Amnesty Hearings — Ermelo — 1998-07-22

MR HATTINGH: Mr Chairman ...

MR MAPOMA: Excuse me sir, excuse me.  I think this is very important.  I have heard Advocate Hattingh raising an issue here which I think is important that he has not been furnished with documents which he has requested from me.
	Chairperson, I want to place on record, that is not the case.  The documents that I have got with me here, I have given him a file to peruse and get whatever document that he might find necessary for the purposes of this hearing.
	This document he is referring to now, is part of those documents.  The reason why we did not put this document into the bundle of documents, it was my view sir, that this document will not assist with either the applicant or victim, because it is a document as far as I could see it, which was a document which was made at the criminal trial by then, for the purpose of amnesty application sir, my position is that as I saw this document, I found it not to assist the Committee in determining it will grant amnesty or not.
	It is not very much relevant as the transcript itself of the criminal trial, it is for that reason that we don't even look for the transcript of the criminal trail in that matter.  So what I want to place on record sir, even the document, even the police docket, he has gone on to say that he has not been given the extracts of the police dockets.
	These documents, whatever extracts that are relevant to this hearing from the police docket, have been made available, they are here for anyone to have access to.  I just wanted to place that on record sir.

MR HATTINGH: Mr Chairman, on the three points.  If I came over the way Mr - the Evidence Leader now responded to it, I indicated that I required certain documentation.  I am absolutely satisfied that the Evidence Leader gave to me whatever he had in his possession.  I am not saying he is keeping anything back.
	What I do say is that apparently the investigation for the purposes of this meeting, was to the extent that very little is made available for this meeting.  The police dockets are not available.
	On Monday we were advised that they were on their way, but in fact they did not arrive and we accept that, that the Evidence Leader is not in a position to make it available and we accept the fact that he has given us everything that he's got.
	But I might just add something else to what the Evidence Leader has now said, I feel very concerned about the fact that the Evidence Leader is now to decide what will be relevant or not for this Committee.  I think without having regard to the document itself, and to see number one, whether it applies with any requirements and number two, whether it is relevant the contents thereof, this Committee cannot just discard it and we cannot just rely on the Evidence Leader's own opinion as to whether it is relevant or not.
	I may think it is relevant, he may think it is not and that for that very reason, we are not going to decide on it.  It is for you Mr Chairman and your Committee, to make that decision and even you can't decide, make that decision without having gone to the documents.
	We don't have to make it public, but you need to have a look at it to make the decision properly, a proper decision whether it should be, whether it is relevant and whether you should make use of it.

ADV SANDI: Mr Hattingh, the long and the short of it as I see it, is that if you have instructions to contradict the version of the applicant, put your version to him according to your instructions.
	You are at liberty to do so here.  Do you have instructions to contradict what he said here?

MR HATTINGH: Mr Chairman, my instructions are that this applicant committed these atrocities without any motive of furthering the aims of a political organisation, and the way I would like to prove it and the way I would like to oppose it, is by using certain pieces of evidence, it is strong evidence at that.

CHAIRPERSON: Just to carry on from there, the clients that gave you instructions were not au fait with the documents you now produce.  Those only became available recently, not so?
	On what basis did they tell you, now come along here, not knowing that these documents are going to be available, come along here and oppose this application on the basis that it was so far away from political motivation that the application cannot be granted?  What is their view, why do they say that?

MR HATTINGH: Mr Chairman, for one thing, these documentation in law, they are not supposed to be made available or public before the hearing commences.  Had I consulted six months ago or six weeks ago or six days ago, it wouldn't have made a difference.
	I came here on the instructions, oppose the application.  I do not think ...

CHAIRPERSON: On what basis?

MR HATTINGH: If you may allow me.  I do not think for one moment that any of my clients sitting at the back, will be able to refer this Committee to Section so and so of the Act for the Promotion of National Unity and Reconciliation and say we are opposing in terms of this and that Section of the Act.
	They are opposing and they give instructions to oppose and for that very reason we are here to give life to that opposition and make sense of that opposition.

CHAIRPERSON: A desire to oppose is one thing, whether you can oppose is another.  I would have expected advice to be given to clients who maybe under the impression that they can oppose when in fact they shouldn't.
	That is the point I want to make.  On what basis did they think they can come and properly oppose the application?

MR HATTINGH: Mr Chairman, I can put your mind at rest, when I first consulted with the victims, the very first thing I explained to them is what is going to happen here and what we can do and what the Act says, and on what basis we can oppose any application.  That was made clear from the very outset.
	It was on that basis that I received instructions to oppose.   But I still wish to come over very strongly about it, even the applicants if they were left on their own, they would not have been able to comply with the Act to make the application, they require assistance to able them to comply with all the requirements of the Act, to enable them to make the application.
	The same goes for the respondents, the victims, the opponents.   To oppose the applications, they now know on what basis we can do it.  In their way they say oppose it, but they are not going to give me, instruct me and say oppose it on the basis of non full disclosure, because one can only have regard to the application, there are no full disclosure in the applications.  They just give a name and nothing else in many of the instances.
	But I for one, did not expect from my clients to give me instructions on exactly what basis, they gave me the version, they gave me the emotions of it, and I explained to them what basis I can carry on and as far as I am concerned, I am just doing my job when I do confront an applicant on what I believe is a very good basis.

ADV BOSMAN: Can you just clarify for me, do those documents form part of the court record or are they  - were they actually submitted during the hearing of the Supreme court?

MR HATTINGH: Mr Chairman, just to go back one moment, on Monday when I brought up the whole issue of police dockets, I was advised that I should take it up myself and find out whatever I can get hold of.
	I did speak to the Investigating Officer in this case as well, Mr Gushu's case.  The Investigating Officer at the time, we are talking 1992 to 1995 when it was finally completed, and yes, he confirmed we don't find it in the documents available to us, although the judgement on sentence by Judge Van Dykhorst does indicate that the confession was in fact made part of the record, or was admitted, but yes both these documents were admitted in the criminal trial.