ON RESUMPTION
CHAIRPERSON: For the record I just want the new representatives to announce themselves, for purposes of the record please.
MR CORNELIUS: Thank you, Mr Chair. Wim Cornelius, I'm acting on behalf of John Louis McPherson.
MR COETZER: W A Coetzer, z-e-r, Advocate, on behalf of Manual Antonio Olifant.
MR VISSER: My name is Louis Visser, I'm instructed by Wagener Muller, to act on behalf of eight applicants before you. If you have regard to volume 1, the cover sheet, on that list I appear for Lodewyk de Jager, Johannes Christoffel Meyer, Anton Pretorius, Willem Helm Johannes Coetzee, Philip Rudolph Crause, and skipping one, Christopher Johannes Du Preez Smit, Wikus Johannes Loots and Johannes Albertus Steyn.
May I just explain, Chairperson, that you might recall that we dealt Petrus Johannes Coetzee on the last occasion and we explained to you that he is not an amnesty applicant for this incident. The reason for the confusion came about because he was asked certain questions to field at a Human Rights Violations Committee hearing and he was asked inter alia to deal with this incident and he dealt with it, and you will recall that he said that he regarded it as a State action, State operation which was formally approved and authorised by the State Security Council and therefore he's not asking for amnesty.
And then Stanley Harold Schutte, Chairperson, halfway down that list, you will also recall that his amnesty application was incorrectly bound into this bundle and it was then considered during the application of Serache, so you can ignore Stanley Harold Schutte's documents in this bundle.
MR DEHAL: Mr Chairperson and Honourable Members, thank you very much, my name is Dehal, Roshan Dehal, I represent some of the victims in this matter. Ms Mohamed who assists me, will be sharing the victims and she will represent the others. I would like to make some submissions before we begin, which deal with the preliminary aspects of this hearing ...(intervention)
CHAIRPERSON: Well let me just ask a question first, are the cases of the victims so complex that we need two representatives?
MR DEHAL: No, it is simply because of the volume of victims, to facilitate easy consultation and given their geographical spread over the country, that we decided Ms Mohamed would deal with some of them in the Gauteng area and I dealt with some of them in KwaZulu Natal area, and also since we consulted with those perspective lots, we felt ourselves respectively more au fait with those that we consulted with. There's nothing more complex about it, it's simply a procedural administrative fairness. Thank you.
CHAIRPERSON: And you say you wanted to make certain submissions?
MR DEHAL: Yes, Judge. Perhaps Ms Mohamed should just go on record.
MS MOHAMED: Thank you, Judge. My name is Ms Mohamed from the firm Dehal Incorporated. I confirm my appearance for some of the victims in this matter. Thank you.
MR DEHAL ADDRESSES: Thank you. Judge, the problem - sorry, perhaps before I state what the problem is and lest the incorrect impression be created, I want to make it clear that insofar as Ms Mohamed and I are concerned, we are ready, able, available to proceed and have in fact come to these hearings on the understanding that it is set down for this week, beginning today, and we have come with the intention to avail ourselves to continue with these hearings until Friday. Having said that, we have since Friday morning, come up with a host of problems which I think we are duty-bound as lawyers to bring to your attention. And in the interest of fairness and justice, we bring these to your attention and ask you to have regard to them within the framework of the Act.
Judge these problems deal with basically four aspects, one of which I don't think I ought to bring to your attention, but since the victims are here and I've been asked to bring that to your attention, I will do so, please do not admonish me if it's outside the ambit of these hearings.
Firstly, the place of hearing the victims is regarded as being a problem. The victims say that most of them are in the central Johannesburg area, or closer thereto. They cannot understand why these hearings are taking place in Pretoria. It is very costly for them to travel from their respective areas outside Johannesburg, to Pretoria, indeed it would have been less costly to travel to Johannesburg.
The second problem, Judge, is these victims do not - sorry, all of the victims in the main are not possessed substantially of cash, they find it very difficult to come by those minimal means to travel. It so happened that Ms Mohamed consulted with a few at the TRC offices in Johannesburg, on Thursday, members of my office telephoned these victims and caused them to avail themselves at the TRC offices.
The problem there however is this, that their return from the TRC offices to their respective homes and their forward journey was not paid for and they had taken loans to travel to the TRC offices, to consult with Ms Mohamed and they've not managed to raise those funds and the TRC offices have apparently told them that they will not be paid for that. Now that's the second problem which I said I don't think falls within the ambit of the Act for me to bring in as an issue, but it's an emotive issue and the victims are here and they've asked me to raise it.
The fourth issue I wish to raise is one that relates ...(intervention)
CHAIRPERSON: I'm on problem number two only, the payment for travelling. The first one being the venue. Which would have been the third one?
MR DEHAL: I'm coming to the third issue.
CHAIRPERSON: ...(indistinct)
MR DEHAL: Oh sorry, my apologies if I said that incorrectly.
Judge, the third issue relates to notices that were sent out to a very few victims. The issue there is that these notices were incorrect, these notices dealt with certain dates for the hearing and recorded the dates as being the 24th of July to the 4th of August. I understand from some of the victims, in fact Ms Mohamed will fill you more on this, she's got the details on who the victims are that have these problems in particular, had availed themselves, some were here in Pretoria, apparently here at the Methodist Church on the 24th and found the hearings in the Botswana Raid matter as this matter is commonly called, had not been proceeding and they returned. Now some of those persons have not made contact with us and given the fact that this notice had those dates, I've been asked to raise that as a problem.
CHAIRPERSON: Are they not your clients?
MR DEHAL: No, not those. In that regard perhaps I should just say that there are two persons who received notices, whom we have consulted with, whom Ms Mohamed represents. These two persons also received notices dated the 24th, had telephoned the TRC offices and were told that the matters will not proceed on the 24th, or words to that effect, I think Ms Mohamed will fill you in, but who are presently here and we've managed to get them here and explained the error to them. But as a matter of ...(intervention)
CHAIRPERSON: That's not an error. You were party to a pre-hearing conference, is that not so?
MR DEHAL: Correct.
CHAIRPERSON: Where the specific dates of the hearings were agreed upon to everybody convenience and I assume, as near as possible to their convenience. There may have been some people who were inconvenienced by those agreements, but be that as it may, those were agreements. I would assume that clients would then informed accordingly. Am I wrong?
