MR HATTINGH: Thank you Mr Chairman, as I have already indicated shortly before the proceedings today, that was in Chambers with you together with the legal representatives for the applicants, I have received instructions from my Instructing Attorney and clients, to make application in this Committee for a recusal.
I have already indicated that I would, due to the constraints of time and logistics, it was not possible once again to go back to clients while this whole thing developed over the weekend. I had to discuss the matter with both clients and my Attorney and get the full instruction and then prepare it preferably on paper, such an application ...
CHAIRPERSON: Mr Hattingh, I am not questioning your integrity, but I am given to understand on Friday night there was some television snippets precisely about this.
Can you perhaps answer why preparations were not made since then, why preparations were not commenced with since on Friday afternoon then? I would imagine that the idea was sprouted at the latest 11 am on Friday?
MR HATTINGH: Mr Chairman, as far as I am personally concerned, I did receive the final instruction late yesterday, that is as far as I am personally concerned. I am advised by my Instructing Attorney that although this issue did come up on Friday as it appeared on television, what in fact happened was obviously advice was sought and obtained from other people, that was on the part of my Instructing Attorney and the decision to in fact proceed with such an application was only made yesterday and I was then advised.
The whole logistics of the whole matter, it then comes down to coming back to the clients themselves in Ermelo, get their instructions and then prepare the necessary affidavits to support such an application.
CHAIRPERSON: That brings us to the other aspect, why do you require affidavits for the application?
MR HATTINGH: Mr Chairman, I think in particular where I will be bringing the application based not on what I say or my personal opinion, but based on the perceptions of the clients, the victims or the families of the victims.
I have had a look at the ...
CHAIRPERSON: Mr Hattingh, do you believe it is a meritous application? Do you believe as a professional trained person in law, who is in a practice, that there could be merit in the application?
MR HATTINGH: Mr Chairman, this very question, I being very fresh with the Bar, I discussed this morning with a senior Bar member, whether I should this question do come my way, how should I respond to it and should I be compelled to give a response and what I am about to say is that this is based on senior advice that I got from my Bar in Pretoria, is that I do not have to respond to this question, because it is not on my own opinion that I am basing this application, but in fact on the perceptions of the victims, and for that very reason, I would rather not commit myself to saying yes, I support it or I have my doubts, or I believe it is a good application or not.
What I can say is that on my studying of the law, of the case law, I do have adequate support to place it within the ambit of an application for recusal.
CHAIRPERSON: The case law in terms of ordinary civil litigation or criminal litigation, not so?
MR HATTINGH: As well as Constitutional Court judgements, yes.
CHAIRPERSON: About the application as it would be considered in one of those courts, not so?
MR HATTINGH: To some extent, but obviously the case law would be reported Supreme Court cases, but they do - they are about kwazi judicial and administrative forums and disciplinary enquiries and things like that, so although we say that it is a normal, civil, criminal case law, they had their birth somewhere not in a proper court of law, but in another kind of forum, some of them.
CHAIRPERSON: Why can't you bring the application from the Bar as it were, right now and depending on the merits, we can call it a day or carry on? Is it not a fair request?
The merits of the application is not going to change as to whether you put it on paper or make it orally?
MR HATTINGH: Mr Chairman, I agree with you. I just thought and once again, I obtained advice earlier today from senior members of the Bar, because this is not the kind of thing that I ever wish I would ...(intervention)
CHAIRPERSON: I appreciate the fact that you are not au fait with it and that you have taken the trouble of seeking advice from senior members of the Bar.
Fortunately I don't have to take their advice to heart, even to a lesser extent they know the time pressures under which this Committee has to work.
In the event of a successful application, this matter would have to be re-run as it were, from the beginning.
There is a lot of logistics involved. In the event of an unsuccessful application, then we just carry on. As you all know, we are scheduled to finish this stint on Friday. I still harbour hopes of finishing all the evidence by Friday. The more time we loose, the less are the prospects of that happening and I am sure, most of you not all of you, are wanting to get shot of this. There are other matters that are waiting.
This, if you look at the Act, the Act compels the Committee to give preference to those people who are presently serving prison services, and I think this is the case here. Most of the applicants are still in jail. Is there any reason why you can't bring that application now?
