CHAIRPERSON: I intend to revert to Mr Bellingan who was recalled at the instance of the family of the deceased in order to respond to some issues that Mr Rautenbach intended to put to him. In the course of that process a question arose in regard to the situation of a certain document that was presented to Mr Bellingan, which he identified as something that was in his handwriting and which he had prepared and the matter subsequently stood down in order to allow the applicant's legal representatives to take full instructions in regard to the status of that particular statement.
Now before we proceed with that, I'm just going to remind you, Mr Bellingan that you're still under your previous oath.
MICHAEL BELLINGAN: (s.u.o.)
CHAIRPERSON: Mr Hattingh, you wanted to take instructions in regard to the question of this statement or document that was produced and you were going to indicate to us what your client's position is in regard to the document, whether or not there is a formal objection on the basis of a privilege, which you alluded to at the last session. Have you managed to clarify the matter and received full instructions now?
MR HATTINGH ADDRESSES COMMITTEE: Thank you, Mr Chairman. Yes, we will object to the document being submitted to this Committee. The objection will be based on two reasons. The first would be on the basis of the document being privileged, and before addressing you in full on that I would like to turn and deal with the other issue first.
The second issue is that I believe that the handing in of this document at this stage in the proceedings is totally out of the order in the sense that it makes a mockery of these proceedings to hand a document of this nature in at this late stage and should therefore not be allowed.
The position is that this document, and perhaps Mr Rautenbach can assist us in this regard, this document came into the possession of Mr Rautenbach and/or his team or the Legal Resources Centre, if not last week, sorry not last week, the week before last week, or at the latest sometime during early last week. However, it was only brought to the attention of this Committee and if it was made to submit it to this Committee only on Friday, at the time when the applicant was not under cross-examination any longer.
Now clearly the applicant was under cross-examination until, if my memory serves me right, on Thursday, so if ever Mr Rautenbach wanted to confront the applicant with this document he could have done so during the course, the proper time to do so.
There is no indication that at the time when he said he reserved one issue to perhaps to come back to that at a later stage with Mr Bellingan, any indication as to why there was not dealt with that issue at the time.
The problem is that at least, and while I have made myself also guilty of allowing the process not to be followed very strictly when I consulted with the applicant between cross-examination and re-examination and the fact that I in re-examination actually perhaps may have introduced new matters of dealt with matters in a manner which was not the normal way of doing re-examination, but for that there was a particular reason, but for Mr Rautenbach at this stage to allow the opportunity when he was given the opportunity at the time, to confront the applicant with the document, why he allowed that opportunity to go by without doing it at the time ...(intervention)
CHAIRPERSON: Yes, but I understood and I think you heard him as well, I understood that when your client was still, or when his questioning was not completed, Mr Rautenbach indicated that there was an issue that he would want to reserve the right to come back on, subject to verifying or investigating the source of a document that he obviously had in his possession at that stage, which obviously must have been this document that has been produced, which is now in dispute.
At that stage we indicated that we will deal with that when it does arise, but in any event it's not as if it was something that was presented to the applicant out of the blue, there was an indication that this was coming.
So the question is, just on this first leg of your argument, what is there, is there any prejudice to your client arising from this process, from having to now deal with this document which he admits having prepared, admits is in his handwriting?
MR HATTINGH: Mr Chairman, well firstly, perhaps it's something that Mr Rautenbach can explain, but the verification of the source of the document at the time is something that I do not quite understand because all along we are aware of the fact that the present wife of the applicant made this document available to the Legal Resources Centre and that was something that occurred, not on Thursday or Friday, that was something that occurred at the latest on Monday of last week. So the verification of the source is something that was really not the issue at the time.
However, what the problem is or was at the time, or is for us now, is the prejudice that the applicant stood to suffer because of this. The applicant was let, or allowed to proceed with his case, call witnesses, decide on how to take his case further. And you will also remember, Mr Chairman, that at the time, that was the only occasion after he closed his case that I was given the opportunity of really consulting with client, I was given the opportunity of consulting with client at last to obtain his instructions for me on the further handling of this matter. So when it was decided on which witnesses to call or not to call, something, the whole ...(indistinct) of trial by ambush then very much came into play, because now Mr Rautenbach had some document in his possession which he knew would cause or could cause a problem for the applicant which may embarrass him at some stage depending on the way the applicant was going to further his case.
Now what I say is if Mr Rautenbach had no apparent reason at the time not to deal with the document then, he should not be allowed at this stage to hand in this document and deal with the document at this stage only to the prejudice and to embarrass the applicant because the applicant then elected to proceed in the furtherance of his case by calling certain witnesses.
We've all read the document, the Committee has seen the document, we all know the implications of this document to the extent to which it may perhaps reflect on the credibility of certain witnesses.
CHAIRPERSON: Yes, I don't understand the difficulty, Mr Hattingh. Your client indicated when this question was raised by Mr Rautenbach, he indicated this is a fictitious document, he said this was a cover story, this was - in other words, this was something that he had worked out, he was working out a fictitious approach to the case, to the murder and if one takes what he says at face value, this document is worth absolutely nothing. So I can't understand what is the prejudice for him now to deal with the document, to tell us what it's all about and see how it fits into his case, if it does fit in at all.
