CHAIRPERSON: We have wasted so much time waiting for interested parties and victims, who we were told, were on their way from Kimberley. I think we have allowed them enough time to reach this venue and we cannot allow this state of affairs to continue indefinitely. I think we should commence our proceedings.
I would like to place on record that in future when notices are sent out to names on record, and, thereafter, one of the lawyers, my colleagues would like to say something before commencing. I don't know whether that would be Adv Visser or it will be Prof De Koker, but if we can place ourselves on record, please.
CHAIRPERSON: Yes, Mr Tshulanku, you appear for the applicants?
MR TSHULANKU: I appear for both applicants, Mr Chairman.
MR PRINSLOO: Mr Chairman, I represent two of the victims, the first one is a Mr Bethanie - I will spell it for the record: B-E-T-H-A-N-I-E - and Ms A Kgoro - I will spell it for the record: K-G-O-R-O. Mr Chairman, there is also an indication that I may also receive instructions from certain victims that apparently are still on their way from Kimberley, but we will clarify that matter at a later stage, Mr Chairman. Thank you.
PROF DE KOKER: Thank you, Mr Chairman, Louis de Koker and Adv Jean Nel, appearing on behalf of Adv Jean Nel and for a matter in limine, also Mr Adriano Cassandro.
CHAIRPERSON: Is this person one of the victims?
PROF DE KOKER: He is one of the victims, yes.
CHAIRPERSON: Can you spell the name?
PROF DE KOKER: Adriano - A-D-R-I-A-N-0 - and his surname Cassandro - C-A-S-S-A-N-D-R-O.
CHAIRPERSON: Mr Visser?
MR VISSER: May it please you Mr Chairman and honourable members of the Committee. I appear instructed by Wagner & Muller and Du Plessis, my name is Louis Visser. We appear for certain interested parties, to wit Insp C N Erasmus, Sgt P N Kapanda, Supt G A Rossouw, Capt G S Starke, Lieut-Col P J van der Colff.
CHAIRPERSON: How do they figure in this application?
MR VISSER: Mr Chairman, these people, all of them were - are implicated on papers which have been circulated at the last hearing of the Committee in March. They have also received notifications that they are implicated persons and as such they have an interest in terms of the Act and are entitled to be here. I may add that on behalf of these persons, we oppose the applications, M'Lord.
CHAIRPERSON: Tell me how they are implicated?
MR VISSER: They are implicated in a sense that it is alleged that they threatened, assaulted and generally made themselves guilty of defeating the ends of justice by causing two allegedly innocent persons to be brought to trial before Munnik, J, his Lordship, Mr Justice Munnik and two assessors, and which resulted in the two persons mentioned to be found guilty and to be sentenced. The allegation is by necessary implication, at least, that that was a defeating the ends of justice. Those two persons, Mr Chairman, you will hear their names mentioned, we think, again and again, during these proceedings, were a person by the name of ..
CHAIRPERSON: Please spell it.
MR VISSER: It is, I will spell it immediately, it is spelt N-K-O-H-L-A, first names Mkosinati Darlington. The other was Mbaqa - M-B-A-Q-A, Moses Sipho. If I may perhaps to enlighten the Committee. On the occasion of March, this year, when we were given notice for the first time or rather when our clients were given notice for the first time, at that stage Mr Mkosinati Nkhohla was also an applicant, and if you have been favoured with copies of the documentation which was then circulated, Mr Chairman, you will have seen a document with a cover page which looks like this. It said
"Amnesty application of Kulekane Lawrence Mbatha, Walter Smiles and Darlington Mkosinati Nkhohla."
We are now informed, Mr Chairman, that Mr Mbawa, the other person who was also convicted in the criminal trial, has also filed an application for amnesty. We wish to mention here, because we consider it to be important, that we have not seen, nor have we been provided with a copy of his application and therefore we cannot at this stage speculate as to whether his evidence may or may not take the matter of the present applicants any further. But what we do suggest at the present time, Mr Chairman, is that first of all, it appears, that none of our colleagues sitting at the table here today, have been provided by the Amnesty Committee with the full documentation. I may mention for purposes of identification that in March we received 179 pages. Allow me just to make sure that I am not stating the incorrect number. I believe it was 175 pages - 179. Last week, Mr Chairman ... (intervention).