MR HATTINGH: Mr Chairman, to respond to that, my application at this moment would be for a postponement to enable me to prepare the papers the way I want to submit it to this Committee. That is my application.
However, the second reason would be that having spent some time in Pretoria this morning on this matter, I only arrived very, only 20 minutes before one o'clock, leaving me not much time to - while my Attorney was here and discussed the matter with the clients, it didn't leave me much time to discuss it with the clients and to get the instructions.
If you are not prepared to grant me the opportunity of preparing the documents on paper, the statements ...
CHAIRPERSON: Mr Hattingh, I don't want to curtail your rights. All I am saying is or asking is why can't, is there any particular reason why you can't make the application verbally or from the Bar?
Why does it have to be an application based on affidavits? As I remember the law, it is going to be legal issues discussed? We all know the facts, we all know what occurred here. I am hardly likely to deny the (indistinct), whatever you complain of. I can never deny in front of all this august audience here, let's face it. I would like to think my integrity is still intact and that I wouldn't deny anything that is true.
It is just that I, like I have explained to you, I want to get shot of this. We are not like an ordinary court where we've got millions of years to carry on. Can you not see your way clear in making the submissions from the Bar?
MR HATTINGH: Mr Chairman, should we do that and if I do see my way clear to make my submissions from the Bar, I would nevertheless then just ask for a short adjournment, let's make it 45 minutes to enable me to get those instructions from my clients, and make sure that when I make a submission, that the perception of a client, I at least need to tell this Committee, which client and what his perceptions were. I can't just say along the line I got the message that people were dissatisfied.
I need to give specific details of the person and the gripes that he's got. That is what ...
CHAIRPERSON: I am happy to do that and even if you come back after 45 minutes with a view that you want to persist in your application for an adjournment, well, then do so.
I want to point out to you that now that you mention it, you want to find out exactly what the clients are unhappy about and why they want you to bring the application. I want to point out to you it is not what they feel that is important, it is the legal principles involved, what the factual issues are and what the legal contentions are.
Such applications are not brought because a dissatisfied person feels that he stands a better chance with somebody else, it must be based on legal issues. I would appreciate it, and I can guess because a lot of people showed displeasure here when I refused you the permission to put a question related to a matter that is not pertinent to this application. Any Attorney or lawyer who is trained and worth his salt, should know what the legal position is about such questions.
If that is the problem, then I would thank you to explain it to your clients. This is not a criminal investigation, neither is it a civil matter, it is not a judicial enquiry, it is an unusual forum where it is intended to get people together rather than carrying on the differences as is very apparent in this area.
You say you need 45 minutes?
MR HATTINGH: Yes Mr Chairman, then obviously if we are not yet finished by then, if we can then ask for further time, thank you.
CHAIRPERSON: Would you indicate also how many applicants are seeking to make this application and who they are? I don't intent and I will be very displeased if I get into a political wrangle here.
COMMITTEE ADJOURNS
ON RESUMPTION
MR HATTINGH: Thank you Mr Chairman for your indulgence, I have now taken further instructions, speaking to the clients, the families of the victims themselves.
In that regard I may just place on record that I spoke to - I obtained instructions from Elias Zwane and Eli Zwane on behalf of the deceased Jwi Zwane; Boy Ngwenya on behalf of Chris Ngwenya, the deceased, Chris Ngwenya; Olga Sibeya on behalf of the deceased Advice Gwala; Sonto Gertrude Nkosi on behalf ...
CHAIRPERSON: You say Sibeya who?
MR HATTINGH: Olga Sibeya on behalf of Advice Gwala, that is the mother of the deceased Gwala. Sonto Gertrude Nkosi on behalf of Obed Nhlabathi, the deceased Obed Nhlabathi; Ntombi Lydia Malinga on behalf of Boy Malinga; and then as well Tandi Mirriam Mthetwa, on behalf of George Twala, deceased. George Twala.
CHAIRPERSON: Is that deceased one of the deceased in any of these applications?
MR HATTINGH: Mr Chairman, no the last mentioned one is the incident I referred to on Friday, that is a deceased which death, or the circumstances surrounding his death do not form part of the present amnesty hearing.
