Amnesty Hearings — Kimberley — 1997-10-27

MR VISSER: With respect, Mr Chairman, in the quest of the Committee to discover whether there was a full disclosure, the truth must play a significant role and when one has the situation, as we now know it is in this case, where there are material discrepancies in the evidence between various witnesses and in the evidence of the witness this morning here himself, the question is whether you will close your eyes to those discrepancies or whether those discrepancies should be placed before you by somebody who knows what they are and who has made a study of them which is, of course, where we come in, Mr Chairman.  We can be of assistance there to point out these discrepancies to you.
	For example, just to mention an example.  At the trial of this case, Mr Chairman, Mr Engochla, the person who is really the one who Mr Smiles wants to take the place of, who threw the hand grenade, he pointed, he made a pointing out to the police where he said he stood when he threw the hand grenade.  He made a confession during the pointing out that he, in fact, threw the hand grenade.  Issues like that, Mr Chairman.  The statement which you have just been handed by Mr Smiles which was handed to the Prosecutors, I do not know whether you had sight of it, which bears virtually no resemblance at all to what his statements to the Gross Violations of Human Rights Committee was going, had been.
	The point here, Mr Chairman, is that, certainly, my clients do have an interest that the truth be seen to be investigated and be seen to come out.  They also have an interest in not being thought of as persons who might make themselves guilty of thwarting the Law.  Mr Chairman, with respect, we believe and we submit to you that we have a right to cross-examine Mr Mbatha and we ask you for a ruling.  If you say we do not have such a right then, Mr Chairman, perhaps you should make that this can be tested.  The point is that we seem to be running into this kind of problem every time we arrive, most of the times, when we arrive at this Committee in order to show somebodies innocence.  It seems to be that when it is an applicant in an amnesty application who confesses his guilt, it seems to us that the Act and the procedures are geared towards that end, but it does not seem to us that the Act is really geared to accommodate a person who comes and want to tell you that he is innocent of allegations that are made, whereby he is either implicated or in which he has an interest.  So, with respect, Mr Chairman, that is all I have to say.  May I just ask my attorney?  
	Yes, Mr Chairman, just by way of, by way, lastly, by way of example, if one takes too strict a view of an implicated person then the question arises what about Adv Jean Nel, she is not an implicated person, she merely has an interest.  The same with the late Chris Hani's wife.  She never had an interest, she was not implicated, she only had an interest.  So ... (intervention).

CHAIRPERSON: That they were victims.  The people you are mentioning are victims.

MR VISSER: But, Mr Chairman, that is why we read to you Section 19(4), the distinction does not appear from that.  It is any person, Mr Chairman, who is either implicated or has an interest, with respect.  So, those are my, our submissions, Mr Chairman.  We are here, we are here to assist the Committee in, at the same time, primarily, we are here to protect the interests of our clients and we believe that the only proper way in which we can do it is to highlight to you the fact that, perhaps, some of the witnesses, perhaps this witness, is not telling the truth which is vital for you to understand and to appreciate in coming to a conclusion on the amnesty application.

CHAIRPERSON: Mr Visser, I think we should indicate to you that we are very reluctant to allow ourselves to get entangled in the whole question as to whether or not certain people were wrongly convicted.  That is the problem for the Supreme Court, I do not know there is in Kimberley or Bloemfontein.  I have already mentioned that we have come to know that papers have been filed and I am sure there is going to be an argument about whether or not that conviction of those people should be set aside or not and I am sure one of the people you have mentioned, Mr Nele, has filed papers and I am sure there is going to be a huge, possibly, there is going to be a huge dispute of fact and those people who filed affidavits in support of that application are going to be called upon to come and testify and the like.
	Now, we do not want to take that problem, which is not ours, and bring it into our arena and find ourselves involved in an argument here as to whether or not the conviction of those people was good or bad.  Those who want to support the conviction of those people must go to the Supreme Court concerned, file affidavits and, or go and lead evidence there.  Those who say that conviction or those convictions are bad must file papers with that court and go and give their evidence there.  We are going to be very reluctant to allow ourselves to take that problem, which is not ours, and bring it here and find ourselves sitting here having to decide whether or not the conviction of those people is good or bad.  That is not our problem and we will try by all means possible not to get ourselves entangled in problems which are not ours.  	
	Now, to the question of, the point that you have raised now, it is not really a new point, because, Mr Visser, surely it is so that every person in this country wants the truth to come out.  Everybody in this country is interested in the truth coming out.  One cannot, on that basis, simply because somebody is interested in having the full truth told and say, well, that gives the person the basis on which that person can participate in the proceedings.  It must still boil down to a particular individual.  That particular individual must still show that him, I am talking about people with interest, they must still show that they have got interest in the proceedings and this simply takes us back to the same argument which was raised before lunch time.  
	I do not think we have, anybody has got a problem about the fact that your clients are interested in having the truth told.  Indeed, everyone in this hall is interested in having the truth told, but does that give them, bring them within the ambit of that section?  No.  They must, as individuals, still show the basis on which they will be entitled to participate to the extent of cross-examining witnesses and I am not so sure whether the argument is any different that, than when we broke up for lunch.  
	In the meantime though, Mr Visser, well, you have suggested that we should make a ruling.  It crosses my mind that, perhaps, if we are to make a ruling with regard to Mr Mbatha, perhaps it would be better not to do so now.  It might be better to wait until your colleagues representing the victims have cross-examined.  It may be that from their cross-examination it may emerge that your clients have got some legal basis to cross-examine the witness.  It may be that during their cross-examination they may elicit some evidence which may tend to establish your client's interests one way or another and I thought, maybe, we should shelve that point and then let the other people put questions and only thereafter, your client's position, viz a vie this particular witness can only be properly assessed.  After all, simply speaking, the witness has not finished testifying.