MR DEHAL: Judge, within the context of your understanding of the minutes, you will not be wrong, certainly not. With respect however, those minutes do not explain correctly the position as it was on that day, nor are they exhaustively correct. Three points. Firstly, what the minutes do not record is that when both Ms Mohamed and I availed ourselves at the pre-trial meeting, we were not possessed of any bundles in this matter. That is common cause and I don't think Mr Malan who chaired the meeting ...(intervention)
CHAIRPERSON: What has that got to do with the price of eggs? The matter is at this particular hearing in respect of the Botswana Raid on the 14th of June 1985, it was agreed upon and I assume it carried your approval for today. Not So?
MR DEHAL: Agreed. The only reason I make the submission about the absence of the volumes, is that pursuant to those volumes being absent, and I must say in all fairness to Mr Steenkamp, the Evidence Leader, he had actually by then posted a bundle to us, but it had not arrived. He in all fairness again, gave me a copy of his bundle at the end of those hearings and I took them back home to study them. The reason I mention this is twofold. Firstly that, we did not have a list of the victims by then, we did not know whom we were representing. We were appointed to represent victims, we had not made contact with a single victim by then. Acceding to the dates was purely acceding to our availability, both Ms Mohamed's and my being available to these dates, and it is at that level that we agreed to these dates, and indeed that is why we are here today and ready and available to proceed till Friday. But it is not as though - sorry, one must not however read too much into the agreement on the dates and therein read the fact that all the victims therefore agreed to be here and therefore the dates on the notice must be read as being amended accordingly or otherwise.
I only mention this because there are a number of victims who apparently received notices from the TRC, who are not here today, who have not made contact with us. Our repeated endeavours desperately to raise them, have been in vain and I thought I'd mention that and ...(intervention)
CHAIRPERSON: Where are you getting to, Mr Dehal?
MR DEHAL: It is only the dates on the notice, the third point that I raised, and I'm getting to that only. And I take that point no further.
The fourth point, Judge, is the weighty point insofar as I am concerned, and this relates to a lack of notices to a host of people who are victims in this matter, and this is a matter of grave concern to me.
Judge, within the purview of Section 19(4)(a) and (b) of this Act of the Promotion of National Unity and Reconciliation Act 34/95, it is pre-emptory for notices indeed to be served on a group of persons ...(intervention)
CHAIRPERSON: On whose behalf are you arguing this point?
MR DEHAL: On behalf of the persons who are not here and in regard to whom we've been told by ...(intervention)
CHAIRPERSON: Have you got instructions to do so?
MR DEHAL: Yes, Judge.
CHAIRPERSON: Where would these instructions have come from?
MR DEHAL: From some family members who are present here at this hearing.
CHAIRPERSON: Who were not given notices?
MR DEHAL: No, in - yes, who were not given notices, but my argument homes in on those persons who are not here today, who have not been given notices and there are people present here today who have brought this to my attention.
CHAIRPERSON: I don't follow your argument, I must be quite honest. Please persuade me or let me understand how you are able to rely on this point for whatever reason you are raising it.
MR DEHAL: I apologise if it sounds ambiguous Judge, or meaningless ...(intervention)
CHAIRPERSON: This is how I understand it, that the TRC is compelled insofar as the Act requires, to do its best to find out who the victims are in respect of a certain incident, correct? Once it has done all it can in the circumstances and issued notices to those whom they were able to identify, then the TRC offices has complied with their obligations. In order to avail all opportunities to victims to be represented, legally trained people are appointed to do so.
I assume that that would be in the case of those victims who were identified and insofar as they have been identified and represented, the legal representative carries with him or her, the instructions of those whom they represent. I fail to understand how any representative can go outside the ambit of that. Unless I've got it wrong, then you must tell me how I've got it wrong.
MR DEHAL: Judge, the problem relates to the following. There are for example, and I deal with this purely by example, eight survivors in this raid who have not been placed on notice. I know I've been called upon to represent the victims, but I can't be blamed if I cannot make contact with those eight victims ...(intervention)
CHAIRPERSON: Certainly ...(indistinct - no microphone) all victims known to the TRC when they appointed you. Is that not the accurate way to describe it?
MR DEHAL: Yes, correct. Except that if you look at that instruction now and look at the difficulty I face in sitting here before you, it is threefold. The first is, I have not managed to avail myself to make contact with, to obtain instructions from the respective victims, albeit on that list from the TRC. And especially victims, I'm talking about eight survivors from this raid. And the second problem is, I've managed to establish both from the TRC and from certain of the victims' families who are present here, with whom we've consulted, that noticed have not been issued to these eight in particular.
And the third problem I have is that one of those survivors is in the United States of America, he has communicated today to some members who are seated here in this Panel, sorry in this hearing, at this forum and who indicated he, this gentleman from the United States of America who is a survivor from the Botswana raids, insists on being present here. He takes issue with the fact that he was not told about these hearings. He takes umbrage of the fact that notice was not given to him.
Now I think Ms Mohamed ...(intervention)
CHAIRPERSON: Is he in America?
MR DEHAL: ...(indistinct)
CHAIRPERSON: And he takes umbrage that he didn't get a notice?
MR DEHAL: Yes, Judge, I don't think it's as unreasonable as that, Judge. If you look at bundle 2, in bundle 2, the second bundle - Ms Mohamed will probably take you through this, I think it will be wise for her to address you at this stage ...(intervention)
CHAIRPERSON: You're arguing the point, let's see what you've got to say, I'll give you ...(inaudible)
MR DEHAL: Judge, ...(intervention)
CHAIRPERSON: You're referring to bundle 2.
MR DEHAL: Thank you, Judge. Sorry Judge, if you'll just bear with me, I'll find the appropriate page.
MR MALAN: You're paging through bundle 1 there, Mr Dehal.
MR DEHAL: Thank you, Judge. Judge, the second - sorry, firstly, the appropriate excerpt that I'm looking for is contained within these so-called pre-finding hearings and is also contained in the second bundle that I earlier referred to. I'll shortly refer to the page in the second bundle, but I don't know whether the Panel has these pre-finding hearings, the one particular one entitled Hilda Pahle. Now in the sixth page from the end, she records in a document handed to the TRC, that Livingstone Pahle is a witness, that his contact address and telephone numbers are in New York and that this person was inside - sorry, was under the bed on the spot at the time of the Botswana raid. No endeavours have been made to contact him.
