Amnesty Hearings — Bloemfontein — 1998-01-29

MR BRINK: Sorry, Mr Chairman, before Mr Visser addresses you. In fairness to the name of the late Mr Venter; indeed, in fairness to Mr Erasmus in regard to his affidavit, could I just call the Committee's attention to page 64 of bundle A, line 6. Mr Memani was examining Mr Ngo and he said
"Now there has been a suggestion by Paul Erasmus that you had a homosexual relationship with Mr Venter, what is your comment. -- It is a story that I told the Judge to try and cover the case, but as far as I know Mr Venter was not a homosexual"

ADV MEMANI: "Did you have any homosexual relationship with him?

WITNESS: No. I am not a homosexual and I am not aware of him being a homosexual but I did say that in the case and that was a lie."

CHAIRPERSON: And Mr Erasmus explained that it was only after the trial that he became aware of this, that during the trial Mr Ngo himself said it.

ADV MEMANI: I don't think the matter is still in my hands, My Lord.

MR VISSER: Thank you, Mr Commissioner. Broadly speaking, the matter has to be approached on basically two bases to which regarded has to be had. The one is the requirements of the Act and the other is of course the evidence. I'm not going today to discuss the evidence with you, but what we intend to do is to approach our argument to you on those two bases, and if I may say that in regard to the first section, the question of the requirements of the Act, we believe that what is important there is to draw your attention to what precise measure of proof or standard of evidence it will be expected of an applicant to give before this Committee. Then, most importantly, what is the precise basis of the applications now before you on the evidence of the applicants. That will entail, Mr Chairman, the question of whether both applicants at all times could have been regarded as 'member of the Security Force'. Then, of course, the last aspect in that regard is that there is also the qualification that the acts or offence had to be directed against, and then the sections are set out.
	As far as the evidence is concerned, Mr Chairman, we will on paper present to you the dissecting of the evidence un der four headings; first of all, matters which are common cause, which will search through the records and placed before you. Secondly and tying in with that, matters which are objective facts which cannot be denied and must be accepted. Thirdly, we will discuss the probabilities which my learned friend Mr Stander has done this morning, and my learned friend Mr Memani. Lastly we will deal with the credibility of witnesses.
	Mr Chairman, I'm only going to deal with the first aspect, the requirements of the Act to lay some thoughts in your midst as to how this matter, according to our submission, ought to be approached.
	First of all, as to what standard of proof has to be put before you, Mr Chairman, of course the Act is silent. The Act speaks in s 20 that the Committee must be satisfied. That begs the question, of course. Does one apply the normal standard of the balance of probabilities, or is it something less? We would submit, Mr Chairman, that most appropriately the ordinary accepted standard of proof on balance of probabilities should be the most acceptable standard if only by reason of the fact that it has been applied for many, many years and that there is some clarity about what standard of proof entails.
	We know from our case law in all matters which allowed for a discretion to be exercised upon a person being satisfied or a judge being satisfied, there have been legal arguments and there has been a diversity of opinion. What the Act says is, you must be satisfied. We say, Mr Chairman, it could be on a balance of probabilities or something less. It is going to be something less, then of course it depends on the person to person and how each person sees a certain situation. We will address you on that basis, that it is perhaps something less. We will take it against us without conceding that ...[intervention]

ADV MEMANI: I don't think the "less" exists. I think the most bottom one is probability, balance of probabilities.

MR VISSER: Mr Chairman, I am very pleased to hear you say that because I was afraid you may say something different. But if that is the case, Mr Chairman, then we all know where we stand and then approach this matter on the question of, where do the probabilities lie? We will address you on that when we deal with the evidence.
	What is more important, Mr Chairman, is, what is the basis of the applications of these two applicants? we submit that the basis upon which they have advanced their applications to you is not that they themselves had a political objective to do what they did. They explained to you, as we understood their evidence, that their commanders had a political object, but they only acted on instructions. Mr Chairman, this is so important because that restricts the whole inquiry, with great respect, to one question and one question only, and that is that you must find at the end of the day in each and everyone of these cases that they were instructed on a balance of probabilities. That is the issue before you. I don't intend to over-simplify the matter, but I will read the section of the Act to you in a moment.
	First let me refresh your memory about the evidence because both these applicants have been asked this very same question to make it absolutely clear.
	As far as Mr Ngo is concerned, I would refer you to the record, page 101, at the bottom, going over the page to 102. May I be allowed to read it to you, Mr Chairman? It is myself cross-examining and I will read it slowly, if you don't have it before you, so that it has time to soak in, so to speak. 
It goes as follows:
"

MR VISSER: Would it be fair to say, Mr Ngo,that on your evidence in regard to all these incidents that you testified before this Committee, your evidence was not that you personally had a political objective which you wished to accomplish, but that the reason why you perpetrated these acts were because you were instructed to do so."
May I pause here, Mr Chairman, and direct your attention to the fact that I am referring to all his incidents, not one or more:
"Would that be correct?" he was asked.
		"MR NGO: I was instructed to do so, yes.

MR VISSER: You didn't have any personal reason why you wanted to do any of these things?

WITNESS: Yes, I didn't have."

MR VISSER: We submit that makes it plain beyond a doubt.

MR VISSER: As far as Mr Motsamai is concerned, you have exactly the same situation at page 850. Half way down the page I would read to you; it is again my cross=examination. I will leave the first sentence out.

MR VISSER: "Let us just emphasise one fact here. Is it correct to say that in not one single one of the incidents for which you apply for amnesty, you apply on a basis that you acted with a political objective. The basis of your application being that you were instructed to do so and as a member of the police you had to obey orders. Am I correct"?

MR VISSER: MR MOTSAMAI: Yes. I was supposed to receive commands from my officers."

MR VISSER: We submit, with respect, Mr Chairman, that the witness - neither of these witnesses could have been in any doubt - if you read the body of their evidence - as to what was being asked of them, and they made it quite clear. So, my submission then, Mr Chairman, is that they must stand and fall by instructions, and that is set out in the Promotion of National Unity and Reconciliation Act and Section 20, as you well know. I will read it very briefly. And, Mr Chairman, please take note of when the legislature speaks of acts committed with a political objective that it is clearly intended to mean by that person applying, not by someone else. It reads as follows: