This resource is hosted by the Nelson Mandela Foundation, but was compiled and authored by Padraig O’Malley. It is the product of almost two decades of research and includes analyses, chronologies, historical documents, and interviews from the apartheid and post-apartheid eras.
Name: Janusz Walus, Clive Derby-Lewis
23-06-1997: Day 1
Held At: Benoni
CHAIRMAN: Yes Mr Mpshe.
MR MPSHE: Mr Chairman we are on, if I may call it, matter no.2 now Mr Chairman, and I want to believe I am in the good hands of Advocate Bizos in this regard, to move the Committee.
CHAIRMAN: Before Counsel commence in this matter a member of my Committee wishes to make a statement.
ADV DE JAGER: During 1990 I made a statement at the Police to investigate certain statements by the late Mr Hani with regard to legal actions. These statements were made after the unbanning of the South African Communist Party. My actions created the perception that I might not be able to act impartially in the current application. It is of the greatest importance that the activities of the Amnesty Committee would not only be wholly impartial, but that it should also be perceived to be entirely impartial by the public at large. The Committee must at all times act with integrity and impartiality and it should be perceived by the public to be such.
In view of the preceding I consider it my responsibility to recuse myself from this hearing.
During 1990 I laid a charge with the Police to investigate certain remarks of the late Mr Hani. This was after the unbanning of the South African Communist Party. This led to the perception that I wouldn't be in a position to make an unbiased decision in the present application. It is of the utmost importance that the Amnesty Committee should not only act with absolute impartiality but that it should also be seen by all South Africans as a Committee acting with integrity and impartiality. I therefore think it is my duty to recuse myself from the sitting in this Committee who deals with the present application.
ADVOCATE DE JAGER LEAVES THE COMMITTEE
CHAIRMAN: This application will now be heard by the Committee comprising of the Chairman, Judge Wilson on my right, Judge Ngoepe on my left and Ms Khampepe on the right of Judge Wilson. We are about to deal with the application of Mr Janus Walus and Mr Clive Derby Lewis for amnesty.
We have been told that before we get into the merits of the application that there is a preliminary application and I am going to invite Counsel to proceed with that aspect of the matter.
Mr Bizos I understand you appear for ...(intervention)
ADV BIZOS: Yes thank you Mr Chairperson, Members of the Amnesty Committee. I appear for Mrs Hani and the South African Communist Party together with my learned friend Mr G M Malindi sitting on my right, instructed by Mrs Caroline Nicholls of Nicholls & Partners, in order to oppose the application for the granting of amnesty Mr Chairperson.
ADV PRINSLOO: Mr Chairman I appear on behalf of Mr Clive Derby-Lewis.
ADV VAN DER WALDT: Mr Chairman I appear on behalf of Mr Janus Walus on the instructions of my attorney Mr Jan Lubbe on my left. I am Louisa van der Waldt.
ADV PRINSLOO: My name is Harry Prinsloo Mr Chair.
CHAIRMAN: Mr Bizos.
ADV BIZOS ADDRESSES THE COMMITTEE : We have an application to make to the Committee Mr Chairperson for a postponement. You are no doubt in receipt of an affidavit filed by us setting out the reasons and a lengthier document from the applicants' representatives headed "Heads of Argument", indicating that they will oppose that application.
Before proceeding with the application and as a necessary preliminary step, in view of what the applicants say in what they call Heads of Argument suggesting that we are really seeking time to no good purpose, I consider it our duty to put before the Committee what it is that we intend trying to prove before you in order that you may more reasonably assess what they say and weigh it against what we have to say as to why this postponement is required by us.
First of all there are no pleadings in this case and therefore it will be necessary for us to indicate to you what we believe the main issues are going to be in order to motivate the application for a postponement.
There are four main grounds which we want to inform you, Mr Chairperson and members of the Committee, on the basis on which you will be asked to refuse this application.
The first is that the applicants did not make full disclosure either at the trial where they were convicted, or in their amnesty applications, more particularly in relation to the role played by others, and more particularly Mrs Derby-Lewis. We will show that her evidence at that trial was false, and that the instructions given by the applicants to their Counsel to put questions to her were based on an untruthful version.
The second ground is that they did not act on behalf of or on the order of any known political organisation. And that we will show by the production of documents, if need be oral evidence, that they falsely allege that they acted on behalf of the Conservative Party. Indeed evidence will be led that the leaders of the Conservative Party distanced themselves from the killing perpetrated by the two applicants.
The third ground is that their admitted motive was to create chaos. This makes, we will submit, having regard to what happened, and having regard to the efforts that the leadership of the ANC, the South African Communist Party, COSATU, and many other men and women of good will, from preventing the chaos that came about as the result of the assassination of the late Chris Hani. And for someone to kill a leader of an organisation who was at the time actively engaged in the reconciliation process in order to bring about a democratic election and a democratic South Africa is completely disproportionate to the objective which they wanted to achieve.
In their most recent amendment they introduce another ground, no doubt picked up, we will submit eventually, from other applications that it was in order to kill military targets. So the introduction, we submit, that the late Chris Hani was a military target and that is why they chose to assassinate him, is false, partially because the assassination took place after the suspension of the armed struggle and during the period of negotiations that were well-advanced at that time.
Those are the issues which we believe will be the main issues and other subsidiary reasons as to why amnesty should not be granted.
Mr Chairperson and members of the Committee, the documents put by the applicants before you consist, in the main, from cuttings from Die Patriot and the letters of one Ada Parker. There is evidence in the documents themselves and evidence will have to be led, that this is a circular position that the wife of the first applicant, Mr Derby-Lewis, was in fact the author of many of the articles that have been put before the Committee and this attempt to pull oneself up by one's own shoestrings is hardly admissible, but evidence will have to be led in relation to what the correct position was.
Now I want to turn to the affidavit that we have filed in support of the application for a postponement. In paragraph 3 Mrs Caroline Nicholls says,
"I have been instructed by Mrs Hani to apply for a postponement as she has to go to the United States for personal reasons and will be unavailable for the hearing".
