Amnesty Hearings — Ermelo — 1998-07-23

CHAIRPERSON: Well in addition to that, Mr Hattingh, would you agree then that the trend, in Afrikaans the word would be "trant" of the Act must also be considered at the same time?   What I mean by that is, isn't it so that the Act suggests a flyway..., to allow a fluidity in favour of an applicant rather than anybody else?   I don't know what your views are on it, I'm just raising it.

MR HATTINGH: Yes, my submission would be that that perhaps may be the position, but one should not forget the other indications that we do receive from the heading of the Act and the background to the Act, as to what the purpose of the Act is.

CHAIRPERSON: Ja, you're quite correct, but if we must compare two rights, I would suggest, I'm really putting my head on a block, that the better right would lie, as implied by the Act, as I read it, with the applicant rather than an interested party.

MR HATTINGH: Mr Chairman, I cannot make any admission in this regard, I think it is open for argument.   There is no clear indication, but I cannot take it any further than to say I cannot make any admission.   But if we look at the Act itself and try to find out how this particular problem is to be attended to, one first look at the Act and find out whether any provision was made in the Act and if any provision was made in the regulations that are mentioned in Section 40 of the Act.   I am not aware of any regulations prescribing anything in the application of this Act which can assist us here.

CHAIRPERSON: Well let me ask you this first, Mr Hattingh, before we go further, if I were to allow you to quote from that document and make propositions to the witness, would you be happy with what his answer is, and if his answer is yes, that it was his utterances and pointings out, etcetera, and it was made freely and voluntarily, then we go further.  If, on the other hand, he indicates to us and he answers, "Look, that's not my pointing out or my utterances and/or I didn't make it freely and voluntarily", you'd be stuck with that and that would be the end of the matter.   What would your attitude be to that proposition?

MR HATTINGH: In that situation, the position is almost too ghastly to contemplate, because I believe I was advised by the investigating officer at the time of the criminal trial, that the trial within a trial took up almost three to four weeks, so that only goes to show that if the pointing out and the admission documents are not accepted by the applicant as free and voluntary, then we are stuck with a situation where we either have to accept it, to get on with the matter, or, if we would still like to rely on it, we need to prove it, and the extent to which we ...(intervention).

CHAIRPERSON: We go on to the law as it presently stands.   Now would, I have had a look at that document, the preamble, etcetera, where was I, I've had a look at the prelims, and from the face of it, the law, as it presently stands, and the requirements which favour the deponent of such documents, have not been complied with.   It may have been complied with in terms of the laws that stood then, but not today.   If that be the case, would there be any purpose in pursuing this line of argument?

MR HATTINGH: Mr Chairman, I believe yes.   The fact that this document, on the face of it, does not comply to the requirements of existing or present laws or case law on admissions or pointings out, I would submit it does not make a difference, because I think the crux of the matter is, we're not dealing with the admissibility of a document at this hearing or the admissibility, on the one hand, and yet ...(intervention).

CHAIRPERSON: I must say, I must say, I'm sorry to interrupt, I followed your views or your submission that if he says that it wasn't freely and voluntarily made, your prospects of four weeks of a trial within a trial was very much an issue, in which case, as I understood your submission, we'd have to go through a full-blown trial within a trial, and hence I raised the issue of the law as it presently stands.   If that is so, I'm not for one minute suggesting that you are entitled to go through a trial within a trial, but if that is so, then I would have to have regard for the law as it presently stands in respect of admissibility, in which case I would suggest that this documents fails those tests.

MR HATTINGH: I appreciate the reasoning thereof, but my submission would be that we're not dealing with admissibility of a document.

CHAIRPERSON: So what would be the position if the witness says, "Look, I didn't make it freely and voluntarily"?   Is that the end of the matter?

MR HATTINGH: His submission that he's not admitting that it was freely and voluntarily made is only part of the evidence placed before this Committee.

CHAIRPERSON: The issue here is whether you can cross-examine on that document.   In order to do so, that must be a clean document, is that not so?   The minute he contests the voluntariness thereof, it places the cleanliness of that document in issue.   Then what?

MR HATTINGH: I believe if we have regard to the Act, and perhaps we should first have a look at the Act and then decide whether admissibility is an issue at all and whether the attitude of the applicant is relevant at all.   If one has regard to, to start out with, Section 19.4(b), Section 19.4(b) of the Act states, it starts out at
"If an application has not been dealt with in terms of sub-Section 3, the Committee shall conduct a hearing as contemplated in Chapter 6 and shall, subject to the provisions of Section 33..."
and then we go to sub-Section (b):-
"...inform the persons referred to in paragraph (a) of their right to be present at the hearing and to testify, adduce evidence and submit any article to be taken into consideration."
	Now if we go back to Section 1 of this Act and we look at the definitions of certain words, then "article" is the very first word which is defined, and it is defined as being, it includes:-
"any evidence, book, document, file, object, writing, recording or transcribed computer printout produced by any mechanical or electronic device by any means of which information is recorded, stored or transcribed."
	Now I would suggest, from the outset, that this document that we are dealing with at the moment is such an article, which a person opposing the application is entitled to place before this Committee.

CHAIRPERSON: Even if it was come by by unlawful means?  Surely that particular document, strictly speaking, would fall under category of evidence, not article?   To be more specific, I would imagine that any law, any legislation, would imply, if it's not expressly stated, that such evidence must be evidence that was lawfully acquired.   It can't be any other way.

MR HATTINGH: No, I appreciate that in fact those documents would be evidence in that sense.   However, this evidence is already before this Committee, and we can, I would proceed in that regard referring to the particular sections.

ADV BOSMAN: Mr Hatting, in the event of accepting that the document can be placed before the Committee and I may incline towards that we are not binding ourselves, what evidential value would that document have in the light of your submission that it does not comply with the law as it stands now, in view of the Constitution?

MR HATTINGH: I would submit that once the document is placed, well it is before the Committee, it was placed before the Committee, in the end, not at this stage, once we've been allowed to cross-examine on that document, once the applicant has given his views on that document, in the end it is for the Committee to decide what value is to be given to that document, but not at this stage, but at the very end, and whatever value the Committee would like to place on that document, that would be the value of that document.