In her evidence before the Human Rights Violation Committee, in bundle 2 on page 22, in the last five lines she deals with this aspect as well.
CHAIRPERSON: Mr Dehal, when did you become aware of that?
MR DEHAL: On Friday.
CHAIRPERSON: ... necessary to draw the attention of the TRC to it?
MR DEHAL: No, sorry, with respect, I did, I drew their attention to it, I had a telephonic discussion with Adv Paddy Prior, I told him of the difficulties we're having. In fact he appeared to be alive to the difficulties I was having. And it is pursuant to that discussion that a notice was sent to the Botswana Embassy, addressing some of the victims who are believe to be in Botswana, who were not given notice.
Judge, may I with your permission hand over to, Ms Mohamed will give you the facts and the names of ...(intervention)
CHAIRPERSON: ...(indistinct - no microphone) escape. I've got a couple of questions to you. Could you suggest, upon instruction or otherwise, how the TRC would conduct itself in obtaining the names and addresses of victims in foreign countries? I'm alive and sympathetic to the position of victims, but please apply your mind to the difficulties of the officials of the TRC.
MR DEHAL: Judge, this is not criticism of the officials of the TRC.
CHAIRPERSON: ...(indistinct - no microphone) You raise this issue for certain reason, I'm not too sure what the reasons are, the fact of the matter is that there's a complain that certain people were not notified. For the purpose of my argument I'll accept that. There's a complaint that people in Botswana or wherever were not notified, how is it suggested that that process of notification should take place?
MR DEHAL: Thank you. Judge, I think it would take place in the normal way that the TRC has done, namely by notice to the respective Embassies. Here we have a lady who is a Dutch woman, who is the survivor from the raid, the wife of ...(indistinct), she had suffered injuries at the raid, the Dutch Embassy had in fact intervened at the inception of the matter, these are aspects evidence from bundle 2, and no endeavours, with respect to the TRC, were made to contact her or to serve notice on the Dutch Embassy.
We have a further survivor Jean who is in England, the second bundle indicates that she's in England, and no notices were served on the English Embassy, on the UK Embassy. The solitary example of the USA person, of course there I suspect notice - I don't expect notice to be served on the Embassy of the United States of America, there the notice should have been sent to him directly. He's a survivor and his details are contained within the bundles.
Now Judge, for the second time you've mentioned that you do not know the reason why I'm raising these, I'm raising it firstly as a matter or completeness, so that - these victims who are present here are very concerned about this, and secondly because three of the families that Ms Mohamed has dealt with have instructed her that this matter should not proceed until all of these victims are here, and they would like to avail themselves, especially because they are survivors from the raid, to hear these applicants testify and perhaps at the end they may embrace these applicants and not oppose their application, but they want to be here to hear the applicants. This was a very important matter at the time, it was one of the political highlights of the day, it has affected their lives substantially. In fact the man in the United States of America was so affected as a survivor that he left South Africa, not animus non revertendi, but just to be away from here.
CHAIRPERSON: What's that in English.
MR DEHAL: Sorry, not without the intention - with the intention of returning.
MR MALAN: May I just ask you, Mr Dehal, this Limton Pahle, how is he related to Hilda?
MR DEHAL: Ms Mohamed represents that client, perhaps she can address on that, sorry.
MR MALAN: You're arguing the case, surely you know.
MR DEHAL: He's the son.
MR MALAN: Is it the son of Mrs Hilda Pahle?
MR DEHAL: ...(inaudible)
MR MALAN: And Mrs Hilda Pahle was duly given notice?
MR DEHAL: Hilda Pahle is late. She had given evidence before the HRV yes, but she died thereafter, so at the time the notice was sent out ...
MR MALAN: So the notice was sent out to her at her address?
MR DEHAL: Yes, arising from which other persons in the family got to know about this notice and availed themselves here.
CHAIRPERSON: They did not inform the person whom you were saying?
MR DEHAL: No.
CHAIRPERSON: Yes Ms Mohamed?
MS MOHAMED ADDRESSES: Thank you, Mr Chairman.
Mr Chairman, must to clarify the position, Hilda Pahle, correctly stated, did give evidence before the Human Rights Violations Committee. She subsequently passed on. TRC did serve notice on her and in an effort to arrange a consultation, our offices contacted her on the telephone number furnished by the TRC. It was then that we were unable to speak to any family member as such, we had to leave a message with our contact details with one of the youngsters and later on a Ms Gaberone Pahle returned our telephone call. She advised that her grandmother, Hilda Pahle is now deceased and on that basis we were obviously not in a position to consult with her.
So after perusing the copies of these documents, I attempted to raise a consultation with Ms Gaberone Pahle on Thursday last week, but given to time constraints it was not possible. I only constructively consulted with her earlier this morning, which is when she placed us with instructions about her uncle Livingstone who is presently in America and she advised that her uncle would be extremely desirous to be present here for the purposes of this hearing, as he is very emotional and was extremely distraught after the incident.
CHAIRPERSON: And when does he plan to be here?
MS MOHAMED: Mr Chairman, I haven't canvassed that obviously with the family, but ...(intervention)
CHAIRPERSON: Why not, Ms Mohamed? Why can't you tell me, why didn't you canvass on when he's going to be here then?
MS MOHAMED: With respect, Mr Chairman, the family advised that if a new date is arranged, then that can be ...(intervention)
CHAIRPERSON: What if we were prepared to adjourn for a day or two to accommodate the presence of this person? Are we in a position to decide that?
MS MOHAMED: Sorry Mr Chairman, the family members have indicated that a week would be sufficient.
CHAIRPERSON: Is it not possible that his family members would listen to the crux of the application, he could then be informed of what the crux of the application is and then he can decide whether he wants to be here or not? I'm not even suggesting it, I'm just asking.
MS MOHAMED: Mr Chairman, I have canvassed this with the family, my instructions are that the time of the incident, there seems to be a case of mistaken identity and it's possible that their other relative, a Mr Joseph Malaza, who was in the house at the time, was mistaken for being Livingstone Pahle and was killed. So given the nature of that incident and the possible misunderstanding that could have been present in the minds of those who raided the home on that night, that Livingstone would in fact want to be here to hear the testimony himself.
