Amnesty Hearings — Cape Town — 1997-10-20

MR COOK: Yes, indeed Chairperson.  There was an express request for a pre-trial conference which indeed took place on Thursday and Mr Donan saw fit not to arrive at this meeting at all, so it's surprising today that he comes here today and now requests that the psychologist appear.
	I can't understand why he's coming here today and says what he has said, it's obviously part of his tactics of surprise.  Mr Brink expressly said that it wasn't necessary that the psychologist appear and to actually get her here this week, it would be totally impossible because I've already told her as well that it's not necessary for her to appear this week.

MR DONAN: Is my - my learned friend is telling a half truth, I did inform the - there was a meeting, I did inform the meeting that I would not be present, I did inform Mr Papier I would not be present and I understand from Mr Papier that the concession that my learned friend is talking about has not been made.
	Certainly the attitude of my clients whom I did not represent at that stage - I only represented Niclo Pedro, is that they were not there and they certainly are the ones who have seen the difficulty and have doubts about Mr Benzien's amnesia or lack of it and the causes.

ADV DE JAGER: Were you notified of the conference?

MR DONAN: I certainly was, I have a letter somewhere here and I did give timeless notice to the person in charge that I - the day before, that I would not be able to attend, that to the extent that - I was in a part heard matter, when I came out of that matter I would come here immediately but that Mr Papier would be there and Mr Saldanha would be there.  And they would represent me so to speak and they were authorised, they had my mandate to deal with whatever arose.

MR COOK: I want to place it on record that - and Mr Brink can confirm that, on Thursday there were no direct instructions from the victims to any of these gentlemen.  They were expressly asked: "Are you appearing for the victims" and they said no, they don't have any knowledge of it, so I don't know what Mr Donan is actually saying now.  We are busy wasting the Commission's time.
	I'm handing in the report and the report I will argue, must be accepted otherwise we will carry on and carry on and the thing will be postponed again and again.  There was an express request by you last time that we should meet to hand in the documents - they are actually wasting the Commission's time.

ADV DE JAGER: That is something which the Committee will have to decide upon, whether their time is actually being wasted Mr Cook.  It isn't actually for you to say the time is being wasted, we will decide that matter. You can make submissions in this regard which we will listen to but ultimately it is for us, for the Committee to decide whether there is a necessity or the justification for whatever is going to happen and whether there was no appearance on Thursday  and we can only make such decisions when we have all the facts.

SISI KHAMPEPE: I thought Mr Papier made it quite clear that he attended the pre-hearing conference and that no agreement was reached at all concerning the admission of the report before us.

MR COOK: I expressly told him that as far as the Ashley Kriel incident was concerned, the report did not apply to that.  The inquests proceedings are handed in and the cross-examination was in 1988 and I would submit that my client had already dealt with it in a complete fashion then.  If there are any deviations, I would argue that he had already dealt with it in '88.
	As far as the victims are concerned were not dealt with Mr Papier, in other words it falls outside of his mandate, so he can't actually make those submissions and ask that he wants to ask the psychologist certain questions because it actually has nothing to do with him - that is my submission.

ADV DE JAGER: But Mr Cook, what we are being told is that he had the mandate to represent them on that particular day.

MR COOK: Well, we can ask Mr Brink.

BERNARD MAKGABO NGOEPE: Sorry, I think Mr Cook, if I understand - and Mr Donan could indicate by shaking or nodding his head to save time, do I understand Mr Donan to say that by Thursday last week he was not as yet representing the other victims?  Is that what you are saying?

MR DONAN: I think that's the situation, I phoned Miss - I've forgotten her name, the lady Miss Mtanga - the lady in charge, to inform her specifically,  one, that I had a problem - the sequence was, she phoned me and said as representative of the Yengenis and so on, would I do the following and I phoned back and said: "Look, I don't represent them".
	And I put her in touch with Mrs - sorry, Ashley Forbes in fact and - Miss Pandy, then shortly before on the day before this meeting, I informed the same person that I would have difficulty getting there because I could not be released from where I was and ...[intervention]

BERNARD MAKGABO NGOEPE: Sorry, I understand that but as of Thursday last week, were you already representing the victims, all the victims that you are representing today?

MR DONAN: This is the Truth Commission, I think that essentially my mandate to represent them was decided this morning in a room outside.

BERNARD MAKGABO NGOEPE: And by ...[intervention]

MR DONAN: I represented Niclo Pedro however.

BERNARD MAKGABO NGOEPE: And by Thursday - the people that you are now representing today as well, they had not seen this report?

MR DONAN: I can't answer for them, I think ...[intervention]

BERNARD MAKGABO NGOEPE: In all probability they saw it maybe for the first time this morning?

MR DONAN: I think it was handed in ...[intervention]

BERNARD MAKGABO NGOEPE: And they can only react to it today and their reaction is as you have conveyed it to us.  Now I don't understand what problem you have Mr Cook, what is your difficulty about people saying to you they are seeing this report only for the first time today and their reaction is coming forth only today.  Do you have any problem about that?

MR COOK: The problem which I have Mr Chairperson, is the fact that on Thursday they already had to have been there, whether via a legal representative or personally or otherwise they could have approached Mr Robin Brink.

BERNARD MAKGABO NGOEPE: Did you tell them, did you tell the individual people about the pre-trial conference last week Thursday?

MR COOK: No, it wasn't my duty, that was the duty of ...[intervention]

BERNARD MAKGABO NGOEPE: Were they told, they weren't told were they?

MR COOK: No, that was the duty of Mr Robin Brink.

BERNARD MAKGABO NGOEPE: Do you dispute the fact that they saw this report only today?

MR COOK: No, I can't dispute that.

BERNARD MAKGABO NGOEPE: So what must we do, shouldn't we accommodate them?

MR COOK: The problem that I have is that the witness isn't available today.

CHAIRPERSON: I understand, the difficulty really is whether the Committee decides that this witness should be called or not.  I think that you might have been misled by what you understood to be an agreement between yourself and Mr Brink, that there would be no need to call this witness.  However, that decision was taken without due regard to the attitude of people who are vitally affected by the contents of that report.
	It now seems that they be afforded an opportunity to test what is said in that report.  All that it really means now, is for you to tell us how soon would it be possible for you to get hold of your witness.  Maybe you would like to take instructions in that regard and find out, you may not be in a position to give me an answer now.

MR COOK: I will phone her and I will find out but we can continue with the rest of the proceedings even if it means that we will have to call her at some later stage, I don't foresee that being a problem.

CHAIRPERSON: Are you calling any further witnesses?

MR COOK: No.

MR BRINK: Sorry, Mr Chairman may I come in on this question to ...[intervention]