CHAIRPERSON: 179 pages related to an application by who?
MR VISSER: Now that related to the one which I have just referred you to, relating to Mbatha, Smiles and Nkohla. Thank you, Mr Chairman.
Last week you may recall that we came to see you at the Pretoria City Hall to basically bring a message from Prof De Koker which we delivered to you, and at that time we received, I think, at that time, we received further documentation, consisting of some 93 pages. Now what that consists of, Mr Chairman, in essence, is evidence which was given on the 11th to the 13th of June 1996 before the Gross Violations of Human Rights Committee, sitting at Kimberley. The evidence given there was evidence by inter alia, the two applicants.
CHAIRPERSON: The present two applicants?
MR VISSER: That is affirmative, Mr Chairman. Plus Mr Chairman, the State witness who was a single witness as to the event at the trial before Judge Munnik, who was a person by the name of Themba Nkosi Ngquele - and that is spelt N-G-Q-U-E-L-E, Mbaqa also gave evidence and others, Mr Chairman, but the important thing is that that bundle of documents also contain certain statements which were taken from these witnesses by your specially trained statement-takers of the investigation unit. And, Mr Chairman, the point I am getting at, is simply this. If you read those last 90 odd pages, Mr Chairman, it is quite clear that what appears from that, are material disputes arising among these witnesses, and disputes arising in the evidence of the witnesses where they contradict themselves as well.
That being so, there are two points which we believe we should inform the Committee of. The one is this ... (intervention).
CHAIRPERSON: Before you continue, may I just clear this up. Mr Mpshe, why is it that at present there are only two applicants when on a previous occasion a man called Mbaqa had also applied?
MR MPSHE: Mr Chairman, that is correct. On a previous occasion there were three applicants. The two present applicants as well as another one, Nkhohla, Mkosinati Nkhohla.
CHAIRPERSON: Sorry, wasn't it Mbaqa?
MR MPSHE: No, Mr Chairman, Nkhohla.
CHAIRPERSON: N-K-H-O-H-L-A?
MR MPSHE: That's correct, there were only three applicants. Mr Chairman, after this matter has been postponed, I perused all the applicants to enrol this matter for this particular hearing. Then when reading the application I realised that Nkhohla should not have been enrolled in the first instance, because he was the (indistinct), and in terms of our Act he did not come to a hearing. That type of application can be dealt with in chambers. That is why he is not here today and he is not before this Committee. If the Chair would like me to respond to what my learned friend has said on the three points.
CHAIRPERSON: No, he hasn't finished what he wishes to say first. Let me say it. Let him put on record the reason why this man Nkhohla is not here, he has not been notified of the proceedings.
MR MPSHE: He has been notified as an interested person.
CHAIRPERSON: Today?
MR MPSHE: Today, and he is going to be present.
CHAIRPERSON: Not as an applicant but as an interested person?
MR MPSHE: As an interested person, Mr Chairperson.
CHAIRPERSON: Thank you. Mr Mbaqa has also applied for amnesty?
MR MPSHE: Mbaqa, Mr Chairperson, has also applied for amnesty and what goes for Mr Nkhohla goes for Mr Mbaqa as well, denial of guilt.
MS KHAMPEPE: Mr Mpshe, has he also been notified as an interested party?
MR MPSHE: Mbaqa?
MS KHAMPEPE: Yes.
MR MPSHE: Yes, both of them have been identified and both are right inside this arena.
CHAIRPERSON: Thank you. Mr Visser, I am sorry to have interrupted you. I wanted this on record.
MR VISSER: I am sorry, Mr Chairman. Yes, I am through, Mr Chairman. I just want to summarise. The critical factor here, Mr Chairman, is that two other people than the applicants were convicted of the incident for which the applicants today apply for amnesty. They were convicted on the strength of the evidence of Mr Themba Nkosi Ngquele. He has not been notified, Mr Chairman, and we submit, with respect, that he is clearly a person implicated, and it has to be so, because unless you can find at the end of the evidence, that the two present applicants perpetrated the offence, they cannot receive amnesty. That is clear on the requirements of the Act. In order to do that, Mr Chairman, it follows by necessity, that his Lordship Mr Justice Munnik must have been incorrect in his finding and that could only have been based on the evidence of Themba Nkosi Ngquele. Therefore, we say, Mr Chairman, that you cannot sensibly hear this application unless Ngquele is here to come and tell you whatever he wants to tell you. He may either tell you that he lied to the Judge or that he spoke the truth, but whatever he has to tell the Committee, you will have to hear him, in order to be able to decide the truthfulness or otherwise, and particularly whether there has been a full disclosure by the present two applicants. That is all we want to say, Mr Chairman.