CHAIRPERSON: So on what basis are you appearing then?
MR HATTINGH: The basis on which I am appearing is that I am mentioning the name of a relative and the name of a victim, not on instructions as such about this investigation of this hearing, but being part of the greater picture at the time in this area.
CHAIRPERSON: Mr - if you can just give me a couple of minutes, I just want to get this (indistinct) onto the floor.
Mr Hattingh, what was the name of that deceased, George?
MR HATTINGH: George Twala.
CHAIRPERSON: Mr Hattingh, on what basis, I still don't follow, on what basis do you appear at this hearing to ask questions or to relate to the killing or murder or whatever, of George Twala because George Twala is not a deceased that is involved in any of the enquiries in this hearing?
He may or may not be involved in another hearing.
MR HATTINGH: Mr Chairman, from the outset it appeared that this amnesty hearing, this public hearing in Ermelo, concerns the events of a certain period in this area.
CHAIRPERSON: That may be so but Mr Hattingh, this hearing concerns the applications of certain people who say they committed certain crimes, not so?
It follows then that if there are victims, or families of victims who have now died as a result of what the applicants say they did, certain rights are required by those victims or their families.
In the event of a public hearing being conducted, how relevant is the death of someone who is not involved in any of the incidents referred to in the application, how can it be relevant? This we must remember, is an Amnesty Committee.
Such an incident may have been relevant in another Committee of the Truth and Reconciliation Commission, hence I ask how you can appear on behalf of a victim or that victim's family when the incident in which the victim was injured, or killed, is not being discussed in this hearing?
That victim or his family are not then an interested party in the hearing? Can you explain that?
MR HATTINGH: Mr Chairman, the way I would submit this can be accommodated ...
CHAIRPERSON: Let me stop you before you talk about accommodation. Is it proper, nevermind whether we can slip it in or not?
MR HATTINGH: Mr Chairman, the Act makes provision for any witness before either the Commission or any of its Committees, to be compelled to testify even if such an answer may incriminate him.
CHAIRPERSON: Where is it?
MR HATTINGH: Section 31.
CHAIRPERSON: Before we get to Section 31, how does Mirriam Mthetwa become an interested party here, because the death of George Twala is not the subject matter of any of the applications?
Just provide the linkage for me first before we proceed any further? I want to know how you are able to appear to protect the interests of George Twala when his death is not a matter for this hearing? It may be a matter for another hearing, I am not too sure.
MR HATTINGH: Mr Chairman, perhaps it could be best explained by saying that I am not appearing on behalf of this person with a view of defending the rights of this person with regard to the death of her son, but what I would submit is that this person would be an appropriate witness to tell the Committee that one of the applicants is in fact not making full disclosure, is not telling the full truth.
CHAIRPERSON: Then she is a witness, not so? Now we will get to that attitude that you are instructed to adopt, the adversary attitude. Let's leave that for a moment, we leave that for a moment.
If she is a witness, how do you appear for her in the capacity as a victim or an interested party in this matter? There is either a definition or a status issue here, problem.
If she is a witness, by what right can she make the application? I am not posing hurdles to you, I need to understand this to properly assess the application.
MR HATTINGH: Mr Chairman, the best way of getting this hurdle out of the way, I respectfully would submit is that to understand that although this person on the face of it, has no locus standi as interested party. She nevertheless represents one of the people from this particular side of the spectrum.
What we are dealing here with is truth and reconciliation.
CHAIRPERSON: We are dealing with amnesty, with a view to reconciliation.
MR HATTINGH: Mr Chairman, it is for that very reason, with a view to reconciliation that whenever the local community of which she forms part, if her experience at this hearing, whatever her locus standi is or is not, her experience devolves into the community from which she comes from.
CHAIRPERSON: Mr Hattingh, aren't you mistaking the issues now? If we were in Chambers, I would have said it in some other terms. The fact of the matter is that we need to decide her status in respect of this hearing.
I am quite aware of the problems of this community. That she is maybe in this unfortunate position that she needs to tell the world about her son, I have grave sympathy for. The point of the matter is and I am asking you again, is this the proper forum to do that?
