TRUTH AND RECONCILIATION COMMISSION
AMNESTY HEARING
DATE: 12TH APRIL 1999
NAME: MICHAEL BELLINGAN
APPLICATION NO: AM 2880/96
MATTER: MURDER OF MRS BELLINGAN
POSTPONEMENT
DAY: 1
CHAIRPERSON: We want to start. For the record, it is Monday the 12th of April 1999. It is the continuation of the amnesty application of Michael Bellingan. The Panel is constituted as previously indicated on the record. Now, it has been indicated to us that Adv Hattingh, you have been instructed to continue the application on behalf of Mr Bellingan. Is that correct?
MR HATTINGH: That is correct Mr Chairman.
CHAIRPERSON: Now, what is our position in regard to the continuation of the application itself?
MR HATTINGH: Mr Chairman, as we indicated to you, having received the instructions last week Wednesday, after the withdrawal of Adv Du Plessis, I commenced my preparations but I am not yet in a position to proceed today, I am not yet fully prepared to pursue this matter.
However, before dealing with that, I would like to just point out that also not having met Mr Bellingan, the client, previously and only met him here this morning for the first time, as arranged with Mr Chaskalson, I did not discuss anything with him at this stage, naturally he is under cross-examination, I am not entitled to speak to him, or discuss any merits of the matter at this stage.
However, I not only, or apart from the merits of the matter, there are also the whole issue of my representing him, number one, and his instructions with regard to the pursuance of this matter and the logistics thereof in the sense that my own feeling is that I am not yet fully prepared, I can't really, I will deal with the opportunity that I am going to request to enable me to prepare, but I would also like to get the input from the client as to what his feelings are as to how this matter should be pursued with new counsel.
CHAIRPERSON: You mean even given your instructions in regard to your intended application for an opportunity to properly prepare? Are you saying that in order to be able to meaningfully address that application to us, you might have to speak to your client not about the merits of the matter, but in regard to the logistics and the issue of a possible postponement or whatever it might turn out to be?
MR HATTINGH: Absolutely Mr Chairman. From my side, I am the only person to address this hearing on whether I am prepared to pursue this matter and proceed in this matter. However, it is twofold, I need the instructions from client as to my request for more time for the postponement or for the matter to stand down until such time as I am ready to pursue the matter.
And it is only with regard to that that at this stage, even before addressing you on my own position and my request for how many days I would like this matter to stand off or whatever to enable me to be fully prepared, I would like the opportunity of just discussing this issue with client, not dealing with any merits.
I am even prepared, not prepared - anyone from the other interested parties may also sit in and be present when I discuss this with client. That is all I would like to get from client, is his instructions on what my request, my application with regard to the postponement of the matter should be.
CHAIRPERSON: So are you asking at this stage for an opportunity to discuss these things that you have just referred to, with your client?
MR HATTINGH: That is correct Mr Chairman.
CHAIRPERSON: Mr Trengove ...
MR TRENGOVE: Mr Chairman, certainly I have appreciation for my learned friend's position and on the basis of his assurance of the limited scope of the discussion, we don't have any objection at all.
I have already told him, but I might as well put it on record, that we do propose to oppose any attempt to postpone these proceedings. So if he is going to talk to his client, he might as well have such discussion with him as might be necessary to make an application for a postponement, on the assumption that it will be opposed.
Any discussion that they need to have in order to justify their application, should as a matter of convenience, take place at the same time.
CHAIRPERSON: Thank you Mr Trengove. Mr Wagener?
MR WAGENER: Mr Chairman, the present request by Mr Hattingh merely to have a short discussion with his client for purposes of the logistics of the trial as such, that seems to be fair Mr Chairman.
CHAIRPERSON: Mr Cornelius?
MR CORNELIUS: Thank you Mr Chairman. I understand my colleague's predicament. I am also of the intention to oppose the application for a remand. But I have no objection to the adjournment for consultation.
CHAIRPERSON: Thank you. Mr Chaskalson?
MR CHASKALSON: I have no objection to the conversation, but will also be objecting to the postponement.
CHAIRPERSON: I am sorry, I missed out on the Union.
MR NOTT: Thank you Mr Chairman. We will also not oppose the consultation, but we intend to oppose the postponement, the application for postponement.
CHAIRPERSON: Thank you. Mr Hattingh, I think you have heard what the attitude of the other legal representatives is, perhaps it is advisable, of course it is for you to deal with the matter, perhaps it is advisable to also try and elicit information from your client that might be of assistance in first of all explaining the absence of Adv Du Plessis this morning, and it might assist you in dealing with an opposition to your application for time.
Now, I would like to get an indication as to how long this initial process would take you, because as you are well aware, we are under some time constraints and you know, time comes with a premium.
Are you able to give us some indication?
MR HATTINGH: Mr Chairman, I believe that we can get that over and done with within ten minutes, it is just a matter of getting his instructions on this issue. I don't really foresee that it is going to take any much longer than that.
