Amnesty Hearings — Cape Town — 2000-11-21

MR COETSER: Yes, I can't take the matter any further.  Ultimately it depends upon the Panel's evaluation in so far as that is concerned.  It's a judgment that has to be brought to bear on the specific facts.  I can't assist the ...

CHAIRPERSON: Now one last question on your client.  What do you say about his performance as a witness?

MR COETSER: Well if that is going to be raised, then I certainly would have preferred to have been given the opportunity to prepare and to deliver a full argument on that tomorrow.

CHAIRPERSON: Why?

MR COETSER: Well there are various authorities that I would like to quote and various matters ...

CHAIRPERSON: I'm asking you as the representative, what do you submit about ...(intervention)

MR COETSER: I can give you an argument off the cuff so to speak on that aspect.

CHAIRPERSON: Yes.  Well let's hear it.

MR COETSER: Look, the point is, for example, we had Mr Abrahamse sit here and I think his comments are very indicative of the problem that we're dealing with.  He stated that he felt or believed that Mr Olifant was not telling the truth.  Okay.  But in reality Mr Abrahamse would appear not to have attended previous hearings in which other evidence has been led, he has not been fully ...(intervention)

CHAIRPERSON: So you're quoting Mr Abrahamse.  He's not the one that's going to have to make that decision.  I'm asking you, have you got any submissions to make in respect of the credibility of your client.

MR COETSER: Yes, I do.

CHAIRPERSON: Well let's here that.

MR COETSER: The fundamental problem which Mr Abrahamse had, which I would submit that the Commission has too, is the frustration that exists all around amongst all of us in securing specific, clear and definite evidence as to exactly what happened in that raid.  The reason being is that the military have not come and explained exactly what happened.  Mr Olifant was the single individual in this entire incident who has had the capability within the confines of what he knew, to explain or to at least enlighten this Commission and everybody else involved and interested in what actually went on in Botswana and what actually occurred.

CHAIRPERSON: Are you saying we should believe him?

MR COETSER: But the point is that if one looks at his cross-examination, if one looks at his testimony, he has been criticised on one or two aspects where his testimony conflicts with the statements he submitted in support of his application, but the fact of the matter is, what I would like to point out to the Commission and everybody else involved here, is that the mere fact of a contradiction does not necessarily imply a lie.  The mere fact of the admission of a mistake having been made in a statement, does not of it's own necessarily imply a lie and particularly if one takes into account the fact that this incident did happen 15 years ago.  The man is obviously requested to rely on his memory when he makes these statements.  The temptation ...(intervention)

CHAIRPERSON: Mr Coetser, isn't your strong point, not the credibility of Mr Olifant, but the credibility of Mr Coetzee in support of what Mr Olifant says?

MR COETSER: I don't understand.

CHAIRPERSON: Mr Coetzee supports Mr Olifant.

MR COETSER: I don't see any material contradictions between them.

CHAIRPERSON: Well that's why I'm saying, isn't that your strong point?

MR COETSER: No, it's not my strong point.

CHAIRPERSON: Okay let's hear what your strong point is.

MR COETSER: The strong point is the importance of realising various fundamental factors.  Now there is an article which I would like to have referred the Panel to, written by a former Chief Justice of this country, emanating from his frustration at judicial officers not properly analysing factual material to determine credibility and what he warned there was, as I've just said, the mere fact of a contradiction does not necessarily imply a lie.  There are many reasons why a contradiction can emerge, one of them being reconstructive reasoning.  That reconstructive reasoning may result from a faulty memory but a desire to disclose facts.  It may result from opinion, it may result from hearsay.  Laymen, as we know, are inclined to indulge in reconstructive reasoning.  Now a cross-examinational process via the delivery of oral evidence, in a forum such as this, is designed inter alia to control the reconstructive reasoning process and to determine from the witness what he can actually clearly remember now of the events that happened then, because it is only those things that he can still clearly remember that he can state as fact.  What he can no longer remember clearly, the fact is he can no longer remember clearly.  Now the point is ...(intervention)

JUDGE MOTATA: In his evidence, before you proceed, in his evidence what could we say is substantially fair which we could import and make a construction, a re-construction of what obtained in his excursion with the military people?

MR COETSER: Well the fundamental fact of the matter is that via the process of him testifying here and via the process of cross-examination, there were only really at the end of the day a few aspects concentrated on, otherwise the exercise was designed to secure from him what he could remember.  Can he remember names, can he remember this, can he remember the other thing?  On various aspects he said:  "This is what I can remember" and he conveyed the facts.  On other aspects he turned round and said:  "I can't remember."  That is what you got from him.  That is what he testified to.  So what he told you he can remember, those are the facts that you have.  The things that he told you he can no longer remember, you don't have those facts.

JUDGE MOTATA: The tenor of the evidence before us, true that he was sent by Coetzee to Botswana to look at three houses, there was a time lapse and he was approached and said:  "Can you remember those houses?"  He said yes he was sent to Hammanskraal.  At that stage Olifant knows nothing.  When he gets there, he appreciates the intended ...(indistinct), he's trained in the process.  He accompanies them.  They set up camp somewhere in Zeerust.  The other members like Coetzee and company are sent away.  They shouldn't enter the camp because that is occupied by the military people, but Olifant is there and he even goes in and his evidence is that Botswana would have been paralysed.  We had tents and tanks that were on stand-by and other helicopters hovering, so we place a man other than Coetzee and company, who at least had an appreciation of what was going to obtain in Botswana.  That's the kind of evidence we are having and that's why I ask you, I say:  "What would be", I'm not saying procedurally because we are not going to hone ourselves into what would obtain in Court, hence I steer away from procedurally fair to what is substantially fair in his evidence, which we can import and appreciate in considering his application from those facts I have sketched.

MR COETSER: Judge, with respect I don't quite understand what you're getting at, but ...(intervention)

JUDGE MOTATA: You have made a point by the Chief Justice that when you sit in a trial and somebody is asked to recall what obtained in an event that took place in the past, we shouldn't be dogmatic and say:  "X must follow Y necessarily".  We should look at the import of that evidence and say reconstruction, if we have gleaned the essential facts, you should lean towards, lean in favour of probably the applicant or the accused if we were in a court of law, so I say, what can we glean without being dogmatic about which even follows which, which would be in favour of Olifant.