Special Hearings — Caprivi Hearings — 1997-08-04

MR LYSTER: Thank you, Mr Coetzee.

MR NTSEBEZA: Thank you, Chair.  Advocate Coetzee, I just want to clarify in my own mind whether I heard you correctly.  Is your objection predicated upon Dr Boraine being Chairperson of these proceedings or doesn't it matter whether he is just a panellist?

MR COETZEE: The application only relates to these proceedings and it is requested Dr Boraine recuses himself from these proceedings - from this proceeding.

MR NTSEBEZA: I am just asking because earlier on you were saying you were objecting to him being Chairperson of these proceedings.  I just wanted to clarify that.  And are you saying it doesn't matter whether he is a panellist or not?

MR COETZEE: That is correct.

MR LYSTER: Thank you, Mr Coetzee.  We will adjourn briefly to consider our position.  Thank you very much.  In fact, it's now just after 1 o'clock and we will take the lunch adjournment now, during which time you will be given the documents which were photocopied earlier on.  Until 2 o'clock.  Thank you.  We adjourn until 2 o'clock.
SHORT ADJOURNMENT
/
ON RESUMPTION
1B
ON RESUMPTION

MR LYSTER: Please take your seats.  We are going to start now.  We have, during the interval, had an opportunity to discuss the application for the recusal of Dr Boraine and it is the unanimous view of the panel that we cannot accede to the application.  As was stated clearly in my opening remarks, the Commission does not seek to establish the guilt or otherwise of any person and no findings of whatever nature will be made at this hearing.  This hearing, which is inquisitorial in nature, is in the process of receiving or gathering evidence.  Findings will be made at a much later stage, when the totality of all evidence relating to this matter is considered.
In the circumstances, we do not believe that there can be any possible prejudice to General Liebenberg or any other person by Dr Boraine's participation on this panel.  If we receive an application in writing for full reasons for our decision, these reasons will be made available in due course.  
In the meantime, we have a full schedule to cover and we intend now to proceed with the first submission.

MR COETZEE: (?):   The question that my learned friend wants to put to the committee is eventually findings will be made relating to the evidence that will be led during this hearing.  Is that correct?

MR LYSTER: That's right.

MR DE VOS: (?):   Mr Chairman, from our point of view, the clarity that we wish to obtain is whether it is not so that this Commission, as it sits today, will make a recommendation to the Truth and Reconciliation Commission,
 /which may
1B which may or may not be included in the report.  Because, if that is so, then obviously it will entail a factual finding.  That's what we find a little incomprehensible.

MR MACADAM: (?):   If I could just respond briefly.  There are two issues.  The first is that you will be familiar with section 30(2)(b) of the Act, that the point at which this Commission wishes to make a finding which may be detrimental to any of the parties represented here, full substance of those allegations intended to be found, so to speak, will then be sent to each of the individuals so implicated, if one can use that terminology as the Act uses it, and at that stage the parties will again have a further opportunity to make further representations.
The second aspect is that this panel will not make the decision or recommendation.  In fact, not all the people present here today may remain in attendance for the duration of this inquiry.  So different people will join at different stages.  Some may leave, and so on.  The totality of evidence, as Mr Lyster has said, will be weighed up at a much later stage, that will include the whole range of evidence, including submissions received here and submissions received through all the other information-gathering processes.  Once that has been collated and the Commission is in a position to make a finding, at that stage all the parties who may be implicated at that point in time will receive a further notice in terms of section 30 and then a further audi opportunity, so to speak, will then happen.  So it's on that basis really that we are dealing with the matter.

MR DE VOS: (?):   Mr Chairman, speaking for ourselves, we are very thankful for that elucidation, because we were
 /not under the
1B not under the impression that that was what was going to happen here.  Please stop me if I'm wrong, but, as I understand it now, the position to be, that this is basically in the form of a preparatory examination, where ideas are kicked around and you will go away and decide, together with all the other evidence which you may have collected elsewhere, whether there is, "A case" and, if so, then a hearing will be held in due course, in terms of section 32, and evidence will then be presented and presented for cross-examination as well, at that stage.  Am I understanding this correctly, Mr Chairman?

MR MACADAM: You are partly correct and partly not correct.  To the extent that you are correct, all the evidence will be weighed up at that stage.  It may not be feasible or possible at that stage to lead viva voce evidence, but that is a matter of exigencies that the Commission will have to weigh up at that point in time.

MR DE VOS: Thank you, Mr Chairman.  Therefore, we assume then that if there's anything which we wish to place in dispute with any witness, now is the time to do it or forever hold your peace.  Thank you, Mr Chairman.

MR LYSTER: It will be permitted for each interested person to make a submission in rebuttal or to cross-examine briefly on very specific issues.  Thereafter, at the end of the hearing or just before the end of the hearing, after the totality of the evidence has been heard a further opportunity will be made to each interested party to make a further oral or written submission.  So if there are other issues of clarification, please feel free to raise them with a member of the panel during a break.  We would like to now try and get on with the substance of
 /the hearing.
1B the hearing.

MR COETZEE: (?):   Yes, thank you, Mr Chairman.  I think we have an appreciation of what you are trying to tell us.  We will attempt to assist you in your investigations as far as we possibly can, but as we understand it there is going to be no factual findings and there's going to be no recommendations, so we have to deal with the matter on that basis.  We understand that.  Thank you.

MR LYSTER: Thank you.  Mr Macadam.

MR MACADAM: Thank you, Mr Chairman, I'd like to commence the evidence ... [break in recording].

MR COETZEE: At this stage now, now that the finding has been made relating to the application, obviously we would like to get instructions from General Liebenberg where to go from here and, furthermore, we are going to request written reasons from the committee in writing, well, immediately.  At this stage I am requesting a postponement till tomorrow morning to get instructions from General Liebenberg an to debate the application and possible remedies from here on, and to get reasons from the committee.

MR LYSTER: Thank you, Mr Coetzee, we do not intend to give written reasons immediately.  We are not obliged to do so and we cannot accede to a request that we stand the matter down, and we will proceed at this stage.  Mr Macadam.  If this is a matter of clarification, please ask a question briefly, but we honestly cannot drag this matter out any further.  I've made the point clearly.  We will not stand the matter down now and we cannot give reasons in writing now and we are not obliged to do so.