CHAIRPERSON: All right, I won't waste any further time. We will stand down for a short while, just to enable Mr Hattingh to deal with the issues that he had raised. We are adjourned.
COMMITTEE ADJOURNS
MR HATTINGH: Thank you Mr Chairman. Mr Chairman, thank you for the opportunity of discussing this issue with the client. As already explained to you that this whole issue is twofold to me, my position as well as the client's position.
It now transpires that in fact, I have a difference with my client with regard to the pursuance of this matter. I am asking for this matter to be remanded or to stand down until next week Monday, to enable me during the course of this week to prepare myself fully for this matter and I will give my reasons for that shortly.
However, client's instructions are that although he accepts me appearing on his behalf, and although there is no problem with that whatsoever, he would rather that we proceed with the matter, not waste time and proceed with the matter not today, but tomorrow.
That obviously presents me with a problem if I am obliged to proceed with the matter on his behalf, if I am not prepared, fully prepared, then I am absolutely not in a position to do so and I am not prepared to do that.
However, client, the applicant, Mr Bellingan also made a further suggestion which is a suggestion from his side and which I do not necessarily agree with, is that Mr Bellingan himself would like to take charge of his representation, however with the assistance of legal representation. This is something not frequently seen, obviously in court or any forums, and I don't think the Act itself makes provision for that, criminal or civil procedure doesn't make provision for that, and I don't know to what extent that can be accommodated in this forum.
However, to start out with my position and I think I should just put it on record, is that I received instructions in this matter from Attorneys Strydom Britz on Wednesday, last week. I don't know what the date was, but in any event, it was just before the weekend then, a few days ago and ...
MR TRENGOVE: Mr Chairman, with respect to my learned friend, I am not quite sure what he is busy with, because there can't be any distinction between the Advocate's request and his client's request. I appreciate that they might have differences of opinion, but the advocate is here only as an agent of his client, and between the two of them, they have to make up their mind, what the client's attitude is and what it is that he wants.
I have full appreciation for my learned friend's predicament, if he wants to explain it to you, to explain why he feels personally embarrassed, I have no objection, but we have to have it clear at the outset, what it is that they are seeking, is it a postponement until tomorrow or is it a postponement until Monday, or is it that we proceed immediately with Mr Bellingan appearing without legal representation, but with a lawyer next to him to advise him.
The other side owe it to us to tell us at the outset what we are talking about.
CHAIRPERSON: Yes, that is fair enough Mr Trengove. I had thought that Mr Hattingh is explaining how it came about that he is where he is this morning, before he comes with what really the request is, because it is so as Adv Trengove indicates, of course, that there is only really one choice. I mean, you have to present you know, one approach to the Panel. I assumed that what you were busy telling us, was simply just how you got your instructions and when you got it and that you will then tell us what the request is that is being addressed to us.
MR HATTINGH: Mr Chairman, yes ... Mr Chairman, if you will just bear with me for one moment. Thank you Mr Chairman. Mr Chairman, I have now taken instructions and I will request a postponement of this matter until Thursday this week, to enable me to prepare for this matter.
I may just add that Mr Bellingan's attitude is that he is very happy about the developments, he is concerned that this hearing will not be completed by the end of next week and he doesn't want the matter to carry on indefinitely. The basis on which I ask or I put this request for a postponement of the matter until Thursday is that I did receive instructions last week Wednesday, after the withdrawal of Adv Du Plessis.
During the course of Wednesday, Thursday and Friday I received documentation running to approximately 6000 to 7 000 pages and although I initially thought that I would be in a position to prepare fully and be ready to proceed today, it transpired that I was in fact not ready and that it will still take further time to prepare myself for this matter.
When I make the request that the matter stand down until Thursday, I do so on the presumption that I will be able to read through all the papers and in fact prepare myself fully to pursue this matter on Thursday.
Mr Bellingan asked me and I can obviously expect this Committee also to ask for me whether I can give any guarantee as to whether I will be ready to proceed on Thursday, whether I would be fully prepared. I am not in a position to give this guarantee as much as I would like to do so, and I cannot give this guarantee, however, I think that three days would give me adequate time to prepare myself and to be ready on Thursday.
However, added to that, should it happen that I am not ready on Thursday, the instructions of client are that in those circumstances, I will then have to withdraw as his Advocate and his representative in the matter, and he will then seek the indulgence of representing himself with the assistance of some for of legal representative or person to assist him in this matter.
The bottom line, or the gist of that is that should I not be ready to proceed on Thursday, then there will be no further time wasted and the matter will be proceeded with, but then Mr Bellingan will represent himself.
If there is anything in particular that your Committee would like me to further explain about my position or Adv Du Plessis' position, I would gladly do so to the extent that I am instructed with the particulars thereof, but at this stage I can merely say that I am not ready to proceed and I need at least until Thursday to enable myself to prepare myself for this hearing. Thank you Mr Chairman.
CHAIRPERSON: Have you been placed in possession of all of the documentation that relate to the application?