We can't convert an amnesty application into a matter that I think would properly be dealt with perhaps in the Committee dealing with investigating the human rights violations, may I suggest. All of us need to realise that the Truth and Reconciliation Commission has been divided up into certain Committees. This Committee has been established for the purpose of dealing with amnesty.
Provision has been made for people to tell their stories to the world if they so wish. That Committee deals with investigating or investigations into human rights violations. I am happy to hear arguments in an attempt to put Mrs Mthetwa into a victim category in this application where the death of her son is not the subject matter.
I repeat I have my sympathies for her position, but surely you must appreciate that this is not the proper forum unless you disagree with me.
MR HATTINGH: Mr Chairman, I agree with you with regard to the extent that she as the mother of a deceased son, does not qualify in the strict sense of the word as a victim with regard to this amnesty application hearing.
CHAIRPERSON: How else must I interpret the word victim, if you say not in the strict sense? I suggest we have to interpret it strictly otherwise every victim or every family connected to a victim, can go to any Amnesty Committee meeting, in order to tell her story or his story, isn't it if you are correct?
People from this area can go to Port Elizabeth and say I don't care if my matter is irrelevant to this hearing, but those people who died in the Cradock 4 incident, in that hearing I want to tell you what happened in Ermelo. Can it really be that way?
MR HATTINGH: Mr Chairman, the way I submit one should see it is that if the applicant admits committing a particular crime, and makes application for amnesty at this hearing, it would be artificial not to confront him with a string of other murders or crimes which he committed in the same area at the same time, but for which he doesn't make application for amnesty, because that would go to the root of his full disclosure, his telling the truth, his motives and him qualifying or not for amnesty at this hearing.
CHAIRPERSON: Mr Hattingh, I have done my best to persuade you what my views are and I think the correct position is you have made your point, I am not going to pursue it, you can proceed with your argument. I do have serious doubts about whether you can appear for Ms Mthetwa, but proceed.
MR HATTINGH: Mr Chairman, I have been advised by my Instructing Attorney that I should withdraw my application in this regard for this particular person, Tandi Mirriam Mthetwa. I am not proceeding in this regard, on her behalf.
CHAIRPERSON: You are doing that on your own accord, I am not making any ruling about it. I hope you are aware of that?
MR HATTINGH: I am doing it on my own accord, thank you. Mr Chairman, I just want to take you quickly through the case law as far as I gather the rules applicable to an application for recusal.
In the S v Maseko 1990 (1) SACLR (107) (A), it is stated in Afrikaans and I am quoting the principle that is applicable for this whole matter for recusal from a legal official is that the law without suspicion, must be followed. Not only must this official present this case impartially and also with an open mind, but nothing in his actions must or can be connected that would give reason that justice is not done.
From this decision it would seem that the test has to do with the perceptions of the reasonable person.
Then I refer you to S v Radebe 73 (1) SA 812 (A) where Appellate Judge Roelf said with regard to applications for recusal and I quote a Court looks at the impression which would be given to other people, even if he was as impartial as could be, nevertheless if right minded persons would think that in the circumstances, there was a real likelihood of bias on his part, then he should not sit and if he does sit, his decision cannot stand.
This was confirmed, referred to and confirmed in Munnik & Others v The Council of Review & Others (C), Friedman, Howie and Conradie 1989 (4) SA 866 and I quote from the heading - the test for bias is that a Judge should recuse himself if there is reason for fear of partiality on his part.
That test is more stringent when non-judicial tribunal performing functions indistinguishable from the judicial process, since public would expect it to behave exactly like a court of law. And in the case of Schultz v Chairman Personnel Advice Committee of the Municipal Council of George, 1983 (4) SA 689. This decision follows this principle but we are dealing with a kwazi judicial issue here before this forum and the issue was if the Chairman of such a Committee was the subject for a recusal and then it has bearing on the whole Committee.
Then I would like to refer you to a decision (E) Kicky v Commissioner of Correctional Services & Another 1992 (2) SA 269, Judges Kannemeyer and Ludolf applied the test and confirmed that it is the fear of biased expressed by the applicants which is to be considered.