MR HATTINGH: Mr Chairman, I've explained the reasons why I believe that at this stage it would be improper to, and to only embarrass the applicant. However, the other issue is the matter of privilege. I'm just saying that this document, those are the instructions of my client, this document was prepared for the purposes of the criminal trial or the criminal prosecution at the time.
I'm also instructed that this document was not in fact handed to his attorney, but it was in any event prepared for that purpose and not for anyone else. And in the circumstances this document would still be a privileged document irrespective of the fact that the document may have been taken from his private notes by his present wife and then handed to the Legal Resources Centre. So at this stage I'm not going to take it any further, I'm just making these two remarks. Thank you, Mr Chairman.
CHAIRPERSON: Just clarify one thing to us, Mr Hattingh, to whom was this document addressed? In other words, who is the "you" that is referred to in the body of the document?
MR HATTINGH: Mr Chairman, my instruction are that the you would be Mr Bellingan's father, although this document was never sent to him or submitted to him or discussed with him, it was a matter of a document which he prepared for the purposes of his attorney in discussions but which he never used, but the "you" would have been his father.
CHAIRPERSON: So it is a document that is addressed to his father, prepared for the purposes of his lawyers?
MR HATTINGH: Those are the instructions from my client. It's a document, on the face of it, addressed or written in a manner to indicate that he is addressing his father, but the document was prepared at the time as being a fictitious document to give to his attorney in preparation for the criminal proceedings, but it never reached his attorney, it never reached his father.
ADV BOSMAN: Mr Hattingh, what is then the basis for the privilege if it never reached the attorney? On what do you base the privilege?
MS MANGQAWA: Mr Chairman, I would submit that privilege not only comes into play once you've finally got the message over to your legal representative, but also when you are in the process of preparing something for his eyes as being instructions, even though they may not yet reach them. As long as they are prepared for the purpose of and the intention of some trial or legal proceeding which is foreseeable.
ADV BOSMAN: ...(indistinct) no difficulty if it was addressed to his legal representative, but there's no indication of the document being addressed to his legal representative, it's addressed to his father.
MR HATTINGH: Mr Chairman, I agree with that and I cannot take that further. At best I can say that the instructions of the applicant are that this document, although on the face of it it is addressed to his father, this was intended as his notes to be used with his attorney although it never reached his attorney. The applicant is relying on privilege with regard to these notes. But I cannot take it any further to indicate or prove that this document was in fact submitted to his attorney.
I may just perhaps just add that contact was made with the attorney, not by myself, but I've been advised that contact was made with the particular attorney at the time and that this document was in fact not submitted to him at the time.
So it's not the case of the applicant that this document was in fact submitted to his attorney and that we perhaps could call on the attorney to come and testify and to say that yes, I did receive this document but I told the applicant that this was not possible, I couldn't do this or that. This is not the case of the applicant. He says I did prepare it to be given to my attorney, I never did so.
CHAIRPERSON: Mr Rautenbach, have you got any submissions?
MR RAUTENBACH ADDRESSES COMMITTEE: Yes, Mr Chairman. Firstly, I would just like to immediately make the point that this document could never have been intended to reach his attorney, and the reason for that, Mr Chairman, is as easy as this; he says this document is part of a cover-up, the document forms part of a cover-up, he wants to have an alibi, he needs support from his family to cover for himself. So to suggest that this document was intended for his attorney cannot be, because that would make his attorney part of the cover-up. And we all know the professional ethics involved here. If he made this document, or ever intended to make this document available to his attorney, he's actually telling him; I am busy getting a phantom witness or I'm getting a witness which will cover up for me.
So just based on that it's almost impossible that this document could ever have been intended to reach his attorney. And that I submit, Mr Chairman, is the reason why it never reached his attorney, because that would have put his attorney in a situation where he would have been a situation where he had no choice but to withdraw from the matter.
Secondly, as far as the privilege is concerned, the mere fact that the document is in the hands of a third party and a third party is in possession of that document, it's my submission that that alone is enough to bring an end to the privilege. We're not dealing with a situation where we're asking for a document and the witness indicated, or an accused or whoever, an applicant indicated that that document I am not prepared to hand over because the document is privileged. Like for instance, in any civil matter where we would ask for a specific document and the answer is no, you can't get it, this document is a document that was in the hands of third parties.
On those two - and then there is one last point I have to make here, the applicant also applied for amnesty regarding the cover-up of the murder. Now this document is a document about the cover-up of the murder. He at one stage made these notes, he already admitted that, he's the author of this document, in order to cover up, in order to get just another witness that may assist him in his cover-up.
Now Mr Chairman, I submit this is the type of document that should have been placed before you in these proceedings to actually, especially when one deals with full disclosure, where if he really wanted to fully disclose all the facts he would have said to you, he would have taken the Committee into his confidence and said; here is another document, this is what I intended to do, this is what I did, I got up to writing out the document, I in fact didn't go further than that, but this is also a document also part of my, something that I considered during the cover-up process. It forms part of what is before you, of an application for amnesty regarding the cover-up, so there is, Mr Chairman with respect, no basis whatsoever to exclude the document.