MR HATTINGH: Mr Chairman, I believe so. I may just say that yesterday afternoon, during my further consultation with my Attorney, in an effort to get information to assist me not to waste too much time on irrelevant documentation, it transpired that I in fact had two further bundles not yet in my possession.
I actually got further information yesterday, but it would appear at this stage that I've got all the documents, yes.
CHAIRPERSON: Have you discussed the matter with Adv Du Plessis?
MR HATTINGH: Mr Chairman, I haven't discussed it today again with him, I only discussed the matter with him on Friday afternoon, when I once again tried to get some background information and pointers as to how, the best way to go about going through the papers without wasting time.
I cannot tell this Committee the reasons for his withdrawal, apart from stating that he was obliged to withdraw and he advised at the earliest stage that it was possible to do so, but for the reasons for his withdrawal, I did not go into those and indications were that I should rather not try to get all the reasons and weigh them myself and I shouldn't apply my mind to those.
CHAIRPERSON: Yes. No, that is something that you might have to deal with outside of these proceedings. Mr Hattingh, you know, as I have indicated, we have to complete this matter.
We have provided sufficient time to do so in this session. It appears to us as if it might very well be in the best interest of the applicant, that he should be represented in the normal course of events. I understand what you are saying, I understand that you say you can't give a guarantee, but if we were minded to stand this matter down, it would only be for the purpose of allowing sufficient time for the matter to proceed when we reconvene, and to proceed to its finalisation.
So, you know, I mention this to you just to emphasise that if you request time until Thursday morning, we regard it as a serious request and we regard you as we should, as an Officer of the Court who appreciates the practicalities of the process that we are dealing with.
We accept the request as being addressed to us not in a light fashion, in a serious way after you had reflected on this matter, and after you had formed some idea as to how much time you would need to be in a fair position to do justice to your client's case.
We assume that that is the basis upon which you had made the request for the matter to stand down until Thursday morning.
I think it is just fair that I should mention that to you, that is the way in which we regard your request. Is there anything else that you want to add before I hear the other parties?
MR HATTINGH: Thank you Mr Chairman, there is nothing that I would like to add, thank you.
CHAIRPERSON: Mr Trengove?
MR TRENGOVE: Mr Chairman, we oppose the request, but let me say at the outset, we have the greatest of sympathy for the predicament in which my learned friend, Mr Hattingh finds himself, and nothing that I say should in any way be interpreted as reflecting on or doubting his predicament as he describes it.
But, the hearing is not here in the first place to protect his interest, it is here to protect the interest of the applicant and of the other parties participating in this hearing.
There are a number of us, we all convened on months' notice, for a hearing to commence today. It would cause all of us expense and inconvenience if the matter were to be postponed. As far as our side particularly is concerned, in the discussions that I have had with my learned friend, Mr Chaskalson, we thought that the hearing should finish this week, but may run into next week, so that we were quite confident that the two weeks set aside would be more than adequate.
As far as my own personal position is concerned, I am available this week, I am not available next week, I have to attend a hearing of the Judicial Service Commission in Cape Town for the whole week. My own position is not important because to be perfectly frank with you, our own planning has been that my learned junior would even for this week, be running, and next week, be running the case on our behalf.
But his position is that he is clear until the second half of next week, when he also runs into difficulties. If the matter had proceeded as was planned, those difficulties would not have occasioned my client any inconvenience or prejudices, because we were confident that we would finish before the middle of next week, when his difficulties arise.
If the matter were however, to stand down until Thursday and then run for a week as we had thought it would, with the possibility of a day or two, then serious prejudice may arise. There is in the first place, as far as our side is concerned, in the second half of next week, at least Thursday and Friday, my learned junior is not available which would mean that our side would not have an Advocate available to represent us if this matter were to run for a week, as is expected at this stage.
But as you well know, we always underestimate the duration of these hearings, and when the lawyers' estimate is a week or possibly a bit more, then invariably these things take longer than expected. If that were to happen in this case, to a hearing which commences only on Thursday, then there is a real risk that the hearing might not finish at all in the two weeks set aside for it.
It is in nobody's interest, not the interest of the Commission, the applicant or any of the objectors, that we should run any risk of failing to complete the hearings in these two weeks.
So, there is a real risk of very real and serious prejudice to all concerned, if we were to stand down until Thursday on the one hand. What do we have on the other? What compelling consideration is there for the request?
Again, I understand my learned friend's position entirely, but what about his client? All his client is telling us is that my Advocate withdrew, I cannot or will not offer any explanation for his withdrawal and I now want a postponement to the prejudice and inconvenience of everybody else. That is simply not good enough.
If and to the extent that their predicament is of their own making, they don't deserve any sympathy and indulgence. If for some reason, the predicament was forced upon them for no fault of their own, then you might balance that consideration against the inconvenience, expense and prejudice to the other side.
But until they explain why the Advocate withdrew and persuade you that it was not a predicament made - of Mr Bellingan's own making, there is no reason to grant them any indulgence at all.