MR MALAN: May I just enquire here, do I understand you correctly to say that he was a survivor of the raid simply because of the fact that he wasn't there?
MS MOHAMED: Sorry Honourable Member of the Committee, if I may just clarify the position. In the particular house on that night there were four people and what had happened is, there usually were only three people, that is two males and one female, but on the fateful night in question one of the cousins had come across to the home, so that increased the male count to three and the female count to one and when the attack commenced, the attackers found two males who were then killed and the female obviously was also killed, and they didn't bother searching the rest of the home. This is based on the scant instructions at this stage from family members who were not there and are simply trying to relate what Livingstone had said to them at the time.
So Livingstone who was actually asleep in the other bedroom was in hiding and these people never came in looking for him, because they had assumed that because they found two males, that covered the count for that day. And in fact, from the testimony from Ms Hilda Pahle before the Human Rights Violations Committee, she herself makes that assertion in one of the relevant paragraphs.
MR MALAN: Well that's my next question. Can you refer me to the relevant paragraph?
MS MOHAMED: Certainly. It's on page 22, Mr Malan, of the second bundle, the last paragraph. If I may, the penultimate sentence which reads
"He survived because he was hiding. They killed Joseph, thinking it was Levi."
MR MALAN: So the name Levi refers to Livingstone here?
MS MOHAMED: That is correct.
MR MALAN: Was the TRC Investigators aware of the fact that Levi is Livingstone and that the reference to hiding was indeed hiding in the room there?
MS MOHAMED: With respect, Mr Commissioner, I think it would, because in the pre-findings report she does mention, in the relevant paragraph here - I'm sorry I'm not too familiar with the layout of these documents, but in the relevant part here of the pre-findings report, there is a section which says
"Witnesses"
and in the compilation for Hilda Pahle it says:
"Witnesses name: Mr Pahle Livingstone"
and in the hand-written Human Rights Violations statement which was filled in, she does make mention of his name, as saying:
"Name of witness: Livingstone Pahle. Contact address: New York.
What did this person see or hear?"
She responded:
"He was under the bed, on the spot."
CHAIRPERSON: ... read out the full address as it was given there. "Contact address: New York."
I think New York is slightly bigger than Johannesburg.
MS MOHAMED: Yes, Mr Commissioner, it says
"New York, 12891"
below that.
CHAIRPERSON: Is it impossible that he could attend this hearing with a day's notice? I understand that he has more than a day's notice, but I'm just asking. If he could be here tomorrow or Wednesday.
MS MOHAMED: I see that the family members are indicating, not. Well he may have to make the flight arrangements and alternate arrangements. I'm not too familiar with that, but if the Committee requires me I can stand the matter down for a short while and take instruction in that.
MR MALAN: May I just before we proceed on this, enquire again, do you have any record as to when the notice addressed to Hilda Pahle was served on members of the family?
MS MOHAMED: Mr Commissioner, I am aware that the notice was served, I'll just have to check very quickly in my files.
MR MALAN: The question really relates to how long has the family been in a position, for how long have they known of the hearing and secondly, what did they do about it?
Mr Steenkamp, do you have any information?
ADV STEENKAMP ADDRESSES: Mr Chairman, maybe just before I answer the date, on the 17th of July we were contacted by Mr George Pahle, he's a next-of-kin, he's the son of Mrs Hilda Pahle. Mr George Pahle is working in Pretoria at the Vista University. He gave us ...(indistinct) contact telephone numbers, he actually gave us three contact telephone numbers for where he can be contacted as the son of Mrs Hilda Pahle. Just to get the full picture before you.
Now at the pre-trial, with all due respect to my learned colleague, I specifically asked him, "Are you appearing for all victims?" He said yes, he's appearing for all victims. On that basis he was appointed as a legal representative for all victims. I've confirmed that with the Legal Head of the Amnesty Committee, Adv Prior, today. Furthermore, as was - what happened Mr Chairman, as the information got to our offices, we informed Mr Dehal's office, we informed a person called Brabashne Marie, we informed Mr Dehal personally, we faxed a letter to him giving him the full details ...(intervention)
CHAIRPERSON: Of?
ADV STEENKAMP: Of the Pahle family and the next-of-kin. This morning I raised with Mr Dehal, "Where is Mr George Pahle?" He said to me, "Mr Pahle is available, but because of personal circumstances, other circumstances, not related to the hearing, he's not available to attend the hearing today or during this whole week for that matter." So Mr George Pahle, his name is actually Rose-Innes Pahle, Mr Dehal was informed about that already on the 17th. Because on the pretence - on the understanding and the agreement, Mr Chairman, that the Dehal Incorporated firm of Attorneys will be representing all victims.
Regarding the notices to the Pahle family, Mr Chairman, it's correct what my learned colleague says, that the family was informed. The earliest date I got was, I think it's the 2nd of July, I can confirm it. I'm waiting for a certificate to come back to me, but it was the beginning of July. In any event it was the first notice, I think there were two batches of notices, the first notice was sent out actually before the pre-trial which was on the 29th. So just to deal with Ms Hilda Pahle's, the incident there, I think my learned colleague just maybe forgot to inform the Committee that the one son, the next-of-kin, Mr George Pahle, his name is now Rose-Innes Pahle. He's actually staying in Pretoria, he's working at the Vista University. And that information was relayed to Mr Dehal on the 17th, Mr Chairman.
CHAIRPERSON: The question still remains, when did the victims receive notice?
ADV STEENKAMP: Mr Chairman, the notices were sent out, the specific date, it was the 28th of June, 28/6/2000 all notices were sent out, the whole batch of notices were sent out.
CHAIRPERSON: That indicated that these hearings, including this one, would occur between the 24th - sorry, what dates were on that ...?
ADV STEENKAMP: Mr Chairman, my colleague is correct, it was actually stated the 24th till the 11th of August, because there was initial scheduling, then it was re-scheduled again.
CHAIRPERSON: Okay. Now there was a second notice that went out?