As far as the second leg of the argument is concerned, and that is that I should have made the document or should have raised the document at an earlier stage. The document was received - and I'll put that on record, the week before, Wednesday, round about the Wednesday before the week of the hearing of this matter. You will recall at the end of Mr Bellingan's cross-examination I raised the fact that we are in possession of the document, and the only reason why it wasn't at that stage mentioned and dealt with was only a matter of courtesy towards the source. Obviously we had to listen to the rest of the evidence of Mr Bellingan, obviously we had to consider the document and make a decision and when that was done I specifically, when it was my turn to say something, told you Mr Chairman, that it is, we wanted to make contact with the source. So it was basically merely a matter of courtesy. That was the only reason why we didn't at that stage just go on with the document as such. So that is as far as the second leg is concerned.
On those two points, Mr Chairman, I submit that there is no reason why the applicant cannot be confronted with the contents thereof. I also took notice thereof that he basically already has an answer on record, being that this is all, it's a fictional document. Thank you, Mr Chairman.
CHAIRPERSON: Mr Hattingh, have you got any further submissions?
MR HATTINGH ADDRESSES COMMITTEE: Mr Chairman, only inasmuch that I would like to put on record that this document was never made available to third parties, it formed part of the applicant's documentation which obviously was left in the custody of his present wife, but not for her to have sight thereof or to disclose it, but only for her to safekeep this document, not for publication to her. And if she then took this document and whatever documents the applicant had or has and then made it available to other parties, it does not then mean that the applicant has waived his right to this privilege.
There is however something else. The applicant obviously is a person who relies on the privilege and I do not quite know how this Committee would like to deal with this issue at this stage. I do however know that perhaps before this Committee makes a ruling with regard to privilege or not, perhaps this Committee may wish to make a preliminary ruling in that regard, but I do know that the applicant in fact would like to address this whole issue and he would like to tell the Committee about this document and the circumstances under which this document left his hands and got into the hands of the Legal Resources Centre.
Now I don't want to prescribe to this Committee as to how this should be accommodated, but I do however know that the applicant has got something to say about the existence of this document, the privilege, even before going into the contents thereof. I don't know whether this Committee will be able to accommodate that before making a ruling on either the fact that this came into this hearing at such a late stage to embarrass the applicant or the privilege that may or may not be placed on that document.
MACHINE SWITCHED OFF
MR HATTINGH: Mr Chairman, may I just add, the applicant when we arrived this morning, had prepared his own affidavit in this regard. This affidavit was then made available to Mr Rautenbach as well as Mr Chaskalson to read and it is the contents of this affidavit that he would like to testify about, or just to read that out to this Committee for what it is worth.
CHAIRPERSON: Well the applicant is still under oath and he is in the witness stand at this stage. We want to make a ruling on the objection and then we can proceed with the matter.
R U L I N G
This is a ruling on the admissibility of a document which has been produced during further cross-examination of the applicant by Mr Rautenbach who appears on behalf of the family of the deceased, and which was partly dealt with in the testimony under cross-examination of the applicant, whereafter Mr Hattingh who represents the applicant in these proceedings raised or first of all asked for an opportunity to consider how the applicant proposes approaching the use of the document in these proceedings and whether or not wants to raise a formal objection to the admissibility of the document in question.
The testimony of the applicant stood down. We listened to testimony of further witnesses and we have reached a stage where the applicant was recalled and Mr Hattingh given an opportunity to give a clear indication as to their intention in regard to the document.
Mr Hattingh has then responded to that request and has raised a formal objection to the admissibility of the document in question on two grounds. Firstly he indicates that it would be an abuse of the process of this tribunal for Mr Rautenbach to be allowed at this stage to make use of the document in question. Mr Hattingh submitted that this would amount to trial by ambush and it is only intended to embarrass the applicant and the applicant would be prejudiced, although when he was invited to specify the grounds of prejudice he failed to add any further substantial argument to the question of prejudice.
The objection is of course opposed by Mr Rautenbach who appears for the family. And in regard to this first ground of opposition it appears as if the document in question has come into the possession of the legal representatives of the family of the deceased. It was apparently handed over by the existing wife of the applicant and according to Mr Rautenbach the document came into his possession, or in the possession of the legal representatives at approximately Wednesday, the Wednesday before these proceedings recommenced.
Mr Rautenbach in opposing the application indicated quite rightly that at a stage prior to conclusion of the applicant's testimony and cross-examination he did indicate that he was in possession of a document which he needed to take some further instructions on and obtain further clarity, amongst other things about the source of the document and that he reserves the right to raise the matter and to present the particular outstanding issues to the applicant should he be so advised, which he has done in the meantime as I have indicated.
The second ground of objecting to the admissibility of the document is that of privilege. Mr Hattingh indicates that the document in question was prepared for the purposes of the criminal trial of the applicant on the murder charge, which forms the subject matter of one of the grounds of this amnesty application, and that it was intended to be handed to his attorney although it has never been actually handed over to the attorney.
On questions from the Panel it appears that the document has been addressed to the applicant's father, as is also apparent from a reading of the document, although in his further cross-examination when the matter was raised, the applicant indicated that this was a fictitious document, he referred to it as a cover story. In other words, it was something that he had simply prepared as an option, one of various options to approach the case against him.
