Amnesty Hearings — Cape Town — 2000-11-18

CHAIRPERSON: And then obviously with regard to Mr Verster, that must be taken into account with regard to assessing the credibility.  And then with regard to the Harms Commission, there seemed to be a great reluctance on the part of Mr Verster, to admit that what he told the Harms Commission, wasn't the truth.  He didn't really stand up and say, you know, that's what I did.  So what .... that we must take into account in assessing his credibility as well.

MR WESSELS: Mr Chairman with respect, the first proposition, if there are conflicting statements here before you, that's obviously pertinent to credibility.  Insofar as to what happened 10 years ago, whether he lied there or not is in my submission, irrelevant.  There were reasons for him, good, bad or indifferent, why at that time ...(intervention)

CHAIRPERSON: No, no, but what I'm saying is, that's why I mentioned this criminal case where people come and  say: "I lied, I did it, and this is why I lied, I didn't want to go to jail."  But what happens if you've got the trial record and you've got the evidence and the witness says - and which are completely different, and the witness says: "Well I didn't lie in the trial"?

MR WESSELS: Well, we don't really have - it doesn't go that far in this particular case.  I can see there was a reluctance by Mr Verster, to make any concessions in that regard, it doesn't go beyond a reluctance to make concessions.  But then you must take into account the personalities that we're dealing with.  It is not necessarily a version, or the fact that he was reluctant to make concessions doesn't retract from the fact that he can be credible insofar as his evidence before you is concerned about the events that are being dealt with now. You must take into account the personality of the person.  He is reluctant, because of his personality, because of his beliefs, to make concessions about the past.
	He, rightly or wrongly, believes that he was victimised at the time, he's probably correct in that assumption, and that carried through for many years.  He wasn't in a position, at that time, to make any concessions and he believes that the way he acted was the only way he could defence himself at that particular time.  He doesn't, at this stage, want to make the concession that that was an inappropriate way of dealing with the matter.  So you've got to see it in that light and not in a light of a man being untrustworthy, in the sense that he ...(sound cut off)

MR LAX: My difficulty is this, is that we deal literally in hundreds and hundreds of cases, we have heard people come and say: "I lied in the past.  I concede I lied in the past", but then they give a credible explanation for why they lied and what motivated them to lie and why we should now believe them, as opposed to what they said in the past.  And the difference here is, he just has simply not done that, he just refused to tell us why we should now believe him, rather than what he told another forum.

MR WESSELS: You see but that ...(sound cut off) ... it is full disclosure of what he did and it's not being a frank and honest witness in all respects.  He was not a frank witness in regard to what happened at the Harms Commission, for instance, let's assume that for argument's sake at the moment ...(intervention)

MR LAX: You're not conceding that?

MR WESSELS: Mr Chairman, why should I make confessions if my client didn't make concessions.  I think he'll probably fire me if I make concessions. (On a lighter note).  But that is precisely the point that I was making from the beginning.  He's not required to make full and frank disclosures of why he acted in a certain way at that time, unless it pertains to the act itself.  So with submission, that is actually an irrelevant factor that you shouldn't apply at all in assessing whether there was full and frank disclosure.

MR LAX: I mean in essence you're saying that for us to require that of an applicant is probably not proper?

MR WESSELS: ...(sound cut off) and in administrative law jargon, it would have been that a Tribunal had regard to irrelevant facts, which shouldn't have been, it would be a misdirection in terms of law.  I deal with that aspect on paragraph 34 of my Heads, Mr Chairman.
	Then Mr Chairman, there's been many suggestions during the course of these lengthy proceedings, from counsel to the witnesses, which is my submission never went beyond speculation.  And if there is to be a finding that there wasn't full disclosure, it can only be made on inferences that is to be drawn.  And the submission will be that there wasn't a full disclosure of the bomb aspect.  There was no suggestion, as far as I can make out, that there wasn't a full disclosure pertaining to the facts as they related to the Omar and Evans conspiracy to murder itself, the only suggestion is that insofar as the bomb is concerned there wasn't full disclosure on the facts, because there was an attempt in fact, to kill the people and not only to damage the building. 
	Now to come to that conclusion you would have to make inferences from the facts that are proved, or let me not use approved in that sense, but the facts that you find pertain to the incidents.  And then Mr Chairman, it is my submission that you have to, at the very least, apply the test as set out in R vs Blom, and that test is the following:
(1)	"That the inference sought to be drawn must be consistent with all the proved facts.  If it is not, then the inference cannot be drawn.
	(2)	The proved facts should be such that they exclude every reasonable inference from them, save the one to be drawn.  If they do not exclude other reasonable inferences, then there must be doubt whether the inference sought to be drawn is correct."
	Mr Chairman, that is a cardinal rule of logic and in applying the test to proven facts here, in contradistinction to speculation, the applicant's version that the intention was only to damage that building, it is my submission, cannot be refuted. 
	It is my submission that although there were persons in the building at the time of the bomb went off, it is clear that there's room for a mistake, even perhaps negligence on the part of Van Zyl, Botha and Hardien.  It is clear from that evidence, it was put to the witness, Mr Alexander, the statement of Mr Williams that he had made at the time.  It was put to Mr Alexander, the evidence of the soccer players.  It was clear from his evidence that the Kewtown Youth Movement had actually left the building, that it is possible that someone could have thought that those people had left after the meeting had been adjourned, and that nobody in the position of Van Zyl, Botha or Hardien, would have known that the other people were coming to have a meeting, because they had got together across the street at the hall and only there decided that they would go and have the meeting at that particular time, at the hall. 
	So the effect of that is that the Committee driven to a conclusion that the applicant, insofar as he is concerned, has made full disclosure of the relevant facts.  
	Mr Chairman, that concludes my submissions and ...  Yes, and as my instructing attorney says, Mr Chairman, he's come here, he's made disclosure of these facts, why would he not make full disclosure?  He made full disclosure in regard to worse incidents, for instance the Nietverdiend incident, the Ribeiro incident, where he was peripherally involved only, but those are serious matters and amnesty was granted there to all the applicants in those particular cases.  Why would there not be a disclosure in this particular case where no real life danger was done to any of the people?