ADV STEENKAMP: Yes, Mr Chairman, not only that but ...(intervention)
CHAIRPERSON: ...(indistinct - no microphone)
ADV STEENKAMP: The second batch, Mr Chairman, was sent out just to indicate the new dates which was also communicated to Mr Dehal, Mr Chairman, I think that was the one that was sent out on the 28th - sorry, I mean the 3rd of July already. That's on confirmation, but it must be the day or the day just close to the 3rd. I don't ...(intervention)
CHAIRPERSON: Indicating what?
ADV STEENKAMP: Mr Chairman, that the hearing will be, or is then scheduled for the 31st till the 4th of July. I can only just add, Mr Chairman ...(intervention)
CHAIRPERSON: Now did such a notice go out to the Dutch?
ADV STEENKAMP: Mr Chairman, nowhere in the bundle, nowhere, and my colleague can help me, nowhere is there any reference that these people who were staying at the time in Botswana, were Dutch nationals at all, they were just Dutch people. Similar to the Somalian person. We've cleared this with the Legal Head of the Amnesty Committee and he said to me, and I've checked the whole record, including - although there is a reference by the Dutch Embassy in one of the newspaper clippings about a Dutch woman, there's no reference that the people at the time who were staying in Botswana were Dutch nationals, Mr Chairman.
CHAIRPERSON: Are you saying that the TRC officials did not know that these people are presently in Holland?
ADV STEENKAMP: That's correct, Mr Chairman. As we speak though, I've instructed people to send out notices to the Somalian and the Dutch Embassy, but at the time there was no indication that these people were Dutch nationals, Mr Chairman, they were in Botswana. Similar to the other Botswana people staying there, we don't know if those people were Botswana nationals, but we did send out a notice to the Botswana Embassy. But also on that ...(indistinct) I can maybe just add, Mr Chairman, that over and above that I've been informed by the Legal Head of the Amnesty Committee that Mr Dehal was in contact with all the Embassies, as well as Amnesty International themselves, about further particulars and information about this specific incident.
Furthermore, we were also involved in getting information from the ANC Co-ordinating Desk in Johannesburg, asking them specifically for more details about victims. A specific letter was then also drafted and sent to Mr Brain Koopedi, who is normally, out of course and practice, the person to deal with, just again to do that. They couldn't supply us with any information of the victims.
CHAIRPERSON: And the person in the USA?
ADV STEENKAMP: No, Mr Chairman, a notice was not sent out to the person in the USA, he's part and parcel of the Pahle family and we take it as Mr Dehal is appearing for the Pahle family and to the best of our abilities we have sent him all the information in our possession, as well as to the family and even the contact numbers. And as we understood, he was the legal representative, we would rather send it to his offices, as was the practice previously, Mr Chairman.
We were only notified, just for your record, on Friday apparently, I haven't seen the list, I'm waiting for the list, but on Friday Mr Dehal forwarded a further list of victims, an additional list of victims to Adv Prior. On Friday. I've discussed that list with Mr Prior, Mr Prior indicated to me that some of those victims are family members of the same victims, I mean more victims of the same family member group. That was only done on Friday.
I was also brought under the understanding that by Friday, because of legal protocols, Adv Prior informed me that this matter will proceed. I can just for the record and in all fairness to Mr Wagener, he asked me at least three times on Thursday and Friday, whether or not this matter will proceed. I informed him, I think on Friday, saying that to the best of my ability and to the best of my knowledge this matter will proceed, although there may be a position where there will be a postponement granted, but because of the information I got, this matter will proceed.
Furthermore, Mr Chairman, just for the record, we discussed this matter, whether or not notices would be published in newspapers, but there are difficulties there, in which newspaper and when and for what time period? We've gone, after the first bundle was prepared, we've gone and searched for more information regarding this incident, that's why the second bundle was prepared. And I must actually say that after I discussed it with Mr Wagener and ...(indistinct) referring me to the State Security Council, I've checked the documentation again. I can just say that is when we discovered further submissions by Mr Pik Botha, so the second bundle was prepared again after our further research in this matter.
All the implicated people, just for the record, Mr Chairman, I've got Return of Service. I've got a further note by Mr Pik Botha in my possession. Gen Viljoen's personal Secretary, Mr Peter Daniel Uys was informed about this hearing. Mr Craig Williamson, his lawyers Allan Levin were informed, they're not appearing, as well as the attorney for Mr Malan, Ernest Magnus Malan, as well as Mr PW Botha. Mr Ernest JV Penzhorn came back to us saying that none of his clients would be appearing at this hearing. Those were the implicated people.
I received an additional statement this, not this morning, about half an hour ago from a person called Mr Karel Sebastian Steyn who is an implicated person, which I haven't had time to communicate to you. Thanks. I'm sorry for the long story, Mr Chairman, but that's what was done.
CHAIRPERSON: Can you give me the names of the people you represent.
MR DEHAL: Mr Chairman, there are 32 names.
CHAIRPERSON: Well the sooner you comply with my request, the quicker we're going to get done with it.
MR DEHAL: I was just hoping to hand over copies, 'cause ...(indistinct) don't have copies, than reading them out.
CHAIRPERSON: ...(indistinct - no microphone) some of them may be legitimately upset, so I want to get to the bottom of this.
MR DEHAL: I agree, thank you.
1. Strike Machobane.
CHAIRPERSON: Could you spell that.
MR DEHAL: Strike, S-t-r-i-k-e M-a-c-h-o-b-a-n-e, Machobane.
2. The family of Peter Mofoka, M-o-f-o-k-a. Peter Mofoka.
3. Emma, E-m-m-a Mtsweni, M-t-s-w-e-n-i.
4. Tandi Mtsweni, M-t-s-w-e-n-i.
5. Gideon Mtsweni.
6. Busisiwe, B-u-s-i-s-i-w-e.
CHAIRPERSON: The Olympics is taking place in Australia, not here.
MR DEHAL: I apologise. Sorry I was at Gideon Mtsweni.
CHAIRPERSON: Yes.
MR DEHAL
Busisiwe, B-u-s-i-s-i-w-e Mokoena, M-o-k-o-e-n-a.
7. Elina, E-l-i-n-a Mtsweni, M-t-s-w-e-n-i.
8. The wife of Bazil Zondi, Z-o-n-d-i.
CHAIRPERSON: ...(inaudible)
MR DEHAL: Sorry, Judge.
CHAIRPERSON: What is her name?