We are ready. May we place on record we are ready to continue, we are prepared as far as cross-examination is concerned, so we are not asking for a postponement on our behalf. We want to make that perfectly clear, but we also believe that you should be aware of these background facts before we start, Mr Chairman, so that you can make the proper ruling in this regard. Thank you, Mr Chairman.
CHAIRPERSON: Thank you. The people you have mentioned, whom you represent, what interest do they have in the present application?
MR VISSER: Mr Chairman, all of them were involved in the investigation of the incident of the explosion of the hand-grenade. In regard to all of them, in some respect or other, they are implicated in bringing about the injustice that two innocent people were convicted by a Judge and assessors.
CHAIRPERSON: Well, only if they are implicated by the evidence that we hear today. If they are not implicated, then they have no interest in the matter.
MR VISSER: Mr Chairman, with respect, their interest is this. Should this Committee find that the two present applicants were in fact the people who perpetrated the offence, by necessary implication, they are implicated in defeating the ends of justice, because Mr Chairman, there is a piece of evidence which you will hear about, and that is this; after the trial commenced, the defence attorney and counsel, who was Mr Denzil Potgieter, approached the State advocates, who appeared for the Attorney-General with a witness and that witness, by coincidence, is Mr Smiles, who is an applicant before you here. Together with an affidavit that had been made and signed by Mr Smiles, in which he assumed the guilt for throwing the hand-grenade. The State chose not to follow the suggestion by Mr Denzil Potgieter to release the two accused and to charge Mr Smiles. As a result of that, Mr Chairman, Smiles was told to go away by the Attorney-General and the case proceeded. During the trial Mbaqa gave no evidence in his defence, and in fact, no defence was put to any witness, apparently. Nkhohla had an alibi, Mr Chairman, and that alibi was rejected.
The important thing here is this; during the investigation by my clients of the case, Nkhohla made a pointing out and a confession. The confession was cryptically "this is where I stood when I threw the hand-grenade". We say this, Mr Chairman, unless Nkhohla is here to give that evidence you cannot decide on the truthfulness of any of their evidence. Clearly, my clients are implicated, because if the present two applicants give evidence which is truthful, then my clients have all committed to a more or a lesser extent, some act in order to defeat the ends of justice. Apart from the allegations of assault, et cetera, which have been made during the course of the trial.
CHAIRPERSON: I am now going to proceed with the trial, in the absence of the State witness who gave evidence in that case. I am going to allow you cross-examination only to the extent that any of your clients are implicated by any evidence that I hear here. If there is no evidence implicating your clients, I will not allow you any cross-examination. Is that clear? May we proceed.
PROF DE KOKER: Mr Chairman ...
CHAIRPERSON: The applicant, are you ready to proceed with your client?
PROF DE KOKER: Mr Chairman, I would like to raise another matter in respect of one of my clients, Mr Adriano Cassandro, if I may do so?
CHAIRPERSON: Yes, please.
PROF DE KOKER: Mr Adriano Cassandro was a member of the United Nations observing mission to South Africa, who observed the adherence inter alia to the National Peace Accord by all political parties in South Africa, who subscribed to that accord. He was also acting in terms of a Security Council resolution and agreements between South African political parties and the United Nations.
At the time of the incident he was based in Kimberley. He was working in close co-operation with the members of the Regional and Local Peace Committee, and with the Regional co-ordinator of the Peace Secretariat for the Northern Cape, Adv Jean Nel.
Mr Cassandro was also present at the march. He was seriously injured. His injuries were to such an extent that there was a very big chance that he would lose his foot. Luckily the doctors succeeded in saving the limb. Unfortunately he has retained a limp, which he will retain for the rest of his life. He is one of the victims who was extremely seriously injured. You would notice amongst the 40 to 50 victims there are slighter injuries, but his surely rank as the most serious injuries sustained.
