Amnesty Hearings — Johannesburg — UNKNOWN

MOKOTEDI MPSHE: : Mr Chairman that is correct, they were onlyserved on Thursday Mr Chairman, although Mr Chairman I must justventure to mention here that the Act does not mention when serviceis to be effected, in other words it does not
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indicate the days for service.   On reasonable grounds one wouldcome to the conclusion that the service was indeed short.

CHAIRPERSON: (Inaudible).

INTERPRETER: The Chair is not using the mike.

CHAIRPERSON: Although there is no provision in the Ruleas to what period should be allowed when giving notice to a potentialwitness or interested party, that a fortnight has been decidedas being reasonable notice.   Are you aware of that?

MOKOTEDI MPSHE: : Mr Chairman I'm not aware of that order MrChairman, all that I'm aware of which was conveyed...(side 1 oftape 2 ends)...that order.

UNKNOWN: Mr Van der Merwe what's the period mentionedin the court order?

MR VAN DER MERWE: The court order says shortly that MrNieuwoudt would be supplied with all statements supplied to theTruth Commission proper as well as given notice of anybody, therewas no mention of a period.   The specific undertaking in thiscourt order is that it would be done prior to the evidence beingled obviously otherwise it would defeat the purpose of this courtorder.
MR ?:: Thank you Mr Chairman.   Mr Van Zyl is in a verysimilar position in that it was served on him at 11:30 by wayof Mr Roux's office, his attorney on Thursday and he is in a similarposition that he's in the dark as to what is expected of him. We could not consult properly and all the rest that Mr Van derMerwe indicated to the Court.   We would also like to obtain information,the original application as well as a transcription of what happenedin the proceedings so we can in a proper manner look at it and
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then be able to indicate to the Committee what we want to do andthen proceed on that basis.

BERNARD MAKGABO NGOEPE: Mr Van der Merwe I trust that you are notconveying that there is a court order binding on us, the AmnestyCommittee, which we failed to comply with.   I think it must beclarified that you are referring to a court order which (indistinct)different proceedings.   We don't stand here having not compliedwith any court order.

MR VAN DER MERWE: I will, let me say how I understandit at the moment.   The court order cited the Chairperson of theTruth Commission, Bishop Desmond Tutu, as well as the Truth Commission.  I think at this stage I'm not sure, I think we will reserveour rights in that regard, I don't know I haven't had time togo into it.   I am not making any allegations and I'm certainlynot looking to pick a fight at this stage.   All I'm saying iswe were under the impression that it would cover all the operationsof the Truth Commission, certainly this is something which canbe resolved I think fairly easily.

BERNARD MAKGABO NGOEPE: Yes it can be and I was and I was justmentioning that, I was not trying to create obstacles in yourway.    I understand that your client, well I don't want to preachbut I understand your problem.

MR VAN DER MERWE: Thank you.

MOKOTEDI MPSHE: : Mr Chairman just a clarification, counsel MrDe Villiers for Mr Sakkie Van Zyl stated that Mr Sakkie Van Zylis in a similar position.   I want to put it right that it cannotbe that he's in a similar position inasfar as the court orderis concerned, that only affects Mr Nieuwoudt alone.

CHAIRPERSON: No, I think he was referring to the fact ofthe
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shortness of notice, inadequate notice.

MOKOTEDI MPSHE: : Then I am indebted to the Chair.

MR DU PLESSIS: : Mr Chairman may I perhaps have an opportunityfrom the applicant's point of view just to comment on the applications?  Mr Chairman in respect of the court order, I've read in thenewspapers about the court order, I don't exactly know in whatway the court order binds this Committee.   What I would wantto say in respect of the 14 day period, I'm informed by my learnedfriend Mr Curran that that was applicable, or that is applicableto witnesses apparently who have to appear in front of the HumanRights Violation's Committee.   Mr Chairman if I read Section30 correctly, and especially Section 30(2), it makes provisionspecifically for this Committee to request a person to give evidenceat the hearing of the Commission.   If one reads Section 30(2)carefully, it says
  "If during any investigations by or any hearing beforethe Commission, that means during any hearing before the Commission,any person is implicated in a manner which may be to his or herdetriment the Commission shall, if such person is available, affordhim or her an opportunity to submit representations..."
and then in the last sentence:
  "...or to give evidence at a hearing of the Commission."
Now that clearly must be the same hearing referred to in the firstsentence of sub-section (2).   I read this Section as meaningthat the procedure that the Committee has followed under thesecircumstances, is the correct procedure.   There is not time periodand obviously one then has to apply the
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normal rules of natural justice, which means that a reasonabletime period afforded to a person would be proper.  The indicationis that both these witnesses have had knowledge of the fact thatthey are required to appear on Thursday and it is our view thatunder the circumstances, where we are not dealing with a criminaltrial or a civil trial and where we're simply dealing with somebodywho has to come and tell the truth, and where we are also dealingwith a situation that these witnesses will only be required togive evidence at these hearings in respect of the applicationof Col Venter, so their evidence will be very limited.   It willbe relevant pertaining to Col Venter's application.   
 On that basis we fail to see where any prejudice lies in respectof these witnesses, perhaps the only prejudice might be that theyhaven't seen the specific application and the written part thereof.
MR MPSHE(?):: I'm not even sure they need to see the applicationbeforehand.

MR DU PLESSIS: : I beg your pardon?

MOKOTEDI MPSHE: : I'm not even sure whether they were entitledto have sight into the application beforehand.

MR DU PLESSIS: : As I read the Act, they wouldn't havebeen entitled in any event, they are required to give evidenceat the hearing and that evidence should be dealt with in termsof the Act.

CHAIRPERSON: I do not think it is necessary for us to gointo the matter as to whether they ought or not to have rightsor access to the evidence.   It does seem to me patently clearthat they have not had adequate notice and they would like toknow what they are going to be questioned about.   In the
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circumstances, we have come to the conclusion that their applicationfor a postponement of this aspect of the case should be granted.  
 There is a problem to the extent that in respect of those individualswho have been served with a subpoena, this postponement unfortunatelycannot be arranged in such a way that I can postpone it to a fixeddate.   I would like them to signify personally and through theircounsel that they will not require a further subpoena in orderto attend the hearing at the adjourned date, which is to be determinedbetween counsel, Mr Mpshe and the other interested parties.  Thathearing can only take place at some stage which none of us atthis stage have any idea.

MR VAN DER MERWE: Yes Mr Chairman I think that shouldn'tbe a problem to issue new summonses.   I am speaking for my client.

CHAIRPERSON: ...Mr Van Zyl as well presumably?

MR DE VILLIERS: That's correct Mr Chairman.

CHAIRPERSON: Mr Winter can you please just rise?   JudgeWilson has something to say in respect of the inconvenience thathas been caused to you, bearing in mind that you've turned uptoday without having been subpoenaed.