedman (?), actually named of the judges who she would like to come before the Commission and explain what she perceived as a conduct on his part that steered away from the perpetrators of violence that took the life of her partner.  Do I understand the context of your talk this evening as, in fact, supportive of that view by Miss Friedman?  That even judges like Louis Harms should, in fact, avail themselves of the opportunity to come to the TRC and explain their point of view, so that we have a sense of balance?

WITNESS:   I think that's absolutely imperative for anybody - any of the judges, who feel that they may have been misled or may feel that they had a belief and I think it is a duty that they owe to the victims, like Maggie Friedman and many others and I sincerely hope that what I have said is not seen to be an antagonistic point of view, but an appeal to people and, in my view, they owe it to this country and they owe it to a future judiciary and they owe it to the world that they cannot be seen to be immune from answering for deeds that they would have covered up for or condoned.

MR NTSEBEZA: Thank you.

CHAIRPERSON: Yes.  Dr Boraine.

DR BORAINE: Mr Govender, thank you very much for your presentation.  Just for the record, the Commission some months ago made a press statement in Cape Town, where it -the Commission, as a full Commission, invited political

DR BORAINE: /organizations

DR BORAINE: 15A/2 organizations and any other organization that wished to make presentations to the Commission to do so.  So we are well in line with the situation that you have described and our consistent approach has been that the door is open for all.  So I have no problem with the fact that you have presented a picture which some, as you well know, would describe as one-sided.  I have no problem with that at all.  I don't think the Commission will either.  I think if there are other people who feel strongly that the views that you have represented, and any others who come before this Commission are incorrect or unbalanced, then they have every opportunity to come and say so.  I think when we arrived the Chairperson made that very clear, particularly in terms of KwaZulu/Natal, where the conflict still rages.  We welcome any and every contribution.

DR BORAINE: The second point I want to make is that the Commission is instructed and mandated by the Act to write a report, which it has to present to the President, who will lay it on the table of Parliament, which means it becomes a public document.  In that report we are requested and, again, ordered to present as complete a picture as possible of the violations of human rights and any of the underpinnings which made violations possible.  Once again, it is only when the Commission has received all representations it will then try and write a balanced picture of what actually took place in South Africa.

DR BORAINE: The last point I want to make - I just want to make that absolutely clear, so there would be no misunderstanding - I have only one question, and that is -you've been crystal clear in your presentation.  There's one interesting paragraph which, I think, needs some

DR BORAINE: /expansion

DR BORAINE: 15A/5 expansion and that is on page 5, paragraph 7, of your amended statement.  This is quite a tough statement, as are many others, but I wonder if you would perhaps read that paragraph and then enlarge upon it so that I really know and understand fully what you are saying.

WITNESS:   Just for my clarification, the first words of that particular paragraph read - so that I have the same paragraph you are referring to.  Is it the one ... (intervention)

DR BORAINE: "What about the many defence ..."   Is that the one?

WITNESS:   I see.  The No 7?

DR BORAINE: No 7.

WITNESS:   I see, yes.   Yes, I think - and I can't obviously say that this is what would have happened for all defence lawyers, but when one thinks about the days of Nazi rule in Germany, if somebody knocked on somebody's door and if they opened the door and there was an SS policeman standing outside and said, "I want so and so", I think the whole world would sympathise with those who believed in justice and were against the savagery of fascism, and apartheid for that matter, would sympathise with the person who said, "Look, I am sorry, this person is not here", even if that person was hiding under the bed or hiding in the roof.  So, likewise, I believe that when a person who was arrested or charged and in custody needed a lawyer to defend him- or herself in court, many of our lawyers, who were political activists and opponents of apartheid would have been the first to stand up and many of them did stand up and actually suffered as well.  I think Mr Ntsebeza here, who is amongst your Commissioners, felt that harsh whip of the apartheid justice, when he was carted out of his office, while working, and dumped in a

DR BORAINE: /little