Special Hearings — Caprivi Hearings — 1997-08-08

MR COETZEE: If I may shortly put one or two aspects on record.
It is our feeling and we submit that cross-
 /examination
1A examination as allowed here amounts to no cross-examination.  Yesterday there was a most unfortunate incident with the person that was cross-examining, namely my leader, landed up being cross-examined by a Commissioner.  The rules of national justice can never ever be met on that basis.
Due to the manner in which our cross-examination has been curtailed, it is of little or of no value whatsoever.  At this stage we will be putting no more questions to any witness, because of the limitations that are put on our cross-examination.
I would like furthermore to put on record that our clients have been - testified in a Court of Law where full cross-examination was allowed.  Their version was tested and they were found not guilty in a Court of Law.  The witnesses in these proceedings make wild allegations and their allegations cannot be tested.  It's my submission that it's clearly - the manner in which these proceedings are further proceeded that - that it is of very little value.  However, I will urge all the Commissioners to please read the proceedings of the Msane matter, under oath, where our clients' versions are clear.  Furthermore, we must reserve all remedies and rights that we might have for our clients and further - I realise that this is not a Court of Law, but there's certain rules of procedure that is to a certain extent unfortunate that while witnesses are testifying, other witnesses hear what they're saying and specifically relating to Mr Luthuli and the other people that have testified here.  It is clear by all their evidence and the statements that - Mr Luthuli seemed to have controlled them and have a certain amount
 /of
1A of authority over these witnesses and then he sits and listens to what they're saying, specific issues that are relevant for our clients.  We say if the Defence Force train these people, they are not liable for people that become hit squads that are under Mr Luthuli's control and then Mr Luthuli sits here and listens precisely what they're saying and on the basis that such limited cross-examination is allowed, it serves little purpose.  If you will just bear with me for a moment?
My attorney has brought it to my attention that it was one of the rulings of this Committee that versions that have been put forward in other forums don't have to be raised over here during the proceedings.  At this stage no cross-examination is allowed, all that's said is, "Put your version.  Put your version".  And my learned friend is asking particulars of what your version is and regarding that issue, that's all I'd like to place on record.  I have nothing further to say.
Thank you.

CHAIRPERSON: Thank you.  Is there anybody else that would like ... (incomplete)?

MR VON WILLIGH: Mr Chairman, yes.  Willem von Willigh.
I wish to place on record that I join with the previous speakers, my learned friends, I join with their views and I subscribe to those views.  I will also not place any questions in cross-examination and will also not consider the Request for Further Particulars.  There is no provision made for it.

CHAIRPERSON: Yes, I have already said that, Mr Von Willigh.  I said that nobody is obliged to answer those at all, so I take your point completely.
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MR VON WILLIGH
1A

MR VON WILLIGH: I accept that, Mr Chairman.  I'm just placing on record that I will also not supply any Further Particulars.
Thank you.

MR WILLS: Mr Chairperson, if I could say something here.
Mr Chairperson, I must agree with my learned friends to an extent in that whilst I understand the time restraints that the Commission is under, I do believe that the credibility and the weight given to the evidence of my clients does depend to certain extent, in any event, to the amount or to the freedom of cross-examination of my learned friends.  To that extent, whilst there are time restraints, I must agree that they be allowed to be cross-examined.
Thank you.

MR MACADAM: Sorry, Mr Chairperson, the issue of cross-examination is not within my ambit, but purely on the allegation that Mr Luthuli is present when other witnesses testify, my difficulty in this regard is specifically the Van Rensburg judgment requires that when a person is implicated in evidence and clearly there is evidence implicating Mr Luthuli out of these other witnesses, they say they were more or less taking orders from him at the times when they committed these extremely serious offences.  The judgment is clear that Mr Luthuli would have the right to be present to here this evidence, these allegations, to instruct his counsel to challenge it and say, "Well, look, you're bringing me - you're implicating me on frolics on your own.  I might have given you certain instructions, but not all the cases that you're telling the Commission about flowed from my orders", he has that
 /right.
1A right.  This is similar to a criminal trial where accused 1 and 2 have the same defence and the prosecutor feels frustrated, because he knows accused No 2 listens exactly to accused No 1's cross-examination and knows how to protect himself from those questions, but is a requirement of the law.  One cannot say that accused No 2 must be removed from the court building, locked in a police cell while accused No 1 gives evidence and I submit that this is precisely the situation with Mr Luthuli and the other witnesses.  They implicate each other.  They have that fundamental right to protect their ...[break in recording].

CHAIRPERSON: Yes, that was raised at the beginning of these proceedings.  It was discussed and it is absolutely proper that Mr Luthuli should be here while the others give their evidence and I don't want any further argument on that.  It is proper that he should be here, his rights are also affected in the same way that an accused person may be affected.