There are, however, further reasons.
Let me deal with this reason. Much is made in the applicants' heads of argument that Mrs Hani does not give details of what her personal reasons are. Mrs Hani is leaving for the United States this evening. She is in the auditorium. I would strongly urge the Committee, because there are so many cogent grounds why a postponement is to be granted, that Mrs Hani should not have to explain publicly the reason, the personal reason for which she has to go to America where her daughter is. Her husband's murder plays heavily on her and her children and her attitude to the applicants and indeed this process, is, with respect, somewhat ambivalent. It's a great mental shock for her. She is the head of the Parliamentary Committee in relation to Prisons and the Committee was invited to America to go in April of this year. For reasons that she, or anyone else could not foresee, that meeting or that trip for the purposes of gaining information for the purposes of the legislature, was postponed in April to this time. She is booked to leave this evening. Her daughter is anxiously awaiting her arrival in the United States.
The question may well be, well she doesn't have to be present, which is an attitude taken by the applicants. It may be that if this was a claim for a paltry sum of money or some other civil case nobody could say that she is entitled as of right to a postponement, but where human emotions are involved, admittedly brought about by the two applicants, one would have expected a little more generosity in their so-called heads of argument, in relation to the position of Mrs Hani. We will leave that aspect there Mr Chairperson.
JUDGE WILSON: You know that she wrote a letter to us giving her reasons for wanting an adjournment?
ADV BIZOS: We are not unmindful of that letter Judge Wilson. We have taken the matter up with her. What we are asking you to do is that this is a very difficult part of Mrs Hani's life, she is torn with conflict and inner conflict and it may be that the letter is unfortunate but I would submit it should not weigh too heavily on the Committee as to whether or not a postponement should be granted. If we were dealing only with her personal reasons it may well have been a different matter, but we submit that there are cogent reasons. In fact you will see, Judge Wilson, that on top of page 2 Mrs Nicholls says that it was agreed, more than three months ago that this would be the date.
But if we go on with the further reasons Mr Chairperson. We in fact, and I don't want to read the affidavit out, we in fact only got a substantial portion of the documentation two weeks ago, and we had to go to the Johannesburg International Airport in order to get it. Whoever's fault it may have been that is a common cause fact.
Also we note that these voluminous documents from Ada Parker and Mrs Lewis in Die Patriot were obviously burdensome to members of the Committee and the Committee asked by letter would they please indicate which portions of these documents are they relying on. Apparently the Commission was favoured by highlighting a number of these documents. We were not favoured by this.
Indeed in truth and in fact we have some 230 pages of -in the amnesty application, which we only got two weeks ago and which we could try and sift out during the long weekend, from the 14th to the 16th, those new documents.
Those new documents introduce a new ground, the one that I indicated as number four, that is that Mr Hani was a military target and this is why he was shot. That inquiry will require viva voce evidence and documentation in order to show that there was no war on at that stage, he was not a military target. We will have to produce documentation and evidence that he in fact had relinquished his role when he took over the position of general secretary of the South African Communist Party.
There is some argument about the number of pages that were actually served. Matters are not decided by the number of pages, with respect, or the weight of paper, but rather by the contents. If this case were to be decided on the basis of the applicants, that we only have to look at Ada Parker's letters and Die Patriot, then of course not much research would have been necessary. But, as a result of their putting up a case that they acted on behalf of the Conservative Party, to collect some of the documents is not very difficult, but to interview persons who made public statements dissociating themselves from the applicants' acts, in the highest positions of the Conservative Party, is a matter which requires preparation and consideration.
Furthermore, we submit that this is a matter, and I did make an offer to counsel for the applicants before we came here, I think it was Wednesday of last week, we should actually have a meeting, such as a pre-trial meeting, this not being a trial we could call it a pre-hearing meeting, in which irrelevant documents are removed from the files and let me say, that it isn't only the Ada Parker and Die Patriot, the applicants have sought to burden the Committee with literature relating to perceptions of Marxism and character assassination of the late Mr Hani, which we submit that on a proper appreciation of the main issues in this case do not have to burden the record that you have to consider. We ourselves, mindful of what our submission is, will try and avoid personal references to the background ...(tape ends) ....I have given notice of what the main issues are likely to be from our perspective of the case.
Having regard to what I have indicated we have already taken up the better, if not the whole part of today, to do this case on a piecemeal basis is going to be wasteful and we will not be able to do justice to the case. Cases are best decided where there is a continuity in the proceedings, where we muster all the information that we have to put to the applicants right at the outset rather than later when it becomes available so that there are no adjournments and not recalling of witnesses.
Therefore I would submit that the proper course to adopt for the Committee at this stage is to grant a postponement to a date suitable to the Committee and because we, as counsel, have already been involved in the matter and the parties no doubt have spent some expense in order to retainers and preparatory work has been done, we ask that both sides should be considered as to when they are available and that the matter should be postponed, preferably to a period of more than five days. It may be that there are other applications which can possibly be postponed to subsequent days on an ad hoc basis, not those of long duration, which may not make it necessary for the Committee to waste the days that may not be taken up. But we submit that from our view of the case that at least 10 hearing days will be necessary for the proper adjudication of this case.
Thank you Mr Chairperson, Members of the Committee.
JUDGE NGOEPE: Can I ask you with regard to - you mentioned that it has become necessary for you to consult with people of some authority within the Conservative Party, but I thought that as early as in March this year when the application was served or thereabouts, already there was some indication that the applicants are leaning on to the Conservative Party.
ADV BIZOS: With respect Judge you are correct that there was a hint of it. In the new documents it became firmer, as I believe with respect to my learned friends or the applicants, that it became clear to them that a mere suggestion may not be enough. Now they are telling us that they were acting on behalf of the Conservative Party.
JUDGE WILSON: What new documents are you talking about Mr Bizos? Is it part of the application, the amendment to the application?
