Special Hearings — Mandela United Football Club Hearings — 1997-11-24

MR SEMENYA: Chairperson, may be confound your problems.  To us it is very startling that you have a pact between lawyers on whether or not to interrogate a subject matter which properly stands before this Commission.  I do not understand nor appreciate that the credibility issues are more pertinent here than in an amnesty.   You are either credible or you are not.   And if one of them is shown to be lying here those are the consequences in the amnesty application.  Why lawyers would agree on a pact that we would not cross-examine each other because we are going to meet in the future to me creates a very questionable legal position, with respect.

CHAIRPERSON: Mr Semenya you were present last night when I asked the lawyers of Mr Potgieter and Col De Kock and Hanief Vally to meet together to find a way of shortening the process so as we can get to the heart of the matter in order to get through the work.  That is all.  Now there was no kind of deal or connivance as far as I am concerned, one with the other.  We were simply trying to see is there a way forward.  I mean you have seen it.  You have got it all ahead of you.   You have seen the annexures and the huge amounts of paper.  What we are trying to do is to get to the heart of the matter and that is all.

MR SEMENYA: Yes Chairperson, only with one exception.  I don't think now I read the understanding is let us not impeach each other's credibility.  Now if that is the agreement that is the one that I say has a questionable legal status.

CHAIRPERSON: Mr Vally, please continue.

MR VALLY: Very briefly there is no questions that these different versions are not going to be tested.  It was felt that they would be tested at the amnesty committee and not here.  They are conflicting versions and they will be tested at that level.  That is all.   People will put their versions forward and say that we don't agree with your version but they would not take it further on the pertinent issues.  There will come a time still.

UNKNOWN: I think that we have a difficulty understanding the agreement because it doesn't only affect the personalities and the credibility of the clients of Mr Hugo and Mr Du Plessis.  I think Mr Semenya's client has an interest in the matter as well and I think the Commission has an interest in this issue.  And I don't think that while it may have an impact on what they are going to say in the amnesty applications and the amnesty hearings, the human rights violation hearings, the material from this hearing is certainly going to be forwarded to the amnesty committee was well.  So I have a difficulty with the kind of fact that is being revealed here.   I think that people need an opportunity to test people's versions.  What we agreed to do is a mechanism to limit lengthy cross-examination but that is a very different issue from dealing with the way in which I heard that deal.  So I think we need to look at that issue very, very quickly.

UNKNOWN: Well Mr Chairman may I come in here.  The reason for the agreement was simply the following.  And that is that because of the limited time for cross-examination here both my client and Mr Hugo's client their rights will be prejudiced if their legal representatives cannot cross-examine the other party properly on the issues where there are conflicting versions.  We will be limited to a very limited time of cross-examination which at the end of the day might prejudice our rights of cross-examination for a longer period at the amnesty hearing which would at the end result cause much difficulty if anything prejudicial comes out of this limited cross-examination, for the amnesty hearing in future.  It could prejudice it totally, there could be all sorts of legal problems arising and that is why that agreement was made.   Now if cross-examination is to be done here on that basis then obviously we will have to deal with cross-examination in full in respect of the versions and that is what we try to prohibit.  And secondly I just want to state that as Mr Vally said the agreement was pertaining to conflicting versions in the amnesty application but at the end of the day it is also about credibility and the question my learned friend Mr Hugo wants to pose is a question relating to credibility and if that is the case then I have lots of other questions which I am going to ask Col De Kock which also falls in the same category as the question my learned friend wants to ask now.

MR NTSEBEZA: Thank you Chairperson. It seems to me Mr Du Plessis it is a difficulty that we will have to grapple with because it seems we can't do the other without doing the other.  We can't make a finding if we will pretend that credibility issues were not involved.   But we quite clearly cannot have the luxury of a cross-examination that would go to the lengths that any lawyer would desire cross-examination to go in a court of law.  So we are trying to find a mechanism to bridge the demands of fair representation and the demands of us having to do that which we have to do here.  You must remember that there is still an opportunity in terms of section 13 when an adverse finding is going to be made against any of the people who are affected by the evidence or by the finding that we may come to that that person will be called upon to make written representation and if it becomes necessary for the particular witness to be called for further cross-examination so there are in-built mechanisms in the act itself where an adverse inference is going to be drawn from the evidence that will be led.  The act prescribes a limited cross-examination and we must accept that.

CHAIRPERSON: Thank you.  I would like us to make some progress now.  What I propose is that Mr Hugo who has the opportunity now and others will have other opportunity, is to continue and to bear in mind that the act lays down limited cross-examination.  If anybody wishes to cross-examine any of the witnesses I will be as reasonable and as fair as I possibly can and I will not discriminate the one and the other.  I think we now must go otherwise we are going to talk about talking until the cows come home and I am not interested in cows.  So let's proceed and let's see how we go and if there are any objections that have to be raised I will hear them but please don't try my patience.

UNKNOWN: No, Mr Chairman, I am not going to try patience.  I accept your decision.  I just want to state the following.  I am not in possession of the other amnesty applications of other people who applied for amnesty in respect of this incident, in respect of which I would have wanted to cross-examine Mr De Kock.  That would be Mr Brits, Snor Vermeulen et cetera.  I am not in possession of their.  If this cross-examination goes ahead I am placing on record now that my client probably will be prejudiced.  I accept your decision.  I am just placing that on record because if anything prejudicial comes out of the amnesty hearing I don't want to have anybody say to me that I didn't say here that my client is going to be prejudiced because of the fact that I don't have the contents of the other amnesty applications.  Thank you.

CHAIRPERSON: Right, you do have the copies of the  statements that are being made and have been presented and I think that is the major factor but it is now on record.  Mr Hugo.

MR HUGO: May I just propose that Mr Kemp for instance starts the cross-examination.  I did not prepare for cross-examination on this basis.  I am quite prepared to start my cross-examination once the other ones have cross-examined.  I don't want to delay, if you can just give me a half an hour and then I will proceed with the cross-examination.

MR KEMP: I have no questions, Mr Chairman.

CHAIRPERSON: That is one of the best things I have heard all day.

MR KEMP: I must say Mr Chairman it is because of intimidation not because I haven't.