Then I would like also to refer to another case reported in 1996 (9) BCLR 1221 (T). I quote from page 1229 at (i), the law in respect of the test for bias has recently been settled in the case of BTR Industries South Africa v Metal and Allied Workers Union where Appellate Judge Hookster stated in Rex v Connie & Another, Judge President Krause made the following observations which in this country are as pertinent now as they were some 60 years ago. It is a matter of the gravest public policy that the impartiality of the courts of justice should not be doubted or that the fairness of a trial should not be questioned, otherwise the only (indistinct) of the liberty of the subject in these times of revolutionary tendencies would be undermined.
Then on page 1230 at (c), I quote further, the law does not seek in such a case to measure the amount of his interest. I venture to suggest that the matter stands no differently with regard to the apprehension of bias by a lay litigant provided the suspicion of partiality is one which might reasonably be entertained by a lay litigant, a Reviewing Court cannot so I consider, be called upon to measure in a nice balance, the precise extent of the apparent risk.
If suspicion is reasonably apprehended, then that is the end of the matter.
Last case but one that I would like to refer to is the one of BTR Industries South Africa 1992 (3) SA 673 (A) and I quote from the heading, Appellate Division decision, the test to be adopted in a recusal application is involving the appearance of bias is whether there exists a reasonable suspicion of bias on the part of the decision maker.
CHAIRPERSON: Can you just repeat that?
MR HATTINGH: ... is whether there exists a reasonable suspicion of bias on the part of the decision maker. An apprehension of a real likelihood that the decision maker will be biased, is not a prerequisite for disqualifying bias. The very objects which the reasonable suspicion test are calculated to achieve, would be frustrated by grafting onto it the further requirement that the probability of bias must be foreseen provided that the suspicion of partiality is one which might reasonably be entertained by a lay litigant, a Reviewing Court cannot be called upon to measure in a nice balance, the precise extent of the apparent risk.
If suspension is reasonably apprehended, then that is an end to the matter. The last case is the Supreme Court judgement, Cape of Good Hope Provincial Division, S v Collier 1995 (8) BCLR 975 (C) where it is stated on page 978 at (g) to (i) it was an appeal pertaining to an application for recusal, turning to the matter of the appeal, it is true that justice should not only be done, but manifestly and undoubtedly be seen to be done.
It is for this reason that South African courts have not hesitated to set aside proceedings where a person challenged, has so associated himself with one of the two opposing sides, that there was a real likelihood of bias or where reasonably lay people would get the impression that he would be biased.
South African law has developed to a stage that disqualifying bias will be found to exist where the reasonably lay observer would gain the impression that there is a real likelihood that the decision maker will be biased.
Mr Chairman, the golden threat that runs through all the judgements is that we are dealing with a subjective perception on the part of a litigant or on the part of a party, or of an interested party.
CHAIRPERSON: If that is so, then you will have to persuade me how the requirement of reasonableness can be reconciled with subjectiveness.
MR HATTINGH: Sorry Mr Chairman, I could not hear you.
CHAIRPERSON: If that is correct, that it is a subjective test, then you are going to have to persuade me how the concept of reasonableness is reconciled with subjectiveness because as you correctly point out, and this is perhaps one of the very few points that I agree with you so far, is that the perception must be reasonable and must be that of a reasonable person.
MR HATTINGH: Mr Chairman, it is for that reason, I cannot place myself in the part of the applicant when I make this application.
CHAIRPERSON: Your point is made.
MR HATTINGH: Mr Chairman, all that remains to be said is and that was for the very reason that I wanted to make available a written application supported by way of sworn affidavits, is to show to this Court the extent to which the people wishing or the people who are unhappy, who are at present having the impression that there is not impartiality at this hearing, showing their reasons to this Committee.
At this stage however, I trust that you and your Committee will accept that what I am going to tell, is what they told me and what their perceptions are, and why they believe that this Committee is not impartial in its dealing with the application.
I am instructed that the people that I mentioned, all relatives of victims, are of the opinion that full disclosure is not being made at this amnesty hearing and the reason that full disclosure is not being made, is that the Committee and the Chairman is in fact playing an active part in not allowing the full truth and the full disclosure to come to the surface.