ADV BIZOS: From page 49 to 186 ...(intervention)
JUDGE WILSON: Oh those documents, not a replacement of the original documents?
ADV BIZOS: The Addendum C, 41 pages of the court record, making it a total of 210 pages, and I may say that page 33 has alphabetical sub-numbers behind it which gives us another 33 pages and those we got approximately two weeks ago.
MS KHAMPEPE: Mr Bizos you obviously are aware that the applicants are contending that the new documents that you are referring to are not that elaborate and that in fact certain paragraphs of these pages need not be read, and if they are read they are all marked in green, they have been highlighted for you, and this can be done within two hours, that is the applicants' contention.
ADV BIZOS: Documents are either relevant or they are not. The time that it takes you to read it isn't the time required for proper consideration, and isn't the time required for the purposes of getting documents or witnesses in order to contradict them or explain them or controvert them in some other way. So that for the applicants to say that it will only take you a couple of hours to read it, those of us who have some experience in practice know that that's the easiest part of the work.
The other is that there are things there which are not relevant and those which are relevant are highlighted. We don't have that, we never had it and no explanation has been given to us as to why, if there were 200 odd pages filed, why we only had to look at highlighted passages which were not highlighted for us.
MS KHAMPEPE: Mr Bizos are you therefore saying that even if it were possible to read the highlighted portions of these documents you would not be able to comprehend the context in which the highlighted statements have been made without reading, without having to read the whole material?
ADV BIZOS: Thank you and with respect, one knows that whenever your opponent produces a document and highlights one portion it is your absolute duty to look at the rest ...(general laughter and clapping) - just in case that therein lies the truth.
JUDGE NGOEPE: Mr Bizos you see I picked up somewhere, that that may be factually correct or not, but I picked up somewhere in the applicants' papers that the really new pages that have recently been introduced only about two weeks ago were about 66 pages, only 66 pages, 62 ...(intervention)
ADV BIZOS: It's incorrect.
JUDGE NGOEPE: Is that incorrect?
ADV BIZOS: It's incorrect. First of all if you look at 120 then you also get 120A, they did their arithmetic wrongly, and it's got lots of annexures to it. So we are correct, with respect, in relation to the numbers, but preparing an important case such as this is not a question of number of pages with respect Judge, it's a question have they given us notice, and have they given us the information to properly prepare.
And Judge may I respond to the question, assume that this was a civil case in the Supreme Court for just above the Magistrate's Court jurisdiction, and this batch of documents highlighted or otherwise was produced two weeks before the trial, would any Judge refuse the other side a postponement if those documents had not been disclosed? I would submit that it would have been a res ipsa loquitur situation, the Judge would say well, please explain to me why these documents were not disclosed before? And what would be the answer? Well then the applicants may have an answer because they say that they sent it some time ago, but the question is not when did they send them, the question for us is when did we get them.
JUDGE NGOEPE: The problem is Mr Bizos, why I am asking you this, I had assumed that their arithmetic was correct, but if it's incorrect it's something else, but it would have been relevant to my problem that if there are 600 pages and you received only 62 pages two weeks ago it would mean 500 and something you received in March, and to me that would make a difference.
ADV BIZOS: But in truth and in fact the number of pages that - and Mr Malindi with whom I have absolute faith, he has sifted the documents - could I give you the countdown. The new material is 137 pages.
CHAIRMAN: I would prefer you to tell us where in all this are the pages that you are referring to.
ADV BIZOS: Yes.
CHAIRMAN: We haven't been able to find out which - please. Start off with Bundle A.
ADV BIZOS: First of all page 49, the document starting off ...(intervention)
CHAIRMAN: Just hold it.
MS KHAMPEPE: What bundle is that Mr Bizos?
JUDGE WILSON: That's not Bundle A.
ADV BIZOS: B.
JUDGE WILSON: You were asked by my brother to do Bundle A first.
ADV BIZOS: Bundle B is the bundle which has the new, in the main has the new information. It starts at 49 to 186. Then there are 41 pages of the court record thereafter. The judgement on sentence. That is in our bundle immediately afterwards, immediately after 186 Mr Chairman.
MS KHAMPEPE: I think Mr Bizos in the bundle that we are having the judgement on merit and sentence appears in Bundle A.
ADV BIZOS: It was not given to us. Judgement on sentence was not given to us by the applicants and that may be an explanation, it was given to us by the Commission Mr Chairman.
JUDGE WILSON: It was something you could have obtained at any time if you wanted it.
ADV BIZOS: Yes we could have, yes. (...indistinct) make in this application, they have to prepare a record and they have to put the relevant information before the Commission. And then there are another 33 pages within that from 130A, I beg your pardon, from 120A to 139A.
CHAIRMAN: Are you aware and do you know where these pages are that Mr Bizos is talking about, which of the volumes that we have been furnished with contain these documents?
JUDGE WILSON: Bundle B page 120A.
CHAIRMAN: That's Bundle B.
JUDGE WILSON: Yes.
MR MPSHE: Mr Chairman what Mr Bizos has referred to is contained in Bundle B Mr Chairman, and what he referred to later on as to the court judgement and all, that will appear in Bundle A. I have heard George Bizos state that they have not received the pagination, but Mr Chairman I would like to put this on record that I personally included in the bundle that I gave to them on the 7th of June pages of my pagination and requesting them to paginate their bundles accordingly. Now what he is referring to as judgements and all that will be Bundle A of our documents.
JUDGE WILSON: As I understand also Mr Bizos 120A to 148A are not separate documents, it's merely some person, for reasons best known to themselves, suddenly started paginating 120 - 120A, 121 - 121A, 122 - 122A and so it went on. The documents were all there, they were all part of the bundle, it's the pagination that has done that.
ADV BIZOS: (...indistinct) ...evidence before you Judge that we were given a bundle of documents two weeks ago at the airport because we did not have them, and those are the documents in Bundle B.
MS KHAMPEPE: Mr Bizos, is it your contention that the Addendum C in Bundle B was never given to you at any other time except on the 8th of June?
