Amnesty Hearings — Boksburg — 1998-03-18

BERNARD MAKGABO NGOEPE: Just hold it there.  When you describe him in 
the way that you are describing him, I'm not necessarily saying 
that there is evidence or there is no evidence of wider conspiracy 
but when you begin to describe to Mr Clark that way as a witness, 
I think I would have some problem because you see I think Mr 
Clark did not make any attempt to hide the fact the he was not 
impartial, he was not to be impartial in this case.  
	He has demonstrated that and he indicated that he would 
not be coming here before us - if we wanted him, to he would 
only do at the instance of the applicants and I'm not so sure how 
helpful that kind of evidence is.  And another thing is, well, as 
I've said to you it indicates some partiality of sorts, some 
partiality.  It could indicate some partiality.
	And anther thing is, it's all very well for a witness to come 
and say "Well these proceedings are part of a circus and the like, 
it is his right to say so.   But when I have to come to a point 
where I must consider the credibility of such a witness, I have got 
to ask myself whether a witness who adopts that kind of attitude 
in giving evidence could be prompted, let alone feeling obliged in 
telling the truth and being honest.

UNKNOWN: Honourable Chair with respect, as far as his 
attitude is concerned, whether or not he wanted to testify and his 
reasons for not appearing, that would involve his attitude.  But 
respect, regarding his factual evidence I would like to argue that 
his factual evidence in indisputable and Mr Bizos with respect, 
cross-examined him thoroughly and there is no aspect in his 
evidence which would indicate partiality.  He said that there were 
even possibility for negotiation.

BERNARD MAKGABO NGOEPE: On this aspect of impartiality or partiality, 
are you saying that he was the kind of witness who would have 
been prepared to say or concede anything even if that thing would 
have been prejudicial to the applicant's case?

UNKNOWN: With respect, he said very plainly that he had 
information on his computer which did not belong there, as an 
example ...[indistinct]

BERNARD MAKGABO NGOEPE: So you are saying he is the kind of witness 
who would have been - who was so impartial that he would have 
been in a position to say or concede anything even if that thing 
would have been prejudicial to the applicant's case?  Can he be 
described to be that kind of witness?

UNKNOWN: I would argue that it would be so and that it 
did appear so.  I regarded him as a very good witness.

BERNARD MAKGABO NGOEPE: Did he regard these proceedings as a serious 
exercise or as a platform where you could just come and say what 
you want to say?

UNKNOWN: With respect Honourable Chair, he appeared to 
be a person who had certain complaints or reservations.  There 
are people in the media who have the same type of complaints but 
nonetheless he appeared here and testified open-heartedly without 
knowing what they would ask him, apart from the Visser issue. 
	And Mr Bizos' cross-examination went much further than 
that.

BERNARD MAKGABO NGOEPE: But ...[intervention]

JUDGE WILSON: He's the first witness that I can recollect, 
who arrived here on his own with documents he wanted to hand 
in, with prepared speeches he wanted to make, isn't it?

UNKNOWN: That's correct.

CHAIRPERSON: That's not surprising because he had been 
consulted with and he was asked and he had agreed to comply 
with the requests of applicant's counsel.  He had prepared himself 
to come and give that evidence.

UNKNOWN: If he - during the trial at Pretoria he knew that 
he would be called in, it's generally known and at no stage did we 
have any reason to consult him and he was not consulted with.

BERNARD MAKGABO NGOEPE: He might have told the truth at the end of the 
day but would it be unreasonable of a trier of facts in determining 
his credibility to take into account the points that I have 
mentioned to you?

UNKNOWN: With respect Honourable Chair, the same 
decision can be delivered regarding Mr Kronen.  He testified for 
the Communist party.  Not once did Mrs Beyers ...[intervention]

BERNARD MAKGABO NGOEPE: The points that I mentioned to you had 
nothing to do with the documents.  I told you that his attitude, he 
has a certain perception about these proceedings and I said 
specifically to you that under those circumstances, one should 
ask oneself the questions "This kind of witness, could he have 
felt prompted or obliged to tell the truth and be open and frank to 
what he says is part of a circus".  No witness is tainted with that 
kind of question mark.

UNKNOWN: Honourable Chair with respect, with such an 
attitude he could not have arrived here with the purpose to place 
the applicants at an advantage.  If he had come forward with that 
purpose in mind, he would not have adopted that attitude and he 
would have then have been partial in his evidence.

BERNARD MAKGABO NGOEPE: My question pertinently to you was, do you 
think it as unreasonable for a trier of facts in determining the 
credibility of such a witness, to take those things into account, 
would you or would you not?

UNKNOWN: With respect, it should not be viewed in 
isolation but be seen in terms of his testimony as an entirety and 
then be judged but one should not look at singular aspects.   I 
would like to maintain that his entire testimony should be 
weighed up.

CHAIRPERSON: Well, it became quite clear that he had very 
strong views on his political beliefs.  He had strong views of the 
Truth and Reconciliation Commission.  He did not think it 
necessary to hide or conceal his views about that.  He felt very, 
very strongly in favour of Mr Derby-Lewis and Mrs Derby-Lewis 
and his commitment to the cause of Mr Derby-Lewis became quite 
clear in his evidence.  
	What is being asked by my learned friend here, my brother 
here, is that quite clearly, can this witness be described as 
impartial?

UNKNOWN: With respect, in terms of his evidence there is 
nothing which indicates to the contradictory, that he was partial.

CHAIRPERSON: Carry on.