CHAIRPERSON: Why do they say so? They have not, the time for them to give evidence has not come and gone? They are at liberty, you have indicated that you are going to call six witnesses. Have you been at all stopped from doing so?
MR HATTINGH: No Mr Chairman, it goes back to from the very beginning, the manner in which the hearing has developed, where as applicants and once again I am relaying their, what their perceptions are, that I as their representative am being stopped from cross-examining amnesty applicants to the full, that I am being stopped to place documentation and cross-examine applicants with regard to the documentation.
CHAIRPERSON: Let us stop just there. Is it your duty in appearing for such victims or next of kin, to come here to prove that certain things aren't being done? Isn't that our job?
Let us look at Section 4(b). It reads and in my view crisply defines the position of victims or their next of kin, and I might add this is only one of the examples in this whole Act. One of the functions of the Commission which includes the Amnesty Committee for this purposes, and I am going to read it slowly, is to facilitate and initiate or coordinate the gathering of information and the receiving of evidence from any person including persons claiming to be victims of such violations or the representatives of such victims which establish the identity of victims of such violations, their fate or present whereabouts and the nature and extent of the harm suffered by such victims.
Perhaps it would be well to read Section (c) as well so that we are able all to by comparison and equating to understand this different interest. Section 4(c) reads as follows: That one of the functions of the Commission is to facilitate and promote the granting, promote the granting of amnesty in respect of acts associated with political objectives by receiving from persons desiring to make full disclosure, of all the relevant facts relating to such acts, applications for the granting of amnesty in respect of such acts and transmitting such applications to the Committee on Amnesty for its decision and by publishing decisions granting amnesty in the Gazette.
Now Mr Hattingh, that in a nutshell is basically what the two interest parties are and from where they derive their rights. If one has respect and understand the Act, then one ought to see where the rights of victims are placed. It is not the first time I mention this and I mention specifically so that each and everyone understands the law.
I say that one can criticise the law like you want to, the fact of the matter is I have to follow it. I say so not to make excuses, I am pointing out my duty and that of the Committee.
Now, I appreciate your position in making the submission, but really I hope that you can explain on a more informal manner the status of different people. This is a process that is not a criminal matter, it is not an appeal. The purpose of this enquiry is quite different to the results of a civil or criminal matter.
You can carry on.
MR HATTINGH: Thank you Mr Chairman. Perhaps I should just run through the problems as I was instructed and just briefly deal with each and every one of them and then leave it to your Committee to decide.
CHAIRPERSON: Before you carry on, I just want to get something clear. As I have listened to your argument thus far, it would appear that the application is directed at myself and not my colleagues, or am I wrong?
MR HATTINGH: That is correct yes, Mr Chairman.
CHAIRPERSON: Okay, carry on.
MR HATTINGH: Mr Chairman, I think in essence the concern of the applicants for the recusal is that whereas the Act in Section 19 makes provision for this Committee to investigate applications and to make enquiries with regard to the applications, and that can be done either before the hearing, during the hearing, during cross-examination or questioning of applicants, at any time, the applicants in this ...
CHAIRPERSON: Isn't the nature of the proceedings such that it discourages long term cross-examination as opposed to what would be allowed in a criminal or civil matter, precisely because there is facility for people to can testify?
MR HATTINGH: Mr Chairman, as we are dealing not with a normal criminal court or a normal civil court, and we have to work within the parameters of the Act, the one parameter which is that cross-examination can be curtailed, if you take away that tool, that instrument, for finding the truth, the Act in fact makes provision for another instrument, and that is for this Committee to investigate and to make enquiries not necessarily at this hearing, but to make sure that whenever this application is being heard, that the other side of the story or the full truth, is also taken into consideration.
CHAIRPERSON: Do I understand you correctly that you concede that all that you say, it should have taken place already so that the whole picture is before the Amnesty Committee when the hearing begins?
MR HATTINGH: Not necessarily everything beforehand, but I think in the perfect world most of it should have been done beforehand, so that when this Committee sits down with this applicant, the Committee has the benefit of the full Police docket with regard to all Police investigations that were conducted at the time, if a person was convicted in a court, with all the relevant court documentation, judgements and transcripts of evidence there or at least the applicant's plea proceedings in the criminal court, any further investigation pertaining to what is disclosed in his application for amnesty.