ADV BIZOS: Yes.
MS KHAMPEPE: And you were only able to go through that bundle in preparation of your opposition on the 14th?
ADV BIZOS: During that weekend, we worked the long weekend.
MS KHAMPEPE: Was the 8th on a weekend?
ADV BIZOS: We got them on Friday evening, Saturday, Sunday was - the Monday was the 16th, work it back.
MS KHAMPEPE: I thought Mr Bizos you got the documents on the 8th of June?
ADV BIZOS: (...indistinct) (microphone is not switched on for the beginning of each reply) ...it is the 8th, it's on Friday. Yes you are correct it was - Addendum C was the 8th of June, that was in terms of the - and the first opportunity that we had was that long weekend in order to study it after we got them on the 8th, which was the 14th to the 16th.
MS KHAMPEPE: I think if my memory serves me well with calendars the 8th of June was a Saturday and not a Friday.
ADV BIZOS: We got them sometime during the night...(general laughter) - the Friday night when Counsel came from Cape Town, that's what the affidavit says, but what - I submit that the day doesn't make any difference, but what I do say is this, that if our documents are in the state which appears, they appear to be, can you imagine Mr Chairperson what is going to happen having to cross-examine witnesses without being able to identify the documents properly and doing that in the manner in which one would do a trial in court. It's not less important, if anything it's very much more important with respect that we should be given an opportunity to sort matters out. I hope that our colleagues will cooperate in this regard and that we can have proper documentation placed before it, properly indexed and that we both have the same record right through.
But above all the amending in a short document, amending the paragraph on page 21 that the late Chris Hani was killed as the senior commander of MK a prime military target ...(intervention)
CHAIRMAN: Where are you reading from?
ADV BIZOS: An amendment to page 21 that would probably be in your Bundle A because that is in their application. If you have original page 5 of their application.
ADV BIZOS: Originally we had to meet a case - are you with me on the first paragraph?
ADV BIZOS: "Chris...." the last two lines.
"It was obvious to us that Chris Hani, as the leader of the Communist Party was the real threat to our future and that of the Republic of South Africa. This view was shared by the Conservative Party and indeed by all conservative political parties and organisations. He was seen as the successor to Mr Mandela and was also......"
and these are the new important words,
"... as the senior commander of MK, a prime military target".
Now that phrase, that phrase requires an investigation of what the position was at that time, at the time of the death, and what the general perception was, and this was introduced, to us at any rate, in the last two weeks.
JUDGE NGOEPE: But does it really introduce a drastically new dimension in the application?
ADV BIZOS: Yes, with respect. If a reason which is not based on fact is advanced then that may have important consequences on the proper outcome of the main application as to whether amnesty should be granted or not. Now if we have to, and we will call evidence, that that he was considered a prime military target is false, and we can only do that by evidence, leading evidence.
Firstly what were the facts, and secondly what were the perceptions because there apparently is a double level so-to-speak on which the matter may operate, because they may say well we thought that he was a prime military target, on what basis?
JUDGE NGOEPE: Frankly I would have thought that you could verify or get some information around this position then within a question of a few hours.
ADV BIZOS: Then what about the perceptions? They will say yes, you can bring the minutes of the organisation of the National Executive of the ANC and the South African Party that he resigned his position of MK some years back, they are going to say well but the perception was something different. We are going to lead evidence, Judge, we are going to lead evidence here that Chris Hani was not a military target and that the reason why he was murdered was to prevent him from helping to bring democracy to South Africa. That is the reason why he was killed, the correct reason. (Clapping and cheering).
JUDGE WILSON: When did you receive this document on page 21 that you say was amended?
ADV BIZOS: It came together with Bundle B when we got it at the airport.
JUDGE WILSON: There is no mention of it in your affidavit is there? And there is no mention of it in the applicants' heads of argument?
ADV BIZOS: I don't recall the applicants' heads of argument, but I certainly, if my memory serves me correctly, we make a point of it precisely on page 4, paragraph 12 of our affidavit.
"In particular we draw attention to the new allegation that appears in the amended application of Derby-Lewis in the same paragraph on page 21...."
JUDGE WILSON: The point I am making is you didn't say you got that in the airport. When you are dealing with what you got at the airport you said,
"The documents we received consisted of Bundle B, also extracts of the criminal trial..."
you make no mention of this being an amendment to the original ...(intervention)
ADV BIZOS: (...indistinct)... as a new allegation. We refer to it as a new allegation and I am sure that the Secretary of the Commission that sent us the documents will confirm that this was together with Bundle B.
CHAIRMAN: Mr Mpshe can you throw any light on that?
MR MPSHE: Judge Bundle B was forwarded to George Bizos, or to the attorneys rather, and what he is referring to on page 4 formed part of the amendment, if my memory serves me well, to the application. It is not reflected on Bundle B. And those are the documents that I received on the 5th of May, although they had been forwarded to my good self on the - posted on the 14th of April by the applicants, but I received them on the 5th of May. That is why they had to reach them that late. I have a letter as to when they were sent to me.
JUDGE NGOEPE: Mr Bizos because you had, at least provisionally making your submissions, may I ask you, without in any way trying to indicate which way our decision will go because indeed I can't, how much time do you - assuming that we grant the postponement, how much more time do you need before you could be ready?
ADV BIZOS: If I were available I would require two weeks. This is out of term. We specifically sought a date out of term and I have made some very fixed arrangements as to where I am going to be between now and the end of July. I am not available. A date was suggested, I believe that provisionally counsel for the Commission suggested a date to the other side when they too are not available, so it would - if the matter is postponed on the discussions that we had with counsel for the applicants, it would, subject to the Committee granting the postponement, it would have to be postponed to after the first week of August. Because may I say that my clients have gone to considerable, well have relied on my doing this application. I have partly prepared it and I could have done it on the 28th when term begins but Judge Nugent requires me in his court for three or four days on the 28th. I will be available shortly after that on the basis that some of the preparation, if not most of it, will be done by those that do not have my commitments.
