Amnesty Hearings — Umtata — 1998-08-25

CHAIRPERSON: Good morning ladies and gentlemen.  Yesterday when the electricity went off, I think the legal representative who is representing Mr Matanzima was still making submissions.
	Had you placed yourself on record Sir?

MR HOBBS: Thank you Mr Chair.  I was interrupted yesterday afternoon by a power failure.  I reiterate my name is Jonathan Hobbs from the local Barr and I am instructed here to represent Chief Keizer Matanzima in these proceedings.
	It appears his presence is required here by way of subpoena issued by the Commission.  I seek to resist the appearance of this witness before the Commission and shall I say two heads.  I say two heads, there may be three, the validity of the subpoena itself, might be in question.

CHAIRPERSON: Is it in question or might be in question that you have to make your submission, so that we understand what point is being taken?

MR HOBBS: It is not a point that I intend to pursue right now.  I may proceed to the first head of my resistance to the appearance of the Chief.
	It relates to the relevancy of any testimony which he might give to the proceedings.  He is being subpoenaed we are advised, on the insistence of the victim's family.  And that insistence is based on a press report of a public speech which would have been made by the witness, reported on the 13th of October 1995 in the Sunday Star.
	I believe that a copy of the press release has been handed up to the sub-Committee and I am unfortunately not aware of its number or description.  On perusal thereof, there is nothing contained in the reported statement which in my submission, can be relevant to these proceedings.
	The evidence led certainly does not support a contention that this was a premeditated murder, or that it enjoyed prior sanction by Chief Keizer Matanzima.  At most, the reported statement can be construed as his post facto condonation of the death.  On the basis ...

CHAIRPERSON: Let me ask you this, if his statement can be construed as being a post facto condonation of the death of the deceased, can it be said that there cannot be any question of the involvement of the Chief in what appears to be a subsequent cover up as to the circumstances surrounding his death?

MR HOBBS: Well, Mr Chairman, we now are moving within the realms of speculation.

CHAIRPERSON: I am putting a question to you, what is your submission to that?

MR HOBBS: That is my response Mr Chairman, it is with respect, that we are speculating now.  There is certainly nothing contained within the statement which would suggest any involvement therein.

CHAIRPERSON: I am referring to the evidence that has been led before this Committee.

MR HOBBS: The evidence led before this Committee is that the cover up if any, was at the instance of the then South African authorities, due to an embarrassing situation which was looming consequent to questions asked in Parliament and the embarrassment contained in any prejudicial answer to that.

CHAIRPERSON: It was also the evidence by the first applicant which was to the effect that he was told that attempts have to be made to cover up the death of the deceased by the Transkeian Security Forces.

MR HOBBS: Well Mr Chairman, my submission is to the effect that if the Chief is to be questioned on his statement, expressing his satisfaction if one can call it that, at the death of Ndondo, it doesn't assist the victim's family, it certainly isn't prejudicial to any of the applicants.
	Its relevancy is marginal.

CHAIRPERSON: Yes, what is your other submission?

MR HOBBS: The second head of my resistance in event of the first point failing, relates to the current circumstances pertaining to the health of the perspective witness.
	The witness is an aged man and I have drawn the leader of evidence and my learned friend, Mr Dukada's attention to certain psychiatric reports obtained recently.

CHAIRPERSON: Do you have that available for the Committee to peruse?

MR HOBBS: I do.

CHAIRPERSON: Please let us have that.

MR HOBBS: With your leave Mr Chairman, I hand up three documents.  May you firstly have sight, I have copies for your co-Committee members.  They are - the first one relates to a certificate by one Dr Dudley Duncan, a Specialist Physician, practising in East London.
	The second one a psychiatric report compiled by Prof D.L. Mkhize, practising forensic psychiatrist in Umtata and the third, a certificate by Dr H.L. Uys, practising psychiatrist, also a forensic psychiatrist, practising in East London.  What is of particular note and which I wish to draw your particular attention to, is that the report by Dr Duncan is dated the 5th of May, at a stage when the perspective witness' appearance at these proceedings was not contemplated.
	I may place on record, that I attended on you Mr Chairman, prior to the sitting of this Commission yesterday, and that I was directed to raise this issue with the Officer leading evidence for this Commission, and the legal representative of the victim's families.
	Loathe as I was, I did so.  I supplied them with the documents you have in your possession, and it has been indicated to me that what is contained in these certificates, is not good enough and that the Officer directing the, or leading the evidence before this Commission, will persevere with his effort to have Chief Keizer Matanzima testify.
	I have indicated to him that I will resist this strenuously, these are my instructions.

CHAIRPERSON: You have made the point, we understand that.

MR HOBBS: I am also mindful and request in the circumstances that this sub-Committee shall prescribe a procedure on how to deal with this issue.

CHAIRPERSON: All we would need, we would want you to satisfy us that in the circumstances, you client is incapable of giving the evidence.
	What this Doctor suggests is that the evidence that he is going to give, will not be reliable.  I think it is for this Committee to decide that, whether the evidence is reliable or not.

MR HOBBS: It is indeed, it is indeed for this Committee to decide it upon evidence tended, and ...

CHAIRPERSON: Bearing in mind, you know, this medical certificate.

MR HOBBS: If I may proceed, the very content of these certificates are opinion evidence, and in my submission, any tribunal making a decision on the competence of Chief Matanzima as a witness, will rely on the expert opinion of these medical experts.
	In my submission, prior to this Commission deciding to hear the evidence, if at all, it must firstly decide if he is a competent witness.  In my submission, the Commission should then first hear the evidence on that point, the expert medical evidence, because unless ...

CHAIRPERSON: Are those Doctors available now to be heard?

MR HOBBS: Dr Mkhize is available, he has indicated that he is willing to appear on subpoena by this Commission.

CHAIRPERSON: You are bringing Dr Mkhize as a witness to support your submission that your client is not competent to come and give evidence.  He has put up what you have, you know, a report.
	What is the difficulty in bringing him here?

MR HOBBS: Mr Chairman, I can only assume that even as in any civil proceeding, if a party to such proceedings require the attendance of a witness, he may attempt through the Office of the Registrar of the Court, and have the witness subpoenaed.

CHAIRPERSON: Let me just tell you Mr Hobbs, that - have you finished your submissions?

MR HOBBS: Indeed, I have.

CHAIRPERSON: Mr Dukada?

MR DUKADA: Thank you Mr Chairman.  Mr Chairman, I don't want to deal with all the points which have been raised by Mr Jonathan Hobbs and the firstly the issue of relevance of the evidence.
	It is very clear ...

CHAIRPERSON: Deal with the second issue of the competence or otherwise of Mr Matanzima to give evidence.