Amnesty Hearings — Ermelo — 1998-07-23

MR HATTINGH: Mr Chairman, I'm not only disagreeing with you for the sake of it, but my submission would be that, number one, this is not a defective document on the face of it, and number two is, to grant this applicant the opportunity and certain rights, meaning "I'm entitled not to give full disclosure, I'm entitled not to tell the full truth" ...(intervention).

CHAIRPERSON: Presuming what is contained in that document is the truth.    Is it?

MR HATTINGH: Perhaps I should just get the question again?

CHAIRPERSON: Your submission presumes that what is contained in that document is the truth.

MR HATTINGH: With regard to his motives at the time, yes.

CHAIRPERSON: Isn't that a fallacy?   Can we, any one of us, say what is contained in that document is the truth, merely because it has been found to be the truth by some other forum?

MR HATTINGH: We cannot say, but the applicant can, and for that very reason, I believe ...(intervention).

CHAIRPERSON: What if the applicant says, "Well the truth of it is irrelevant, I was forced to make it", and what if he does say it's not the truth, where do we stand then?

MR HATTINGH: Firstly, if the applicant says that it is not the truth, then I believe that, on behalf of respondents or people opposing his application, we should be allowed to cross-examine him on the document to test whether his present attitude that it is not the truth is in fact correct.   That's the first thing.   Secondly, we're still not dealing here with the admissibility of a document.   The document, on my reading of the Act, should be before the Committee and should be considered by the Committee, and this applicant cannot keep this document from finding its way to the Committee.   If anything, there was an obligation on this applicant and his legal representative to divulge this information to this Committee, if ever they wanted to put full disclosure before this Committee, they were under the obligation to make this available to the Committee, not me or anyone else.

CHAIRPERSON: Just tell me, I just need to get clarity, I just checked with Mrs Bosman, I just want to check with Mr Sandi, well as far as the Committee's concerned, this document was never submitted to us before yesterday, it wasn't a document that was produced to us.   In fact I asked for a copy just to look at the contents in order to prepare myself for this morning's argument, that's all, this document has never been part of our papers.

MR HATTINGH: Mr Chairman, I cannot give an excuse, say that I'm not well versed in the workings of this Amnesty Committee, but on my reading of the Act, it was a mistake for this documentation, all the other documentation which was held by the evidence leader or the investigating team or the TRC or the Amnesty Committee, any arm or instrument of it, not to place that information before this Committee.  It's not for any other part of the whole TRC set-up to decide what the relevance of a particular document is.   Whatever is collected should be placed before this Committee and this public hearing.   That's in terms of the Act, and I do not see any section in the Act which tells us differently.   The Act tells us specifically that this Amnesty Committee should be provided with all documentation, all articles, and articles are described ...(intervention).

CHAIRPERSON: Now whose onus is that?

MR HATTINGH: I believe, on my reading of the Act, the onus is on the Amnesty Committee, and obviously with the assistance ...(intervention).

CHAIRPERSON: Provided they are aware and have knowledge of the existence of such documents, isn't it?

MR HATTINGH: Mr Chairman, the Amnesty Committee, consisting of the three Committee members today, may perhaps have not been aware of the existence of this documentation, but no doubt the Amnesty Committee, in the greater or the bigger picture, or the greater sense and the whole Commission as constituted by the Act, they were aware of these documents and they were supposed to put it, placed before this Committee, and if they failed to do so previously, prior to this hearing, or at the first day, there's no reason for keeping them from now providing this Committee with the full picture and all the documentation, as per the Act, where they are supposed to do that.
	I've already indicated, as per Section 19.4(b), that this Committee should accept any article and that is explained in the Section 1, the definitions of words.  
	One can also just have regard to the, what's called in Afrikaans, the "aanhef" to the Act, where it is stated, and I'll just go briefly through it, that we're looking at a complete picture as possible, a complete picture as possible, of incidents.   That I believe is some indication as to what this Committee should accept.

CHAIRPERSON: Now the contents of that document, is that the truth?

MR HATTINGH: Mr Chairman, my submission is that at this moment we shouldn't ask ourselves the question whether it is the truth, it is like ...(intervention).

CHAIRPERSON: You're seeking to use it, you want us to have the most complete picture as is possible, not so?   Well that's what you said.   Presumably that full picture must consist of the truth, not so?   Well the contents of that document, is that the truth?

MR HATTINGH: Mr Chairman, I cannot, from my side, vouch for the truth thereof, it remains for the applicant to explain it, but my main ...(intervention).

CHAIRPERSON: Why put the onus on the applicant, you want to use it?

MR HATTINGH: I want to use it because it is supposed to be before this Committee per se and not, the responsibility should not be ...(intervention).

CHAIRPERSON: Precisely, and if he says to us that contents of that document was acquired unlawfully, where does that put you then?

MR HATTINGH: It's supposed to put me in the position, if I have proper regard to the Act, that the document should still be placed before the Committee, I should still be given the opportunity of cross-examining the applicant, but in the end the Committee will be entitled to say, "Having regard to all the information, whatever the applicant said about the way this confession was obtained, we decide that we believe that the circumstances under which the confession was obtained indicate that we can discard it as of very little value or of no value".

CHAIRPERSON: Now look at the following scenario:  you want to use a document, the truth of which you are not quite certain of, from what I understand you're not too certain what the attitude of the witness is, you're not certain of what answers you're going to get, if that be the case, what is the purpose of the - or what is the importance of that document?

MR HATTINGH: Mr Chairman, once again ...(intervention).

CHAIRPERSON: Perhaps to catch trout?

MR HATTINGH: Mr Chairman, my, perhaps I'm wrong, but my submission ...(intervention).

CHAIRPERSON: It seems so, isn't it?

MR HATTINGH: Unlikely.   My submission is you cannot decide on the importance of a document or the contents thereof or the truth thereof unless you apply your mind to it and unless you test it, so you cannot, at this stage, say, "I heard about a document, it is going to be irrelevant because I think it's not going to be of any assistance", you have to apply your mind to it.   I may just give you another example ...(intervention).

CHAIRPERSON: I'm going to ask you the question again, why do you think it's relevant, given the fact that you're even uncertain as to the truth of the contents?

MR HATTINGH: The relevance thereof is that the motives of this applicant, which places him within the parameters of the Act and an application for amnesty, requires him to say that, "I did it, my motive was, it was a political aim", but ...(intervention).

CHAIRPERSON: Hasn't he done that?

MR HATTINGH: He's done that, but I say that this, what he's telling us now, is a fabrication, just, it is something he's now ...(intervention).