Finally Mr Chairperson you may have seen the letter of authority, I don't know whether it has been handed in, that originally we appeared for Mrs Hani only. We now appear for the South African Communist Party as well. We explain in the affidavit when Jerome Cronin became aware of the detailed allegations which the applicants make against his party and what the late Chris Hani stood for, he stands for, so they most certainly have a real and substantial interest. The deceased was their secretary general.
Much of what is said in these documents in, to state the least and try and avoid exaggeration, in intemperate language and they are entitled to be heard. So that even if you find Mrs Hani or us in some way responsible for not being ready, which we do not concede, there is another perspective of another organisation which cannot be ignored. We have not been, although a notice to the African National Congress was traced, we couldn't establish precisely when it was sent and we believe, unless there is some clerical error in the filing system of the South African Communist Party they could find no trace of their having been given notice.
But I don't want to put it on a technical basis. If this were a civil over a modest bit of money a Supreme Court Judge would have granted a postponement once documents were thrown at us in this way, two weeks before.
JUDGE NGOEPE: Except that, unlike the Supreme Court, we don't have an indefinite lifetime. You see our problem is that this Amnesty Committee we are bound by law to finish our business within a few months time, literally a few months time. And that is why - and it's not a question of being difficult, that is why we have got this problem when matters are being postponed and like, I mean we put aside a whole week and this whole week is probably not - if the postponement is granted we have lost a whole week and we are left with about 30 something weeks within which we must finish all the thousands of applications waiting for us, and yet we are expected to die out at the end of the year. That's the problem.
JUDGE WILSON: Another problem which I think you are very aware of Mr Bizos but understand is that we are dealing with the liberty of the individual. It is not a case in the Supreme Court for an exorable sum of money.
ADV BIZOS: Well yes, I do take the point. They have a statutory right for their case to be heard, as any litigant has a statutory or a common law right for their case to be heard, but then the party that has an equally important right should be given an opportunity to put her and its case properly, and we will not be able to do it. And justice generally speaking has to balance out competing demands. And on balance, with respect, we are entitled to a postponement.
May I refer to the Judges - yes, it is most unfortunate that the Committee's life is limited, but judging by the number of applications that we are told about the four days that are left are not going to make a material difference having regard to the number of cases that are there. Yes, we are not unmindful of that Judge, but what we do, however, submit strongly that the rights of Mrs Hani are as sufficiently important and the reconciliation process requires that sort of balance of rights.
I think I ought to make this point Judge Wilson, that there is a difference between a person who is presumed innocent and who is in custody and self-confessed murderers who may or may not be entitled to amnesty.
JUDGE WILSON: But you have taken that into account, as I understand, by your suggestion that you could be ready in two weeks.
ADV BIZOS: We will be ready in two weeks and there is only - if I was available I said. But how much - let us assume that personal convenience doesn't matter, how much longer will it take a new person coming in in order to prepare?
CHAIRMAN: Mr Prinsloo.
MR PRINSLOO: Mr Chairperson Mr Lubbe will address the Committee.
MR LUBBE ADDRESSES COMMITTEE: Mr Chair thank you. I am not an advocate so my argument will probably be far simpler than Mr Bizos' argument.
Much emphasis has been placed on what the applicants' have failed to do, or what the applicants have erred in. I want to state very simply, at least and at the very best for persons applying for a postponement the date of this hearing was known in February of this year. The question arises, what would such a person do, a person who brings the application today to save their own situation with regard to the application. During July of 1996 this application was handed in.
The applications of the applicant consists of Addenda A, B and C. As has been stated very thoroughly in the heads of argument Addenda A, B and C consist of the pages as you would have found them and as they are paginated in Volume B pages 1 through to 48. You will note that there is an indication that this consists of pages 1 to 56, but that is in fact not correct, 48 to 56 is in fact not correct. However, in paragraphs 12 to 18 of the heads of argument a complete explanation is given of the constitution of the various documents. With respect, Honourable Chair, the only documents not in the possession of the legal team of Mrs Hani would have been the documents reflected as pages 57 through to 112. The total of these documents consists of 66 pages.
I could you through these addenda and you would find that for instance in the works quoted, the History of Communism of Pike(?), 11 of these 14 pages consists of the front page of the book and the contents pages of this particular book. All that has to be read out of the History of Communism in South Africa is a meagre three pages.
In the end what is at issue is not the volume of reading matter against which there is a complaint, what is involved is simply this - the person or institutions who oppose the application for amnesty know full well which requirements such an application must meet. There is a duty on such a person or institutions, when opposing an application, to prepare their case to such an extent that they would be able to bring contravening testimony at the hearing. Allow me to restate this.
If the claim in the application for amnesty would be A, and if these applications are then opposed, because the actual situation would have been situation B, any person or institutions who opposed the application must bring testimony to prove position B and to therefore contravene position A. What does the persons do who oppose these applications they say, here is a series of documents, documents which you have attached to your applications, we must now work through these documents and once we have worked through these documents we will decide on what testimony we want to call and what will be necessary to contravene these arguments.
What must the applicants prove? It's very simple. When we look at the particular act it would appear that there must be full disclosure; it would appear that the person of the applicant must qualify in terms of Section 22; and in conclusion it would appear that the act of the person in terms of Section 23 must meet certain requirements and qualifications.
With respect, it is the most simple task for the legal team opposing us when they know what the claims are that are made by the applicants to contravene these claims by means of contravening evidence. Mr Bizos says that there are four grounds or four points of difference which are at issue. The first would be - ...full disclosure at the trial and in its applications.
With respect Chair, a person or an advocate in the person of Mr Bizos, a respected senior advocate, would in cross-examination be able to chase a person who has not made full disclosure from one side to the other of the matter. He is well-known to be able to do this. There is no reason to justify a postponement on these grounds.
The criminal hearing of the applicants was concluded four years ago. Had the applicants not told the truth four years ago, and it's common knowledge that they did not give testimony, then there would have been adequate grounds and in fact reasons, enough time from then, or at least from the date when the team received notice that the applications would be considered, to collect testimony with which to counter the arguments.
