Amnesty Hearings — Ermelo — 1998-07-23

CHAIRPERSON: I hope you're not talking of flogging two horses.

MR HATTINGH: The applicant I would submit did not give a plausible explanation why he suddenly came up with the political motivation that he received instructions from Gushu to execute Obed and my submission would be that this is a fabrication of the event to place him within the ambit of the Act for Amnesty.

CHAIRPERSON: Now that document you want to use to do that -was that that the statement to his attorney?

MR HATTINGH: Yes.

CHAIRPERSON: Isn't it privileged?

MR HATTINGH: Not once he made it available to the police as part of his warning statement.

CHAIRPERSON: Is that the case?

MR HATTINGH: That is the case he, when requested for a warning statement, he said I've already made a statement with my attorney and I would like to have this statement which I have made with my attorney to be annexed to my warning statement and we could just confirm it with the applicant that that in fact was the position.
	Mr Khaba, was that in fact the position at the time that you were requested to make a warning statement when you were arrested for the murder of Obed that you told the police that you did not want to make a further statement, that you had already made a statement to your attorney and you then made your statement to the attorney available to the police.  Is that what happened in 1992?

BONGANI WILBERFORCE KHABA: I told the police that I will not write any statement with them but instead with my lawyer.

MR HATTINGH: So you did make a statement with your lawyer at the time?

BONGANI WILBERFORCE KHABA: I did not make such a statement with my lawyer.

MR HATTINGH: I may just put it to you, I don't think we have to take it much further but in this statement ...[intervention]

CHAIRPERSON: He said he didn't make a statement to his lawyer.  As far as he's concerned nothing like that exists.
Aren't you stuck with that answer Mr Hattingh?

MR HATTINGH: Mr Chairman, perhaps I can refresh the memory of the applicant when I show him the document, perhaps he could tell us whether the signature at the bottom of the statement is his or not?

MR BLACK: Mr Chairman, may I just once again - I thought this point has been made clear.  Why do we as my learned friend on my left here, Mr Patel say, why do we have to conduct this as a - by way of, almost by ambush - why haven't I been given copies of this?  Why weren't we told - it's repeatedly been made clear to Mr Hattingh and to everybody that there must be full disclosure of documentation.  I need to talk - I need to consult with the applicant, I can't have the applicant coming here and being confronted with documentation which I certainly haven't had sight of and I should imagine that when Mr Hattingh came here this morning he would have - it was his intention to use this document.  I really, I certainly object - I mean we can't carry on like this, I don't know what more one can do.

CHAIRPERSON: Mr Hattingh, before I deal with that, where is this getting us?

MR HATTINGH: Mr Chairman, from the outset I indicated that this applicant, his application will be opposed on the basis that his motive for committing this crime was not particularly motivated, his aims were not politically motivated so where I'm heading to is to show that his present version is a fabrication and whatever he said before never included a political motivation.

CHAIRPERSON: But one of the means, one of the aspects you want to use doing that is a document he denies making.  How do you propose to go further on that document?

MR HATTINGH: I propose by showing the document to the applicant and asking whether the signature on the document is his and whether he now, having his memory refreshed, remember this document.  If he still says no, this is ...[intervention]

CHAIRPERSON: Mr Hattingh, even if it is his signature are you going to go about now trying to prove that document?
Can he tell you that was recorded there was absolute - correct?

MR HATTINGH: Mr Chairman, once again I respectfully submit the questions that are being put to me now are the very questions that the applicant need to answer.

CHAIRPERSON: It's put to you.  I would hardly think that the applicant could answer.  You're the trained person not the applicant.  Are you going to try to prove that document as if we were in a criminal trial?  If he should say that that is his signature, you going to call the attorney who recorded that document?

MR HATTINGH: Mr Chairman, no I have no intention of doing that.  Perhaps I could then just explain to the Committee what I would like to do.  I would like to put this document before the document, ask him whether this is - whether he - to have a look at it, refresh his memory, look at his signature.  If he tells us that this is not his statement at the time, I will accept it.  If he tells us that yes, now with his memory refreshed this is his statement at the time, I will ask him one question and the question will be is why did you never in this statement make mention of the fact, why you put yourself on the scene on the statement and you put yourself, make yourself part of the incident on the scene - you never make mention in this statement to your attorney about the fact that you acted that evening on the instructions of Gushu or the MK Commander or whatever command system of the ANC to execute Obed.

CHAIRPERSON: Mr Hattingh, you missed the point I make.  I want to say it's time for us to take cognisance of the fact that there's a large proportion of the community in this country who can't use the English language properly.  He said so on numerous occasions.  How is he going to be able to confirm that that document is recorded correctly and then are you going to call in interpreters that interpreted that document and the recorder of it etc?
	Mr Hattingh, you seem to have some support on the panel.  Hand that document over to the witness.

MR HATTINGH: Thank you Mr Chairman.  I may ask also the same time while this is being handed to the applicant some indication or assistance from your Committee as to under what ethical conditions this hearing is being conducted, I see Mr Black is communicating and discussing the matter with the applicant while he is under cross-examination.  I do not know whether this is unlike another ...[indistinct]

CHAIRPERSON: I didn't see it but it's wrong, Mr Black should have know better.

MR BLACK: Mr Chairman no, what I wanted to ...[intervention]

CHAIRPERSON: Well that's irrelevant what you wanted to do.  At the very least you should have asked permission and draw our attention to the fact that you wanted to communicate to the witness - he's under cross-examination.

MR BLACK: I apologise for that - what I just wanted to find out if ...[intervention]

CHAIRPERSON: I'm not interested in that Mr Black, please don't let it happen again.

MR BLACK: Mr Chairman, may I read - look at this document before it's handed to the client?

CHAIRPERSON: Can you hand it to the witness please?
	Mr Khosa ...[intervention]

BONGANI WILBERFORCE KHABA: Khaba.

CHAIRPERSON: I'm told that there's a signature at the foot of that page, can you see it?

BONGANI WILBERFORCE KHABA: Yes.

CHAIRPERSON: Is that yours?

BONGANI WILBERFORCE KHABA: No, this is not my signature.

CHAIRPERSON: Well that's the end of the matter.

MR HATTINGH: May I have the document back please?

CHAIRPERSON: Mr Patel, it doesn't look like we're going to proceed without that document trooping back from whence it came.

MR PATEL: Mr Chairman, I think as being part of the team that represents applicants, there's been an attempt to use this document, surely we ought to be able to examine it?

CHAIRPERSON: I know and you can approach Mr Hattingh during one of the breaks please.  I want to get on with this business.

MR PATEL: As it pleases you Mr Chairman.

CHAIRPERSON: Yes you would be entitled to because he ...[indistinct]