In a perfect world that should have been placed before the Committee before a hearing, but if that was not done, then at least if something of this kind is available and if a request does go out where it is requested that the Committee do something to acquire those documents, those Police dockets, the background, the full picture, then the perception from the lay person if the Committee is not going to do that, if the Committee is going to take the attitude that well, we hear the applicant and we accept his word for everything that he is going to tell us, that is now creating the impression of bias, because it would appear from their side, that the Committee is not doing its utmost to take into consideration the full picture of possible documentation that could be made available of could be obtained to compare or to test the applicant's version at this present hearing.
CHAIRPERSON: Well, Mr Hattingh, was it envisaged or is it envisaged by the Act that the versions of any applicants be they white, black or from wherever - political party they come from, that a hearing or during a hearing, that their version should be subjected to a full blown investigation such as one would find in a criminal court?
Have we got the time for that? This matter has already been before the criminal court, I don't know if those who want to tell us things, had an opportunity to say what they wanted to say. I am not too sure why this vociferous opposition to the applications being conducted, but surely you will agree that this is not the forum to play out all those acts, isn't it?
MR HATTINGH: Mr Chairman, to some extent I have to agree with you, because we are dealing with reconciliation, however, one must not loose sight of the fact that the victims or the dependants of the victims, stand to loose some of their rights at this hearing if a person ...
CHAIRPERSON: How?
MR HATTINGH: If a person has not yet been convicted and if he receives amnesty, then obviously a criminal trial will never be. However, that may not be the most important thing.
But the victims stand to loose their rights for civil litigation.
CHAIRPERSON: Mr Hattingh, without wanting or inviting an answer, if they haven't issued summons yet, then isn't it a bit too late?
MR HATTINGH: Mr Chairman, not at all. If only now they become aware of the identity of the perpetrator, then one would say that they are still in a position where they can issue summons, a civil summons for whatever damages they would ...
CHAIRPERSON: I am not too sure if the law relating to prescription would allow it, I am not going to argue the point. That is why I said I don't invite an answer.
MR HATTINGH: In any event Mr Chairman, the perception that I am relaying to your Committee is that the victims or the families or the next of kin of the victims, are under the impression and they have the perception that this Committee is not doing its utmost to get to the bottom of the truth with regard to the applicants' version of events and they say so in the sense and they explained to me that whenever an applicant is in a problem under cross-examination, he is being assisted by the Committee where an answer is given for him on his behalf, and he is then being asked whether that is what he means.
CHAIRPERSON: Has there been any examples of where answers had been put into the witness' mouth?
MR HATTINGH: Mr Chairman, I for one did not ever make or keep a separate note of everything that I considered to be unacceptable, whatever, I cannot immediately say. It did, at some stage I did think that perhaps the applicant was assisted too much, but I think the one ...
CHAIRPERSON: When was that?
MR HATTINGH: I think the one example was with the applicant Khaba about his explanation for the difference between his evidence and his statement with regard to the stabbing or the killing of Obed by shooting him and where Mr Black also tried to come to the assistance of the applicant while testifying.
CHAIRPERSON: Do you consider that incident as putting an answer into the witness' mouth?
MR HATTINGH: Mr Chairman, once again, I do not think that it would be appropriate for me to give an answer to that. I think what is important is what the impression, what impression is created ...
CHAIRPERSON: No Mr Hattingh, I asked you as a judicial person, as a member of the Bar whether you could think of any examples. I know, I appreciate your position, but there comes a time in one's career as an Advocate that one encounters questions like that from the bench and you expect it, and you can ask your colleagues there. I am sure all of them have experienced it, to expect it, give an answer.
That is why I asked the question. If you don't feel comfortable answering the question, so be it. I don't know if you follow me, but that goes with the terrain of the work. When I was in practice, I often had to make concessions for obvious reasons and I used to make them where necessary. If I didn't think the Judge was right, I used to argue the point, still lost though.