It had in addition been argued that there would be an additional disagreement, namely, that the crime had not been committed on behalf of a political movement and would therefore not qualify in terms of Section 22. Again, there is no need for documentation by the applicants to be provided to support their claim in order to enable Mr Bizos' team to contravene the claim. They could independently go about gaining independent testimony to in fact argue against this claim.
The other two aspects with regard to disputes would, in a respect not be under disagreement and that could also be handled in terms of normal cross-examination.
The submission of the applicants Mr Chair is very simple. There is something far more serious underlying the reasons for opposition to these particular applications. It is important to pay attention to the fact that on the very first occasion, the very first reason which was presented when we were approached for a postponement the single reason given was that Mrs Hani, for personal reasons, would not be available to attend the hearing. On the 13th of June 1997 a letter was directed to us in which it was stated that due to "personal reasons" she would not be able to attend the hearing and that there would therefore be a request for postponement.
On the 13th of June 1997, 10 days ago, no single word had been mentioned yet that there would be a mass of work to conclude, that there would be a large number of reports that are awaited, that there are a number of witnesses that have to be consulted, this single reason was given, namely that Mrs Hani would not be available.
The request was directed to enquire why she would not be available, the reasons were requested from the legal team and until today we have not yet heard what these reasons would be, except to determine that she was in fact on her way to America.
In the heads of argument we had to anticipate that this matter would be handled, and it is said that should she leave if I could handle only this aspect, should she be on her way overseas prior to or rather had she left with the date of this hearing already being agreed she would do it in the face of this Committee. Had she made her travel arrangements overseas prior to the agreement of this date then certainly this date would not have been agreed between the parties.
On the 16th of June, on Monday, after the legal team of Mr Bizos had worked all weekend a host of new excuses appear. The first of these would be that they received on the 8th of June, in their own words voluminous materials which had been added or supplemented by the applicants. If the Committee would go back to the original applications submitted by the two applicants it is clear that when they submitted these applications the only page that was amended in the case of the first applicant, Mr Walus, was amended during January of this year.
Secondly, that the second applicant, Mr Derby-Lewis amended his application during October last year by adding another page. Addendum C, which the complaint apparently entails, comprised initially of three pages. It was elaborated upon by the applicants and it eventually consisted of five pages.
JUDGE WILSON: Now can you tell me about this change that was allegedly made at page 21 at Bundle A?
MR LUBBE: We are at a loss as to precisely where it is contained on our bundle Mr Chairman.
CHAIRMAN: That's one of the problems ...(intervention)
JUDGE WILSON: Page 5, small page 5, it says, "Notes about paragraph 9(iv) of the application", which starts at page 2, 3, 4 and 5. Have you got it?
MR LUBBE: ....(tape ends)
JUDGE WILSON: 18 is the first page of the "Nature and particulars".
MR LUBBE: Would you please just indicate to me the page how does it start on top?
JUDGE WILSON: "De Klerk treachery became more and more obvious".
MR LUBBE: I am sorry Mr Chairman I haven't got that, maybe if ...(intervention)
JUDGE WILSON: Well is it possible to argue this application if the papers are in such a mess.
MR MPSHE: Mr Chairman I just want to bring this to the knowledge of the Committee. The initial documents, as well as the applications submitted by the applicants were not paginated, it was just a bundle of papers, and I took it upon myself to do the pagination which I did, according to the bundles before the Committee members and I sent the applicants loose pages of my pagination and requested them to paginate their bundle according to my bundles, and in return thereof I got a letter from the applicants that they have arranged their own pagination and I must change my pagination according to their pagination. Unfortunately, when they sent me their pagination my copies were already done and bound and sent off. Thank you.
MS KHAMPEPE: When was that Mr Mpshe, when did they send you a list of their pagination?
MR MPSHE: I received it last week, I've got it, it's in a fax form.
MS KHAMPEPE: Mr Lubbe why was there an omission on your part to send to the Truth Commission a paginated bundle of your applicants' application? I mean taking into account that we are not dealing with just a minor matter, we are dealing with an application of importance, with a number of documents that are going to be referred to in your evidence.
MR LUBBE: Mr Chairperson we were informed on the 6th of June for the first time that the duty to paginate papers was upon the applicants, and on that date we received the index from Advocate Mpshe, only on that date.
JUDGE WILSON: But you didn't paginate in accordance with his index, your papers are still not paginated in accordance with that index.
MR LUBBE: With respect Mr Chairperson the document that was shown to me I can't even identify from my papers.
MS KHAMPEPE: Now can you proceed if you can't identify documents which will be referred to by both the victims' attorneys and the Truth Commission's leader of evidence? I mean how are we expected to conduct these proceedings when there is no consistency in such pagination?
MR LUBBE: Well it seems obvious to me Mr Chairperson that whatever the case is that if the matter is to proceed we should see to it that the papers be properly paginated.
MS KHAMPEPE: But if you have not been able to do that within a week that Mr Mpshe gave you his paginated list how can you be able to do that in a few hours now?
MR LUBBE: No, no, we have paginated our papers according to the list. We have got, what you are referring to as paragraph 9(iv) of the application also starts off in the very same manner as the Committee's paper starts, but it seems to me that the difference is page 3 or 4 of 9(iv).
JUDGE WILSON: But this is your application papers, prepared by you. This is annexed to the application.
MS KHAMPEPE: Mr Lubbe I must say I am actually lost. You are making a reference, you are alluding to page 4, I don't have page 4, it's page 5 which is in front of me.
MR LUBBE: No I didn't allude to page 4, I said that is paragraph 9(iv).
MS KHAMPEPE: I don't have that in my papers.
JUDGE WILSON: ...was attached to the application wasn't it, or should have been?
MR LUBBE: Would you allow me to present my papers to you so in order to see that 9(iv) is the Nature and Particulars, it starts off, page 16 starts off with "Nature and Particulars" after the speech of F W de Klerk.