I understand that my learned friend, Mr Hattingh, who discussed the case with his predecessor, may well have received information in confidence and that information may well be privileged and that he is therefore acting entirely properly when he tells you that he cannot explain to you why Adv Du Plessis withdrew.
But the same doesn't apply to his client. He is perfectly at liberty to tell you why his Advocate withdrew, and why his Advocate found it ethically intolerable to continue acting for him.
If from that explanation it should appear that the predicament is of Mr Bellingan's own making, then there is simply no merit in his request for a postponement. If on the other hand, it appears that he was the victim of some fortuitous circumstance beyond his control, then that would be a different matter.
I would submit, I am not going to ask anybody to give evidence and I am not going to suggest that they do, but let's be quite clear, he is at liberty to give you an explanation if there is one. For as long as he doesn't give you any explanation, you are not required to assume that this predicament is not of his own making.
So that we have on the one hand no explanation at all for the predicament in which they find themselves, and on the other hand, a serious risk of prejudice and inevitability of costs and inconvenience for all the other parties involved. On that balance, I submit that there is no justification for a postponement.
We are in any event busy with the cross-examination of Mr Bellingan, there is very little assistance that he can get from his counsel during that cross-examination. He has an Attorney who has been involved in the matter from the outset who can assist in the protection of the client in the meantime. So it is not as if my learned friend will be required immediately, to perform any function which requires him to be steeped in the facts of this case.
So that no serious prejudice can result. I would propose that we proceed and complete the cross-examination and re-examination of Mr Bellingan and proceed with this case.
If along the way, it appears that my learned friend has to perform some function for which he is ill-prepared, if at that stage there is a proper explanation as to why this switch of horses midstream was necessary, the matter might be reconsidered, but I propose that at this stage, we proceed with the hearing. Thank you sir.
CHAIRPERSON: Thank you Mr Trengove. Have you got any submissions?
MR LENGANE: Thank you Mr Chairman, I align myself with what Adv Trengove has said, and I just might add that whilst we had stood down this hearing, Gregg Nott, on behalf of NUMSA requested me to indicate to you that he was also not available next week, at least for part of next week and on that basis, he requested me to oppose this application.
MR WAGENER: Mr Chairman, my only real concern is that we may not be able to finish this hearing by the end of next week. I have been told that the applicant intends to call a number of witnesses on his behalf, and apparently there may be a number of other witnesses also to be called upon to testify.
If I remember correctly, Mr Chairman, you indicated to us that you would prefer oral argument at the end of the testimony, so that would also take up another day or perhaps even more, I am not sure. So that is my only real concern, Mr Chairman, that we may not be able to finish by the end of next week, and that will cause all sorts of problems for us all.
That is actually the only point that I would like to raise.
CHAIRPERSON: Thank you.
MR CORNELIUS: Thank you Mr Chairman, I similarly oppose the application. I share the view with Mr Chaskalson that we might finish towards the end of this week, subsequently I have been briefed in the matter Duli in East London from Monday. We are fully prepared for the East London trial, so it is not a matter that I can switch horses as far as that is concerned. So, I would be only available towards the end of the week.
We anticipated the possibility of calling my client to testify during this week, which obviously I would suffer severe prejudice if this cannot happen.
I agree with my learned colleague, Mr Trengove, I cannot see any reason why in the light of Mr Bellingan's instructions, we cannot continue with the cross-examination and re-examination. His counsel cannot consult him on the merits at this stage, and we can fruitfully use this time today and tomorrow and continue with this case.
I similarly oppose the application, thank you.
CHAIRPERSON: Thank you Mr Cornelius. Mr Chaskalson?
MR CHASKALSON: Thank you Mr Chairman. Mr Chairman, I don't want to canvass issues that have been said by the various legal representatives at the table.
I would also wish for this matter to proceed and I too have worries about the matter being finalised and would just note that if it isn't finalised within this given time period, we are going to find it very difficult to obtain a spot on the schedule to reconvene and I think that that is an issue that also needs to be borne in mind, thank you.
CHAIRPERSON: Thank you Mr Chaskalson. Mr Hattingh, is your client in a position to instruct you on the basis for Adv Du Plessis' withdrawal?
MR HATTINGH: Mr Chairman, I believe and the instructions that I have now also received from my Attorney is that Mr Du Plessis did not speak directly to Mr Bellingan about his withdrawal from the matter.
I stand to be corrected if I am saying something which is not correct at this stage, but in any event, apparently towards the middle of last week, Mr Bellingan telephoned Mr Nolte the Attorney and he was then advised that Adv Du Plessis was withdrawing from the matter.
The reason for the withdrawal was never conveyed to Mr Bellingan either by Mr Du Plessis, Adv Du Plessis, himself, or the Attorneys, so as far as Mr Bellingan is concerned, he doesn't know what the reason for the withdrawal is.
Secondly, the Attorneys apparently are also not in a position to tell this, or give instructions as to what the reasons for Mr Du Plessis' withdrawal were.
CHAIRPERSON: So Mr Du Plessis hasn't indicated to the Attorneys either why he was withdrawing from the application?