We have listened to all of these arguments. We are as usual under severe time constraints and we are compelled to make an immediate ruling on the objection, and for that reason we at this stage give only those reasons which we feel are relevant for the immediate purposes and if needs be would make a fuller ruling and present full reasons on the ruling itself.
Having considered the arguments we are satisfied that there is no basis for the objection and the objection is accordingly REFUSED. The legal representatives of the family of the deceased are accordingly allowed to make use of the document in the further questioning of the applicant.
CHAIRPERSON: Mr Rautenbach, have you got any further questions?
MR RAUTENBACH: Mr Chairman, it seems to me it will be Exhibit V?
CHAIRPERSON: Yes, V.
CROSS-EXAMINATION BY MR RAUTENBACH: (Cont)
Mr Bellingan, when one looks at this document and you read the words:
"Friday approximately 3 o'clock ..."
... in the first paragraph. In the second paragraph, the name:
"Janine ..."
... and a discussion. And then:
"Did phone her at approximately 8H15 to 9H15, i.e. 20H15 and 21H15 that evening."
Will I be correct if I say that the Friday when you wrote this document, that the Friday that you referred to refers to the day before the murder, or not?
MR BELLINGAN: Mr Chairman, can I just say that I see Mr Hattingh is preserving with this document, it's quite clear, and in order for me to address my other concern which I raised, that regarding the Bill of Rights, I'm going to need to have to motivate that and to motivate that I'm going to have to rely upon the statement I made handed to Mr Rautenbach this morning.
CHAIRPERSON: In what connection is that, Mr Bellingan?
MR BELLINGAN: It's regarding the fact that I believe that my rights under the Bill of Rights are being infringed by the use of the document, Mr Chairman, because it is a document which relates to an extortion matter and I can't see how Legal Resources Centre wants to make themselves party to that and unless I put it on record and explain it, they may not be aware of that, although I think they've read my statement. ...(intervention)
CHAIRPERSON: I'm sorry Mr Bellingan to intervene. Are you attempting to raise a further objection to this document or what is the purpose of what you want to put on record?
MR BELLINGAN: Mr Chairman, it's not a - it's something I raised initially, the question that the Bill of Rights doesn't permit evidence obtained in a manner which in any way can bring justice into disrepute.
CHAIRPERSON: Yes, it seems that your wife has handed the document to Mr Rautenbach, now what can be irregular or unusual about that? What is the basis for suggesting that there was anything untoward in Mr Rautenbach's possession of the document?
MR BELLINGAN: Because it is a document which has been an attempt to get me to halt certain investigations into mine an my children's financial affairs, Mr Chairman, and there has been a huge amount of pressure put on me in connection with this and other documents and my files etc., etc., etc., and one of the aspects is that this document was then used in that regard. So unless I can bring the background to the Committee's attention, then it won't be clear as to how exactly my rights are being violated.
CHAIRPERSON: Yes, Mr Bellingan, I am ...(intervention)
MR BELLINGAN: I did raise the issue of the violation of the Bill of Rights immediately when this document was presented to me.
CHAIRPERSON: Yes. I'm very reluctant to allow a fresh argument to be rehashed around the use of this. We've just made a ruling, your counsel had presented a full argument to us on all the grounds for objecting and as I've indicated we have to get these proceedings to a close at some or other stage. We're very reluctant to engage in a new sort of rehash, so it is with great reluctance that I'm going to allow you to present whatever version you want to present about the existence or the possession of LRC in regard to the document. I'm quite sure, Mr Rautenbach if he is so advised, might want to deal with that, but go ahead let's hear.
MR BELLINGAN ADDRESSES COMMITTEE ON AFFIDAVIT AND BILL OF RIGHTS: Thank you, Mr Chairman, I'll make it as quick as I can. The statement that I handed in this morning reads as follows
"The attached two page document marked Annexure A was handed into the Amnesty Committee on the 16th of April 1999, during my amnesty hearing by Mr Rautenbach of the Legal Resources Centre ..."
...(end of side A Tape 14)
... amnesty application. Just prior to my trial and in particular after I was found guilty, my present wife Renata commenced a series of threats against me and involving inter alias my children. The threats concern Renata seeking to obtain benefits not due to her. More recently for money and also to drop my instructions to attorney, Ms Helen Ellis, to investigate mine and my children's financial affairs. At a late stage the threat was to completely withhold all of my personal files which I have needed for my hearing, as well as to give certain documentation to the TRC, which had been wrongfully and without my permission removed from my files by Renata. It was clear to me that Renata was attaching much significance to the documentation. At a certain stage Renata refused to give me a statement she had made after talking to Sylvia and which contained only a few simple truths, unless I gave her a sum of money. On the 11th of April 1999, the statement was remade and given to me. It has been handed in subsequently, and as I've said contains only a few simple truths.
On Friday the 9th of April 1999 and Sunday the 11th of April 1999, Renata visited me in prison with her attorney, Mr J Kruger. I understand the purpose of these visits to be to get me to drop the investigations in exchange for Renata's co-operation regarding the statement and my files. However, it would have been abundantly clear to Renata that I will not be subjected to extortion at the stage of her last two visits and possibly also because of my instruction to Ms Ellis thereafter.