MS KHAMPEPE: That's page 18 according to our documents.
NO RECORDING FOR SOME TIME
JUDGE WILSON: Your 9(iv) is completely different. It seems to be completely different and I think Mr Bizos would accord with your 9(iv) where you say that,
"Mr Chris Hani, leader of the South African Communist Party and former MK Commander who was active in the ANC detention camps in Angola..."
the one we have got is completely different.
MS KHAMPEPE: Mr Lubbe are these the papers that you amended on behalf of Mr Walus and Mr Clive Derby-Lewis in December and January respectively?
MR LUBBE: Mr Chairperson yes, according to our information this was in fact the amended annexures that were sent.
MS KHAMPEPE: And these are the amendments you are referring to in your letters that was only one page in the applications, in both applications which you amended?
MR LUBBE: Mr Chairperson according to my bundle then, Bundle A page 10, was the amendment effected to Mr Walus' application that was faxed on the 22nd of January this year, that is the amended page of the application for Mr Walus.
JUDGE WILSON: "I have been advised that I did not provide sufficient particulars etc...."
MR LUBBE: That is correct.
CHAIRMAN: We have listened quietly and this is the first time in many years before a case begins we don't even know what the papers are, and in what order they are and how we are going to proceed with this application at this stage.
I want to know whether it's possible for you to address us, or the rest of your argument to us for the time-being, whether there are other submissions you wish to make and your colleagues have to make, we would like to hear those?
MR LUBBE: Thank you for the opportunity Chair. The position, if I may resume my argument, is that once these amendments had been made, initially only to the statement of Mr Derby-Lewis during October of 1996 and then that of Mr Walus during January of 1997, on the request of Advocate Mpshe there had been additional information with regard to Addendum C. You must take into account the original Addendum C, consisting of three pages, as mentioned in the heads of argument, that those three pages contained photocopies of all of the articles to which the reference is made, known as so-called "Press clippings in periodicals". Copies of these were not attached, or rather what had not been attached was photocopies from the books mentioned in the index available to- Advocate Mpshe mentioned as items 4 5, 6 and 7. For practical purposes no copies were made of these books. A request then had been made by your Committee on the 12th of March 1997 that additional photocopies should be supplied, not only with regard to the books of which the copies were not made available originally, but also with regard to the so-called "Press clippings in periodicals". This request was met in May of 1997 and these are the documents which arrived in the possession of the team of Mr Bizos on the 7th of June of 1997.
The point made by the applicants is that there is something far deeper behind this application for postponement, namely, that there still remains the notion that there had been a far broader conspiracy in which these two applicants were involved. I will, in a moment, substantiate this.
Since the death of Mr Hani there had been consistent pressure and there were consistent claims that there had been a broader conspiracy this despite several occasions on which there were opportunities to investigate this. Information with regard to the conspiracy has not in fact yet emerged.
The submission of the applicants is that the opposition to their application has two parts. Firstly that this Committee should never hear the application, and secondly, that should it be heard that the two applicants should not be granted amnesty.
On page 40 of the heads of argument you will find an example of an instruction given by the lawyers acting on behalf of Mrs Hani, an instruction given to Spartan Tracers, an investigative firm, you will find this on page 14, it is Annexure JL15, and this is addressed by way of instructions to Spartan Tracers. Mr Chairman it states,
"Re full financial disclosure.
We would be pleased if you would obtain full financial disclosure of the abovementioned persons. We are particularly interested in the periods of 1992, 1993 and 1994. Details of the past two years, though not important, would also be appreciated. Particular emphasis should be placed on the period January to April 1993".
This is the period of time during which the crime was committed, planning committed. The names of the individuals and of Mrs Derby-Lewis and there are full reports from ITC etc.
The conclusion could be drawn that there has throughout been an investigation continuing by the persons or institutions opposing this application to be able to trace the links of the applicants to third party activities, if you wish to call it so, or links to the previous government or whatever you want to refer to, to expose such links. Until today these efforts have failed.
It is the submission of the applicants that these efforts will continue and that this is exactly the reason why the opposition attempts to postpone the hearing.
You can hardly find a clearer example than in the final paragraph of the final letter directed on Thursday past, 19 June 1997, you will find this on page 37 of the heads of argument, Annexure JL13. Here is a full elaboration by Mrs Nicholls of the circumstances bringing about the request for postponement. That letter concludes with this very interesting paragraph, and I want to quote it for you. The letter reads:
"In the circumstances, and in the view of the fact that we are awaiting reports on other investigations it is still our submission that we have had insufficient time to properly prepare".
It is very clear from this that there is an expectation of other investigations by the instructing attorneys of Mrs Hani and/or the ANC and/or the SACP.
It is the submission of the applicants that until these organisations or institutions are satisfied that no link can possibly be proved or achieved between the applicants and such organisations that this Committee should not decide on this matter. My submission is, with respect, that this is as clear as daylight.
I do not want to mention all the matters in the heads of argument with regard to public pressure, with regard to certain leaders in the political parties, who clearly and publicly have indicated that they would rather see the applicants in jail for the rest of their lives, and with respect, in contravention of the spirit and intention of the legislation.
I want to suggest Mr Chair that there are sufficient grounds to indicate that this is merely a tactic of delay on the part of the persons making the application for postponement and that this application should be denied.
With regard to the Communist Party, with respect, it would appear that they are also giving instructions for the opposition of this application. The South African Communist Party knows from whenever of this application. Why then were no preparations made, no preparations whatsoever to oppose these applications? With respect this simply does not hold water.
Except if there are specific aspects which you would like me to address I will now conclude.
JUDGE WILSON: I would like to ask you about one thing I am confused about, if you look at JL1 at page 19 of your heads, this is a letter from the Amnesty Committee to you which says:
"Attached to your clients' applications are newspaper clippings as well as various periodicals. These periodicals are one copy each and it makes it difficult for me to compile documents for five Committee members. My request is, therefore, that I be favoured with five extra copies for the convenience of Committee members as well as the opposition".
and then he lists them. But it would seem that when you made your application you filed with the Amnesty Committee a copy of all of these, well almost all these papers. It was not something that was only done later, that was filed by you as part of your application. It was not something that was requested by the Amnesty Committee?