MR HATTINGH: That is correct Mr Chairman, apart from the fact that it should be added to that that the decision to withdraw was made at that late stage for reasons unknown to me and my Attorney, and that he did convey his decision to withdraw at the earliest opportunity when that occurred, so that whatever happened to make him withdraw from the matter, was not something that he was aware of weeks or months ago or at the time of the last sitting of this hearing.
CHAIRPERSON: Did you understand from your client that in so far as he is concerned, the reason or the basis for the withdrawal appears to have something to do with Mr Du Plessis personally, but it does not result from a situation, an adverse situation that has developed between himself and Mr Du Plessis?
MR HATTINGH: Mr Chairman, apparently not any issue of an adverse situation developing between the two of them, definitely not that. However, Mr Bellingan tells me that he can only speculate as to the reason why Mr Du Plessis withdrew from the matter.
He doesn't know why, he can only speculate. There is on the face of it, nothing that he can put his finger on and say that was the reason or there was any animosity between the two of them.
CHAIRPERSON: Do you have any submissions on the question whether or not your client has been at fault at all in connection with the basis for Mr Du Plessis withdrawal from his case?
MR HATTINGH: Mr Chairman, no, I cannot submit anything in that regard, but to refer back to the fact that he was also surprised by the fact that Adv Du Plessis withdrew as late as last week, the middle of last week, without any reasons being made available to him.
Whether that was his fault or whether he should now speculate as to whose fault it was, or whether there was any fault on his part causing Adv Du Plessis to withdraw, that would sir, remain mere speculation. He is really not in a position to give any information in this regard to this Committee.
I may just want to add to that that I think in the end it is the prejudice or the possible prejudice to the applicant that should be the most important issue at stake. If anything is not clear, we shouldn't just accept that it was up to the applicant, Mr Bellingan to be in a position to address or to give instructions for address to this Committee as to the reasons why his Advocate withdrew from the matter.
I would just also like to add the fact that this matter had been put down for two weeks. The availability of legal counsel for the other interested parties, they knew all along that they should have made arrangements to remain available for the two week period, and not to make arrangements for anything further for the second week, unless they could afford to do so.
At this stage, if this matter could still be concluded within the two week period that it was set down for, even though it may be required to let the matter stand down for some while, for a while, to enable further preparation to take place, the legal representatives who are not available next week, have only themselves to blame if they are not available to pursue and the finalise this hearing which was set down for the full two weeks.
I might also just add, I think the words to the effect of something unethical used by Mr Trengove, at this stage the applicant, Mr Bellingan can't really assist this Committee, or can't really be blamed or take the responsibility of clarifying this whole issue of the withdrawal of Mr Du Plessis, whether it has been on any ethical basis or not. He doesn't know the reasons, he was advised at a very late stage and he can't really assist the Committee to get to the bottom of this. Thank you Mr Chairman.
ADV BOSMAN: Mr Hattingh, may I just ask you, if the Committee acceded to the request that the cross-examination continue today, how would that effect the time needed for you to fully prepare yourself?
Let's assume there would be no prejudice for your client if the cross-examination continued today, how would that as it were, effect your budgeting for time needed to prepare yourself? Did you bank on having the rest of the day for preparation or not?
MR HATTINGH: Mr Chairman, naturally I think on behalf of the applicant, being his legal representative, I do have a role to play during the course of cross-examination. It may be a minor part to play, but I have a role to play and that role I can only play if I am au fait with the contents of the documentation and the facts of this matter.
My suggestion, my submission would be that these proceedings cannot continue, even though it may only be the cross-examination or the finalisation or the completion of the cross-examination of the applicant, if I am not fully prepared and it would be to the prejudice of the applicant.
Having said that however, at this stage of my preparation, I would not be in a position to assist the client at all during the course of the cross-examination. I might as well not be here and I might as well go home and start preparing for the matter and to be ready by Thursday.
I think if, to answer the question then, I think should we then, if it is decided that we should pursue with the cross-examination today and if this day is taken up in that regard, then I would need a further day to enable myself to prepare for this matter. It would not help me, I would not be in a position to spend time on the documents if we are involved in a hearing and pursuance of the hearing today.
ADV BOSMAN: Thank you.
MR TRENGOVE: Mr Chairman, may I with your leave make one or two submissions on the explanation or the non-explanation, because it wasn't before us when I last spoke.
CHAIRPERSON: Yes, we will hear you on that Mr Trengove. I just wanted to clarify some other thing.
Mr Hattingh, have you got any indication as to the number of witnesses, if any, that your client contemplates calling?
MR HATTINGH: Mr Chairman, yes. I think that obviously depends on my understanding of the papers, and my further discussions with both my Instruction Attorney and the applicant once he has finished with his cross-examination and he is available to me once again. From my discussions with my Attorney and with Adv Du Plessis as well, it would appear that there are approximately three or four witnesses that we would like to call, although it may be that they, that it would not take very long and that it would be very brief.
