CHAIRPERSON: This is the adjourned hearing of the matter which was last heard on the 19th of November 1998. The Committee remains the same, but I would ask the legal representatives who are present, to put themselves on record as being present.
MR NEL: Thank you Mr Chairman, Christo Nel. I am here at the hearing, Adv van Schalkwyk was appearing on behalf of applicant Frank McCarter and I at the hearing, was representing the late Col Andy Taylor. Mr van Schalkwyk is unfortunately in Pretoria as we speak and I am here on his behalf as well.
I am representing Frank McCarter and the late Col Taylor.
MR VISSER: Chairperson, may it please you and the members of the Committee, Louis Visser, instructed by Wagener Muller. As you will recall that we are on record as appearing for Steyn, Botha, Vorster, du Preez, Wasserman, Visagie and Rosslee. We are here, Chairperson.
MR NGUBANE: Thank you Mr Chairperson, I am E.M. Ngubane appearing for the families of Ndwandwe, Nqiweni, Bhila, and Ndlovu, Filakazi and Matjale, that is Gift. Those are all the victims in this matter, thank you.
ADV PRIOR: May it please the Chair. Paddy Prior for the Amnesty Department as Evidence Leader. May I place on record Mr Chairman, that the applicant, I think it is Bosch, represented by Rooth Wessels, Mr Rossouw who appeared at the last hearing, was unfortunately overseas and in the course of communicating with his office, I understood that he would only be returning from America at the end of this month. To that end, we have agreed that he would submit, he would get copies of any of the written submissions and he would be entitled or be permitted to respond thereto in writing.
I place that on record, and I will liaise further with Rooth Wessels in that regard, and then another aspect with respect, Mr Schalk Hugo who appeared for implicated persons, Letsatsi Khumalo, Mahlulekha and Radebe was contacted and asked me to place on record, that he will not appear further in the matter, and that the matter can proceed to its conclusion without their participation. May it please the Chair.
CHAIRPERSON: Thank you. At the last hearing we had concluded all the evidence that was desired, should be led. There were however certain matters which were - still required some clarity.
The first of these was the possibility of ascertaining the whereabouts of the body of Mr Bhila. There had been efforts made, in fact during the course of an adjournment, various members of the legal team had gone with Mr Wasserman to endeavour to ascertain where Mr Bhila's body was. This was done in the interest of his family.
It was not necessary to prove anything in the course of the hearing, but merely that his family wished to know where the body was, and perhaps if it was possible to do so, to make arrangements for his burial. I had been informed by Mr Prior that it has been impossible during the lengthy adjournment, to ascertain any further information in this regard.
It was a case where the body was thrown over the edge of a cliff in an area where there are numerous cliffs and accordingly it seems to us that nothing further can be done in this regard, and we shall just have to leave the matter.
The second point was there had been a fairly lengthy argument on the question of whether Mr Botha should disclose the identity of the persons he referred to as informers, or whether they were in fact accomplices and whether the failure to disclose their identity, would amount to a failure to make a full disclosure.
At the end of the last hearing, efforts had been made to contact the two people and I think it was Mr Wagener offered to see them, that they wished to discuss the matter with Mr Botha. They were not anxious to, when I say they, I must withdraw that, one of the two persons had been following proceedings, was fully aware of what was going on and he was a possibly implicated person, but he indicated that he did not want to participate in any way or to have his name disclosed, in that he feared for his life.
It was agreed as a result of discussions between all of us, that Mr Botha should continue to make an effort to see whether he could be persuaded to voluntarily come forward and arrangements were made for a meeting, but unfortunately due to economic problems arising from the Committee, not from the applicant, that meeting did not as I understand it, take place, and we did not receive any further information which we were expecting to receive as a result of the meeting.
I don't know whether any further information has become available in the period as to who the second so-called informer was, whether he is aware of the fact that there are such proceedings?
MR VISSER: Chairperson, yes, my Attorney did put his hand to paper and wrote to you what the developments were. First of all, yes, you are correct, there was a meeting planned to be held in Durban with one of those and you are also correct that because of financial problems, that meeting did not take place, but we must place on record that, and we said so in a letter dated the 23rd of November 1998 that we didn't hold out much hope, judging from what Botha told us, that that meeting would come to anything.
