Amnesty Hearings — Ermelo — 1998-07-23

ADV BOSMAN: But once the document is placed before the Committee, shouldn't the Committee then make a decision as to whether that document is a lawful document or not, should it wait until the very end and allow time to be wasted perhaps on unnecessary cross-examination?

MR HATTINGH: I believe that there is reported case law to the effect that you're allowed to cross-examine on a confession and subject to later proof of that confession.

CHAIRPERSON: That is so, but deal with the question that Mrs Bosman has raised.

MR HATTINGH: Perhaps I could just be refreshed on this?

CHAIRPERSON: What is the value of (tape goes dead)?

MR HATTINGH: The value will be the value that this Committee place on the contents of that document at the end of this hearing, once the Committee has had the opportunity of comparing and having regard to the full picture of information available.

CHAIRPERSON: Aren't you putting the cart before the horse here, "dis 'n bietjie deurmekaar"?   You are wishing to place that document before us, shouldn't you answer the question, instead of saying that the value, "I'm not able to tell exactly what the value is now, that will depend on your findings".   It just doesn't make sense.

MR HATTINGH: Mr Chairman, I think in fact I'm not trying to place the document before the Commission.   In a strict sense, if one has regard to Section 19 of the Act
"The Committee shall make the necessary inquiries, investigations and obtain documentation."
	Now, the Committee which is now sitting as a public hearing is not any different to the Committee, the Amnesty Committee, which is to investigate the matter, although in terms of the, prior to the public hearing, it was a confidential investigation, it was an amnesty hearing, or an Amnesty Committee, which now decided, or is now set down for a public hearing, to consider it in public.   So this document I did not produce, this document I got from the Amnesty Committee, it's already before the Amnesty Committee, I did not produce it.   That's the first, and if that is not acceptable, I think we should go into that issue, but the fact remains, the evidence leader is an instrument of the Amnesty Committee, he's in possession ...(intervention).

CHAIRPERSON: Who said that?   The Amnesty Committee sits as a committee here, those mechanisms, whatever they call it, who are involved administratively in the preparation for hearings, are not regarded, they cannot be regarded as party to the committee.   The committee is made up of the people who have to make the final decision.   People such as evidence leaders don't form part of that, and may I add also that none of the Committee members, we have, I think, 17 or 19 of us, we play no part in the preparation of documents, we get the documents as you get them, and I think that it ought to be like that.   So that the preparatory section of a hearing, sure, maybe there's a practical problem that they decide or whoever is preparing a particular hearing decides what is relevant and not, maybe that's a problem, but the fact of the matter is that this document was not produced by this Committee or any other Committee of the Amnesty Committee.

MR HATTINGH: Mr Chairman, in this regard I did not suggest that the evidence leader was part of the Amnesty Committee, I said he was an instrument, I may be wrong, I accept that.   	In any event, Section 19 of the Act makes, that particular section in fact makes provision for this ...(intervention).

CHAIRPERSON: (Inaudible).

MR HATTINGH: Say again?

CHAIRPERSON: Which sub-Section are you talking about?

MR HATTINGH: Sub-section 1, as well as sub-Section 2.   From the Act, it would appear that, from the outset, the Amnesty Committee is involved with an amnesty application.  On receipt of, the very first day when the application received, from that they are, the Amnesty Committee is involved, and that's why I made the suggestion that perhaps the, that the evidence leader or any investigating team would be instruments of the Amnesty Committee in obtaining information to place them in as best a position to have regard to the full picture.   Now if the existing arrangement is ...(intervention).

CHAIRPERSON: If the full picture includes a document that was unlawfully acquired, can we have cognisance of it, of the contents of that document?

MR HATTINGH: Firstly, my submission would be that there can, I have no indication that this document was unlawfully obtained at the time, on the fact of it there's no indication.

CHAIRPERSON: This where it hasn't been acquired through the full requirements of the law as it stands today.

MR HATTINGH: That's why I say at the time, it was a lawful document properly obtained at the time.   I cannot, at this stage, say exactly when the further requirements came into being.

CHAIRPERSON: It came into being with Act 200 of 1993, the interim constitution.

MR HATTINGH: Mr Chairman, my view and my submission would remain that we are dealing here with a document which, at the time when it came into being, constituted a proper and acceptable document, and if we now say, at this stage, this document does not comply to the requirements of the present day law, then we have to look at the present day law and see for what purpose those provisions are, and my submission would be that in terms of the constitution, you have to make sure that a pointing out or a confession complies with the present day requirements, but for a particular purpose, to institute criminal proceedings against a person in a criminal court, but those requirements are not applicable at this forum, because it's not a criminal trial, number one ...(intervention).

CHAIRPERSON: Assuming you're right, how do you deal with the right to legal representation from the time you arrest him?   That is a right in terms of the constitution.

MR HATTINGH: I accept that this document ...(intervention).

CHAIRPERSON: I don't know when I delivered that judgment, but the purpose of that law, as I interpreted it, was to protect the arrestee and to protect a prospective accused of his rights, isn't it, and to curtail or to stop any risk that he may be put through in incriminating himself or to provide self-incriminating evidence.

MR HATTINGH: Mr Chairman, I agree with you, a prospective accused should be safeguarded against incriminating himself in respect of prosecution.   That's not what we have here today.   We have a person, an applicant, who's already been convicted on these charges, and he in fact comes to this hearing, in essence he tells us, "Yes, although I did perhaps pleaded not guilty at the time" and I, for reasons  which was peculiar to him at the time of the trial, decided not to tell the truth, but in any event today he accepts responsibility for those actions.   So there's no further possibility or danger of criminal trials and further disadvantages for this particular applicant.

CHAIRPERSON: Isn't that putting it too simplistically, Mr Hattingh?   Here we have a sentenced person, who, fortunately for him, has now been given an opportunity to relieve himself of the burdens of that sentence.   You wish to use a document to threaten and risk those opportunities, which you're entitled to do.    The manner in which the attempt is made is by means of a possibly defective document, which is the subject matter of this argument.   Now it's all very well to say he's not standing here as an accused, but we cannot forget he sits here as a sentenced person, who's taking advantage of an opportunity and a right to relieve himself of those burdens, and consequently it's my view that any document that puts those rights at risk, he's virtually in the same position as if he were an accused, not so?