I was just advised by my Attorney that I should rather say two witnesses to be called. But that is also something that is not really finalised, and we don't know at this stage. I am not in a position to give any confirmation in that regard.
CHAIRPERSON: Is there anything else that you wanted to add in response before I go back to Mr Trengove?
MR HATTINGH: Thank you Mr Chairman, I have nothing else to add.
CHAIRPERSON: Thank you. Mr Trengove?
MR TRENGOVE: Mr Chairman, the explanation if one might call it that for the withdrawal of Mr Du Plessis amounts to this, an Advocate who had been involved in this matter for months, on the eve of a scheduled hearing, planned months before the hearing itself, withdraws from the case without offering any explanation, either to the client or to the Attorney. That is what we are told, happened.
Now, I for one, would be very slow to accept that Adv Du Plessis acted in such irresponsible and indeed improper manner. It would be quite improper for an Advocate engaged in this case for so long, in whom the client has made so much investment, to withdraw from the case without explanation two or three days before the resumed hearing.
But we need not dissolve the issue. If Adv Du Plessis acted in the way that they said he did, it would have been highly improper for him to act, to withdraw without any explanation and then seemingly without justification.
So there are two possibilities. Either we have been given the real explanation of what happened, in which event Mr Bellingan's case before you is simply my Advocate withdrew, apparently without any reason at all and now you have to give me a postponement because he withdraw without any justification at all.
But sometimes clients must suffer the prejudice of their own legal representatives' conduct and if his legal representative acted in the irresponsible and improper way that they suggest, then this is such a case.
The other possibility of course is that indeed there was an explanation given, but that Mr Bellingan simply doesn't want to tell us what it is.
In either event, you are left without any reasonable justification for their inability to go on. They don't deserve any sympathy.
CHAIRPERSON: Thank you, is there anything else that any of the other parties want to add on the issue of the explanation?
CHAIRPERSON: Thank you Mr Chairman, one aspect. There are very serious reflections being made towards Adv Du Plessis, who has been involved in very many TRC trials.
I think he should be offered, or he should be contacted and communicated with and advised of these type of reflections being made for him to answer. It would be easy to telephone him between one and two o'clock on his cellphone if necessary and if he wants to offer, and formally withdraw in front of this Committee, I think he would do so.
I just think we should allow him some input and that he should be notified of this set of circumstances at present, thank you.
CHAIRPERSON: Thank you Mr Cornelius.
MR WAGENER: Mr Chairman, I am in the very difficult position, I saw Mr Du Plessis last Friday and he in fact told me why he withdrew ... (tape ends) ... as these discussions go, I am not really prepared to tell this hearing now, what he told me. It may cause prejudice to the proceedings as such.
Therefore, may I suggest Mr Chairman, that I see it is quarter to one, that we perhaps take the lunch adjournment now, that you or Mr Chaskalson or whoever, phone Mr Du Plessis, I think I've got his cell number available, they should adjourn in Pretoria at one o'clock at the hearing he is involved with, there, and that he be asked why he withdrew, and I think his response should assist you to come to the correct decision, whether you should grant this present request by the applicant or not.
CHAIRPERSON: Are there any other submissions?
MR HATTINGH: Mr Chairman, just one thing that I received an instruction on, from my Instructing Attorney. The suggestion made by Mr Trengove is that it would be a lie if Mr Nolte says that there was not an explanation given to him.
Mr Nolte takes exception to this and his request is that he, together with Mr Trengove see the Committee in chambers in this regard. I am merely conveying the request from Mr Nolte in this regard.
I am not adding anything further to my submissions with regard to the request for the postponement.
CHAIRPERSON: Yes, well.
MR TRENGOVE: Can I perhaps just make that quite clear. What we were told is that the Advocate withdrew without explanation either to the client or to the Attorney. What I am saying is that I find it very difficult to believe that an Advocate would act in that way.
But of course, I know nothing of the facts, so whether he gave an explanation or didn't give an explanation, is not something on which I can comment one way or the other. What I am saying is that if he didn't offer any explanation, that would have been very improper and very hard for me to believe that an Advocate would act in that way.
He might have done so. And let me also tell you that I also had a telephone conversation with Mr Du Plessis, like Mr Wagener, I think it would be quite improper to say anything of it here, so that nothing that I say should be understood as saying expressly or by implication, anything about that conversation.
I don't want you to be surprised later to hear that I was making these submissions whilst having had a conversation with Adv Du Plessis and not telling you anything about it. I don't tell you about it, because it would not be proper for me to do so.
CHAIRPERSON: Yes, well it is close to the luncheon adjournment. There have been some useful suggestions that have been made. We need to consider the matter, so we will stand down at this stage for the luncheon adjournment, and we will reconvene at two o'clock.
COMMITTEE ADJOURNS
ON RESUMPTION
CHAIRPERSON: The matter stood down for a while after lunch in order to give an opportunity to Adv Du Plessis who had previously represented the applicant, Mr Bellingan in these proceedings, to come to the venue and to deal with the question of his withdrawal from the matter.