The fact that Mr Cassandro was a victim was brought to the notice of the Amnesty Committee during the first rounds of hearings in these applications held in March in Bloemfontein. Mr Cassandro, unfortunately, was not informed of the proceedings this morning by the Truth and Reconciliation Commission.
Apart from the fact that as a victim, Mr Cassandro has a clear right to be present at the hearing and to give evidence. Mr Cassandro is also a crucial witness to the process. He participated in his capacity as a representative of the United Nations and as a representative of all the parties to the National Peace Accord, but in his capacity as an independent international observer, in all the negotiations in the run-up to the march; all the negotiations, all the guarantees furnished. He participated in the march itself, to monitor compliance with all the guarantees furnished. He was seriously injured, but apart from that, in hospital he also monitored the aftermath of the breach of the National Peace Accord.
Mr Cassandro himself investigated the matter in order to furnish a comprehensive report to the United Nations. Therefore I maintain that he is also a crucial witness to this process.
The hand-grenade attack did not take place in isolation. The hand-grenade attack took place within the framework of negotiations and agreements reached on the basis of the National Peace Accord. Apart from that, it would appear as if the attack was also in part an attack on the Peace Committee operating in terms of the National Peace Accord.
I maintain, with respect, Mr Chairman, that Mr Cassandro as a victim has therefore a clear right to be informed of the procedure and as a witness should participate in the proceedings. I can perhaps, also mention, furthermore, Mr Cassandro is at the moment stationed in Angola as a United Nations observer to Angola. He travels apparently regularly to South Africa to the headquarters of the United Nations or to a representative of the regional headquarters stationed in Pretoria, of the United Nations Observer Mission to Angola.
During the course of last week he was on a brief visit to Pretoria for urgent medical care. We were able to meet very informally and to speak very briefly on the matter. Mr Cassandro instructed me to inform you this morning that he would in all earnest want to participate and exercise his rights as a victim, that he was prevented to do so because he has not received communication of the proceedings, and that I was given instructions by him to appear on his behalf only in this matter, and that is to request the Committee to postpone the matter to a further date of which he can be given full notice, and in order to allow enough time for the TRC to furnish him with full documentation, in order to enable him to exercise his rights as a victim and to participate in these proceedings as a crucial witness.
CHAIRPERSON: Has he given you any indication as to what attitude he has towards the application?
PROF DE KOKER: Yes, he has, Mr Chairman. We were able to show him, as far as I remember, one of the applications, and his reaction after reading it, was that there appears not to be full disclosure of all the relevant facts that he is aware of.
MS KHAMPEPE: Mr De Koker, are you saying that it is his intention to oppose this application on the basis of there hasn't been a full disclosure? Are those your instructions?
PROF DE KOKER: My instructions were given on the basis of the few documents that we had at our disposal last week, during a chance meeting in Pretoria. So Mr Cassandro has not had access to the full documentation in front of this Committee at the moment. On the basis of those documents which I showed to him, he indicated very clearly that he wants to participate in this process. On the basis of the documentation given, it is clear that he would want to reflect on his attitude towards the applications. I do not have instructions at this stage to oppose the application on his behalf. My instructions are to approach the Committee, to put the matter to the Committee that as a victim he has not been notified of this procedure, that he has a crucial interest in the matter and that he has crucial information to furnish to this Committee. I am sure that after notification and after full documentation has been furnished to Mr Cassandro, he will be able to come to a final decision as to his attitude to the applications. His initial attitude reflected to me that he would consider opposing the applications.
I might perhaps, also add, that while we are addressing the matter of Mr Cassandro, on the basis of the information which he gave, it is also clear that the evidence which he can submit to this Committee, will also be crucial to the opposition to the application by my other client, Jean Nel. To the extent that at the moment we do not have access to Mr Cassandro's evidence, because he was not notified of the procedure, it therefore also impinges upon the right or touches on the right of my other client, Jean Nel.
CHAIRPERSON: Thank you. Mr Mpshe?
MR MPSHE: Thank you, Mr Chairman. Mr Chairman, I just want to respond to what my learned friend has just said in the following way.