MR LUBBE: That is correct Mr Chairperson.
JUDGE WILSON: And for some reason it seems that it had not been given to the objectors.
MR LUBBE: That is correct. At that time the applicants were not aware of the fact that they had the responsibility of availing the opposing party of these documents ...(intervention)
JUDGE WILSON: I am not suggesting that the applicants should have done these things, the documents were available but were never forwarded to the objectors, as far as you know?
MR LUBBE: The point, Chair, is that the applicants would claim that Mr Bizos is opposing the application and that they must therefore ensure, or rather they must make sure what the contents of the applications are. They can't, when they get to the hearing, see what documents are founding documents to the hearing. I believe that these documents were available to them at the time when the date of this hearing was arranged.
JUDGE WILSON: And you are unable to explain how it is that you have a different version of the application to the one we have? You can't tell me which is the earlier version?
MR LUBBE: No I can't tell you that. I have to check the documents and compare them - but I can't tell you offhand.
CHAIRMAN: Mr Prinsloo is there anything you wish to add?
ADV PRINSLOO: No Chair I have nothing to Mr Chairman.
CHAIRMAN: Mr Bizos?
ADV BIZOS: Very briefly Mr Chairperson, the issue is not when the applicants sent the papers but when we got them, and the Committee knows.
The other is that, I am not being original, it has been said before, but I just want to say to the attorney for the applicants that flattery will not get them very far, because I actually believe that counsel should really have a basis in order to conduct a, a factual basis, a full factual basis, before he can conduct any meaningful cross-examination.
It is correct Mr Chairperson that we asked an investigator to look into the accounts of the applicants and Mrs Derby-Lewis, it's a legitimate enquiry. I am perplexed how a copy of the letter came to be in their possession, a letter written to our agent to make enquiries about their accounts finds itself in their possession, but that's by the way.
Finally I want to make this broad submission. If this application for a postponement cannot be properly argued because of the state of the documents, can you imagine where we are going to go to if we have to struggle to find the relevant document whilst cross-examination is taking place? I invited counsel for the other side to have a pre-hearing conference where we could possibly iron these out, my invitation was not accepted. One hopes that if the matter is in fact postponed in the discretion of the Committee that we can do what is usually done in order that we should be on the same wavelength with members of the Committee when we are arguing the case.
Even on questions such as, whose case are we going to hear first, Mr Walus or Mr Derby-Lewis? I would like to make submissions in relation to that having regard to their respective positions, but these are matters which shouldn't have to be argued, we should talk about it and come to an arrangement so that when we come here the documents are ready, witnesses are available, we can have the order in which witnesses are going to be called, we will want subpoenas to be issued on a number of people whom we will want to examine. This is an inquiry and they will not be our witnesses, in fact we expect them to be hostile to our interests. So that all these matters will have to be arranged for a proper hearing to take place. Thank you Mr Chairman.
CHAIRMAN: Do you make any comment on the suggestion made by Counsel that there are indications in the papers that your clients real wish is to see that these applications do not proceed at all and that you are going to resort to delaying tactics?
ADV BIZOS: Our time is as valuable as his, and we do not hold the view, and certainly our clients who were responsible for piloting this Act through Parliament, that it should be frustrated. There is no desire to deprive the applicants of a right to be heard. The only thing that we are asking for is that we should be given an opportunity to be heard in order to oppose their application like we are entitled to do. There is no vestige of evidence, and our offer to do it during August, with respect, negates that suggestion.
CHAIRMAN: Mr Mpshe is there anything you wish to add?
MR MPSHE: Nothing to add Mr Chairman thank you.
CHAIRMAN: The Committee would like to take a short adjournment to consider the matter and we hope to give a decision if it is at all possible before too long.
CHAIRMAN ADDRESSES HEARING:
Mr George Bizos, on behalf of Mrs Hani and the African National Congress, has made an application for a postponement of these proceedings.
It has been indicated that the South African Communist Party, because of the general background to this case, is a vitally interested party in the outcome of these proceedings.
The Committee has decided that this application is to be postponed. We have discussed the matter with the counsel for the applicants and the counsel for the respondents and we have come to the firm conclusion that without any further postponements, for whatever reason, this application will commence on the 11th of August and will carry on until it is finished.
To Mr Derby-Lewis and Mr Janus Walus, if this works as a hardship to you, I am sorry that it has to be so, but I assure you that this application will be proceeded with and we will deal with it until it is concluded. Once again I am sorry that it has caused you anxiety and inconvenience.
Steps will be taken to ensure that the Communist Party is officially notified of this postponement.
Counsel on both sides have also agreed that at least a week before the hearing they will meet and sort out the documents so that the documents we have before us, and any other papers that might be filed on behalf of those who oppose this application, are then properly before the Committee when it meets on the 11th of August.
To anybody else who has been inconvenienced by this postponement I say it is unfortunate that this has to be so, and we hope that this difficulty will not arise again.
I am told that a representative of the Communist Party is present, she is aware that this matter has now been adjourned until the 11th of August and she must take steps to ensure that whatever representations they propose making in this regard, that they will do so timeously.
Mr Bizos will you be appearing for Mrs Hani and the African National Congress?
ADV BIZOS: The African National Congress is supportive of Mrs Hani, but we are not on record as representing the ANC.
ADV BIZOS: We are on record as representing Mrs Hani and the South African Communist Party, and no notice need to be given because Mr Jerome Cronin is before the Committee and we represent them and there will be no problem about that.
CHAIRMAN: Very well. Thank you. This application is accordingly adjourned to the 11th of August. The venue for the adjourned hearing will be notified in due course. We hope that this venue is available. However, that's a little detail which will be worked out, what is important is the date of the hearing.
I accordingly adjourn this meeting.