MR DEHAL: We don't have that. We've elicited this from the bundle, as a person who is implicated. If you look at ...(intervention)
CHAIRPERSON: Mr Dehal, I want to know who you're representing, not names that you just found in the bundle.
MR DEHAL: Oh sorry, I apologise, Judge, I thought you meant persons - if you mean persons whom we've consulted with directly, no.
CHAIRPERSON: Well I would assume you can't represent somebody with whom you've not consulted.
MR DEHAL: I agree Judge, but there's been so much thrown around here about the TRC having appointed me to represent all the victims and all of that ...(intervention)
CHAIRPERSON: Who are you representing at the moment?
MR DEHAL: Thank you, Judge. There would be the name I've given you already
1. Strike Machobane, S-t-r-i-k-e M-a-c-h-o-b-a-n-e.
2. Rose, R-o-s-e Machobane, the surname as before.
3. Sarah, S-a-r-a-h Mnyele, M-n-y-e-l-e.
4. Busisiwe, B-u-s-i-s-w-e Mokoena, M-o-k-o-e-n-a.
5. Emma Mtsweni.
6. Tandi Pauline Mtsweni.
7. Gideon Mtsweni.
8. Gaberone Pahle.
9. Mr Gregory Coombes.
and just one other name:
10. Esther Mthembu.
Judge, may I just say that on this last name, Gregory Coombes, Mr Coombes is present here, he's the gentleman seated behind me. He is the white gentleman who was a very good friend of the deceased in this matter, Mr Frank Hamlyn.
CHAIRPERSON: How do you spell that?
MR DEHAL: Hamlyn, H-a-m-l-y-n.
MR MALAN: Mr Dehal, sorry, if he's a friend, in which way is he a victim?
MR DEHAL: Well that's the problem and that's what I was about to address. Sorry.
MR MALAN: You were asked to give us the name of the victims that you represent, but please tell us.
MR DEHAL: You see if you look at bundle 1, in bundle 1 you've got a list of victims and if I take you to the list of victims you'll see Victim number 2 is cited as Michael Frank Hamlyn, the deceased, his next-of-kin is cited as Gregory Coombes, the man I deal with, as a friend and the father's name is also beneath that with an address and the brother of the deceased.
Now the problem here is that the direct family of the deceased have not been given notice, they would be desirous of being here. Mr Coombes who is present, unfortunately does not know where the family is, but Mr Coombes says that the family would very much like to be here. And it's a white family that take issue with the fact that their son who was regarded incorrectly as a ANC activist, was killed at this place and they would like to be here to hear the evidence in that regard.
CHAIRPERSON: How does Mr Coombes know that if he's unable to tell us where to find the family?
MR DEHAL: You see this matter, Judge, has a long history unfortunately. There was evidence before the HRV, at that stage the family were in touch with Mr Coombes. If you look at the second bundle you'll find that the Hamlyn family had gone to the press and made press statements about how they take issue at the level that I've just addressed. And this family had also written to the TRC on numerous occasions expressing their views and also wanting the TRC to keep them abreast of what's happening. We then wrote to the TRC and indicated that there was communication with this family and the TRC, Mr Steenkamp indicated to me that he's looked and he could not trace any such communication. And again this is one of those families that would like to be here, but has not had notice.
CHAIRPERSON: Where do you get that information from then, Mr Dehal?
MR DEHAL: From Mr Coombes who is behind me, Sir.
CHAIRPERSON: Before we carry on with that, while we're talking I'll think about this issue, Mr Strike Machobane and Rose Machobane, what's their relationship?
MR DEHAL: Sorry Judge, I'm not side-stepping the issue, it's just that Fatima dealt with this, sorry, Ms Mohamed.
MS MOHAMED: Thank you, Mr Chairman, I'll just place you in perspective. Rose Machobane was the wife of one of the deceased in this matter, Themba Duke Machobane and Rose was in the house at the time of the raid and Strike Machobane is the brother of the deceased, Duke Machobane.
CHAIRPERSON: Would you agree, both can't be victims in terms of the definition of "victim" in the Act? At the end of the matter, if we are satisfied that certain requirements have been complied with, we must declare victims to be dealt with by the Reparations Committee, it cannot be both of them. Are you aware of that?
MR DEHAL: I agree with you, Judge, I just wanted to give a full picture of people we consulted with. In giving those names. Judge, Ms Mohamed wants to deal with the more burning issue of a six-year old boy who was involved in this and also had no notice.
CHAIRPERSON: She will get a chance, I'm dealing with you. Your clients are the two Machobanes, Mnyele, Mokoena, three Mtswenis, Pahle, Coombes, Mthembu. Now is it correct that Strike Machobane was a brother of the deceased and Rose was the wife of the deceased and also a victim in the sense that she was inside the house during the incident?
MR DEHAL: Correct.
CHAIRPERSON: Sarah Mnyele, how does she ...
MR DEHAL: She's the mother of the deceased, Thami Mnyele, who is cited as the first deceased in your list of victims, number on, right on the top. And if you see alongside that you've got the name, Sarah Mnyele, beneath that "mother".
CHAIRPERSON: Mokoena?
MR DEHAL: Judge, Mokoena is dealt with as victim 12 on those lists of victims.
MR MALAN: Mr Dehal, that's the grandchild of one of the Mtsweni deceased.
MR DEHAL: Yes, but she was injured in the incident and shot at.
CHAIRPERSON: Emma?
MR DEHAL: I didn't get that name, Judge.
CHAIRPERSON: Emma.
MR DEHAL: Emma is the name alongside victim number 11, you'll see she's the wife of Dick Mtsweni.
CHAIRPERSON: Tandi?
MR DEHAL: Judge, she is the daughter of Dick Mtsweni. Again number 11.
CHAIRPERSON: Gideon?
MR DEHAL: Judge, Gideon is the grandchild of this deceased, Dick Mtsweni, enumerated 11 on the list.
CHAIRPERSON: Is that the only basis upon which you are saying that Gideon is a victim?
MR DEHAL: In addition, he was in Botswana at the time.
CHAIRPERSON: Was he attacked? Look, Busisiwe is a victim of that attack in her own right aside from being the grandchild of the Dick, right? Is Gideon in a similar position, or are you saying he's a victim merely because he's the grandchild and lost the love and affection of his grandfather?
