Amnesty Hearings — Cape Town — 2000-11-19

MR WESSELS: No that may be so that it didn't happen like that, but it doesn't have to be that they should remain present and carry on as if it is a trial and dispute all matters.  It now becomes a relevant point.  Can Mr Barnard be believed in everything he says?  Now what does one use to test Mr Barnard's evidence?  I have now been instructed on behalf of Mr Luitingh's has filed an affidavit wherein he says Mr Barnard is lying.  Is Mr Luitingh to be believed and Mr Barnard's evidence rejected because someone else has now come and said something different to him?  Has Mr Barnard discharged the onus to show on the probabilities that his version is true and Mr Luitingh's version is not true?  It becomes an impossible situation if you apply the test as if there's an onus or proof to be required on the balance of probabilities, as argued by Mr Bizos.
	The difficulty with Mr Barnard's evidence is further, he has given a version which in many respects is probably nonsense.  For instance the so-called nails attached to the bomb, where van Zyl told him there were four kilograms of nails attached to the bomb.  That was his evidence initially and it is my submission he heard about this nail business here because it was raised in cross-examination I think by Mr Bizos, there was some speculation in that regard.  Mr Barnard latched onto that to get back at Mr van Zyl for putting him away for ten years, but then not long after he gave this ridiculous version, it struck him that if that sticks, his "bloedbroer" Kalla Botha is now going to be in trouble because Kalla Botha was the one who planted the bomb.  Then he changed that very opportunistically to say no, but he spoke to Botha about that and Botha told him that Slang van Zyl is talking nonsense, the instruction from Gen Webb was that nobody was to be injured.  Botha repudiated that version in his evidence.  It's probably clear that Barnard can't be believed on that issue, so if he can't be believed on that particular issues, how has he then now discharged the onus as set out in Ganey where a court must be able to place absolute reliance on the credibility of a witness in the absence of probabilities, because in my submission the probabilities are equal, it's black and white, how can you say the one is correct and the other one not?
	Mr Chairman, these are just illustrations of the minefield, if I may use that word, that you will find yourself in if the Legislature intended the test to be  proof on a balance of probabilities.
	There are many aspects of criticism against Mr Barnard.  It's not relevant or necessary for me to deal with that.  It was put to him in his cross-examination and one may ask, but why did I cross-examine him extensively if it wasn't relevant and it wasn't relevant in these proceedings and I cross-examined him purely to get on record his version so that anyone else who reads the record afterwards can make up his mind as to whether there should follow any further proceedings in regard to Webster or not, but strictly speaking, all his evidence about Webster, is irrelevant for the purposes of this Committee.
	Mr Chairman, applying that, the procedure that is here, is according to my learned friend Mr Bizos, an inquisitorial procedure, he says that doesn't carry an onus, but at the same time he suggests that there must be proof on a balance of probabilities.  Now that's a contradiction in terms, you cannot have that.
	Mr Chairman, applied to the dispute between Verster and Webb, we have the versions, Mr Bizos says both these witnesses are unreliable, but he wants Webb to be believed in regard to authority.  Now with submission, you can't have your cake and eat it as well.

CHAIRPERSON: Unless I misunderstood it, my understanding was that neither Webb nor Verster could be believed, could evidence be accepted because of their lack of credibility and that we should adopt the approach that it has not been proved by Verster that he had authority, not that we should rely on that portion of Webb to find that there was authority.

MR WESSELS: Yes, no but he wanted to rely on the portion of his unreliable witness to defeat Verster's application.

MR LAX: No, he's not saying that.

CHAIRPERSON: No, no, what he's saying is we shouldn't accept Webb's evidence even that there was no authority because he's an unreliable witness, we should find that, and also because Verster is an unreliable witness, we should find that it has not been proved that he has authority.

MR WESSELS: Oh, alright.

CHAIRPERSON: That was the authority.

MR WESSELS: Then I misunderstood him.  So then he says Verster in himself hasn't proved that he had authority but leave Webb out, he's not using Webb, in that process.

CHAIRPERSON: Because he's not a ...

MR WESSELS: Well Mr Chairman, with respect, then it becomes simpler for me.  On what basis can you say that Verster, on his own version, is lying about the authority?  The probabilities are in favour of that never mind any credibility aspects.  The probabilities are the CCB was there to act against the perceived enemies in a violent way.  The evidence was that there was money obtained, that there was a weapon obtained, through the system.  The evidence was that that was a type of permission that would have been granted, had it been asked for.  The probabilities are that Verster would have done that, because there is no reason why he would not have obtained the permission if it was something that he would have received.  It is something that had to go through the system, that if he didn't get the permission there could have been repercussions at a later stage, so there is nothing at all to disprove or even cast doubt on Verster's version that he had the permission.  The only criticism against his evidence was that because you didn't tell the truth or you wouldn't forthcoming at the time of the Harms Commission, now ten years later when you say you had permission, that shouldn't be accepted.  In my submission, that cannot be upheld in any way.

MR LAX: Sorry, what repercussions are you referring to?

MR WESSELS: If he had used money or made money available from the budget without the necessary authority and had obtained a weapon without the necessary authority, it would have, he would have acted outside his mandate and there would have been impropriety in regard to at least the money that could have caused difficulties with Treasury and in that regard there could have been repercussions against him.  He didn't have authority to just spend money willy nilly as he wanted to.   There was a certain system in place.

MR LAX: But if it was a project just for monitoring Omar, there wouldn't have been a problem, he could have given the authority himself.

MR WESSELS: Yes, but if he, one would assume that if you spend money on monitoring only, it would be far less than paying money to an agent to commit a murder, so it would have still been inappropriate spending of money.

MR LAX: No, I hear you.