Amnesty Hearings — Port Elizabeth — 1997-09-22

CHAIRPERSON: ...[inaudible] place and the hearings will continue today but I understand that there's an application that is to be made at the present time.

MR PHOSA: That is correct Mr Chairman.  I appear on behalf of the families of Mthimkhulu and the Madaka family - Madaka.  There is a problem - I got instructions only over the weekend, this past weekend, for reasons - very good reasons that I could explain.  In the circumstances we ourselves would require until after lunch hour, about 2pm, to be able to determine our position so we do need the morning portion.

CHAIRPERSON: Well, let's settle for 13H30.  We'll try for 13H30 and see how you're doing and let us know, keep in touch with us.  I think it is a perfectly reasonable request if you've received instructions at such short notice because I think it will no doubt save time in the long run if you do have an opportunity to get proper instructions.
	So, I regret that those people who have taken the trouble to be here on time, ready for the proceedings will unfortunately have to wait for some time.  As you have just heard, the application has been made that we should not start till after the long adjournment, normally at two but I think we perhaps can try to start at 13H30 today.  So, we will now adjourn until 13H30 when the hearing will commence.
COMMITTEE ADJOURNS
ON RESUMPTION

CHAIRPERSON: ...[inaudible] is an estimated 15 minutes away.  This may be an optimistic estimate but I think it would probably be safer - because he'll have to do things when he arrives, to stand down now until 2 o'clock.  So we will now stand down until 2 o'clock by which time we hope we will be able to commence.
COMMITTEE ADJOURNS

CHAIRPERSON: This is a hearing of the Amnesty Committee held in Port Elizabeth on the 22nd of September 1997.  The Committee members are myself, that is Andrew Wilson, Chris de Jager and Ntsiki Sandi.
	Would the counsel who are appearing please place themselves on record.

MR VISSER: May it please you Mr Chairman ...[intervention]

MR BRINK: Mr Chairman, my name is Brink, Robin Brink, I appear as evidence leader.

MR VISSER: May it please you Mr Chairman, Honourable members of Committee, my name is Louis Visser, I'm instructed by Wagner Muller and du Plessis and I appear for Mr Gerrit Nicholas Erasmus who is marked number 3 on your bundle.

MR BOOYENS: May it please the Commission Mr Chairman, Kobus Booyens, I appear for Nicholas Janse van Rensburg, Gerrit Erasmus and Gideon Niewoudt - I beg your pardon, Hermanus du Plessis and Gideon Niewoudt.

MR PHOSA: May it please Mr Chairman and the Commission, I appear on behalf or - sorry my name is Phosa, I appear on behalf of the two families of Mthimkhulu and Madaka, instructed by Nyoka - Attorney Nyoka.

CHAIRPERSON: Thank you.

MR PHOSA: Mr Chairman, if I could start I have an application to make namely, that the ...[inaudible] should be postponed until tomorrow morning.  I received instructions - through no fault of mine or the family, only over the weekend.  This is not a joking matter, it is a serious matter and not one which you just brush over for the benefit of any person.
	The intention is to see to it with that at long last justice is done in this matter and if I must be involved in doing justice in this matter, I must be properly instructed.  I have never done so before and I won't do so now, I will never proceed in a matter where I am not ready for the benefit of the people I'm acting for, to move ahead.  Therefore, when I make this application it is meant not for my benefit but for the benefit of the families sitting down there, therefore I request that I be given time to do justice for the last time to those who are not here, the two people who passed away and their families.
	I have access to certain information which was not available to me until this morning, with regards to certain possible witnesses.  I would need to interview, prior to doing any cross-examination.  This therefore means there could be two possibilities, one would be to postpone until I have seen these witnesses, which we hope to do tonight when they will first be available or alternatively, if it is so felt the proceedings can go on for as long as I am not called upon to cross-examine anybody - which is our intention to cross-examine  so, there are two options available.

CHAIRPERSON: Mr Phosa, I have no doubt it is no fault of your own but why were you only instructed at such late notice?

MR PHOSA: Perhaps, to put it simpler in a shell, initially the intention was not to engage counsel at all in this matter but the family on learning that the other side had counsel, in their own interest M'Lord, sorry, Mr Chairman, felt that there is no way that they could just themselves with the attorney - not to say the attorney didn't feel adequate but it's the feeling of the family.
	So, at the last moment they made these efforts and I cannot really force them, it is part of our system that people think in terms of advocates and attorneys in different positions which is of course far from reality.  That is the position.

CHAIRPERSON: But they were - so they were given notice a long time ago, they decided they would not participate.  The matter was originally set down for hearing last week, wasn't it?

MR PHOSA: Yes.  Mr Chairman, there may well be very good reasons for having expressing displeasure.  Once I've taken the matter have done, in the thinking that it is correct to do so, I'm now sitting with the matter so the alternative will be to say I must now withdraw.

CHAIRPERSON: No, it is if they elect to give you such short notice, they must accept responsibility for it, mustn't they?

MR PHOSA: Unfortunately, interest justice are not just for them only, this is a public matter Mr Chairman.  If any discretion's, if there are any discretion's - I don't think there are, on their part can not be made to visit everybody else, this is a national matter.   Actually, it could be an international matter, so we cannot leave it on that basis.  Justice has to be seen to be done and I think it would be inappropriate to punish them as it seems to be the situation you've suggested, simply because they rightly I think, felt intimidated.

ADV DE JAGER: Wouldn't it be to your advantage if for instance they start giving evidence, you could listen to the evidence and then get an opportunity this afternoon to prepare further after hearing their evidence and reserving your right for cross-examination because I don't think you'll be in a position to cross-examine but as the evidence in chief is concerned, couldn't we proceed with that and you then prepare for your cross-examination?

MR PHOSA: It is precisely one of the two alternatives I suggested, I did say so.

CHAIRPERSON: Shouldn't we also consider allowing other people to question if they wish to?

MR PHOSA: Such as?

CHAIRPERSON: Council for the other applicants or the leader of the evidence?

MR PHOSA: No, I definitely have no objection to that.

CHAIRPERSON: Have you gentlemen got anything you wish to say in this regard?

MR VISSER: Mr Chairman, we would certainly support the suggestion of Advocate de Jager to use some of the time which remains today, to at least get some of the evidence behind us and we would suggest that we should call Mr Gerrit Erasmus to give his evidence in chief at least.  And certainly in fairness to Mr Phosa, we would have no objection to his cross-examination standing over until tomorrow.

MR BOOYENS: I agree with my colleague Mr Chairperson.

CHAIRPERSON: Very well, I take it from that that you have agreed with your colleague that you will lead the first witness Mr Visser.