Mr Du Plessis is present at this stage and he has had a discussion with the Panel in chambers. We have explained to him the gist of the proceedings this morning which has left some unanswered questions around his withdrawal from the proceedings. He has indicated that he would wish to take the opportunity to actually deal with it and to formally withdraw from the matter. Mr Du Plessis?
MR DU PLESSIS: Thank you Mr Chairman. May I just for purposes of this hearing, for purposes of the record and perhaps for purposes of the public perception, explain the situation which I find myself in under the circumstances.
I want to say, make the submission first of all that there exists between myself and my client, a privilege, namely a legal professional privilege. That means that I am in a position as you will well know, where I cannot from a legal point of view, disclose to you the exact reasons and the facts which have given rise to the fact that I withdrew as Mr Bellingan's counsel.
I want to mention that there were certain happenings which occurred since the previous hearing, which gave rise to the fact that I had decided to withdraw from the matter. After those facts arose, I discussed the situation with my Instructing Attorney, Mr Britz of the firm Strydom Britz. I discussed my position with him and he thereupon terminated my mandate.
The facts which Mr Britz and I discussed pertaining to the reasons for the termination of my mandate, and the fact that I felt that there may have been reasons to withdraw from the matter, were not disclosed to Mr Nolte, who is sitting here on my right hand side.
After Mr Britz and I decided under the circumstances, that we will not disclose those facts to Mr Nolte. I had to make a decision last week, we had to make a decision last week if Mr Britz was going to terminate my mandate or not, and we had to make the decision as quickly as possible so as to enable somebody else to take over the matter, who would be in a position from an ethical point of view, to carry on with the matter.
I believe it was I think Wednesday, last week, when I phoned Judge Potgieter's clerk after I had spoken to Mr Trengove to obtain his permission to speak to Judge Potgieter, to discuss the matter with him, and to find out from him if there would be any problem for me to arrange my withdrawal from the matter without it being necessary for me to appear this morning to do it formally.
His Secretary came back to me and indicated that that shouldn't be a problem. After my discussion with Mr Trengove just before that discussion with Judge Potgieter's Secretary, he also gave to me an indication that that wouldn't be a problem, and I also subsequently discussed my position with Mr Wagener.
Although I may say that the specific facts pertaining to my position, I did not disclose in any sort of detail to either Mr Wagener or Mr Trengove.
I may mention one further thing which gave rise to my position and that is the nature of these proceedings and the position one finds yourself in as a legal representative in these proceedings.
I may also mention and I wish to mention this, Mr Chairman, that the facts which gave rise to the situation, I want to give you the assurance here and now, are not in any way whatsoever attributable to Mr Bellingan in the sense that it relates to anything that he did to cause the situation.
Mr Bellingan has at all relevant times insisted on having his amnesty application heard as soon as possible, and there were times during last year when he phoned me about twice a week and my Attorney too, to pressurise us to get the matter on the role and get the matter finalised.
I may also mention without going into any sort of detail that the situation which arose last week, were caused by other parties apart from Mr Bellingan. However, it placed me in a position that I had no alternative than to take the matter up with Mr Britz, whereupon my mandate was terminated.
I hope you understand that under the circumstances with reference to the legal professional privilege existing between myself and my client, Mr Bellingan, that I cannot disclose the facts which gave rise to my position and obviously although contrary view may be taken by my learned friends opposite this room, and in so far as I am allowed, I wish to make the submission that this should not be held against Mr Bellingan in any way whatsoever and that no deduction should be made because of this situation.
I don't know if there are any questions from you Mr Chairman, pertaining to this.
CHAIRPERSON: Yes, no thank you very much Mr Du Plessis. After the turn of events this morning, when the question surrounding your withdrawal from these proceedings was unclear and not fully explained, we deemed it proper that we should create an opportunity for you to appear and to formally deal with the withdrawal, which when indication was given to us last week that you will not be proceeding and that a substitute counsel had been briefed to appear and when the impression that was left in our minds was that the matter would be able to proceed without any interruption, we decided that we would spare you the trouble of having to come and just formally withdraw from the record, but as I have indicated, in view of the situation this morning, it appeared to be more appropriate that you actually do what you have just done.
We thank you very much - explain the situation from your perspective.
MR DU PLESSIS: Thank you Mr Chairman. May I just say that I am indebted to you for the opportunity to explain this because one obviously does not want a wrong impression to be sent into the world. Secondly I want to say that I have tried in so far as I am in a position to do so, to assist my learned friend, Mr Hattingh with everything that he has to do without placing him in a compromising situation.
I am available to do that still, so if - I just want to place that on record that he can approach me in respect of anything. I haven't disclosed the facts pertaining to my situation to him, so he is not in a difficult, he is not in the position that I am in, thank you.
CHAIRPERSON: Thank you Mr Du Plessis. Thank you very much for the assistance that you had given the Panel up to this point. Thank you.
MR DU PLESSIS: Thank you Mr Chairman, may I be excused?