As a result, Renata has given my property, Annexure A, to the Legal Resources Centre. Although some of my personal files were returned to me by Renata on the 11th, Annexure A had quite obviously been removed."
I also in this connection have certain tape recordings, Mr Chairman.
"I understand Renata to be the cause also of the withdrawal of Advocate du Plessis and I refer to Annexure B ..."
I think it's Annexure G, letters handed in by Attorneys Strydom. I refer to that in that regard. And the prejudice to me already at that stage is quite obvious.
"... Renata ..."
It's Annexure G, Mr Chairman, a letter from Strydom Britz.
"Renata threatened to implicate Judy White in the murder of Janine. This hasn't deterred myself or Judy in any way because it is false. Obviously no member of my family is an accomplice or an accessory.
I understand that Renata first read Annexure A ..."
... this document marked "Extracts from Statement".
"... to involve Judy, not my father."
That is the way it was put to me by Renata. She understood it involved Judy and that's how she put it to me first.
"The document handed to the Legal Resources Centre is one of a series concerning scenarios I invented, aimed at reinforcing the plausible deniability surrounding the murder of Janine. It is a fiction created by myself alone. If the opportunity and necessity arose for its use, I would have posted a letter to my father with such wording attached. I can categorically state that my father had never made such a statement to anyone, least of all to attorney Paul Leischer.
My intention regarding scenario creation and my family around the murder at the time was to divert possible focus away from political factors so that they would not be making allegations surroundings my work. Also, obviously, if the opportunity had arisen to have my alibi reinforced, to counter things that was uncovering.
One can see this thought process reflected in paragraph 8 of this document, where I take general advice from attorney, Leischer and use it to intend to imply that the potential reader, my father in other words, should basically shut up about certain things so as not to: 'to confuse the investigation with unnecessary or irrelevant/ambiguous data'. This would have done the trick because my father is conservative as opposed to Judy who is liberal. The two specific pages are titled: 'Extracts from Statement'. However, I can categorically state that no statement existed, this was simply a potential way of passing information to my father, who then lived near Underberg in Natal. The idea was that should anyone else have sight of the two pages they would immediately assume that a statement was made and attached and attested to. In other words, the perception of passing false information would be limited. The statement referred to in paragraph 6 and 8 of this document never existed.
Furthermore, my father never testified in my defence, either at the inquest or the trial. Attorney Leischer did nothing inappropriate in this regard and my belief that I'm entitled to claim attorney/client privilege is based on ..."
I'm not going to bore the Committee because I accept it may only come close to privilege, but I accept is not privilege now. Then I go on to say:
"Whilst I understand the approach of the LRC to have been explained by Advocate Trengrove when he stated that they would be using the trial by ambush method, I never thought they would be party to a criminal offence."
And it is ironic when considering the use, my use of the word of insidious in my amnesty application. The Latin for that is ambush.
"I reiterate that the document is a fiction of my own creation. I have no doubt I could have created other such fictions at the time and arising from the circumstances of my amnesty applications. It is one thing for an opposition to call a witness to testify against me, but it is quite another thing to be presented with one's own fictions in circumstances I believe to be a clear violation of my rights as well as Section 35(5) of the Constitution.
Should the Committee decide not to report the extortion to the Attorney-General, then I certainly will."
It is a background, Mr Chairman, as I see it. And then as far as the rights which I believe have been violated, it is the right in:
Section 9: a right to equality;
Section 12(1)(c): the right to be free from all forms of violence, either public or private sources;
Section 14(b)(c) and (d);
Section 33, which is Schedule 6 of Section 23(2)(b) of the Transitional Arrangements and which just administrative action, both (a) and (b) over there;
And then of course Section 35, as I've mentioned.
CHAIRPERSON: Is that the statement?
MR BELLINGAN: That's my statement and then my reflections on the Bill of Rights, Mr Chairman.
CHAIRPERSON: Yes. Mr Rautenbach, have you got any questions?
MR RAUTENBACH: Mr Chairman, is that any comment regarding the facts put before you by Mr Bellingan, or are you asking me whether I've got questions to put to the witness subsequent to your earlier ruling, I'm not sure.
CHAIRPERSON: Well I think you must decide whether you want to put anything contrary to what he had said. I have dealt with the formal objection. I have enquired from him whether this amounts to a further ground for opposing the admissibility of the document. He hasn't given us any clear answer to that. His counsel has dealt, from our perspective, fully with the matter so there is nothing for us to rule on.
MR RAUTENBACH: I just want to - all I have to say in response to the statement is just that Legal Resources Centre does not consider itself by its actions to make themselves part of any criminal offence. That is basically all I would like to say in response. I'm not going to elaborate on that, I think the situation is clear in law. That's all I have to say, Mr Chairman. If you indicate to me that the ruling stands, then I will proceed in asking some questions about the document.
CHAIRPERSON: Yes, Mr Rautenbach, I've just re-conferred with my colleagues, you can continue if you have any further questions. There is nothing that we are called upon to rule on at this stage.
MR RAUTENBACH: Thank you, Mr Chairman.
Mr Bellingan, you just indicated that Renata must have thought, or Renata thought that it had something to do with Judy, is that correct?
MR BELLINGAN: That's what was initially conveyed to me by Renata.
MR RAUTENBACH: Is that because this document at some stage was faxed to Judy White?