MR DEHAL: Judge, he was not attacked in the raid, he lived in the same area and he says however that he was constantly harassed by Security Force members.
CHAIRPERSON: Mr Dehal, you know in what context we're talking, is he a victim of this incident? That's all I'm asking.
MR DEHAL: No, not at the level you put it, no.
CHAIRPERSON: Gaberone?
MR DEHAL: Judge her father was killed, Cecil John Pahle, number 3 on your list of victims. The name Hilda Pahle alongside that is the mother who is now deceased.
CHAIRPERSON: You've already explained Mr Coombes. Esther?
MR DEHAL: Judge, she relates to victim number 5, Joseph Malaza. She's the mother of Joseph Malaza who was killed.
CHAIRPERSON: ...(inaudible) Are you saying Esther Mthembu was the mother of the deceased, Joseph Malaza?
MR DEHAL: Yes, Judge, the instructions we have is that Esther is the mother of Joseph Malaza and that the name you have there, Momoketi Lydia Malaza is in fact the mother of Lindiwe Pahle, the one above that, number 4.
CHAIRPERSON: Is Lydia here?
MR DEHAL: No, Judge. And Lydia has not been given notice either.
CHAIRPERSON: Ms Mohamed, have you got a list of the people you represent?
MR DEHAL: Judge, that's the lot between Ms Mohamed and I. But I think Ms Mohamed wants to address you on a few other persons of note who have not received notice.
MS MOHAMED ADDRESSES: Thank you, Mr Chairman. In keeping with the fact that we obviously cannot represent a family who hasn't given us the mandate to represent them, as an aside I want to address you on the family of Peter Mofoka who was a six-year old boy that was in the Machobane house at the time of the incident. Peter is actually the nephew of Rose Machobane, who is presently one of the victims that we are representing, on record.
Peter was, as you recall, a six-year old boy who was killed in this incident. I am instructed that his family is in Lesotho and notice has not been furnished to his family. The reason that I'm bringing this up now at this late stage is, Rose Machobane has only recently contacted us in the sense, with proper instructions on this aspect, and this was earlier this morning. I understand, given the detailed discussions that we've had since this hearing has resumed, that we haven't per se been instructed by the Mofoka family, but just as an aside for notices that ought to have gone out.
CHAIRPERSON: To whom was notice supposed to go out in that case?
MS MOHAMED: With respect, Mr Chairman, to the family of Peter Mofoka. I understand his mother's name is Cecilia Mofoka and she's presently living in Lesotho.
CHAIRPERSON: You've got no other details?
MS MOHAMED: Mr Chairman, I do have a contact phone number which Rose has given me, it relates to one of the relatives that they usually contact in order to contact this particular family, but apart from that I can't take it any further.
CHAIRPERSON: So what are you asking now?
MR DEHAL: Judge, given that difficulty I am, on instructions from victims and family who are present here before this forum, to inform this Panel that they would like all the interested parties to be collectively present before the matter proceeds.
CHAIRPERSON: Are you in a position to explain to us why they did not inform those who they could inform to be here? In other words, why are they calling on the letter of the law?
MR DEHAL: Judge, I'm not in a position fully to advise you on that or to answer to that, I must say in their favour though, when we contacted one of the persons who received notice, we advised that person to call on as many people as they could who were involved in this raid, to talk with us. We managed to talk to eight people and only two of those had received notices. So they have in fact endeavoured to raise as many people as they could. And as originally submitted, these are not people of much means and I don't think they really have the means to make long distance phone calls and to be travelling about.
MR MALAN: Can you just for the record, tell us which of the two people that you represent, received notices?
MR DEHAL: Yes, there were two, Adelaide Morare and Emma Mtsweni.
MR MALAN: Well are you representing Adelaide Morare? You didn't give that name to us so I didn't write it down.
MR DEHAL: Sorry Judge, Fatima Mohamed just tells me now the reason she didn't give that name is, or we didn't give the name is that she's a sister in the family, in the Machobane family and these others who are identified as victims. So she's just one of the parties who received notice that we talked to.
MR MALAN: Did the mother not get notice? Rose.
MR DEHAL: Yes, sorry, certainly she did not get notice.
MR MALAN: Or the wife?
MR DEHAL: She did not.
MR MALAN: Yes.
MR DEHAL: In fact, it would be correct to say that as Ms Mohamed and I sit here with all these parties present, only two of them have received notices.
CHAIRPERSON: Are you aware of the notice that went out on the 3rd of July?
MR DEHAL: Judge, no I've really been looking at my file very quickly as Mr Steenkamp was addressing and I found a notice that's dated the 20th of July and that's the only notice that I have a copy of. I can't see how that would have been sent before the 3rd of July.
CHAIRPERSON: What's it dated?
MR DEHAL: Forgive me, my apologies. It's dated 20th of June 2000. That's the only notice that I have.
CHAIRPERSON: Did you not get a notice indicating that this specific hearing was set down for today?
MR DEHAL: Yes, certainly and Judge, as I earlier said, against myself, I was present at the pre-trial hearing and made myself available for this hearing.
CHAIRPERSON: ... any of your clients get notice, that particular notice?
MR DEHAL: No, certainly not.
CHAIRPERSON: Mr Steenkamp?
ADV STEENKAMP: Mr Chairman, my learned colleague is actually correct, it's the 20th of June, that was the second notice that was sent out. I don't want to stress the point, but we were ...(intervention)
MR MALAN: The first.
CHAIRPERSON: The first, ja. No, the first one I've got here I see was signed - well the response was to be before the 8th of July.
Mr Chairman, the difficulty we're sitting here - it's maybe not the right place to bring it up, but I was also informed that there was another reason why this matter - there will be, initially, be an application for postponement ...(intervention)
CHAIRPERSON: I'm asking you a question about dates, I'm not asking you about other ...(intervention)
ADV STEENKAMP: Sorry Mr Chairman, I was looking at the documents. The documents I have before me, Mr Chairman, like I said, I could have been wrong, it was signed on the 20th of June, normally it goes out within five working days from that.
MR MALAN: Mr Steenkamp, you're supposed to get a Return of Service.
ADV STEENKAMP: Mr Chairman, I don't have the Return of Service, I only have a memo from the Analyst saying that these documents were actually sent out. Not only were they sent out, but they were also sent out to the legal representatives.