Firstly, it is true that the name of the victim Cassandro was brought to the notice or to the attention of the Truth Commission. Number two, it is true that he has not been informed. But the reasons therefore are as follows; that the investigative unit tried to trace Mr Cassandro and when they came back to me they said when Mr Cassandro was in Kimberley when this incident took place, the only address they had, is that he was staying in an hotel and they
cannot trace him any further. That closed the matter.
Mr Chairman, this past week on the 22nd of this month, Cape Town office called me and gave a message that a Mr Cassandro has left a message for me and a telephone number to call him. I did call him on the telephone and the telephone was for Pretoria. I called and I spoke to a lady who said she was the secretary at the Embassy in Pretoria, by the name of Tina, and Tina said to me that Mr Cassandro, yes, was around Pretoria, but he is no more based in Pretoria, he is now working at head office in Angola, and he has since left for Angola. I asked her and when do you expect him back, and she said well, he said to me around by the 1st or the 2nd of September. That closes the matter, Mr Chairman.
The reason why we could not serve on him, he was in Angola all the time. In as far as the clear right is concerned, I cannot gainsay that. It is for the Committee to decide what is meant by clear right. But I have a promise, Mr chairman, in as far as the crucialness of his evidence is concerned. My learned friend stated that his evidence is a crucial one which is important to this Committee. Of course, I had a discussion with him yesterday during our meeting about this witness, and he indicated to me that this witness is very important because he will sketch to us the events before the incident as well as after the incident. But what is he going to sketch to this Committee about, I do not know. But from what my learned friend has just said, is in as far as the position was before the incident and the monitoring after the incident, if that is the crucialness of this witness' evidence, as it has been put, then I will not hesitate to state that nothing is in dispute in as far a the position then in Kimberley or in Bloemfontein was before the incident. Nothing is again in dispute in as far as the position in Kimberley or in Bloemfontein was after the incident. But if my learned friend was saying he is going to tell us, Mr Cassandro is going to tell us about Walter Smiles, he is going to tell us about the two applicants, as to how they did this and why they did this, then I would change my attitude and say indeed, he is a crucial witness. But if he is going to just paint the political climate then, this is not in dispute. We know it was unstable then before the incident and even after the incident, but I will leave this to the Committee.
CHAIRPERSON: I think that we were told that this was a casual meeting they had with Cassandro, and without all the documents and this was a casual meeting, and one can understand that in a casual meeting of this kind, these points that you raise may not have been canvassed and they may well be crucial. The Committee will take a short adjournment to consider this position. Is there any indication as to when Mr Cassandro is likely to be here? Can you tell us?
PROF DE KOKER: Chairperson, Mr Cassandro, and I would just like to take the submissions by Adv Mpshe a little bit earlier. It is
unfortunate that the investigations were only regarding his address, was directed towards the hotel where he stayed prior to his hospitalisation. Mr Cassandro is an employee of the United Nations. At the moment, and during the past four years, he has been in the constant employment of the United Nations. By contacting his employee he could therefore have been reached.
Furthermore, regarding his availability, although he is stationed in Angola, there are regular flights between the Mission and Angola and the Mission and Pretoria. So he - and regular contact and communication. So he indicated that if a date is set he would be able to make his arrangements as an international observer and a member of an international organisation to be present. We would therefore, not have to be bound by the indication that he is inter alia going to visit Pretoria again during September. At any stage at which it is convenient for this Committee, therefore, to set a further date, he will be able to make his arrangements, if given warning beforehand to be present.
MS KHAMPEPE: Mr De Koker, I know the Chairperson has already indicated that the Committee will take a short break in order to go through your application for a postponement. May I for the sake of completeness, find out if you do have more information about the crucial testimony that Mr Cassandro is likely to give before this Committee? I know you haven't had a proper consultation, but you have been advised by Mr Cassandro that, you know, he would be a crucial witness to this process. Are you able to explain a little more about the relevance of the evidence that Mr Cassandro will be placing before this Committee, in so far as the present application is concerned?
PROF DE KOKER: Thank you very much for the opportunity. Firstly, if the Committee members glance at the documentation which was put before them, they will notice that no reference whatsoever is made to the peace process, to the National Peace Accord, to the agreements which were reached, to the detailed negotiations with the leadership of all organisations involved in this particular march. That is clearly highly relevant for this Committee to decide whether in terms of section 2(3) of the Promotion of National Unity and Reconciliation Act, what the context of this specific Act was, and also, as to whether the act was committed with the approval of any of the organisations involved, and also in respect of at least (f), the relationship between the Act and the true objectives pursued.
