Amnesty Hearings — Bloemfontein — 1998-01-20

ADV MEMANI: Well, My Lord, that can be fair on us.  How could we have prepared before if we did not get the books before yesterday My Lord?

CHAIRPERSON: You could have worked on these books last night, you and your Attorney.  You could have prepared the evidence on your notes of the evidence as what counsel normally do during the course of a trial.

MR VISSER: May I repeat this on record Mr Chairman?  I have Colonel Erasmus here.  I may just say Mr Chairman, with great respect that perhaps it might be more acceptable to allow Mr Memani time so that we can continue, have some kind of continuity Mr Chairman, we've already got three witnesses standing down for cross-examination, this is the fourth.
	I am afraid if I may suggest it with respect, we are going to get entangled into stuff that is being left.

CHAIRPERSON: As against that, we are never going to finish if we take adjournments.  Yesterday we started at two o'clock, today we have to start late because counsel isn't ready.

MR VISSER: Mr Chairman, you are absolutely right.  I can't but agree with you.  I am just trying to be practical about it.

CHAIRPERSON: I have no doubt that when Colonel Erasmus has given evidence, we will have applications for adjournments to take instructions.

MR VISSER: Absolutely.

ADV DE JAGER: I think we should perhaps tell counsel that if they are not ready to cross-examine, we will seriously consider whether we shouldn't decide that they waived their right to cross-examination and that we will treat the evidence of the person who gave evidence, in the light of he is not being cross-examined and what weight do we attach to the evidence.
	But we must proceed, we can't keep on adjourning and adjourning, it is costing money.  You are being paid by the Department per day and we can't go on wasting the public's money, taxpayers' money.  We are proceeding as though we can carry on for years and years with hearings.  We must finish our task, the Act compels us to finish before the 30th of June.
	You are making it difficult for us to obey the Act.

ADV MEMANI: May I speak please.  Mr Chairman, I don't know why I am being blamed for today's delay.  Today's impossibility of these proceedings to proceed is primarily because the victims are not here.  If the victims had been here, we would have been able to proceed with them and secondly if we had got the records on time, we would have been able to, all the documents that we had, we would have been able to prepare.  We have been asking for them I think from around November, we have been asking for these things, but we never got them.
	Why is it us who is wasting time?

ADV DE JAGER: They've been given to your Attorney off record.  When did your new Attorney file his name as Attorney of record and why didn't you take the trouble of seeing that you got the documents on which he was in possession?

ADV MEMANI: My Lord, it was due to the inefficiency of the Commission.  My Attorney had already served the terminations of mandate to the TRC, it is because of the non-working of the system of the TRC, that these things were sent to Mr Mthembu.  At that stage we had told the TRC that Mr Rapadana is now the Attorney of record.
	It was not our fault that they were sent to Mr Mthembu.

MR VISSER: Mr Chairman, may I, I don't want to lay another egg here, but what is important that the Committee takes into account and which I want to place on record is we've arranged for Captain Khoja to be here.  He is writing Police examinations later this week, he has to attend classes on Wednesday, it is tomorrow.
	He has to attend classes apparently on Thursday and he is writing exams on Friday.  We never expected that this situation obviously will develop.  We expected that we will carry on with his cross-examination and that he would be finished.  So we have a difficulty in that if we don't finish it today, I will have to request the Committee for Captain Khoja to be back only on Monday.
	And that is the position we find ourselves in.  Furthermore Mr Chairman, I want to state categorically that I find it extremely strange that no steps were taken at least in the week before the hearing to make phone calls, to arrange to get the documents by way of courier, etc.
	My Attorney and I have been in similar situations lots of times last year, we've always arranged that we get the documents and I find it strange that my learned friend is not ready to proceed with cross-examination.

ADV MEMANI: My Lord, we did contact the TRC last year, last week.

CHAIRPERSON: It seems that for the sake of Captain Khoja, we ought to do what we can to get him disposed of today so we propose to adjourn now, at the longest for two hours, but we don't think it is necessary to take two hours.  If you look at the evidence of Captain Khoja, it is about 20 pages and he refers to a very small number of entries.
	And in my view you can go through these documents very quickly.  Will other counsel mean while do what they can to find out if their witnesses are here and what has happened to them.  We will adjourn for two hours at the most.

ADV MEMANI: My Lord, why don't we release Mr Khoja until Monday and then we proceed with the matter.

CHAIRPERSON: Because he is here now and we are going to go on with him now.  If we release him till Monday, I can see some application being made on Monday for a further adjournment.
	You said you can finish in two hours, we are going to finish in two hours.
COMMISSION ADJOURNS

CHAIRPERSON: Carry on Mr Brink.

MR BRINK: Mr Chairman, this matter was adjourned for a period of two hours.  It is now twenty one minutes past eleven.  Captain Khoja is here to be cross-examined by Mr Memani who appears not to have arrived.

CHAIRPERSON: Does anybody know where Mr Memani is?  Is  he using an office in this building?

MR VISSER: No, we saw him driving away Mr Chairman.  I didn't see him, my Attorney saw him drive away.

CHAIRPERSON: And nobody saw him drive back?

MR VISSER: May I suggest Mr Chairman, to save time, perhaps to use the time more fruitfully, some of Mr Stander's clients are here now that stood down from yesterday.  Can we continue and deal with them?

CHAIRPERSON: Can we dispose of them, yes.

MR VISSER: The only thing is Mr Memani might have an interest in that cross-examination.

CHAIRPERSON: Well, Mr Memani should have an interest in attending the hearings or have the courtesy to inform someone if he is delayed.

MR VISSER: As it pleases you Mr Chairman.  We can call them in any order that Mr Stander wants to call them.

CHAIRPERSON: Should we call them in the order that they gave their evidence in chief?

MR STANDER: That is acceptable thank you, Mr Chairman.  Mr Jwayi, then.  Mr Chairman, thank you very much.  Mr Jwayi is present in the hall and I ask him to come to the front, so that he can be cross-examined.
	Mr Chairman, before I start, on behalf of my clients I want to apologise for the fact that they weren't here this morning.
	I was informed that there was a problem with their transport and that was the reason why they were late.  I apologise to the Commission and to all the other people involved for this delay.
	Thank you Mr Chairman.

MR VISSER: Mr Jwayi, you gave evidence yesterday and you took an oath to speak the truth, do you remember?

JOHN JWAYI: That is correct.

JOHN JWAYI: (still under oath)

MR VISSER: Can I ask you, were you present and did you attend any of the previous sessions of the hearings of the applications of Mr Ngo and Mr Motsamai in the other hall up in Bloemfontein North, did you attend any of those hearings?

JOHN JWAYI: No sir.

MR VISSER: Not once?

JOHN JWAYI: I attended one hearing, then I was supposed to go somewhere, then I left, I didn't stay long.

MR VISSER: The question is really, did you hear either Mr Ngo or Mr Motsamai or both of them give evidence in regard to the incident to which you testified at Bloemfontein?