My Attorney did write another letter Chairperson, after your Registrar telephoned and wanted to find out whether there was any further development, and that letter was dated the 26th of July 1999, I don't know whether you have that copy before you. It is a very brief letter, that is a terrible pun, I think, but it says this, it says -
"... attached copy of our letter dated the 23rd of November - in view of the aforesaid, the following is placed on record. We were unable to arrange for Botha to travel to Durban (2) (and this is the important one) the position was telephonically discussed between Judge Wilson and Adv Visser, when it was confirmed that the informers involved were both aware of the amnesty process and the extent of them being implicated. However, they have indicated to Botha that they are not prepared to come forward or to have their identities disclosed."
So, after that proposed meeting, one further development had taken place, Chairperson, and I remember that we discussed that when you telephoned me to say that the other one has now been contacted and he said he also doesn't want to have anything to do with it. That is the correct situation.
CHAIRPERSON: So we don't have to bother about them. We do not propose to give any ruling on the matter at the moment, because the question is not only whether the person before us, whether they are obliged to disclose the identity of an informer, but whether the identity of these persons is of such a nature or importance, that their failure to be disclosed, amounts to a failure to make full disclosure.
It may well be that when we had a chance of considering the evidence and the representations made, we come to the conclusion that it is really of little importance.
So we are leaving that matter for the moment. There seems to be nothing further that requires a public hearing. I don't know if it has been placed on record that there are 1 176 pages of record before us and we think it would be more appropriate for Counsel to prepare written argument based on that.
We have had written argument on behalf of the applicants represented by Wagener Muller & Attorneys and written argument on behalf of Mr McCarter. We are open to further written argument from the other persons and from our Evidence Leader. The same we do require, because there must be some fixed date, this be filed within, I will give you an extra day and say 15 days of today's date, and that is the 27th of June.
No, we have problems there with the gentleman returning from overseas?
ADV PRIOR: Mr Chairman, it would be July if we were going to.
CHAIRPERSON: That is not two weeks?
ADV PRIOR: No, we are looking, we are looking after the 10th.
CHAIRPERSON: It is the 22nd now?
ADV PRIOR: About the 10th of July.
CHAIRPERSON: The 10th of July?
ADV PRIOR: I indicated as much to Rooth and Wessels.
CHAIRPERSON: Oh, you have? Very well, we will accept the 10th of July which is 15 days.
I think I will change that and say written argument to be submitted by the 10th of July and served on the other parties, and that any party wishing to respond to such written argument, may do so by the 17th of July.
MR VISSER: Chairperson, Visser on record, we find that eminently reasonable. Chairperson, I am just wondering, to avoid us having to do supplementary written argument, there is one matter which my Attorney has brought to my attention, perhaps I should have dealt with in the written argument which were handed to you this morning, and that is the matter dealing with Brand Visagie.
You will recall that he, that Botha, gave evidence to the same effect as what Brand stated in his amnesty application, and that was that he was aware that a person was going to be abducted from Swaziland and he was asked to prepare an observation vehicle, to modify it, to take it, for that vehicle to be able to be used, it was a Volkswagen panel van and as such he said that he knew that there was going to be a person abducted and he obviously then would have known that the person would be unlawfully detained.
As far as those two, I asked for that in the argument, but I did not include a paragraph just to remind you of that evidence of Botha, where he confirmed that that was so. I am just wondering whether I can place that on record for you to bear in mind when you read the argument, so that I don't have to file an additional page just to say that.
Thank you, I would appreciate that Chairperson, I do beg your pardon for the oversight. I must also say that we have had very little time in which to do this. It is like the case of the penpal that writes a letter and he says "I haven't got much time, therefore I am writing a long letter".
I must ask for your indulgence in regard to possible typing errors, etc, etc. You will be no doubt surprised to hear that I had to type all of this myself as well.
CHAIRPERSON: I thank you for that, and I thank all of you gentlemen for your assistance during this hearing. If any problems arise, please do not hesitate to approach me.
That brings this hearing to a conclusion.
HEARING ADJOURNS
