Amnesty Hearings — Johannesburg — UNKNOWN

BERNARD MAKGABO NGOEPE: Sorry to interrupt you, have you consultedwith these people?

MR DU PLESSIS: I have not consulted with the people.

BERNARD MAKGABO NGOEPE: The people that you want to be subpoenaed.

MR DU PLESSIS: Yes.  Mr Chairman what I have here isI have a master's thesis which I found in the library of Unisadealing with, entitled "The role of the population in insurgence"written by Captain van Jaarsveldt - morning permission from theAttorney General to speak to Mr van Jaarsveldt about one issueand that was the issue pertaining to the orders.  I did receivethat permission and I spoke to Mr van Jaarsveldt about that.

BERNARD MAKGABO NGOEPE: He's the only person that you have consulted?

MR DU PLESSIS: He's the only person that I have spokenwith.

BERNARD MAKGABO NGOEPE: You don't know what the other witnesses,what they say?

MR DU PLESSIS: No I don't, I don't, but we believe thatwe ...(intervention)

BERNARD MAKGABO NGOEPE: You don't know what stands in the docket?

MR DU PLESSIS: No.  We don't have any idea whatsoever. We believe that we speak the truth and if those witnesses comeand differ from us pertaining to what happened, we say that wewill not be the liars, they will be the liars.  We believe thatwe have spoken the truth, we will speak the truth and we are confidentthat we speak the truth, to such an extent that we are preparedto say that if those witnesses are called and they speak the truththey will
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corroborate our versions.

JUDGE WILSON: Put another way if those witnesses corroborateour version they are speaking the truth?

MR DU PLESSIS: I beg your pardon?

JUDGE WILSON: Your argument would be if those witnessescorroborate our version they are speaking the truth, is that so?

MR DU PLESSIS: Well all of them are speaking the truth. The applicants are speaking the truth and obviously then theState witness as well.

CHAIRPERSON: It's a corollary of the point that you've madeearlier.

MR DU PLESSIS: Yes.  One cannot see on what grounds Statewitnesses would not speak the truth.  On the other hand one cannotsee why the applicants will not speak the truth as they are heredealing with this process.  So we say that it would be to theadvantage of everybody concerned that the truth comes out andwe are sure that the truth will come out if they all speak thetruth.
 We submit in an international context it has always been a vexedquestion if amnesty should make in-roads into the State's responsibilityto investigate and prosecute grave human rights violations.  Inmost instances where transition of power has taken place, in worldhistory recently, amnesty prevailed.  The was the case in El Salvador,Argentina, Guatemala and recently Haiti.  In most cases severeopposition was experienced by various parties to the grantingof amnesty and especially blanket amnesty.  In each instance theimportance of truth and reconciliation prevailed.  
 It is therefore important, we submit, to take the 
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international experience into account when consideration is givento the interests of the Attorney General as against the interestsof the Truth Commission, and we refer to certain internationalarticles dealing with this whole issue between the State's responsibilityto prosecute human rights violations on the one hand and the provisionof amnesty on the other hand.
 It is therefore submitted that it is imperative in the lightof the intention of the Act and with reference to the ambit ofthe Act that all evidence pertaining to the applications of theapplicants will be placed before the Commission so that the truthcan prevail.
 The Commission is therefore humbly requested to issue subpoenasor to allow subpoenas to be issued against the four State witnessesreferred to in the heads of argument and to subpoena the AttorneyGeneral to provide the Commission with the dockets pertainingto each of the five applicants referred to above.
 I want to make one last submission.  If there might be a possibilitythat the Attorney general feels that if the evidence should bedisclosed, publicly by State witnesses that the criminal proceedingsmight be prejudiced we submit that at least the statements inthe dockets which need not be read into the record but which canbe presented to the Commission on a confidential basis, then beobtained and presented to the Commission to assist in obtainingthe truth and considering the applications of the applicants.
 There is therefore a middle-of-the-road alternative which wewould suggest in that regard.  That would then mean that thesewitnesses would not testify or otherwise the witnesses could possiblytestify in camera so as to not 
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prejudice the criminal proceedings in future, and it can be orderedthat only the necessary people can be available or present whensuch evidence is taken down.  All we say is we want the truthto come out.  That is what we say.  And we say that will supportus in our amnesty applications will show that we have been bonafide, that we have disclosed the truth and will corroborateour versions and will help this Commission furthermore in dealingwith these amnesty applications.  Thank you.

BERNARD MAKGABO NGOEPE: Mr du Plessis it seems to me the sectionthat you are referring to seems to be giving us the discretionto subpoena these people?

MR DU PLESSIS: That is correct, section 29, yes.

BERNARD MAKGABO NGOEPE: Now a discretion must surely be exercisedon some facts, on some other reasonable premises and not by tossingthe coin.  Now if you don't know what stands in the docket, ifyou have also not consulted with these people, on what basis shouldwe exercise our discretion?

MR DU PLESSIS: Mr Chairman obviously that caused a problemfor the applicants.  Insight into the documents was refused, andI've had the limited opportunity this morning to very brieflyspeak to Captain van Jaarsveldt, but we were refused any furtherdealings or consultations with these witnesses.  So obviously,in that regard, the applicants cannot place information beforethe Committee about exactly on what facts and on what basis theversions of the applicants might be corroborated.
 But we say that for the Committee to exercise its discretionthe Committee can take into account those happenings which theapplicants have disclosed in their applications where the Statewitnesses were also present, 
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and quite a few of the issues on the list that will be dealt withat this hearing some of the State witnesses were present.  Nowthose are facts that the Committee can take into account.  
 We further submit that another possibility of dealing with thisis to request the Attorney General to make available to the Commissionthe statements in the dockets and not necessarily to ourselvesso as to verify the contents thereof and then to make a decisionon that basis.
 There is another point that my attorney refers me to and thatis that one of the witnesses, Joe Mamasela, one of the State witnessesJoe Mamasela has already given evidence in different forums suchas, I believe, at the Harms Commission and also he has given certaintelevision interviews at which he discloses certain facts.

JUDGE WILSON: I have only just had a chance of lookingat the list of names of witnesses whom you wish to call, do theyappear at all in the statements made by your clients, and if so,where?  I am talking about Captain van Jaarsveldt, Sergeant Gousand Oosthuizen.  Mamasela does appear I know.  Do the others appear?

MR DU PLESSIS: Yes they do all appear.  It is difficultfor me to ...(intervention)

JUDGE WILSON: Where?

MR DU PLESSIS: ...specifically, if I can refer you ona broad basis from memory where they appear.  Sergeant Gous andWarrant Officer Andre Oosthuizen appear in respect of the Kwandebele9 killing.

JUDGE WILSON: Those are the hearings set down for nextweek.

MR DU PLESSIS: That is correct.
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JUDGE WILSON: /...
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