MR BELLINGAN: No, Mr Chairman.
MR RAUTENBACH: Was this document faxed to Judy White at some stage?
MR BELLINGAN: No, Mr Chairman, I don't have any recall of that.
MR RAUTENBACH: Does your father have a fax facility where he normally spends his time?
MR BELLINGAN: No, Mr Chairman, I don't think so.
MR RAUTENBACH: And then Mr Bellingan, just to get back to Friday, approximately 3 o'clock, are we, when you drew up this or when you wrote this document, that Friday refers to the day before the murder, is that correct?
MR BELLINGAN: Correct, Mr Chairman.
MR RAUTENBACH: And in paragraph 3 thereof you refer to
"Did phone her at approximately 8H15 to 9H15, i.e. 20H50, 21H15 that evening."
Does that refer back to the Friday?
MR BELLINGAN: That's correct, Mr Chairman.
MR RAUTENBACH: And that conversation, was that a - I know what you're saying, you are talking, in your explanation you made it clear that this was another fictional document, so we'll call this a fictional document, discussion document - fictional document.
MR BELLINGAN: Correct, there was no statement.
MR RAUTENBACH: Now as far as the third paragraph thereof is concerned, 8H15, 9H15, and you explain 20H15 or 21H15, this conversation, was that a conversation that you intended to fabricate between yourself and Janine or between your father and Janine?
MR BELLINGAN: No, Mr Chairman, this would have referred to - I can't remember anymore, Mr Chairman, did phone her at approximately ... I don't know if that was, if my thought process at the time was intended to refer to a call I made or my father made, I can't remember anymore.
MR RAUTENBACH: Sorry, Mr Bellingan, you say your thought process ... you're not sure whether you it's your father or ...(intervention)
MR BELLINGAN: I can't remember what my thought process exactly was concerning that, paragraph 3.
MR RAUTENBACH: In any event you will agree with me that from your evidence before the Amnesty Committee there was in fact no telephone discussions that you were aware of at those times 20H15 and 21H15?
MR BELLINGAN: No, Mr Chairman, in fact at the time that I had this in mind there was a phone call from a Lorna Smith who had phoned Janine and I was aware of that already from, my colleagues had already mentioned to me that there was this phone call, of which Detective Steyn had a recording.
MR RAUTENBACH: Ja, but Mr Bellingan, if we look at this document ...(intervention)
MR BELLINGAN: There was certainly no phone call from my father or from myself.
MR RAUTENBACH: Or from yourself.
MR BELLINGAN: Yes.
MR RAUTENBACH: So as far as this paragraph 3 is concerned, paragraph 3 was an attempt to fabricate more telephone conversations, correct?
MR BELLINGAN: The whole document is an ...(intervention)
MR RAUTENBACH: Yes, I'm talking about telephone conversations, Mr Bellingan, I'm talking about ...(intervention)
MR BELLINGAN: You're talking about paragraph 3?
MR RAUTENBACH: I'm talking about paragraph 3.
MR BELLINGAN: Including paragraph 3.
MR RAUTENBACH: I'm saying to you - listen to my question, paragraph 3 was another attempt to fabricate more telephone conversations, correct?
MR BELLINGAN: "More" meaning other than ...(intervention)
MR RAUTENBACH: Well let me put it this way, this paragraph 3 was an attempt to fabricate telephone, a telephone conversation at round about those hours, correct? I'm sure we can accept that.
MR BELLINGAN: Yes, it's ...(intervention)
MR RAUTENBACH: Okay. Then you say in the second page thereof, paragraph 7, oh no, paragraph 6 ...(intervention)
MR BELLINGAN: In fact Mr Chairman, sorry just to get back to that. This couldn't have been myself, it couldn't have been intended to be myself who had phoned, it must have been intended by me at the time I wrote this down, to be regarding my father because if I remember correctly I had already made a warning statement and I already had said that there was no such contact on the Friday evening.
MR RAUTENBACH: Okay. Mr Bellingan, so we accept that that was an attempt that your father would say; I had a discussion with Janine, okay? - the Friday night before.
MR BELLINGAN: Yes.
MR RAUTENBACH: Let's leave it there.
MR BELLINGAN: Ja.
MR RAUTENBACH: The following page over, I want you to have a look at the second page thereof, paragraph 6
"In your statement to Paul you did not state from which phone you called, perhaps you can remember."
Now does that mean that there was a statement from your father that was with or in the possession of your attorney?
MR BELLINGAN: It seems Mr Rautenbach didn't understand my statement when he read it this morning, or when I read it myself now ...(intervention)
MR RAUTENBACH: I want you to explain it, Mr Bellingan, explain it.
MR BELLINGAN: No, I'm happy to explain it - I'm unhappy to explain, but I will as I have to. The paragraph 6 over here is simply; if this ever were used it would have been re-prompting my father to remind him that such a matter would be important, if there was a statement. In other words, the reader wouldn't know that there wasn't a statement but that he should remember that such a question would be put to him by Paul Leischer when he makes such a statement. Obviously my attorney would ask him; "You say you made a phone call, if you haven't got a telephone at your farm, then from where did you phone?" He would ask him that question quite obviously.
