Amnesty Hearings — Pietermaritzburg — UNKNOWN

CHAIRPERSON: Just a moment, before we go that far,  I'm uncomfortable about that aspect of the matter.  I think I must confer very quickly with my colleagues.
	Before we, and in fact I don't think subject to what people may say and having conferred with my colleagues I think I'm still feeling very uncomfortable about whether we should counsel to explain what happened during his consultation with his clients.  It's just not done unless exceptional circumstances do exist to what I'm not so sure whether they do in this case.  
	But perhaps Mr Prior I appreciate your concern but I think though that simply speaking it is not correct that you are prevented from using the statement because once the statement is given to you, you are free to use it in cross-examination like you have done.
	It would have been something quite different if once you started wanting to use that statement Mr Arendse objected and said: "No, you can't use that statement because during consultation my client told me that it was not true and soforth, he didn't do that".  
	Had he done so we probably would have overruled him and said: "Well, let your clients give an explanation".  So you are free to use it in cross-examination and you did in fact use that statement during cross-examination.
	Once you confront a witness with a statement which he would have made in consultation with his counsel, like an affidavit, once you confront him with the contents thereof and he says: "Well, that's not what I told my counsel", you can't take it further.
	Unless for some reason counsel himself feels that the witness is lying and counsel has got some other reasons why he would like to prove the witness a liar, like for example counsel wants to say that he feels that perhaps it's a reflection on himself and he wants to go into the witness box and then he wants to contradict the witness.
	But once the witness has said: "That's not what I told my counsel", there could be a host of reasons.  For example plain ordinary misunderstanding between the two of them during consultation.  And we normally just leave it there once a witness has said: "I didn't say that".
	Perhaps I should say this because it would appear that you're going to have possibly more of this kind of problem and we don't want to set a precedent where we call upon counsel to come and explain because in terms of the proposed guidelines which have not as yet been proclaimed, the new guidelines which we have drafted, it seems to me that legal practitioners are going to be required in advance to submit a summary of the statements by their clients like just happened now.
	I can foresee that while this is going to be helpful in the sense that the leaders of the evidence would know in advance more or less what the applicants are going to say.  We are going to also have this kind of problem where the statement will be found to be wanting in one or more respects.  
	And if on each such occasion when an applicant says: "Well that is not what I told my advocate", we would require of an advocate or an attorney to give an explanation, I think it would lead to an untenable situation.  
	And I don't think we should start today to create that kind of precedent.  We are not saying that it can never happen but for now we feel that each has been sufficiently ventilated and that it should be left there.

ADV PRIOR: Thank you Mr Chairman.  Mr Chairman, I did not intend to convey any impression that Mr Arendse was required to - or his junior, to give evidence or to come and make a statement.

CHAIRPERSON: It's just because Mr Arendse suggest that his junior should explain.

ADV PRIOR: Yes.

CHAIRPERSON: And we don't think it's appropriate.

ADV PRIOR: I accept unequivocally the explanation placed on record by Mr Arendse.  There was no intention, there was no intention from my part to indicate that there was anything improper.  It was simply a request that there appeared to be a material discrepancy, and Mr Arendse has answered that.
	As far as he was concerned the instructions were as the evidence was tendered, and I accept that Mr Chairman.  Thank you.

CHAIRPERSON: Do you think this could be the appropriate stage where we could adjourn?  Or first I should ask Mr Arendse.  Mr Arendse is that your case or do you have any more witnesses to call?

NORMAN ARENDSE: No, that is the case for the applicants Mr Chairman, we are no further witnesses.

CHAIRPERSON: The next witness would now be one of the relatives of the victims.

ADV PRIOR: Mr Chairman, the position has changed since yesterday.  I've consulted with Mrs Swart who is the mother of Mrs van Wyk, the deceased in the matter, and she said that after deliberation she does not wish to give any evidence.  She leaves the matter of amnesty in the hands of the Committee.
	In other words she does not oppose it.  What she simply wanted to ask was a question of the third applicant, Mr Shiceka, which I understand was put.  She wanted to know in essence what Mr Shiceka would have said to the children of the deceased if they were able to be here.  And I think Mr Shiceka fully answered that question.  He would ask for forgiveness and would ask the Committee to a recommendation at some later stage.
	The only other aspect is, since the death of the mother of the four children, Mirinda, Cathy, Neville and Dawie, is that his matter be referred to the R&R Committee for consideration.  She does not wish to give evidence viva voce.  So from Evidence Leader's side there are no witnesses that I can call in this matter.  Thank you Mr Chairman.

CHAIRPERSON: Yes, like you say Mr Shiceka has publicly conveyed his apologies.  On another level though, I'm beyond that level on a person to person level, normally the Committee doesn't get involved.  Normally the representative of the applicant and the leader of evidence, if an applicant wants to meet with the family it is done extra curially and that could be done during our adjournment.
	And don't we have a representative of some sorts here, Reparations Committee or something or the briefer?

ADV PRIOR: Yes.  Mr Chairman we do, we have two briefers, Mrs Mkhize is one of them.  She is present and contact has been made.  I certainly will take it up with her.

CHAIRPERSON: You'll put them in touch with the people because as you know at this stage it's premature for us to say that they are victims because that could depend on the - I think it's going to depend largely on the decision we come to.

ADV PRIOR: Yes, Mr Chairman, thank you.

CHAIRPERSON: So you can just put the people concerned, in touch with the Commission.  We will adjourn and resume at half past eleven unless you feel that we need more time before you start arguing.

NORMAN ARENDSE: Can we make it a half an hour adjournment Mr Chairman?

CHAIRPERSON: We can come back at a quarter to twelve.

NORMAN ARENDSE: Yes.

CHAIRPERSON: Is it going to be possible to finish by 1 o'clock?

NORMAN ARENDSE: I think so.

ADV PRIOR: I agree with that.  I'm in a position to address the Committee just on several brief points.

CHAIRPERSON: Very well then we'll adjourn until a quarter to twelve.
HEARING ADJOURNS
ON RESUMPTION

CHAIRPERSON: Mr Arendse?