He will also place in dispute whether the applicants committed the act with any political motive whatsoever. That is on the basis of the evidence which we disclosed and I am glad that you again placed it in context, that our consultation was extremely hurried, given the circumstances.
CHAIRPERSON: The Committee will take a short adjournment, and if it is possible we will give our decision before one o'clock. We will adjourn.
COMMITTEE ADJOURNS
CHAIRPERSON: ... and it is said that he has vital evidence to give to this Committee, arising out of his contact with the leaders of those organisations. This may have a direct bearing, I am saying it may have a direct bearing on the outcome of this application.
My Committee has considered this submission made by the professor and we have come to the conclusion that his request for a postponement has been well-motivated and we agree that this application should therefore be postponed. Whenever applications are set down a number of people are involved in these proceedings in the preparation, a number of other victims are involved, some of whom may be travelling considerable distances to come here and may well arrive, perhaps due to no fault of their own, may well arrive late, who have an interest in this matter, and it is a pity that inconvenience is caused to a number of people by postponing this application. It is unfortunate that such inconvenience may have to be caused to them. However, the reasons which we have been influenced - the factors which have influenced us, leaves us with no alternative. We are therefore of the view that this application will have to be postponed to a date that must be ascertained by Mr Mpshe and with the representatives of Mr Cassandro.
Now counsel for the applicant, it is unfortunate that you have taken the trouble to represent your clients, and it is unfortunate that an inconvenience in this case is caused to your clients and to you. But, in this case it seems that your clients are not in prison, they are free citizens and a further postponement of this application would not have the same hardship that it would have, had they been people who were serving terms of imprisonment and awaiting the outcome of a decision by the Amnesty Committee.
I trust that you will convey our feelings, our disappointment that we can't proceed this morning, that you will convey that to your clients.
My colleague here on my right, wishes to make a statement as well.
MS KHAMPEPE: Mr Mpshe, we would like you to attend to this matter as soon as possible. As you are aware we really do not have much time left as a Committee to conclude our work. We are greatly disturbed by the fact that we are unable to start with many of our applications because of delays caused by legal arguments, which ultimately lead to matters being postponed or lead to several adjournments. We would like to make sure that when we do have an application, we are able to start and to really start on the issues at
hand, which impinge on the application of the applicants. This really is not directed to Mr Mpshe only, but we would request counsel to really have serious consideration on the limited lifespan of the Amnesty Committee and to try their level best to make sure that we are able to consider the applications and I am sure this may be obviated by having a proper pre-trial conference and having a will to really try and get on with the merits of the matter. We are really making a strong appeal to both Mr Mpshe on behalf of the Amnesty Committee and to counsel representing the applicants. Thank you.
CHAIRPERSON: May I say that if, for any reason whatsoever, it becomes ...
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PROF DE KOKER: ... The second matter, the first one being the subpoena to Mr Phosa in connection with the relevant information in connection with these applications. The second one is a request to this Committee to ask the investigative unit of the TRC to do a full investigation of the breaches of the National Peace Accord, as posed by this particular attack.
I mentioned earlier that there is no indication and no information put in front of this Committee of the broader issues surrounding this particular march and the attack, and I believe that that has a very important bearing on the decisions to be taken by the Committee, and that the appropriate body to do an objective and full investigation of the matter in order to furnish you with a report, would be the investigate unit.
A third matter arises from my discussion with Mr Cassandro. It was pointed out during that discussion that Mr Cassandro believes that the United Nations would appreciate notification of these proceedings, because it is apparently customary for them to send a representative or to participate in the proceedings. Apart from such an invitation, Mr Cassandro also drew our attention to the fact that a full and complete investigation of the incident, as conducted by him, was furnished in a report to the United Nations and I believe that that report would also be of great assistance to the Committee and the information in that report in order to enable this Committee to reach the correct decision.
