JUDGE WILSON: ...matter, but before we proceed with it I have certain problems which I wanted to raise. Firstly, made available to me for the first time, a copy of the transcript of the previous hearings and towards the end of the record, the question of the affidavits that we dealt with yesterday arises when I drew attention to the applicant's attorney that two affidavits had been handed in which have been prepared for the purpose of the trial. I'm not sure if it should be trial or inquiries, these I think were affidavits by the police officer De la Rey and attached thereto was an affidavit from the deceased's common law wife Mishek May.
Mr Mthembu had not seen those affidavits at that stage and we discussed it with him and it is obvious that he had to take instructions from his client and the matter stood down and he was informed that after he has taken instructions it might be necessary for us to call the people who made the affidavits. We then dealt with the question of Mrs May and whether she had been given notice of the proceedings and whether her address had been obtained and I suggested that it could be obtained from the President Steyn mine where her late husband had worked.
I was reminded by Mr Mthembu that after he had had an opportunity of discussing the matter, that is the contents of De la Rey's affidavit with his client, the matter having been adjourned to enable him to do this, the hearing was informed that notice had been received from relatives of the victim that they wished to oppose the granting of amnesty and the matter was accordingly adjourned to enable that question to be dealt with, but Mr Mthembu never intended to, nor did he ever give the impression that he was admitting he correctness of the contents of Mr de la Rey's affidavit. In those circumstances, quite obviously, Mr de la Rey should have been called to confirm what is set out on the affidavit and to enable Mr Mthembu to cross-examine him. This unfortunately was not done, we merely proceeded with the rebuttal evidence before we heard the main evidence and in the light of the very really conflicts of fact that apparently arise, as to where goods were found, when things happened, it seems to me essential that Mr de la Rey should be called to give evidence and Mr Mthembu should be given an opportunity to examine him and thereafter, if he feels it necessary, to recall the applicants to rebut any further matters that may have arisen. But equally well if Mr De la Rey is to be recalled on this issue and there is, as I have indicated a conflict of fact, he should be notified so that he has an opportunity to find his own records, his pocket book and matters of that nature to support his evidence and also to contact and have available any other police officers who may have been with him at the time that the incidents he attested to in his affidavit took place. And I don't want us to have him here and then have him saying, oh well, constable so and so or sergeant so and so was there and he did this and he did that ,and then we have to adjourn the whole matter again. So I would like arrangements to be made, I understand Mr de la Rey is in Bloemfontein and accordingly be available, that he was a potential witness in the magistrate's court case today and tomorrow that is going to be adjourned. He should be informed that we wished him to come and give evidence in support of the affidavit he has made, that he must obtain what check-up in anything he wishes to and have those documents available so we don't have further adjournments and that if he intends to name other persons as having been present and that they are potential witnesses, they should also be present.
Now how quickly can this be done?
ADV THABETHA: Unfortunately Mr Chair, I wasn't aware that Mr De la Rey needed to be notified, but Penny told me and I have called Mr De la Rey. I was speaking to him when you came in, hence I went behind the curtain. He says that he can come. He has asked us to fax him the statement so that he can refresh his memory. So I would suggest that when he comes maybe I consult with him and find out if there were any other officers involved and whether he would be willing to testify on his statement.
JUDGE WILSON: So is he coming now or when is he coming?
ADV THABETHA: He asked me when is he supposed to come here I said as soon as possible. He said he would try to be here as soon as possible.
JUDGE WILSON: Because rather than have him come here and say he has to go back to his office and get papers and things, I think you should explain to him what I had just said, that if he has documentary evidence such as a pocket book or anything, he should get them. I am aware of the fact that police officers usually hand in their pocket books after six months, they are then supposed to be stored in a safe place, but one is extremely lucky if one can ever recover them from where they have been stored but he may have other documentary evidence that he wishes to produce. so if you could tell him that and tell him if he's got any others because I gather that Mr Mthembu would be available tomorrow and I also think that the applicants must be present. They should hear the evidence if they are then going to be called rebut it. And if it's not desirable they should be told from a note someone's made, I think they should be here, so we will not be able to proceed immediately. If Mr De la Rey comes here we will have to make arrangements for the four applicants to be brought here again and I think it might be better to make those arrangements tomorrow so we can excuse Mr Mthembu now to go about his other business rather than have him sit here for most of the morning waiting for things to happen. I don't know what his attitude is towards that.