MR MALAN: How were they sent out, Mr Steenkamp, by mail?
ADV STEENKAMP: They were sent out by mail, ja. Some of them I see were sent out to the Witness Protector, to assist us in notifying them and I've asked this morning whether or not, actually this weekend, whether or not I could get some Return of Services and they couldn't supply me yet with all the Return of Services from Cape Town.
CHAIRPERSON: And Mr Dehal, from the date of that pre-hearing conference till now, your office were only able to consult with these people that you mentioned today?
MR DEHAL: That is correct.
CHAIRPERSON: What about the ...(indistinct) victims, where there are addresses etcetera, furnished in this bundle?
MR DEHAL: Judge, we've not managed to raise them. That I do know. Ms Mohamed and the lady Mr Steenkamp referred to, Ms Marie, have been working day in and day out over those weeks since the pre-trial conference in our dire endeavours to try and raise them, but in vain.
CHAIRPERSON: ...(indistinct) representatives, I'm terribly sorry, we're going to have to adjourn for about twenty minutes just to see how we're going to deal with it. I know it's not your fault this happened.
COMMITTEE ADJOURNS
ON RESUMPTION
CHAIRPERSON: At the outset I want to apologise to the applicants and their respective representatives, for what amounts to having wasted your time today, but as you may have witnessed, this is beyond our control. I'm going to postpone this matter until tomorrow. I want to see evidence of what was done by the TRC to identify and inform victims that the matter is either starting or, the hearing is going to take place between the 24th and the 11th of August, or preferably starting today and ending on the 4th. In particular, I want to see that kind of evidence relating to all these known victims here, as set out in the bundle.
I want to address the people who feel aggrieved by the events of the 14th of June 1985, in whichever way. I want to point out to you that not all of you may be regarded as victims at the end of the hearing, but that is something we'll have to hear evidence on. We have in our possession, written applications by all of these applicants, setting out briefly the facts upon which they based their application. All of them make application for amnesty in respect of the events that took place on the 14th of June 1985 in Botswana that day.
They say in their written application, at that time they were not entitled to proceed across the borders of the country to perform any acts of aggression. That was by law, rightly or wrongly, the domain of the Military at the time. However, all of them were in possession of information about people and properties and addresses located in Botswana, which they passed on upon request of the Military, and upon which the Military seemed to have acted, resulting in this attack. So none of them, according to the applications that we received, were the actual perpetrators of what occurred that day. It is more likely that it was members of the Military, who to my knowledge have not made application for amnesty in respect of this matter.
I want you people to go away from here today and discuss amongst yourselves whether the applicants in the position that I've just described to you, are likely to give evidence with which you are able to disagree. It may that had the perpetrators made application, that you could have been in the position to dispute what they were telling us. In other words, I'm asking you to consider whether it's worth insisting on the letter of the law as far as being notified of this hearing is in the circumstances that I've just described to you.
You've heard me ask the representative of the TRC that I want to see the evidence relating to who was informed and who was identified as a victim and how those people were informed, or what attempts were made to inform them, and based on that we will decide tomorrow what to do. Hopefully that you would have thought about it given the information that I now tell you, and take a practical decision, whichever it may be. Let us do that, you instruct your attorney thereafter what to do and we'll decide tomorrow at 9 o'clock whether to proceed or not.
Mr Steenkamp, are the instructions understood?
ADV STEENKAMP: Understood, Mr Chairman.
CHAIRPERSON: We'll then adjourn till nine thirty tomorrow morning.
MR VISSER: Chairperson, just before you rise, may I just bring something to your attention? We have heard reference by my learned friend made to documents which we don't seem to have, pre-hearing ...(intervention)
CHAIRPERSON: Which colleague are you talking about?
MR VISSER: Mr Dehal. ... pre-hearing findings and lists of victims which we haven't seen, Chairperson.
CHAIRPERSON: ...(indistinct) what he's talking about. Are you wanting a list of that?
MR VISSER: We would like to see what documents are in possession of other parties that we haven't seen.
MR MALAN: Those are hard copies of database information. The HRV Committee's findings on whether people were victims or not, as they were - this is for the purposes of reparation.
MR VISSER: Thank you, Chairperson, but we'd like to see it anyway.
CHAIRPERSON: Mr Dehal, can you oblige on that?
MR DEHAL: Judge, I think it's fair, I think the request is fair, unfortunately I got these copies from the TRC offices, so I have my only copies. I think Mr Steenkamp could help us there.
CHAIRPERSON: Is it not possible to make copies of it?
MR DEHAL: I have no difficulties, my only problem is Ms Mohamed's copies has notes about it and mine as well, so if you want me to begin to obliterate those, I can do that tonight and make the copies tomorrow.
CHAIRPERSON: Is it all that problematic to disclose your notes?
MR DEHAL: I'm not too sure, Judge, I'm not making it a problem, I'm just saying we can go through them. I have no difficulty in making them available for them to be photocopied.
CHAIRPERSON: One would have thought in this type of inquiry, tactics would be the last thing to adopt.
MR DEHAL: It's not a tactic Judge, with respect.
CHAIRPERSON: It is based on openness, so that ... you know.
MR DEHAL: Yes.
CHAIRPERSON: Perhaps it would be a good idea for Mr Visser to see your notes, so that he'd know what your opposition is.
MR VISSER: My learned friend hasn't declared himself to oppose yet, Chairperson.
CHAIRPERSON: But Mr Steenkamp, could you help to facilitate this business?
ADV STEENKAMP: Mr Chairman, I doubt before tomorrow morning 9 o'clock. I don't know what documents my colleague is talking about, I see he's got a huge bundle of documents. I'm not quite sure to which documents he's referring, but if we can get them - apparently they can be down-loaded, but we can discuss it. I doubt if I can get it before ...(intervention)
CHAIRPERSON: Look, before you discuss it amongst you guys, I've got experience about such discussions, I'm saying that I don't want to come here tomorrow half past nine and if we decide to proceed, that I'm told that Mr Visser hasn't had a chance to read those documents. Please, I'm becoming old hat at this business now. So let's see that he gets it tonight, so that he can have some bedtime reading.
We're adjourned.
COMMITTEE ADJOURNS