And lastly, if you would indulge me, Mr Chairperson, this is the second time that this particular hearing has been set for Bloemfontein. We believe that this particular incident touched the very heart and fabric of the society in Kimberley. We would in all earnest request you and Adv Mpshe's office, to consider seriously holding the next round of hearings in Kimberley. We also would like to request you, because this is linked with this matter, to ensure that everything is reasonably done to ensure that all the victims with an interest in this affair, can participate freely in the proceedings should they choose to do so. As we have all experienced this morning, clearly the geography involved does make it more difficult for such victims to participate.
Thank you very much for your indulgence.
CHAIRPERSON: Mr Boder, this last point that has been made by Prof De Koker must touch on you and must have some effect on your clients. Have you anything to say against this suggestion?
MR BODER: Thank you, Mr Chairman. I would strongly wish to support the recommendation made by my learned colleague, Prof De Koker. As we have experienced this very morning, is that a number of the victims had great difficulty in arriving at Bloemfontein. The distance in order to travel from Kimberly to Bloemfontein is approximately 175 kilometres and it is not easy for them to attend a venue scheduled for two days, with specific reference to accommodation, meals and so forth. Especially in this matter, Mr Chairman, where there is a large number of victims that are involved. I would therefore suggest that it is highly recommendable that they should be given the opportunity as well - not only the members, but members of the families to be present at such hearings. Thank you.
CHAIRPERSON: Thank you.
MR VISSER: Mr Chairman ... (intervention).
MS KHAMPEPE: Mr Chair ...
MR VISSER: I'm sorry. I'm sorry.
MS KHAMPEPE: May I just take over from what Mr Boder has stated with regard to the victims. Mr Mpshe, are you able to give us an indication of how many victims we are speaking of here?
MR MPSHE: We are speaking of 43 victims.
PROF DE KOKER: Excuse me, counting 44, including Mr Cassandro, who was not included in the list of 43.
MS KHAMPEPE: And the 43 would be coming largely from Kimberley?
MR MPSHE: That is correct.
ADV SANDI: Mr De Koker, you have made mention of a report that was compiled by Mr Cassandro and submitted to the UN. Are you or your client in possession of such a report in fact?
PROF DE KOKER: Unfortunately not. Mr Cassandro simply mentioned that to us during the informal meeting. I don't know whether he has a copy at his disposal in Angola, but I am sure that arrangements could be made with the United Nations.
CHAIRPERSON: Mr Visser?
MR VISSER: Mr Chairman, yes, may I throw my voice in with -in support for the venue to be at Kimberley. We believe it is the obvious thing to do, but may we add one further issue. It really doesn't concern us any longer because we have battled until we got hold of all the relevant documentation, but what we find disturbing, Mr Chairman, is that the other counsel here, even the counsel for the applicant, does not have in his possession which is going to be necessary.
CHAIRPERSON: That is what I have.
MR VISSER: Well, Mr Chairman, well, as I have told you there are 271 pages which you may find will be relevant in hearing this application.
CHAIRPERSON: Thank you.
MS KHAMPEPE: Mr Visser, it would appear that you by implication are saying that your pre-trial conference was not a very successful event, and if that is so, may we suggest that when you do have another pre-trial conference and from the look of things I think it will be necessary for you to have another pre-trial conference, that we invite one of the members of the Committee that would be sitting for this particular hearing.
MR VISSER: Well, I hear what you say, Ms Khampepe. I wasn't suggesting that - to criticise the pre-trial conference. I am just pointing out that certain documentation has not been made available and we believe it should be made available.
CHAIRPERSON: Very well. Mr Mpshe, you will take note of the various points that have been made. Those that are capable of being implemented without any difficulty should be implemented. A courtesy notice should be sent to United Nations' representatives and there are monitoring proceedings in this country and other countries, and have an important role to play in that regard. So out of courtesy they should be notified. On the question of the venue there just can't be any argument against that.
Now as to a full set of documents, you will apply your mind to that and find out what you consider to be relevant and make all relevant documents available to whoever is going to constitute the Committee when it next meets to consider this application. I am now not going to go into details as to what documents are relevant and not relevant at this stage, because it serves no purpose. It is something that you will apply your mind to and make sure that relevant documents are made available to all parties concerned.