MR MTHEMBU: I would like to be excused Mr Chair.
JUDGE WILSON: So you agree that it would be more realistic to aim at hearing this tomorrow morning?
MR MTHEMBU: I agree Mr Chair.
JUDGE WILSON: Very well agreed. Do you have anything further to say on that?
ADV THABETHA: If Mr Mthembu wants to be excused today, well I have nothing further to say but what I wanted to say is can't it be arranged that we do all of that in the afternoon, pending Mr De la Rey.
JUDGE WILSON: Well id Mr De la Rey is available and if the, I'm speaking from my experience yesterday, can we be sure we'll have the applicants here by this afternoon? How long did it take to get them here yesterday?
ADV THABETHA: I can ask Mr Tsuo(?).
JUDGE WILSON: Is he here?
ADV THABETHA: He's here.
JUDGE WILSON: Very well, if somebody is here that we can deal with direct, that's alright. What do you say about this afternoon then? That should give Mr De la Rey enough time, will it give you? So you can be excused now and come back at 2 o'clock.
MR MTHEMBU: I have no problem with that.
JUDGE WILSON: Very well, there's on other matter though that we wish to raise, and that is the possible intervention of family of the deceased and I would ask Mr de Jager to deal with this.
MR DE JAGER: At the last hearing we received a letter from attorneys, Conradie from Worcester, saying that they're representing the relatives of the deceased and that they've got certain representations to be made. Have you been in touch with them, what arrangement has been made. what in fact happened since the last hearing?
ADV THABETHA: Since the last hearing I called Mr McLachlan who is the lawyer who I dealt with personally concerning this matter. He represents Mrs Naude who is Mr Fourie’s or the deceased's sister. I arranged for a transcript to be typed, I sent it to him, that was early April, if not end of March, I can't remember the exact date, 9th of April.
MR DE JAGER: (? - speaker's microphone not on)..so you requested the transcript...(indistinct)?
ADV THABETHA: Not the transcript of Ngo and other matters, the transcript of Nkgwedi. The following day I got the transcript, I couriered it to Mr McLachlan, I called him, left messages with him to respond, he never responded. I faxed the Section 19.4 via Mr McLachlan to Mrs Naude, I also didn't get any response. Even before coming to Bloemfontein I left another message on his cell, he never responded to me. The person I've been talking to over the telephone more often is Margaret Pentstone, the deceased's daughter, she gave me a letter, she said she couldn't come to the hearings, she didn't want to come to the hearings, but she gave me a letter to present at the hearings.
MR DE JAGER: You've handed me a letter from Margaret Pentstone yesterday afternoon, actually after we've adjourned, I don't know whether you've given a copy to the applicant's representative.
ADV THABETHA: We have.
MR DE JAGER: What's his attitude about the letter? Can it be handed in as evidence or what's the position?
ADV MTHEMBU: Briefly yesterday I showed that letter to the applicants as they were leaving to take instructions on its contents and it would appear, certain issues that are in that letter are being disputed by the applicants. I don't know how the Committee will deal with that issue.
JUDGE NGOEPE: Well that is just a letter and not an affidavit. It has not evidential value, maybe we shouldn't create problems out of nothing really. If the instructions or the purpose why this person handed over the letter was just that the letter should be read to register their views, the letter can be read. But that does not mean that we are going to accept the contents thereof as the truth necessarily because it's not an affidavit, and you should see it in that light, because I hear that you say that, you talk of instructions from your clients , what their attitude will be to the contents and the like, but please remember that this is not an affidavit, it's just a letter and if the author of the letter's intention was that that letter should just be read and her views be registered, it can be done. We don't have to, I suppose you don't for a moment think of calling the applicants again and putting the contents of the letter to them again and all that sort of thing. It's not an affidavit, it's just a letter, and that's what it is.
JUDGE WILSON: As I understand, the purpose of the letter, it was because she had learned of certain evidence or information that has been given which tended to put her father in a bad light and it is the natural reaction of a child to want to clarify things of that nature but I don't think it is relevant towards the enquiry we are hearing. It has not been suggested for example, that he didn't pay wages or that he didn't provide accommodation for his staff or that he wasn't a good farmer. I understand that is really what she wanted to put before us and that is not an issue, is it Mr Mthembu?
