Amnesty Hearings — Ermelo — 1998-07-22

MR HATTINGH: Mr Chairman, as previously indicated, although this is not a normal court of law, I believe that one would always endeavour to follow as closely as possible known and old rules of court and although this is only used as a tool, it is clear that the manner in which the evidence is led at this stage, nothing comes from the witness himself.  It's just a matter of information that is alleged to have been - the source being from the witness, it's just read to him and he's just confirming the contents thereof.

CHAIRPERSON: He's testified that he's read this document and everything that is in this document has come from him.  Is that not so?

MR HATTINGH: Mr Chairman, that is true.  In fact I'm just concerned that then we might as well commence cross-examination at this stage if he's got nothing to add to this statement.  We've all read it some days ago and in practice there would be no use for him just to confirm paragraph by paragraph.  He can just go ahead and confirm the whole statement and we can start cross-examination, if that is his evidence.  But I do not unnecessarily wish to interrupt the proceedings.  I'm just stating a problem that I'm experiencing and I'm just asking for perhaps some direction.

CHAIRPERSON: Mr Hattingh, I'm sure you're quite aware of the fact that I don't know how often it happens these days, but in the past policemen used to come give evidence and assisted by their pocket books, not so?

MR HATTINGH: That's correct, I appreciate that.

CHAIRPERSON: Isn't this on the same basis?

MR HATTINGH: Mr Chairman, my own submission would be that that is not the fact.  A pocket book note would be a note made at the time, a contemporaneous note which falls in a different category.  What we have now is a statement prepared by someone, clearly not by the applicant himself, someone on his behalf consulted with him and then prepared a statement.  Unlikely that this witness with his schooling and background would be able to prepare a statement of this nature.  So, someone else prepared his statement on his behalf.  It's not a matter of contemporaneous notes as with a police pocket book where there are specific rules to allow such contemporaneous notes.

MR SANDI: Mr Hattingh, I take it that you have not appeared before this Committee before, have you?

MR HATTINGH: No, I haven't no.

MR SANDI: Ja, this is the way we go about doing things in this Committee to expedite the proceedings and you will notice that a lot of what is contained in these affidavits, documents, statements etcetera is not in dispute.  But we always prefer that counsel, in leading witnesses in this manner, have to be cautious when it comes to those parts of the document which may be controversial.  When it comes to sensitive parts of the documents we prefer that they have to be careful here and not to put words into the mouth of the witness.  I don't think there's a problem with this procedure.

MR HATTINGH: Mr Chairman, I appreciate this and I commenced my objection by asking some direction from the Chair.  I do not for one moment wish to say that I'm objecting, I really want this thing to be thrashed out, I'm just trying to get some direction because I just feel that with the status of the document with no signature attached to it, that we do find ourselves in a bit of a predicament.

CHAIRPERSON: Mr Hattingh, in my view, there seems to be a bit of merit in what you say.  How strong that merit is I'm not too certain.  Would any of the representatives have any problem or objection to that document being signed right now?  I can't see any objection, but I'm making the offer to object.

MR HATTINGH: No objection.

CHAIRPERSON: Why can't that be done now?  It should have been done long ago, but why can't it be done now?

MR BLACK: No, it can.  I offered that it be done at the outset.

CHAIRPERSON: I'm going to adjourn for ten minutes.  You've got ten minutes to have all these documents signed.  We'll adjourn.
COMMITTEE ADJOURNS
ON RESUMPTION

CHAIRPERSON: Mr Black, is it now signed?

MR BLACK: Yes, thank you, Mr Chairman.  Mr Chairman, although there has been some delay, it's been a very useful exercise in the sense that the statement which has been signed and which forms part of the bundle was prepared by, in consultation of course with Mr Gushu, by a firm of attorneys.  The history, and if you'll bear with me for a short time, the history as far as representation in this matter is concerned, is that initially Mr Gushu was represented by Attorney Julie Mohammed who's present here with me and instructing attorney of Mr Patel.  And she submitted, and I've confirmed that with her and she's prepared to confirm, she submitted the original application for amnesty to the TRC timeously and in writing together with the application form which she submitted to the Amnesty Committee.  She tells me she attached a list of incidents and events in respect of which amnesty was to be applied for.  Subsequent to that, Mr Gushu instructed my present firm of attorneys and my understanding is that he was requested to write down and prepare a statement in respect of all the incidents for which he was sitting in prison for and being convicted of and that is explained to me now what his understanding of the situation was.  When I had a consultation with him I went through this statement with him as well.  It seems to have been prefaced, as you'll notice, that he refers to incidents and crimes for which he had received a conviction.  But he does point out to me now during the thing, when I explained to him again why we're having this document signed etcetera, he thought at the time when it wasn't signed, and as I understood it also to be a tool, an assistance, a means for giving evidence.

CHAIRPERSON: Mr Black, did you really think so?  At the end of that document there's provision made for the signature of the deponent, if you look nicely.  How anybody could be under the mistaken idea that that is just an annexure to the original document is beyond me, but carry on.

MR BLACK: No, if I may finish.  I was patently aware of the fact that there was provision for a deponent and the signing etcetera, but when it wasn't done I felt that if the evidence could be confirmed under oath and we could then present it as it is.  Originally obviously it was prepared in a form to be signed.  Now, the unfortunate development which has taken place is that, as far as Mr Gushu is concerned, he felt that that was it.  But as explained to him, he said but there's another matter which he wanted to tell the TRC about of which he had applied for amnesty and he hasn't received in that respect, he was never convicted of it and he was never charged - he was charged but the charges were withdrawn, but he was never convicted for it.  So, I said well, you know, to raise it at this stage, but he said at the end of his evidence, written statement, he was going to mention is because he said he did mention it to his attorney, the first attorney, Ms Mohammed.  She has confirmed with me that that incident was in fact included on the list of the application submitted.

CHAIRPERSON: Mr Black, before you do your client an injustice, let us argue about this now.  Do I understand you correctly, in the second statement a particular incident for which your client intended applying for amnesty was omitted, and the closing date for applications has long gone by, not so?  What has happened to the original statement?

MR BLACK: The original, I've just been given a copy now by Attorney Mohammed, who tells me that that original statement as it were, or summary of events was submitted together with the application form to the TRC timeously, and this particular incident appears on that particular list.