MR RAUTENBACH: Mr Bellingan, is that your explanation for that paragraph? What does the words mean in your statement to Paul
"You did not state"
What is that supposed to mean?
MR BELLINGAN: Because it's the kind of thing my father wouldn't do, he would say: "I made a phone call", he wouldn't say from where and then obviously anyone taking such a statement would want to know from where, where did you make this phone call from?
MR RAUTENBACH: Would it not be ...(intervention)
MR BELLINGAN: So he must be alerted to the fact that he's going to get asked that.
MR RAUTENBACH: If it's - you know if your father received this and if your evidence is correct, would his reaction not have been: "But what are you talking about, what statement?" Would that not be the reaction of any normal person if he knew that no such statement existed?
MR BELLINGAN: And I can say that he never ever testified to any of this, Mr Chairman.
MR RAUTENBACH: What you say is that there existed no statement at the time?
MR BELLINGAN: No statement existed at the time.
CHAIRPERSON: Did you think that he would have to make a statement or that he might be approached to make a statement?
MR BELLINGAN: I thought he would be approached at some point in time, Mr Chairman.
CHAIRPERSON: And you thought that just in case he gets approached by the lawyer to make a statement, you're prompting him to remember which telephone he had used to make the call?
MR BELLINGAN: Yes, Mr Chairman.
MR RAUTENBACH: Mr Bellingan, you say this formed part of your thought process at the time and this document we know now was intended for your father, did your father know that you were guilty at the time?
MR BELLINGAN: No.
MR RAUTENBACH: When was this document, when did you do this, can you date it?
MR BELLINGAN: No, I can't.
MR RAUTENBACH: Can you give us an indication?
MR BELLINGAN: No, I can't, Mr Chairman, but it was most likely prior to the inquest I think. It was in any case after I'd made a warning statement, Mr Chairman.
MR RAUTENBACH: Mr Bellingan, at the time when the, on a Saturday, the Friday night/Saturday when you did your travelling, where was your father?
MR BELLINGAN: Sorry, where was my father when?
MR RAUTENBACH: On the night when you did your travelling from Pietermaritzburg or from Durban to Johannesburg and back to Pietermaritzburg which you described to us, where was your father at that stage?
MR BELLINGAN: My father was together with my aunt and uncle either, I think at Boston, at his farm at Boston, if I'm not mistaken, together with my mother, my uncle James and Gail Botha, they were all together at their farm.
MR RAUTENBACH: I have no further questions, Mr Chairman.
NO FURTHER QUESTIONS BY MR RAUTENBACH
CHAIRPERSON: Thank you, Mr Rautenbach. Have any of the other parties got any questions arising from any of this? Alright, if not then I'm going to go back to Mr Hattingh. Have you got any re-examination in regard to this particular further evidence?
RE-EXAMINATION BY MR HATTINGH: Mr Chairman, would you just allow me one moment? Thank you, Mr Chairman.
Mr Bellingan, about the suggestion of your father's involvement, could you just comment on that?
MR BELLINGAN: My father was never involved in any way, Mr Chairman, and there was no statement from him, either before this or after this. Not even for the Security Branch would he stand and lie under oath, Mr Chairman.
MR HATTINGH: Thank you, Mr Chairman.
NO FURTHER QUESTIONS BY MR HATTINGH
CHAIRPERSON: Thank you, Mr Hattingh.
ADV GCABASHE: Thanks Chair, just one question.
Mr Bellingan, paragraph 7 of that Exhibit V, I can't quite read the last word:
"The arrangement to meet you was made around Wednesday when I phoned you at ..."
MR BELLINGAN: That is an abbreviation for Pevency.
ADV GCABASHE: Pevency.
MR BELLINGAN: Pevency is a farm for cerebral palsy adults, which my dad and mom were, I think my mom was arranging the catering and my dad was managing the farm itself at the time. So that is a separate farm from their own personal farm at Boston.
ADV GCABASHE: This is in the Midlands area?
MR BELLINGAN: Correct Mr Chairman, Pevency.
ADV GCABASHE: And that's where you'd normally find them during the day?
MR BELLINGAN: Correct, Mr Chairman.
ADV GCABASHE: And the Wednesday you referred to is the Wednesday before the Saturday that Janine was killed?
MR BELLINGAN: That would be the Wednesday, the 18th of September, Mr Chairman but once again there was no such phone call that I made.
ADV GCABASHE: It's all a fiction. Thank you.
CHAIRPERSON: Thank you, Mr Bellingan, you are excused further ...(indistinct)
WITNESS EXCUSED
MR RAUTENBACH: Mr Chairman, I would like to deal shortly with - we've made mention yesterday or the day before I think, about the investigating diary. I'm not putting the whole investigating diary before you. You will notice from the affidavit that was handed to you and the Committee Members that the affidavit confirms the correctness of the investigating diary. What I have here, and I've got several copies thereof for use of the other parties as well, is those parts of the investigating diary that I have made mention of during cross-examination and they are confirmed by the affidavit of Steyn. That's the first issue. If I may just make sure that this is handed out now.
