Amnesty Hearings — Vanderbijlpark — 1999-05-19

MR BERGER: Chairperson, Section 11 deals with the principles governing the actions of the Commission when dealing with victims, it's specific to victims only.  And as you've said, Chairperson, this isn't a trial and one has to be robust about the cross-examination of a witness.
	She's given evidence at length now, about an incident which probably didn't take more than a couple of minutes and she's been cross-examined over and over again about the hacking of the child and the hacking of herself and the sexual attack on her and injuries, and there comes a time I submit, Chairperson, where compassion must enter the picture and there must be a limit to such cross-examination because if she's going to be treated as a witness in a motor collision case, then she's not being treated anymore with compassion.  	And Chairperson, you speak about other witnesses coming forward, we've indicated in the past the difficulty that we've had to get women who were sexually assaulted, to come forward and Ms Molete is the first woman to volunteer to come forward and talk about her experience, and if she's going to be cross-examined at such length and with such intensity, I'm not saying that there shouldn't be cross-examination, but at such length, it is going to result, if it hasn't already, in the other women not coming forward and then there will be no evidence before this Committee, other than the evidence of Ms Molete.   So in a sense the treatment of Ms Molete will play a role in whether other women are going to come forward and talk about their sexual assaults.  	
	All we're asking Chairperson, we understand that, and we've explained to Ms Molete that she can't refuse to answer questions, but all we're asking is that she be treated with compassion, as the Act requires, and that in our submission she has been cross-examined at length already and has answered all the questions put to her.

CHAIRPERSON: So is it your submission that she should not be cross-examined further at this stage?

MR BERGER: No, that's not our submission.  She broke down, Chairperson, and she's explaining to you why she broke down ...(intervention)

CHAIRPERSON: Yes, I understand that.  What's your submission, Mr Strydom?

MR STRYDOM: Chairperson, my aim is definitely not to treat this witness without compassion, my aim is not to injure or to hurt her in any way, but she made certain statements stating that white people and police were involved and that's contrary to our instructions and I have to test her credibility, and unfortunately I'll have to go through portions of her evidence which is not pleasant, but I would argue later that it is a deviation from her statement, and it's on these aspects that it's unpleasant.
	So I'll have to - in the process of testing her on her credibility I'll have to go through some of these aspects.  I'll try not to go into it any deeper than I feel is necessary for purposes to attack her credibility.  That's just for the ordinary purpose of cross-examination and I'll try to do it with compassion.

CHAIRPERSON: What's the submission of the other counsel?

MR LOWIES: Chair, I'd like to make one remark.  Is it really necessary to lead evidence regarding sexual assaults when there's no amnesty required for that, requested sorry, requested by the applicants.  Otherwise I have nothing further to add than what my learned friend has said.

MS PRETORIUS: Chair, I full agree and I think, I am very sorry for the witness, she's in an enviable position that not one of us would like to be, but I submit that Mr Strydom has been treating her with compassion.  Unfortunately there are questions that have to be asked about the child, and if Mr Strydom doesn't do it one of the other counsel will have to do it.  So it's my submission that it will have to be done in any case.

MR DA SILVA: Mr Chairman, for what it may be worth, I submit that Mr Strydom has treated the witness very fairly, I don't think he has been unfair to her at all, with respect.

MR BOTHA: Mr Chair, I have no submissions to make.

MR MEY: I have not submission, I'll leave it in your hands, Chairperson.

MS TANZER: Mr Chair, I think it's difficult to cross-examine a person and be compassionate at the same time, but I think Mr Strydom is doing his utmost to be fair.

CHAIRPERSON: Mr Malindi?

MR MALINDI: Chairperson, I associate myself with the submission by Mr Berger.  Chairperson, in addition I would say that if this cross-examination leads to witnesses like Ms Molete, breaking down, that will hamper the proceedings of these hearings more than it would if these victims who have come here as witnesses are treated with more compassion than has been shown so far.  Thank you, Chairperson.

CHAIRPERSON: Yes, Ms Cambanis?

MS CAMBANIS: Thank you, Chair.  I also associate myself with the comments of Advocate Berger.  However, we have always given the undertaking to witnesses that should they not wish to, that no-one will be forced to give evidence and should she wish to withdraw at this stage, that will have to be put to her, Mr Chairman.

CHAIRPERSON: Mr Mapoma?

MR MAPOMA: Chairperson, I align myself with the legal position put by Mr Berger, insofar as the treatment of victims is concerned.  I may want, Chairperson, further to ask the Committee to take into account that the victim is not an ordinary witness and some kind of, some measures will have to be adopted in whatever fashion as the Act may require in adhering to the principles that are laid down there when it comes to victims.

CHAIRPERSON: ...(indistinct) measures?

MR MAPOMA: I can't think of, Chairperson, at this point in time, but I did canvass the point with the legal representatives at the start of the hearing, I mean at the start of the testimony by one, by the first victim, and one of the proposals I made to them is that out of the testimony of the victims it does not seem to be an issue, the question of the injuries that they suffered, the points which are in issue here are the presence of the police and white persons.  And I did canvass with them that it may well be in the advantage of the victims and also the proceedings themselves, if issues which are not in dispute are not put before the Committee by the legal representatives.

CHAIRPERSON: Isn't the presence or otherwise of the police a matter which will have to be resolved on the basis of the credibility of the witnesses?

MR MAPOMA: Yes, Chairperson, whilst that is the position we are confronted here with a situation where that credibility has to be, whilst the credibility has to be tested, the principles which require the Committee ...(intervention)

CHAIRPERSON: Now how does one test the credibility of witnesses without asking the witnesses about matters which are not strictly speaking in dispute?  Because the question is where does one draw the line, should cross-examination not be allowed on any other issue other than the issue of whether the police were present.

MR MAPOMA: Chair, now that the evidence has been led on other issues other than police involvement, I find it difficult to argue that cross-examination on those issues must not be made.

CHAIRPERSON: No you see, the problem is that it is an issue which is going to arise in regard to the other witnesses, because when these witnesses come and they don't talk about the police only, they talk about other matters.  Now is it your submission that the cross-examination of the witnesses should not go beyond the question of whether the witnesses ...(indistinct) and if so, what are those measures that this Committee should take in order to ensure that that doesn't happen?