Amnesty Hearings — Ermelo — 1998-07-22

ADV BOSMAN: My next question is, as matters stand now, do you have a basis for opposing - on those records, do you have a basis for opposing the application?

MR HATTINGH: Without a doubt.  I may just add, when we look at these documents, Section 19(8)(a) of the Promotion of National Unity and Reconciliation Act states that the applications, documentation in connection therewith, further information and evidence obtained before and during an investigation by the Commission, deliberations conducted in order to come to a decision, everything becomes available and public once the hearing commences.
	Now, I do not find anything in the Act to tell me that anything that we can find in that box of information that the Amnesty Committee holds in Cape Town and which is gathered prior to a public hearing, that anything of that is excluded once we start with our public amnesty hearing.
	All those documents should be at our disposal to peruse them, see whether they are relevant, see whether we should submit them to this Committee so that this Committee can be in a position to consider it, accept it, discard it, put it in proper perspective until the time when we have to make the final decision.

CHAIRPERSON: What happens if the witness says he didn't make that voluntarily?

MR HATTINGH: Sorry, I didn't hear you?

CHAIRPERSON: What happens if the witness says he didn't make that document voluntarily?

MR HATTINGH: Mr Chairman, from the outset I said I think, this is one of the occasions where I require your assistance and direction.
	There can no other way be a trial within a trial, to say if he denies, that is not enough to make it impossible to confront him with it.  It is still there.  He makes the allegation that he acted on all incidents with a political motive, we do not believe him.
	Now he makes the allegation that this was obtained on an improper way, we do not believe him, and we would like to prove the ...

CHAIRPERSON: Why don't you believe him?  In the last five years we found that some certain strange things that happened in the South African Police, but why don't you believe him?  Why?

MR HATTINGH: Mr Chairman, the reason why I don't believe him is that I have had insight into the contents of the documentation.
	You cannot make a decision I would submit with respect, that either to believe him or my disbelief of him, is valid or invalid or in place unless you look at all the documentation.  We have the benefit of the applicant's testimony, that is all we have.
	If I do not believe him, it may very well be on the basis that I will confront him and say I will call on a certain witness who is going to say this or that, and for that reason I do not believe you.  At this stage I say, I will, I want to submit to you a statement which you made at that time, have a look at the statement, let's consider the statement, but somehow Judge Van Dykhorst believed the contents of the statement or the legality or the admissibility of the statement.

ADV BOSMAN: You are not submitting that the Committee is bound by the findings of Mr Justice Van Dykhorst?

MR HATTINGH: Not at all.

ADV SANDI: Was it part of the finding of the Judge you have referred to in that document, that that confession was made voluntarily, freely and voluntarily?  Was it part of his finding?

MR HATTINGH: We can only make that deduction because we don't have the benefit of the judgement from Judge Van Dykhorst.  We only have his judgement on sentence, but from that it would appear that he accepted it freely and voluntarily and according to the Investigating Officer, Captain Hall, that was in fact the position.

MR BLACK: On this particular point, may I be of assistance and dispute what Mr Hattingh is saying.
	If one looks at page 185 of Volume 1, it is quite clear Van Dykhorst, J says ultimately his evidence, Exhibit G1, he did not confirm this under oath.  	It was clear that ...

ADV SANDI: Which paragraph is that?

MR BLACK: Page 185, fourth line from the top.  It is clear that this was a matter in dispute, without the court record of course, one does not know and one has the evidence of the applicant who has clearly stated that everything happened to him after his arrest, was under duress.

ADV SANDI: So this document was in dispute in the criminal court already?

MR BLACK: It was in dispute and it was obviously not made under oath when he appeared before the Magistrate and he didn't confirm it under oath.

MR HATTINGH: Mr Chairman, perhaps we can assist Mr Black.  This is in Afrikaans, I do not for one moment think that one should make a confession under oath.  A confession is a confession, it is not necessarily under oath.
	What he stated here is the accused did not apparently testify at the criminal trial at the Supreme court to either support or do whatever was necessary in connection with his confession.  That is what is noted on page 185.

MR BLACK: My understanding of "bevestig" is confirm under oath.

ADV SANDI: Can this be - I understand the relevant Section of the Criminal Procedure Act, would be Section 217?  Can this document then be referred, can it be regarded as a confession in terms of those requirements of that Section?

MR BLACK: All I have in my possession is what was handed to me today.  I don't want to really go into the nitty gritty of it, but it would appear that in the old days, the usual form followed before a Magistrate seemed to have appeared, questions put to him, were put to him by a Magistrate and apparently interpreted and he then signed it.	But it would appear that at the trial, he did not confirm this under oath.

MR HATTINGH: Mr Chairman, the way I understand it is it is never necessary to confirm a confession under oath at a trial.  Once the admissibility thereof is proved, it is proved without the assistance of the accused.  He doesn't have to admit or confirm it under oath at the trial, to give it its legal value.

MR PATEL: Mr Chairman, may I just make a request here, I am concerned, I am very concerned because I don't represent Mr Gushu, but I have ten applicants to come.
	In a normal trial, you are requested or it is normal procedure to disclose to your colleagues beforehand what documents you are going to use.
	The reason for that, whether it doesn't deal with the admissibility or otherwise, of the document.  One of the reasons would be that I could address you or Mr Black could address you on the document itself.  He is arguing in the air, and so would I without the document in front of us.
	What really gives raise to concern here is the following.  Mr Hattingh says to this Committee that he is objecting and the way on which he proposes to do so is to use pieces of evidence.  I have no idea what these pieces of evidence are and I should be in a position to anticipate what these pieces of evidence are.
	More particularly when we are dealing with an application of this sort, where the word full disclosure has been bandied around for some time.  This sort of disclosure is even proper in an ordinary civil matter.  The other thing that concerns me is the basis of the opposition.
	We are not at all certain at this stage as to what exactly the basis is.  It gives raise to even further concern.  It is obvious that Mr Hattingh sits with this confession, at some stage I am not sure, but it appears  at least by this morning, he was fully aware that he was going to, his intention was to cross-examine this particular witness on this document.
	Yet, we are not made privy to that document prior to him attempting to use it.  This is in essence an application then by ambush, because we have had no opportunity whatsoever to prepare for what is coming, and it is highly prejudicial to the clients, to the applicants.
	My concern is I have ten applicants to come, I don't know what the pieces of evidence are, nor do I know what the basis of the opposition is.  As it pleases the Committee.