ADV MTHEMBU: Chair, for as long as it has not been of any evidential value, I have no problem if it is read.
JUDGE WILSON: I think it is more the reaction of a hurt child who thinks 'my father was a father was a far better man than that', and quite naturally, just understandably wants to clarify what she thinks is a misconception, but it is not as brother as said, it is clearly not evidence before us.
MR DE JAGER: Don't you only enquire from Mr Nkgwedi whether his father was still living on the farm on the day of the when Mr Fourie was killed?
ADV MTHEMBU: We'll do so Sir, I will do so.
JUDGE NGOEPE: This is a, Ms Thabetha, can you just go back to where you want to run these matters, because if you want to, you see Chairperson has suggested that we use this day to deal with the other matters here and there is Counsel representing Menera I think and also representing Mr Ngo and who is here, who will has been here since yesterday anyway. Now I would have thought that the best way to deal with these things would be just to take today and devote it to Menera and possibly also to Ngo and then just deal with the policeman tomorrow. Because you see, if we start with Menera and Ngo now, 2 o'clock we stop, then we go back to Nkgwedi and others, having started at 2 o'clock, in all probability we won't finish in two hours time, at 4 o'clock, then we are going to adjourn that same matter and then proceed with it again tomorrow morning and possibly finish in the morning and then in the course of the middle of the morning come back to the matters which we shall have adjourned at 1 o'clock, we'll really be working in a terrible disjointed fashion and it causes Counsel some problems.
Can't we just proceed with today's matters until 4 o'clock and then start first thing tomorrow morning with Nkgwedi's matter?
ADV THABETHA: Member of the Chair, the only concern I have is that Menera and Ngo were set for tomorrow but I highlighted in their letters that they must kindly come today so that if we don't finish with today's matters can proceed with their matters, Nkgwedi, Magoda, May and Leeuw were on hold for today but because we finished earlier than early yesterday, we proceeded with them. I don't see
Mr Phelane and his Lawyer with us right now and I would have to find out when they are coming, that is the ...(intervention).
ADV MTHEMBU: I see, you are referring to the victims' legal representative, the victims have their legal representative, the legal representatives as far as this is concerned? The matter is coming tomorrow?
ADV THABETHA: As far as he's concerned the matter is coming tomorrow but I did specify that they should come the day before so that if we finish early with the matter that is set for today, we can proceed to their matters, so they are supposed to be here but what I'm thinking is that they are under the impression that the matter that is on hold for today will start and then if it finishes early we can proceed with their matter.
ADV MTHEMBU: Only thereafter.
ADV THABETHA: Ja.
ADV MTHEMBU: So what you propose as that we start with Ngo?
ADV THABETHA: Also Ngo, Ngo was enrolled for tomorrow, Menera and Ngo were enrolled for tomorrow.
ADV MTHEMBU: What are you going to do now until 2 o'clock?
JUDGE WILSON: Nothing. So there's nothing we can go on with now, is that what you're telling us?
ADV THABETHA: I would like the members of the committee to give me an opportunity maybe to get in touch with the victims and find out when they are actually coming today.
ADV MTHEMBU: Ja if you did tell them that they should make themselves available today, then they must make themselves available.
ADV THABETHA: That is the applicants you told? But you didn't tell the victims that?
ADV THABETHA: I did tell the victims that.
JUDGE WILSON: That they might have to be here today?
ADV THABETHA: Yes.
MTHEMBU: Well phone and tell them that they must be here.
ADV THABETHA: I will do so.
JUDGE WILSON: We will adjourn for a few minutes and you can try to clarify the position for us. And from Correctional Services here, I understand that there's a little confusion, probably brought by me this morning about whether we were going to go on with the other four or not and if they were brought here, and I would like to apologise for having caused the confusion and also thank Correctional Services for having reacted so promptly to what they thought was our request. Thank you very much indeed and I'm sorry you've been put to that trouble. We will be dealing with those four again tomorrow though won't we.
ADV THABETHA: Yes we will be dealing with them.
JUDGE WILSON: So we will require them and this time I hope we'll get on with it tomorrow morning at 9 o'clock. Thanks.
COMMITTEE ADJOURNS