CHAIRPERSON: Yes, you are excused.
Is there anything else that any of the parties want to add to their submissions before we rule on the application for a postponement in view of anything that Mr Du Plessis had put on record?
MR RAUTENBACH: Mr Chairman, our point of view is that despite the motivation that has been given and the explanation that has been given by Mr Du Plessis, one thing that has not been explained is the timing thereof, the fact that this happened a week, or a couple of days, before this hearing and without any explanation in that regard, because on the one hand we heard about the ethical considerations which is said, I've got an ethical problem, but because of the privilege, I am not telling you what the problem is, the applicant himself also and we know that that privilege is the applicant's privilege, also does not come and give an explanation for that.
We are basically sitting in the situation that as far as the problem that has arisen, and I accept that if he so, when an Attorney terminates the mandate of counsel, one's got to accept that that is something that has happened, our concern is that there was no explanation to you to say why it happened at such a late stage. If there was an ethical problem, that problem should have existed at the time of the previous hearing or shortly thereafter, at best, for the applicant.
In those circumstances we say that there is still no proper basis to postpone these proceedings and should you, Mr Chairman, allow a postponement in a sense, it should be a short postponement so that we can, it should be a matter of a day or two and nothing more than that, because if you allow more than that, we certainly, and I am sure other parties here certainly, will be prejudiced. Thank you Mr Chairman.
CHAIRPERSON: Thank you Mr Rautenbach. Is there any other party who wants to add anything further? Thank you.
R U L I N G
This is an application for this matter to be postponed until Thursday, the 15th of April 1999, in order to allow the new counsel, Adv Hattingh, who has been briefed to appear on behalf of the applicant, Mr Bellingan in these proceedings, further opportunity to finalise his preparations of the matter.
The application is opposed by all of the interested parties. Adv Hattingh has indicated that he was approached to appear in these proceedings last Wednesday, that is the 7th of April 1999, that he had accepted the instruction, that he had ascertained that he was available for the two week time period reserved for this matter and that he had initially calculated that by this morning, Monday the 12th of April, he would be ready and able to proceed to deal with the matter, to effectively take over the matter from Adv Du Plessis, who has previously represented the applicant.
Adv Hattingh however, indicated in submitting the application for the postponement to us, that he had miscalculated the time required in order to properly prepare himself in order to represent the applicant, that he had been confronted with amongst other things a bulky set of documentation running into some 6 000 or 7 000 pages which he had to have regard to in order to prepare.
He indicated that he was in no position to properly represent the interest of the applicant this morning, and hence the application for the matter to be postponed until Thursday in order to allow him further opportunity to prepare and to be able to proceed, to deal with the matter.
After some questions were raised concerning the withdrawal of Adv Du Plessis from the matter, this being one of the factors relied upon, the absence of a clear explanation, relied upon by the parties opposing the application, it appeared to be proper to arrange for Adv Du Plessis to personally appear at these proceedings, and to properly deal with the question of his withdrawal.
Adv Du Plessis in fact had appeared this afternoon and had explained that due to circumstances which had arisen, as we understand it, in the course of last week, it was necessary to take a decision whether or not he ought to be proceeding with the matter on behalf of the applicant.
He indicated that once it became clear that he was in no position to be able to properly continue in representing the applicant, his mandate was terminated by his Instructing Attorneys and at that stage, which appears to be approximately Wednesday last week, steps were taken to obtain the services of alternative counsel to deal with the matter.
It appears to us that there is no fault that could be attributed to the applicant concerning the circumstances giving rise to the withdrawal of Adv Du Plessis, from the matter. Adv Du Plessis has expressly indicated that much to us when he did appear.
The application is being opposed on the basis that the interested parties would be prejudiced should the matter not proceed immediately and be finalised without delay. There are some difficulties surrounding the availability of counsel which resulted from an understanding that this matter is expected to last for no more than about a week and that moreover there is a real likelihood should the matter be delayed at this stage, of it not being completed in the time which has been reserved for the matter to be finalised.
We have considered all of the arguments which were addressed to us. In our view it is in the interest of justice for this matter not to proceed today and for a further opportunity to be afforded to applicant's legal representatives, particularly Adv Hattingh, to prepare to represent his interest.
It is however also in our view in the interest of justice, for the matter not to be delayed unduly and for it to in fact be concluded within the time period which has been set aside for doing so.
In all the circumstances we have decided to grant the application for a postponement. However, in our view there is merit in the submission of Mr Rautenbach in this regard that a postponement should be a limited one, taking into account the interest of the other parties who might be negatively affected by an unduly lengthy postponement of the matter.
We have accordingly come to the conclusion that it would leave sufficient time for further preparation should this matter be postponed until Wednesday, the 14th of April 1999, that is coming Wednesday and the matter is therefore accordingly postponed to Wednesday, 14 April 1999 to this venue for the cross-examination of the applicant to proceed at nine o'clock in the morning.
The matter is accordingly postponed until Wednesday.
COMMITTEE ADJOURNS
