Amnesty Hearings — Ermelo — 1998-07-23

CHAIRPERSON: Why is that a fabrication and not what is in that document?   Why do you decide, on what basis does anybody decide which of the two versions is the truth?

MR HATTINGH: If my response to that, and I'll try to give another example, if I'm going to call a witness and I put to this applicant, "I've consulted with this and this client or this witness and this witness is going to tell this tribunal or this Committee the following", and if this applicant responds to that and says, "No, that is absolutely not the truth, it's a lot of rubbish, a pack of lies, what I'm telling this Committee in my application is the truth", I would be surprised if the Committee tells me then, "Well the applicant's already indicated that is, whatever that witness is going to tell this Committee will not be the truth, so we don't want to hear that witness".   I will expect this Committee to say, "Well, let's hear that witness and let's test that witness, and let us in the end have the applicant and his version, the opposing party with his version, and if they are irreconcilable we have to make a finding on credibility, and then decide whether this applicant can be believed", and that is in fact the same we would like to do with the ...(intervention).

CHAIRPERSON: No.   What are the grounds of those opposing this, what are their grounds for opposing?

MR HATTINGH: To which particular incident are you referring to?

CHAIRPERSON: We have an applicant here, who makes application for amnesty on a number of counts.   You have indicated you're sitting here on behalf of certain people who are interested in the matter and who wish to oppose the applications in general.   In respect of these applications by this particular applicant, what are the precise grounds for opposing?

MR HATTINGH: The precise grounds are that it is my instructions that this applicant does not comply with the requirements of the Act for getting amnesty, he did not commit these crimes with a political motive, number one, and he did not, he's not making full disclosure, and full disclosure with regard not only to the details of the incidents, of the acts, but full disclosure with regard to his motive at the time.   I think full disclosure, you have to look at full disclosure not in a compartment, but look at full disclosure with regard to his motive as well.   If he's not making full disclosure with regard to his motives at the time, then he's not supposed to get amnesty, and those are the grounds on which we oppose his application.

CHAIRPERSON: As that as explicit as your instructions are?

MR HATTINGH: Mr Chairman, without going into cross-examination now, if we only look at, just bear with me for one moment, if we look at the incident of the killing of Chris Ngwenya and Lindiwe Nkosi, the one person survived ...(intervention).

CHAIRPERSON: This person says that the contents of that document was not freely and voluntarily acquired.   Are you going to seek to go through what is a trial within a trial?

MR HATTINGH: Mr Chairman, if that is the only way to make sure that this document is placed before the Committee, then we have to do it, but if I can convince the Committee that ...(intervention).

CHAIRPERSON: Let's assume I allow you to question on that document and put certain things to the witness, and he says, "Look, what is contained in that document was not acquired voluntarily, therefore you can't ask me those questions, that document was not supposed to exist in the first place", what then, you then go through the procedures akin to a trial within a trial, calling the magistrate and the police and whoever else to prove the acceptability of that document?

MR HATTINGH: I trust that we can avoid that, but I believe that if we follow the Act, then we should allow this document to be placed before the Committee, number one ...(intervention).

CHAIRPERSON: If I allow you to pose questions based on that document, then assume that it's before us.   He says the contents was not acquired voluntarily, what are you going to do then?

MR HATTINGH: Then I would submit, when I cross-examine him in this regard, he should be compelled to answer questions in this regard and explain things.   He cannot just say the document was obtained under unacceptable circumstances.

CHAIRPERSON: But, Mr Hattingh, then you presume that there's everything wrong with his testimony and there's everything right with the contents of that document.   On what basis do you say so?   You're putting all your eggs into that basket and saying that what is contained there is rather the truth than anything else.   Surely we must be convinced of the truth of that matter so that it can be compared with what he tells us?   I can't just assume, and none of the Committee members can just assume what is contained in there is the actual truth and therefore he's not making any, or full disclosure?

MR HATTINGH: Mr Chairman, I do find myself in some difficulty, but the way I believe one should also have regard to this issue is that should there not have been any representation or opposition by a victim to the application and this Committee was sitting here only with the applicant and the applicant's legal representative and the evidence leader, what, in those circumstances, should have happened to this document?    Should it have been kept away from the Committee, not to see it, not to become aware of it, and if it was placed in fact, and the Committee was made privy to that document, what would the Committee have done to take the matter further, have a look at the document, applicant says no, it was not obtained in a proper manner, the Committee say, "Well then we discard it"?   I do not know the answer, but the responsibility is now placed on me to make the decision if I have to make application for a trial within a trial, which is going to disrupt this whole hearing tremendously.

CHAIRPERSON: If I may say, we're halfway there already.  Carry on.

ADV BOSMAN: May I just put this proposition to you, Mr Hattingh, you can tender this document, Mr Hattingh, as a document being conclusive proof of what is contained in the document, and then there would have to be a trial within a trial.   If that is not your intention, you can tender the document as proof of the existence of the document.   Is this what you are driving at now, to tender the document as proof of the existence of the document?   Then perhaps you could cross-examine on those statements in the document which relate to the people that you represent, and certainly not in regard to other incidents.   If that be allowed, surely there would be no need for a trial within a trial.   If you have rebutting evidence in regard to the particular factual statement in the document and you have someone who is going to testify, either the victim or someone on behalf of the victim, surely it could be dealt with in that manner, without wasting any time with a trial within a trial?   That's a proposition I put to you.

MR HATTINGH: Mr Chairman, I'll accept that proposition.   We can carry on on that basis.

ADV BOSMAN: I have not made a ruling, I cannot make a ruling, it's a proposition I wanted to test your approach to it, it's of course up to the chairman.

CHAIRPERSON: What are you prepared to do?

MR HATTINGH: To carry on on the basis that the document is before the Committee, that I do not rely on the truth of the contents of the statement, but we carry on on the basis that I'm allowed to cross-examine the applicant on the contents of whatever is said in that document, but I do not ...(intervention).

CHAIRPERSON: And if he says that was acquired unlawfully, then what?   Or do you want to give that a miss, just sidestep the unlawful business?   How do we deal with that?