As far as Press statements made by Mr Matthews Phosa is concerned, I want to tell you that we don't take notice of Press statements by anybody. This Committee is concerned with evidence that we hear and evidence that is placed on oath before us. We can't go around saying that we will subpoena Mr Matthews Phosa, without having any idea as to whether he has anything more than Press statements himself. But Mr Mpshe will make enquiries in that regard and necessarily give notice to Mr Matthews Phosa that in this inquiry if he has relevant information, will he kindly make that information available to us and to all counsel and all other interested in these proceedings.
MR MPSHE: Mr Chairman, I will do that but I will wait for the Chairman to finish. There are certain issues I want to comment on that have been said by my colleagues here.
CHAIRPERSON: These are not proceedings in accordance with the Rules of Court so you may just make the points as we go along.
MR MPSHE: Thank you, Mr Chairman. Mr Chairman, let me kick off with the last one that the Chair just mentioned of Mr Matthews Phosa, Mr Chairman.
I do not want to be understood to be not keen to conduct Matthews Phosa, but I want to state that this has been done by my colleague, Prof De Koker, in writing to Matthews Phosa and nothing has come out of it. It is upon my advice to him that since you have written him these letters and nothing has come out of it, the only solution thereto will be a subpoena. I do not want to say to the Committee that I will stand contact him and still land in the same position as Mr De Koker has landed. I have copies of ... (intervention).
CHAIRPERSON: I think that if he hasn't succeeded, nothing is lost by you making contact with him, just to make assurance doubly sure if Mr Phosa says he has nothing to give you, well, at least you will tell us that.
MR MPSHE: Thank you, Mr Chairman, I will let the matter rest there.
Mr Chairman, coming back to what the honourable Committee member has stated about ensuring that this matter comes on as soon as it is possible, I want to put this on record that it should be on record that Mr De Koker's mandate in as far as this person Cassandro is concerned, has now terminated, as he had put it clearly that he was only here on the point in limine, so he is no more his lawyer. But, I have tried to contact him on the basis when he said that we should not be bound or we are not bound by the fact that he will here by the 1st or the 2nd of September, he can be made available if he is given due notice. Now I indicated to Mr De Koker during the short break that we still have two weeks hearing in Bloemfontein; is it possible for him to be notified and to be here in Bloemfontein during those two weeks, upon which it was indicated that it is not possible. So the matter won't come as soon as possible as the Committee would desire it will come up.
CHAIRPERSON: Yes, but I mean, when we say as soon as possible, you must take all the circumstances into account and an important consideration is that the sitting should take place in Kimberley.
MR MPSHE: Mr Chairman, the question of the sitting, with respect, will not be a problem. If he can be available in the next two weeks, we can arrange it.
CHAIRPERSON: I don't want to hear any further discussion about what was going to be a suitable date, please. The Committee can make no sensible contribution in that regard. That's a matter which you must decide, taking into account all the factors that you are confronted with. The word as soon as possible doesn't mean this week, next week, next month. As soon as possible means as soon as reasonably possible to all parties concerned. (Indistinct....) and Mr Cassandro is not available for a long time to come, it may well then be for us to proceed with this application, and for Mr Cassandro to submit whatever he has to submit by way of affidavit. You understand? So Mr Mpshe, as soon as possible really means as soon as reasonably possible.
MR MPSHE: Thank you, Mr Chairperson, I take the point.
Finally, Mr Chairman, on the issue of - this affects Adv Louis Visser, in as far as the implicated, alleged implicated persons are concerned. He addressed the Committee and I wanted to clarify the Committee further on the question whether his clients are implicated or not.
CHAIRPERSON: I hear that at this stage, Mr Mpshe. Just now you are going to submit arguments and he is going to reply and we are not dealing with the application now. We are adjourning this application.
MR MPSHE: Mr Chairman, with respect, I am well aware that we are not dealing with the application, but I want a directive from the Committee for the future, Mr Chairman. But if the Chair rules that it should not be discussed here, I will rest my case there, but I wanted it to be dealt with now for the future, Mr Chairman.
CHAIRPERSON: Well, you can meet me in chambers today, tomorrow or at any other time, to discuss this as a matter of principle or as a matter of guidance on how you should proceed in the future.
MR MPSHE: Then I rest my case, Mr Chairman, thank you.
CHAIRPERSON: Gentlemen, that brings to a conclusion the proceedings for today. We will now adjourn and we will resume tomorrow morning at 09:30. Thank you.
COMMISSION ADJOURNS