Then secondly, there was this question regarding the inquest evidence and the suggestion was and the idea was that we would put together the parts of the inquest evidence which was referred to and which we thought to be relevant, instead of just putting the whole inquest record before you. We have compiled bundles of - this is what the bundle looks like and if you look at the whole inquest record you will notice that it's much more than this and we've also invited the other parties that should they want to add something they are welcome to do so, but from our side we'd then also like to hand in the relevant part of the inquest proceedings.
CHAIRPERSON: Yes, the extract from the investigation diary you say is linked to the affidavit of Mr Steyn?
MR RAUTENBACH: Yes.
CHAIRPERSON: Okay.
MR RAUTENBACH: Mr Chairman, that is the, what Steyn's affidavit says. You will recall that there was, that I specifically more than anyone else, referred to the investigating diary of Steyn. Now that is the portion that I referred to. In the affidavit of Steyn he says
"I confirm the investigating diary, that it's correct. It's in fact my ..."
The only difficulty is that we didn't want to put to you the whole investigating diary because it will just burden you with paper.
CHAIRPERSON: No, we appreciate that. I just wanted to make sure that just for the purposes of identifying this document, just for our own purposes as well. Shall we call the extract from the diary T1? The affidavit is T, so shall we call that T1, just to make sure that it relates to the diary? The relevant extracts from the inquest, this would be W. That's all that you wanted to place before us, Mr Rautenbach?
MR RAUTENBACH: That is correct, Mr Chairman.
CHAIRPERSON: Mr there anything else, Mr Hattingh or anyone of the other parties? Mr Chaskalson, anything further that you want to hand up or bring to our attention?
MR HATTINGH: Mr Chairman, only Exhibit L or Annexure L, that was the transfer or the property documentation that Mr Bellingan dealt with during his re-examination, we made copies of these documents. They were marked - sorry, Mr Chairman, Exhibit L was the letter for the trout hatchery, the document about that. So we've got copies of that document and the original and then the property details or property document were all marked M and we just followed the pages and marked them from page 1 to, it would appear, 24. There are various documents. We just made them all M and marked M1 to 24 and we've made copies of that as well.
Then Mr Chairman, with regard to the inquest record, I believe that part of the applicant's bundle from the outset was the inquest evidence of Mr Potter and Mr Steyn and I believe Mr Bastian's as well. Now on the same basis we are going to refer to those parts of the inquest record, but that is already before all of us, so we don't have to really add that as a new annexure.
CHAIRPERSON: Thank you, Mr Hattingh. Yes, W is just additional extracts which are not before us. Are you handing in and distributing Exhibits L and M? Are you ready or not yet? You can hand it in when you are ready.
MR HATTINGH: Mr Chairman, these documents have already been handed in, formally handed in, it's just a matter of distributing it to the various parties and my attorney tells me that he's not quite ready, but we will do so, it's not a problem, we're going to make it available immediately now. Thank you.
CHAIRPERSON: Right, that's fine. Mr Chaskalson, you have run out of documents, have you?
MR CHASKALSON: I don't really have much to add, Mr Chairman. Just this morning Advocate Hattingh and I had a conversation with you in terms of how we might proceed tomorrow and I think possibly we could share that and your final opinion on the matter with all of the other parties here.
CHAIRPERSON: Mr Lengane and Mr Wagener, I am just enquiring for the record, you have nothing that you want to burden us with further?
MR WAGENER: No, Mr Chairman.
MR LENGANE: Nothing from our side, Mr Chairman.
CHAIRPERSON: Thank you, gentlemen. In that event, we have concluded all of the testimony in this hearing. As we had indicated we would want the parties to address us on their respective cases. We are going to adjourn until tomorrow morning for that purpose and we're going to start at 10 o'clock to leave a little bit more time in the morning for the parties to prepare if it's necessary.
Mr Hattingh, as Mr Chaskalson has indicated, has raised with us this morning his own understandable position in this matter in the sense that he would like to use every available opportunity to ensure that he does present to us every conceivable aspect of the applicant's case that might assist us in coming to a decision in this matter, and for that purpose we have indicated to him that we will allow him, after tomorrow's arguments, an opportunity to submit any further supplementary submissions which he might want to add to what he places before us tomorrow to us in writing and obviously we will allow all of the parties an opportunity to respond if they so wish.
So what we're going to ask is for Mr Chaskalson possibly to work out the logistics of that arrangement, possibly just get an indication from Mr Hattingh what sort of period he would, shortest possible period I must emphasise because you know unfortunately this Panel, as the rest of our colleagues, are working on a very demanding schedule that takes us to hearings consecutively for weeks and weeks on end, so it is in the interest of everybody that we get down to making a decision in matters that we hear as quickly as we possible can, within reasonable limits. So bearing that in mind, would you then arrange logistics, Mr Chaskalson, which will give Mr Hattingh a little bit of extra time after tomorrow to consider whether he wants to submit any further written supplementary argument to us and which will allow all of the parties to consider that and to decide whether they want to respond, to be then given a opportunity to do so?
MR CHASKALSON: We will discuss that and hopefully provide you with a set of dates which you can accept or amend as you see fit.
CHAIRPERSON: We would appreciate that very much. We would like to start at 10 o'clock tomorrow morning with the argument, so can I call upon the parties to make sure that we are able to honour that obligation. We will then adjourn until 10 o'clock tomorrow morning.
COMMITTEE ADJOURNS
