Amnesty Hearings — Kimberley — 1997-10-27

CHAIRPERSON: Why should it be necessary for them to absolve the police?  They, if they do not implicate them, why should we, how can they absolve the police?  How can the issue arise of absolving, not absolving the police?

MR VISSER: Mr Chairman, could you turn to page 51, just by way of an example.

CHAIRPERSON: Before you go there, you referred us to a report by the Investigative Unit where they referred to people as perpetrators and victims.  That is their own definition which is a wrong definition and we are not going to say that, to base our decisions, one or the other, on the basis of definitions given by the Investigative Unit.  It is plainly wrong, their definitions are plainly wrong.

MR VISSER: The point ... (intervention).

CHAIRPERSON: We have got our own understanding of what the victim is and we, I think we should be guided by our own understanding of who the victim is and who is the perpetrator.

MR VISSER: I have no doubt that you are right, Mr Chairman.  The only point that I was making is that this analysis and conclusion must have come from somewhere and it could only have come from the evidence.

SISI KHAMPEPE: I think, sorry Mr Visser to butt in, I think, you know, the categorisation of people here in terms of victims and perpetrators was as a result of an application made by Mr Mbakwe and Engochla before the Human Rights Violations Committee which they were entitled to do in terms of Section 12 and the investigations which ensued was as a result of that application and that is why you have people being described as victims, because in terms of their own application they described themselves as victims and they described the names of your clients as perpetrators.  That is clearly as a result of their application in terms of Section 12, which is different from the application in terms of the amnesty process.

MR VISSER: May I add one further aspect, Mr Chairman, I see Mr de Jager has got his finger on the button and that is this.  Due to the fact that we act for the police in this matter there may be assistance which they might be in a position to give you which may assist you in coming to a conclusion.  I make the point, I take it no further.  What I wish to say now is the following, Mr Chairman.  I am quite happy not to ask any questions of Mr Mbatha, because you are quite correct, he did not implicitly imply any of my clients.  I do not argue with that, but we will stay here, Mr Chairman, and when Mr Smiles comes in or anybody else comes in and implicates our witnesses, then I will have to call Mr Mbatha back, Mr Chairman, because there are a lot of question marks on the evidence which he gave here today, which we will have to take up with him.
	On that basis, Mr Chairman, I do not know whether that is of any assistance to you.  I can wait until such time as a witness implicates my clients and if nobody does, then I have got a free ride, Mr Chairman.

CHAIRPERSON: The one thing that we must make quite clear.  There has been a lot in the media and all other things about this kind of, about this matter and I am told papers have already been filed by the people who were then convicted to challenge their conviction, something to that effect.  The one thing that we should understand that your, the police cannot hope to do would be to come here and say, well, we oppose application, amnesty to these people, because with a purpose of trying to prop up the conviction of the other people.  We are not going to be a platform where the police would come here and try to use our system as a way of trying to uphold the conviction which took place in the Supreme Court.

MR VISSER: No, I am sorry.

ADV DE JAGER: Mr Visser, could I, I think at this stage, at least, as you have pointed out that it is not a word implicating your people.  So, at this stage of the proceedings I do not think that you have got an interest on the evidence thus far which you should protect and on which you could cross-examine.  It may be another thing with the further developments, but at this stage, as I said, going on the evidence there was not a word of police involvement in anything irregular.  So, (...indistinct) stated if there is no implication, if your clients are not implicated or you agree that there is no reason why you should cross-examine.

MR VISSER: Commissioner de Jager is quite correct.  May I just add one further detail and that is, perhaps, that one should not only think in terms of implication.  It may be, Mr Chairman, that there is an interest that may arise.  It has not arisen yet, but it may be an interest that arises and then I will, obviously, make noises from my side and ask you for us to be able to cross-examine.  See, Mr Chairman, the whole issue here seems to be, the interest here from my client's point of view, seems to be that there may be aspersions, allegations that there were some defeating the ends of justice.  Now, that is what I am here to protect, it has not arisen yet and I quite agree with Mr de Jager, perhaps it is an idea for me just to keep quiet until the situation does arise.

CHAIRPERSON: You are suggesting we should not excuse the witness, we should keep him at, keep him around just in case you may feel the need to apply for him to be called back?

MR VISSER: I am afraid, Mr Chairman, that would be the practical problem.  The practical advantage may be that he might not have to be called back, but the difficulty is that he may have to.

CHAIRPERSON: Mr Tsholanku, I do not know what your attitude is, but I think that Mr Visser's suggestion is that it may be that he may have to ask that this witness be recalled and that he wants to play it by the ear to hear whether his clients are being implicated in the next, through the next witness or whether there would be a basis on which he may cross-examine the next witness or, indeed, even this witness.  So, the suggestion is that the witness should not be excused finally, but he should remain available in case there is such a request and the request is granted that be, that he be called back and I think, under the circumstances, I think that that is a, that that is the best option.

MR TSHOLANKU: Mr Chairman, I am inclined to agree that it is a fair option.

CHAIRPERSON: Okay.  Shall we adjourn and start at quarter to two to try and make up for the time we lost this morning?  We will adjourn until quarter to two.
HEARING ADJOURNS

LAURENS MBATHA: (Still under oath).

MR VISSER: ... my submission that what we are busy here doing is to try to establish the truth.  It is a problem with the electronics.

MOKOTEDI MPSHE: Mr Chairman, ... (intervention).

SISI KHAMPEPE: Sorry to interrupt.

MOKOTEDI MPSHE: ... this announcement that channel five is now English.

MR VISSER: Four.

MOKOTEDI MPSHE: Four is Afrikaans according to this.  Four is Afrikaans.  It is channel five.

MR VISSER: Can I test it for you?  Can you hear it?

SISI KHAMPEPE: Yes.

MR VISSER: Mr Chairman, the point of the proceedings here must be to discover the truth.  The question must be whether each of the applicants that give evidence before you is telling you the truth.  Is there a problem Mr Chairman?

SISI KHAMPEPE: Mr Mpshe seems to be having a problem, Mr Visser.

MOKOTEDI MPSHE: Thanks Mr Chairman, it has been sorted out.