Amnesty Hearings — Johannesburg — UNKNOWN

CHAIRPERSON: At the commencement of these proceedings lastweek, Mr Du Plessis, who appears on behalf of the applicants,applied to the Committee for an order calling upon the State witnesses,Captain Van Jaarsveld and Sergeant  D Gouws,  Warrant OfficerOosthuizen and Warrant Officer J Mamasela,  by notice in writingto appear at this hearing and to give evidence or to answer questionsrelevant to the subject matter before us.  This was to be in accordancewith section 29(1)(c) of the Promotion of National Unity and Reconciliation Act, No 14 of 1995.
 A criminal trial is pending in our Supreme Court against fourof the applicants and the abovementioned persons are known tobe State witnesses in that trial. 
 The Committee was also requested to call upon the Attorney-Generalof the Transvaal in  terms of  section 29(1)(b) of the Act, tohand over the dockets  of the inquiries made by the  Attorney-Generalin respect of the applicants and the criminal trial. 
 It is convenient to deal with the latter request first.  It was submitted that the Attorney-General's docket contained certainstatements by State witnesses and  that these  would be of a materialimportance to the applicants in the application and it would assistthe Committee in obtaining the whole truth. 
 Section 29(1)(b) gives the Committee a discretion which it mayexercise if, in its opinion, the contents of the Attorney-General'sdocket  are  relevant to the subject matter of this hearing. On the information placed before us we cannot say that the contentsof the dockets contain
1A material/...
336 RULING
material relevant to the subject matter of the  present hearing. In fact, no information whatsoever was advanced as  to what they may contain apart from information relating to the pending prosecutionagainst the applicants.
 Because of this  it  is  not  possible for the Committee to forman opinion that its contents, namely the contents of the docketare relevant for the present hearing.
This application can  therefore not succeed. 
 In respect of the first application, the one to subpoena Statewitnesses, it was submitted that  it  is  reasonable, necessaryand justifiable in an open and democratic society based upon freedomand equality that  witnesses who could provide material informationand corroboration of the truth of the applicants' applications,should not be prohibited to give evidence.  The Truth Commission forms part of the democratic South  Africa. 
 The Committee was requested to exercise its discretion  in termsof section 31(2) of the Act, which deals, inter alia, withthe compellability of witnesses.  It was  argued by counsel  forthe applicants that even State witnesses, namely the witnessesin the pending criminal trial, might be called to appear at thishearing and be compelled to answer questions provided that  there has been consultation with the Attorney-General as required bysection 32(2)(a) and that the Committee has satisfied  itselfthat to require such information from State witnesses is reasonable,necessary and justifiable in  an open and democratic society basedon freedom and equality as provided in section 32(2)(b).
 It is argued that there is no provision in the Act which excludesState witnesses from the ambit of this Act,
1A Mr/...
337 RULING
Mr Du Plessis said, that his clients were committed totell the truth at this hearing and that if the State witnessesare ordered to give evidence at this hearing their evidence, ifthey are truthful, will corroborate the applicants' case for thegrant of amnesty. 
 The  Attorney-General's representative strenuously opposed theapplication on the obvious ground that the State  case againstthe applicants in the pending trial might be considerably impairedand compromised if State witnesses are  compelled to answer questionsat this hearing.  Their answers will afford applicants advanceknowledge of the evidence which they will face at their trial.
 In the light of the  attitude of the  Attorney-General, therehas to be other compelling reasons before an order can be  made. As things stand at present, no information is placed before usto indicate the nature of the evidence which the applicants hopeto obtain from the State witnesses.  All we have is a vague expressionof belief that the evidence of the State witnesses will offersome corroboration to the applicants in their evidence in thishearing.  
 The Committee does not feel persuaded by the argument advancedon behalf of the applicants.  The application to subpoena theState witnesses is therefore refused. 
1A

MR DU PLESSIS: /...
338

MR DU PLESSIS: As it pleases you, Mr Chairman.

CHAIRPERSON: Mr Mpshe?

MOKOTEDI MPSHE: Thank you, Mr Chairman.  Mr Chairman, as I haveindicated to the Committee members in Chambers, the matters thatwe are going to deal with this morning, we are going to commencewith the third one, that is Makope, Maake and Sefola killings,Mr Chairman.  But I was approached by my colleague yesterday,Mr Brian Currin, that he would wish first to recall Brig Cronje,for cross-examination.  That I leave to the discretion of theCommittee.

MR DU PLESSIS: Mr Chairman, perhaps I could just alludeto that.  Mr Currin approached me as well in this regard.  Hewill address the Committee on the reasons therefor.  I can saythat we do not particularly have a problem with that, except thefact that Brig Cronje is then going to be called piecemeal.  Thiswill be the second time that he will testify.  He will be takenthen under cross-examination in respect of the general background,and then when he testifies again later on on his specific incidents,he will be taken under cross-examination again, and we feel thatthat is dealing with it piecemeal, Mr Chairman.

MR CURRIN: Mr Chairman, maybe I can just motivate ourapplication to recall him for cross-examination.  The cross-examinationof the applicants in regard to specific incidents will largelybe informed by the general background and the general motivationthat was provided by Brig Coetzee when he testified on behalfof all the  applicants.  In that motivation a lot was said aboutpolitical motive and about political objectives and the context. The questions that  we put to individual applicants should notonly be informed by his evidence in chief, but also his totalevidence in
1A regard/...
MR CURRIN 339 ADDRESS
regard to that submission.  We have a number of questions whichwe would like to  put to him which we believe will help to fleshout some of the ambiguities and uncertainties about certainlyour clients and we feel regarding that evidence.  He is the personthat testified on behalf of the applicants so we would like tocross-examine him.  We realise that his testimony was on behalfof all the applicants, which means that if any applicant wereto testify in regard to any of the incidents, and if one wereto start now with the Makope, Maake and Sefola killings, we wouldbe entitled to cross-examine those particular applicants regardingthat general evidence as well, but they didn't give the testimony,so we believe it would be right and correct to rather cross-examinethe person who gave that testimony.  So that is really the reasonwhy we would like to cross-examine him on that before we proceedon cross-examination on specific incidents.

CHAIRPERSON: Mr Currin, it seems to be the view of the Committeethat we would not like to sets of cross-examination of a witnesswhere it can be avoided.  This is a lengthy matter.  There  willbe enough time to put all that you wish to put to Brig Cronjeon the general evidence and on anything that you have that isspecific which will emerge no doubt from the evidence given bywitnesses to test whether what he has said under his general evidence is correct or not.  So I think that it would be convenient forus to proceed on the basis that when Brig Cronje comes to giveevidence you will have all the  opportunity to test his evidencein that regard.