Amnesty Hearings — Ermelo — 1998-07-28

CHAIRPERSON: During the course of this hearing an application for my recusal was launched.  Mr Hattingh who appears for certain potential victims indicated that he was bringing the application on behalf of a number of clients, in their capacities as victims or next of kin of persons who had died in the actions for which the applicants apply for amnesty.
	In his argument, Mr Hattingh broadly set out the law relating to the consideration of the recusal of a presiding officer.  In my view he set it out correctly and I don't think it necessary to indulge in any discussion thereon.  In particular he pointed out that really, it was what the litigants themselves felt that was important.
	Generally there must exist a reasonable suspicion of bias on the part of the person sought to be recused for such recusal action therefore to be justified.   However, contrary to suggestion, the test must be an objective one.  It is significant that Mr Hattingh was at pains to point out that his submissions were based on the instructions of his clients and were made in fact in terms of such instructions.
	It will be well to point out at this stage that the litigants perceptions must also be reasonable.  It follows therefore that it has nothing to do with emotions, but rather whether their perceptions were reasonable in the circumstances.
	He submitted that the feeling of his clients was that I was assisting the applicants and really in effect shaping their evidence for them.  He referred to only one possible example, namely that I pointed out to him that the applicant completed the original application form in a language that he was not proficient in, that was English.  It was done when he was confronted with the contents or parts of the contents of that application.
	In my view any presiding officer is duty-bound to point out such matters when any witness is potentially in a prejudicial position as a result of such anomalies.  Secondly, it was submitted the Committee was not trying to obtain a full picture of the application.  On this issue I'm not quite certain whether it was intended to suggest that there was a duty on the Amnesty Committee to investigative work.  At best in my view, that is what was intended.
	Lastly, it was submitted that cross-examination of the applicant was curtailed, especially in not allowing a proposition related to an irrelevant event to be put to the witness.  It seems also that the globary effect of all this has given rise to the dissatisfaction, hence the application.
	I wish to point out that I have on more than one occasion both privately and in public requested all representatives to conduct this hearing in such a manner such as to make the atmosphere conducive to reconciliation of people and parties who hitherto have been on opposing fronts.  This indeed in my view is the purpose of the Act and consequently the aim of such hearings.
	I am afraid that thusfar this has not happened in certain quarters.  Indeed the adversarial manner in which certain sections of the hearing has been conducted seems to have caused the wrong type of expectation by the various interested parties and has therefore created exactly what the Act intended to avoid.  
	In my view it is precisely this that has led to this application.  When any witness is confronted with issues which carries with it a risk of prejudice, it is the duty of the presiding officer to intervene and put the matter into proper perspective.  Matters such as that often happen at hearings.  This is exactly what happened in respect of the incident that had been referred to as an example of the alleged shaping of the applicant's evidence.  It is time the purpose of the Act is grasped.  
	I wish to point out that this is not a criminal matter or a civil matter but an unusual hearing designed to reconcile the people and not to allow a replay of any trial which may have preceded it.  We are not here to score points.  If any interested party is here to score point then he or she is in the wrong forum.
	Since the beginning of the hearing it has been obvious that the public has been divided.  I'm not too sure whether such divisions are based on political affiliations or geographical differences or perhaps even cultural.  Be that as it may, I want to appeal to all present to desist from creating an atmosphere of division particularly in this hearing.  For example when perceived points are scored there seems to be a tendency to applaud.  We are not in this hearing for that purpose.
	On the other hand, if evidence is led that certain sections of the public are not happy to hear or disagree with, there's a tendency to mumble as loudly as possible to display the dissatisfaction.  That type of behaviour, and I include both applauding and mumbling, does not help the process.  That is what I mean by grasping the purpose and the intention of the process and Act.
	If after all is said and done, we do not want to destroy this country and we want to live with each other as we should have even before apartheid, then we can only attain that type of life when we come to terms with what has happened and we can reconcile each other with the events and with each other.
	It is also not the function of this Committee to indulge in full-scale investigation as it seems is expected of us.  This is done by other Committees attached to the Truth and Reconciliation Commission.  More importantly, if certain interested parties with to place before us as a Committee, certain information, the gathering of such information is expected to be done by the different representatives who choose to place that particular information before us.  After all that is what they are here for.
	Lastly, the cross-examination of an irrelevant matter is not allowed because of the norms and practices which have developed over the judicial years and judicial history of this country.  It is not unknown to our judicial system.  While this forum may not strictly be described as a judicial forum, the rule I have referred to is in my view not out of place in this forum.
	Consequently, none of the issues raised singularly or together seem to justify the application.  As I have mentioned, I can only hope that the interested parties have taken to heart what I have said and not to draw the Committee into their squabbles.
	In the result the application is refused.

MR BLACK: Mr Chairman, the next applicant is Mbokane.  He will be testifying in Zulu.

MR HATTINGH: Mr Chairman, before we proceed with the new applicant today, perhaps I could just remind you of the position of Mr Khaba and Mr Gushu, where Mr Khaba implicated Mr Gushu.  The whole issue was raised with Mr Black on Friday and that there's something of the past applicants that we still have to clarify and make sure of.

CHAIRPERSON: I didn't hear what you said Mr, I'm sorry.

MR HATTINGH: Mr Chairman, the issue of Mr Khaba and Mr Gushu.  Mr Black - Mr Chairman asked Mr Black on Friday to just clarify the issue where Mr Khaba implicated Mr Gushu with regard to an incident where Mr Gushu did not make application for that particular incident.  I think just before we carry on we just have to clarity that issue.

CHAIRPERSON: I think what I did Mr Hattingh, if you remember correctly, I pointed out what I thought was of potential conflict.  I'm sure everybody understands the implications of that conflict.  I think it's for Mr Black to decide what he wants to do.  It carries with it immense implications I would think and I don't think there's anything more I can say but to draw his attention to this issues.  If he chooses to carry on like that he will run into trouble at some time or other.

MR HATTINGH: Thank you Mr Chairman.