Amnesty Hearings — Ermelo — 1998-07-27

MR HATTINGH: Mr Chairman, as we are dealing not with a normal criminal court or a normal civil court, and we have to work within the parameters of the Act, the one parameter which is that cross-examination can be curtailed, if you take away that tool, that instrument, for finding the truth, the Act in fact makes provision for another instrument, and that is for this Committee to investigate and to make enquiries not necessarily at this hearing, but to make sure that whenever this application is being heard, that the other side of the story or the full truth, is also taken into consideration.

CHAIRPERSON: Do I understand you correctly that you concede that all that you say, it should have taken place already so that the whole picture is before the Amnesty Committee when the hearing begins?

MR HATTINGH: Not necessarily everything beforehand, but I think in the perfect world most of it should have been done beforehand, so that when this Committee sits down with this applicant, the Committee has the benefit of the full Police docket with regard to all Police investigations that were conducted at the time, if a person was convicted in a court, with all the relevant court documentation, judgements and transcripts of evidence there or at least the applicant's plea proceedings in the criminal court, any further investigation pertaining to what is disclosed in his application for amnesty.
	In a perfect world that should have been placed before the Committee before a hearing, but if that was not done, then at least if something of this kind is available and if a request does go out where it is requested that the Committee do something to acquire those documents, those Police dockets, the background, the full picture, then the perception from the lay person if the Committee is not going to do that, if the Committee is going to take the attitude that well, we hear the applicant and we accept his word for everything that he is going to tell us, that is now creating the impression of bias, because it would appear from their side, that the Committee is not doing its utmost to take into consideration the full picture of possible documentation that could be made available of could be obtained to compare or to test the applicant's version at this present hearing.

CHAIRPERSON: Well, Mr Hattingh, was it envisaged or is it envisaged by the Act that the versions of any applicants be they white, black or from wherever - political party they come from, that a hearing or during a hearing, that their version should be subjected to a full blown investigation such as one would find in a criminal court?
	Have we got the time for that?  This matter has already been before the criminal court, I don't know if those who want to tell us things, had an opportunity to say what they wanted to say.  I am not too sure why this vociferous opposition to the applications being conducted, but surely you will agree that this is not the forum to play out all those acts, isn't it?

MR HATTINGH: Mr Chairman, to some extent I have to agree with you, because we are dealing with reconciliation, however, one must not loose sight of the fact that the victims or the dependants of the victims, stand to loose some of their rights at this hearing if a person ...

CHAIRPERSON: How?

MR HATTINGH: If a person has not yet been convicted and if he receives amnesty, then obviously a criminal trial will never be.  However, that may not be the most important thing.
	But the victims stand to loose their rights for civil litigation.

CHAIRPERSON: Mr Hattingh, without wanting or inviting an answer, if they haven't issued summons yet, then isn't it a bit too late?

MR HATTINGH: Mr Chairman, not at all.  If only now they become aware of the identity of the perpetrator, then one would say that they are still in a position where they can issue summons, a civil summons for whatever damages they would ...

CHAIRPERSON: I am not too sure if the law relating to prescription would allow it, I am not going to argue the point.  That is why I said I don't invite an answer.

MR HATTINGH: In any event Mr Chairman, the perception that I am relaying to your Committee is that the victims or the families or the next of kin of the victims, are under the impression and they have the perception that this Committee is not doing its utmost to get to the bottom of the truth with regard to the applicants' version of events and they say so in the sense and they explained to me that whenever an applicant is in a problem under cross-examination, he is being assisted by the Committee where an answer is given for him on his behalf, and he is then being asked whether that is what he means.

CHAIRPERSON: Has there been any examples of where answers had been put into the witness' mouth?

MR HATTINGH: Mr Chairman, I for one did not ever make or keep a separate note of everything that I considered to be unacceptable, whatever, I cannot immediately say.  It did, at some stage I did think that perhaps the applicant was assisted too much, but I think the one ...

CHAIRPERSON: When was that?

MR HATTINGH: I think the one example was with the applicant Khaba about his explanation for the difference between his evidence and his statement with regard to the stabbing or the killing of Obed by shooting him and where Mr Black also tried to come to the assistance of the applicant while testifying.

CHAIRPERSON: Do you consider that incident as putting an answer into the witness' mouth?

MR HATTINGH: Mr Chairman, once again, I do not think that it would be appropriate for me to give an answer to that.  I think what is important is what the impression, what impression is created ...

CHAIRPERSON: No Mr Hattingh, I asked you as a judicial person, as a member of the Bar whether you could think of any examples.  I know, I appreciate your position, but there comes a time in one's career as an Advocate that one encounters questions like that from the bench and you expect it, and you can ask your colleagues there.  I am sure all of them have experienced it, to expect it, give an answer.
	That is why I asked the question.  If you don't feel comfortable answering the question, so be it.  I don't know if you follow me, but that goes with the terrain of the work.  When I was in practice, I often had to make concessions for obvious reasons and I used to make them where necessary.  If I didn't think the Judge was right, I used to argue the point, still lost though.

MR HATTINGH: Mr Chairman, if you will just bear with me for one moment, I would just like to get instructions from my Attorney, thank you.
	... that one particular client, Olga Sibeya on behalf of Advice Gwala, did specifically have this problem and mentioned it to me.  I personally would not, I prefer not to respond and say whether I agree that it was in fact putting words into the mouth of an applicant.

CHAIRPERSON: Do you have any other submissions Mr Hattingh?

MR HATTINGH: Mr Chairman, the people in general, the instructions that I received was that their perception was that the applicants were being assisted, that the applicants were being assisted by the Chairman in placing a selective version of the truth, before the Committee.

CHAIRPERSON: I didn't get the last part.

MR HATTINGH: The applicants in this application for recusal instructed me that their perception is that the applicants for amnesty, are being assisted by the Chairman to selectively place information before this Committee and before this public hearing, to place them within the ambit of the Act and that no effort is being made to bring anything other to light, which would be to the disadvantage of such an applicant, when his application for amnesty is being considered.

CHAIRPERSON: Do I understand that the perception is that it is our duty to do so?