MR HATTINGH: Mr Chairman, if you will just bear with me for one moment, I would just like to get instructions from my Attorney, thank you.
... that one particular client, Olga Sibeya on behalf of Advice Gwala, did specifically have this problem and mentioned it to me. I personally would not, I prefer not to respond and say whether I agree that it was in fact putting words into the mouth of an applicant.
CHAIRPERSON: Do you have any other submissions Mr Hattingh?
MR HATTINGH: Mr Chairman, the people in general, the instructions that I received was that their perception was that the applicants were being assisted, that the applicants were being assisted by the Chairman in placing a selective version of the truth, before the Committee.
CHAIRPERSON: I didn't get the last part.
MR HATTINGH: The applicants in this application for recusal instructed me that their perception is that the applicants for amnesty, are being assisted by the Chairman to selectively place information before this Committee and before this public hearing, to place them within the ambit of the Act and that no effort is being made to bring anything other to light, which would be to the disadvantage of such an applicant, when his application for amnesty is being considered.
CHAIRPERSON: Do I understand that the perception is that it is our duty to do so?
MR HATTINGH: Their perception is yes, that it is number one the Committee's duty to - not to accept the applicant's word for everything, but to test and investigate and - but in particular not to assist the applicant in placing only an abbrieved or concise version before the Committee and not to prod too deeply into things which may place him outside the ambit of the Act.
CHAIRPERSON: This has nothing to do with the actual application Mr Hattingh, but then the people who instruct you, should help you. They should tell you specifically what really did happen, so it places you in a position to put that version, is that not so?
I just make that comment.
MR HATTINGH: I accept that Mr Chairman. The applicants are unhappy about the fact that amnesty applicants can elect not to disclose any other criminal acts that occurred during that time and in this area, pertaining to this amnesty application hearing.
CHAIRPERSON: Mr Hattingh, this is also not a question you need answer if you don't want to, did you attempt to explain to them what the ethics of criminal law is?
If I am not mistaken, that is a rule to which we are all bound. Did you try to explain that to them?
MR HATTINGH: Mr Chairman, not to incriminate yourself, is that what you are referring to? No, I did not because my own submission would be that this Act in fact makes provision for an applicant or for any witness for that matter, to be compelled to tell the truth or anything, even if it may incriminate him.
The safeguard in the Act is that whatever he tells this Committee, cannot be used against him in a court of law. He is compellable to testify, even if it may incriminate him but we can't use it against him. In the circumstances, I could not tell my clients that well, you cannot ask a person to tell this Committee about something which may incriminate him or anyone else.
CHAIRPERSON: There is a presumption, well, of course you must think you are right in that interpretation,, but of course the whole concept will be wrong if your interpretation is wrong, not so?
MR HATTINGH: I agree Mr Chairman. So the point is that the applicants in this application for recusal feel that this Committee is not looking for the full truth, not trying its best to obtain the full truth from the applicants, and that the applicants are being protected by the Committee in not telling the full truth.
In this regard, I would specifically like to make reference to Gushu and the other incident to which he refer in his confession and the pointing out statement.
As well as the response to questioning regarding the fact that he committed only two robberies, armed robberies during the course of two and a half years for the purposes of arming the SDU's and that he was protected from cross-examination with regard to any further illegal activities in attaining his aim of providing arms for the SDU's.
If you would just bear with me for one moment please. That is my submissions in terms of my instructions, all I want to say is that if one have regard to the case law and the test which is to be applied, it is not a matter of what I think, what the Committee itself may think, even if the Committee consider itself to have done a pretty good job in being unbiased and not biased in this matter, it all boils down to the perception ...
CHAIRPERSON: Don't worry, we are not that modest.
MR HATTINGH: It all boils down to the what the perceptions are of the lay people out there, who are party to this matter even if only in the sense that they are entitled to place their case before this Committee and have this whole thing thrashed out properly because their rights in fact, are also on the line here.
They can loose their right of civil litigation for damages if anything. Thank you Mr Chairman, I will leave this then to the Committee to decide and I will abide by your decision, thank you.
CHAIRPERSON: Is there anybody else who would like to associate themselves with the application? None?
MACHINE SWITCHED OFF
