Special Hearings — Caprivi Hearings — 1997-08-08

CHAIRPERSON: Please can you take your seats, we are going to start now.

MR MACADAM: Mr Chairperson, Mr Luthuli has been brought back, not for any further fresh evidence, but merely to be cross-examined by counsel on the evidence he has already tendered before the Commission and Mr Dlamini will then follow him on precisely the same lines.  There will be no further evidence led today.

MR WILLS: Thank you, Mr Chairperson.  I wonder if I could intervene at this stage.  As a result of the cross-examine or the part cross-examine of my client, Mr Mkhize, it became abundantly clear to me that we are not sure at this stage of the proceedings as to what is in dispute and what is not in dispute.  Obviously this creates not only enormous difficulties for me and my clients, but also for all the parties here and results in the proceedings possibly being unnecessarily protracted.  In order to get certain clarity on the matter, I together with counsel representing Mr Luthuli and Mr Dlamini, have prepared a Request for Particulars, which I have delivered to, this morning, delivered to counsel representing the other parties in the hope that they can provide certain clarity as regards the issues in dispute.  I realise that these particulars cannot be answered immediately, but I would greatly appreciate it if an effort could be made in order to facilitate the furnishing of these particulars by Monday or Tuesday morning, but clearly before any submissions are made.  Thank you.  Sorry, I have also given copies to the evidence leader and members of the
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1A Committee.

CHAIRPERSON: Thank you, Mr Wills.  Yes, I have a copy of that.  I'm not going to make a ruling that they - that the counsel for those implicated should reply by Monday or Tuesday, but I would suggest that it would be helpful to all concerned if we did have a reply on the basis as requested.

MR DE VOS: Mr Chairman, can I just give my viewpoint?  We're not on trial here.  We - certainly, if this is a new procedure and we can assist, we wouldn't object to try and assisting this Commission, but to receive such type of documents after we've been here for a week is senseless, having regard to the limitation on cross-examination and various other aspects.  I'm not going to waste my time to even look at this document at this stage.

CHAIRPERSON: That is your right, Mr De Vos, I would encourage people though to, in the sense of what is being requested here is for counsel to place on record what their client's version is.  I'd encourage people to do so, but no one is obliged to do so, obviously.  As Mr Macadam said, we will proceed now with the cross-examination of Mr Luthuli on the evidence he has already given and no new evidence will be led today and thereafter we will deal briefly with Mr Dlamini.

MR VAN ZYL: Mr Chairman, for the record, it's Mr Van Zyl speaking.  Before Mr Luthuli's cross-examination, I wish to put the following on record.  There is - arguments have been put regarding cross-examination and what will be allowed and I'm not going to pay any attention to that.  It is, however, the case that the framework for the application of the ... [break in recording] ... the
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1A proceedings of this Commission.  (Inaudible) ... the decision of Du Preez v The Truth and Reconciliation Commission.  The detail is known to you and I'm not going to go any further into that.  It is my submission, Mr Chairman, that the way in which the "cross-examination" is undertaken here, it has the effect that my - the rights of my clients are not protected based on the following.
According to my submission it is ... [break in recording] ... and secondly ... [break in recording] ... it seems clear that witnesses who testified here and especially Mr Mkhize who testified yesterday in this regard deliberately failed to answer certain questions, gave long protracted and unnecessary answers, made political speeches and they are allowed to continue in this vein without answering the question.
My submission is that insofar as the legal representatives have been restricted in their cross-examination to save time, and that duty has been performed by the Committee, they in the same way have a duty to order witnesses to answer questions to make meaningful cross-examination possible and in the light of the above I, as far as my clients are concerned, at this stage I will not participate any further in cross-examination, especially in light of the way in which witnesses are allowed to answer questions, which actually does not achieve anything;  where questions are not answered and, in fact, other evidence is then placed on record which may seem to be unfavourable and I will accordingly have no further part in cross-examination inasmuch as one can call it cross-examination of witnesses.  I will attend the rest of the proceedings simply to protect my clients' rights
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1A and also offer any assistance which the Committee might require from me or my clients.
Thank you, Chairperson.

MR MARITZ: Mr Chairman, for the record ... [break in recording] ... has already raised an issue which came to the fore and I must say to you that I have been requested by other colleagues to address this matter this morning.
We must stress, Mr Chairman, that we represent our respective clients and it is our duty to protect their interests to the best of our ability.
This panel is bound in law to act reasonably at all times and this is categorically stated in the decision of the Appellate Division in the case which has already been referred to by my colleague, Du Preez and Van Rensburg.
Now notices was caused to be sent to our clients and your attention has been drawn to the notices in the course of these proceedings on more than one occasion and it is a fact that they contain very serious allegations which could have grave consequences for our clients.  It is plain that they have the right to rebut such allegations;  that they have the right to be represented;  that they have the right to test the credibility of witnesses in cross-examination, which is the universally accepted method to test evidence.
We respectfully submit that it is plainly unreasonable to attempt to impose one's own subjective views on a legal representative as to how he should conduct his client's case, which obviously includes cross-examination beyond the rules evolved in law.
If interested parties are prejudiced, the process is flawed and of no real value to anyone.  If we are not
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1A accorded a proper opportunity to exercise our clients' rights, this entire process will be of little value.
Mr Chairman, we respectfully point out that your duties are prescribed in law.  Our clients are in the realm of Section 4(a)(iv) of the Act which governs these proceedings.
We submit that our clients - that this aspect is as important as all the other aspects mentioned in that section.  To pay mere lip service to our clients' rights falls short of your true duties.  Invariably there are two sides to a story.  If one closes one's eyes to the one side in an inquiry, one has an exercise in futility.
We are well aware of your time constraints and we have endeavoured to assist.  At the same time we are troubled by the manner in which time is allocated.  Yesterday is an example.
Mr Mkhize was allowed to take up valuable time with lengthy accounts of irrelevant matters, but we have been curtailed to the extent that we are hardly able to perform our functions properly.  With regard the treatment of our colleague, De Vos SC yesterday, is nothing short of harassment.
Mr Chairman, with the greatest respect, we appeal for a proper understanding of the function we have to perform in these proceedings and we appeal to you, Mr Chairman, to conduct proceedings so as to do justice to the interests of our clients as well.
Thank you very much.