Special Hearings — Caprivi Hearings — 1997-08-08

MR VISSER: Mr Chairperson - yes, Mr Chairman, I believe it is proper for us to place our position on record.
First of all, we do echo what my learned friend, Mr Maritz, has said.  We have been concerned, Mr Chairman, from the point of view of the image that is going to be projected to the public outside and yesterday was an example of what I'm talking about.  I mean, when the public actually joined in the fray, if one can put it that way.
Mr Chairman, our position is slightly different from that of our learned friends who appear for members of the Defence Force, as you will well realise.  First of all,
 /our
1A our versions are not on record and I think as has been evident from the way in which we have conducted our cross-examination, we are able to deal with the matter far more expeditiously than my learned friends do.  I have great sympathy with their position, but I must distinguish our position as far as that is concerned, that ours is perhaps an easier task, but, Mr Chairman, where we find ourselves very concerned and please, this must not be viewed as any personal criticism, it is not so intended, but, Mr Chairman, yesterday and I have alluded to that before, where a witness across the floor starts attacking legal representatives personally, one finds as a legal representative and you've been there before, Mr Chairman, I have no doubt, that legal representatives by and large have to rely on the protection of the Court and in this case on the protection of the Committee.  I'm not talking about myself, I can take care of myself, but across the floor Mr Mkhize attacked various of my colleagues yesterday in a personal capacity and, Mr Chairman, may I request that that kind of thing be stopped, that it shouldn't be allowed, that it doesn't take the process any further.  It raises emotions, as you've seen quite clearly yesterday of the crowds cheering and that kind of thing and, after all, Mr Chairman, it is our serious concern that the credibility of the work of the Commission should be of a high standard, because otherwise it reflects on us, because if it isn't, what are we doing here?
The mere fact that we're here, that we're assisting, Mr Chairman, we do with the intention and with the purpose of attempting to assist the credibility which is projected to the public.  I'm sorry if it's not really relevant,
 /Mr Chairman,
1A Mr Chairman, but it's a matter that weighs heavily on my heart and I wish to point it out and thank you for listening to me, Mr Chairman.

CHAIRPERSON: Thank you, Mr Visser.  Mr Stewart.

MR STEWART: Thank you, Mr Chairperson.
As I understand the various submissions that have been made or rather the recordings of matters for the record, no specific ruling has been asked from yourself or from the panel, so I don't respond to that and I don't respond to much of what has been said, notwithstanding that I may disagree with it, but I do ask one thing and that's of my learned friend, Mr Maritz, who spoke about the Du Preez judgment and also about the rights of cross-examination and I understood from him to imply that that judgment sets out the rights of cross-examination in a forum like this and I would appreciate it and I am sure it will be useful to the panel as well, if my learned friend would refer to what section of the judgment in particular deals with that, that in my reading of the judgment it deals primarily with issues of notice, both time and substance and not the whole issue of the nature of cross-examination in a forum like this, but I'd gladly be shown to be mistaken on that.

CHAIRPERSON: Thank you.  I will draw your attention to it.  I really don't want us to have a debate now about what the Van Rensburg judgment does or does not say.  It's now twenty to ten and I'm not going to deal in reply to every matter that has been raised here.
This panel is well aware that I role is prescribed by law and it's unfortunate that one member of counsel shows to characterise the attitude of the panel as the
 /implementation
1A implementation of subjective views, that the procedure that we are using here was determine by the Commission set out in the procedures which were given to you.  Cognisance was obviously taken of the Act which clearly gives us the right to limit cross-examination in view of the limited time available to us, that is clear in the statue and secondly, in terms of the Van Rensburg judgment, there is reference in the Van Rensburg judgment to cross-examination and I'll read that portion which says, on page 38 of the judgment -
"... this will enable him and his legal representative to actually hear the implicating evidence and see the demeanour of the relevant witness or witnesses.  Conceivably the implicated person might be able readily to rebut the allegations of the witnesses and in such a case the Committee might well be under a duty to hear rebutting evidence forthwith and permit cross-examination".
So that is the only reference in the entire judgment to rebuttal of an allegation, of a specific allegations against the client and that was the point of my opening address, was to say we are not going to allow counsel to wear this Committee down, the panel down and the witness down by taking the witness seriatim through every item of their client's version, we simply will not allow it and that is why I suggested to client(?) that they, within the framework of what we would feel as equitable, that you put the client's version to him, but you are not going to be allowed to take witnesses seriatim through your client's
 /version.
1A version.  We simply cannot allow that, because we do not have the time to do it and it would be unfair on - if counsel A did it, it would be unfair on counsel B, C, D and E.  So we're going to proceed with cross-examination now.  At no stage did I say that a version which had been given in another forum may not be put here, I never said that.  I said that it should be put to the client - and by that I didn't mean it should be merely put, "My client's is X, what do you say?".  Put it to him in a limited way, so that you are seen to be rebutting, in the words of CORBETT CJ, the version of the witness and I'll ask counsel please to take these comments to heart and just let us get on with the matter and let us go beyond the unpleasant confrontation which we've seen over the last few days.  This is not a Court of Law.  We don't have eight months at our disposal as people had in the Malan trial, the Msane trial.  We have been given two weeks.  It's not of our doing and we have to make the best - we have to do the best that we can in that short time available.
Yes, obviously we have taken note of the Msane record and the judgment and we will continue to do that.  No findings are made at the end of this hearing.  They will be made in - if they are made at all, they will be made in months to come and reference, repeated reference will be made to that record and to that judgment and I don't want counsel to get the view that we are ignoring that.  We are aware of the various versions of your respective clients.