everything like a court of law? Let us work together. Let usput that before you in a so-called stated case, say Mr Chairmanplease, for purpose of your investigation: 1 . Accept themedical evidence, we have come to terms on that, there they are.

Secondly, you can accept, work on the photographs. Do notcall persons, do not sneak them around. Put them before you as admitted facts.

Thirdly, give us the ballistic reports. Let us admit them if we can. if there is a dispute, let us talk about this. Put (10) them before you. Why do we have to argue? Why have you to act as a judge or a magistrate? That is not your function and say: we^^' that bullet hole, was that now caused by an AK.47, was that caused by a bullet fired by an AK.47 or was it caused by an R.5. Let us do it. It is an open invitation to them. Let us see, let us decide, we are all legally trained and if we cannot come to terms on a certain point, let us take that and put it before you and say: "Mr Chairman please, now we need your guidance, give us an answer on that in your discretion".

Fourthly, let us look at the damages allegedly caused. (20) It is not difficult to agree on that. Give to us. Let us say there is a house with bullet holes, it is damaged. Then try to allocate that, say: "well, come on, we know it is not our fault, come one, we know it was in the shooting line, come one, we know that". Do not bring in a house that was not in the sweeping line. We can do that and if there is a problem remaining, which is doubtful, put that before your committee and say: please look at that", because then you will have the whole picture. You will not have to jump to conclusions. You are forcing upon yourself the duty to jump to conclusions, to (30)

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draw inference without a bridge in between. That is what is going to happen if you do not look at those things, but I say again, I am not asking you to look at it in the view or in the position of a court. Let us parties do that for you and just go and decide within your discretion the stated disputes.

Fifthly, let us put before you facts that are common cause. Why can’t we state that? Why is there an unwilling­ness? We are not unwilling. We want to do it and that is our offer now. Let us put a stated case on common cause facts before you, say: 1 . 32 Entered; 2 . A shot was fired at that (10) person; 3. They fired 200 shots back; 4. and so on and so on. I am sure we can agree. If we cannot, on the limited points that we cannot agree on, please give us a finding on and you know what will happen? The persons reading it, the persons that are sharing maybe the view of 32 will say: "yes, I am happy, at least that was placed before the committee, at least we got a bona fide finding", a bona fide finding does not mean one that is right or one that is wrong, it means a finding on the facts before you and that is all we are asking for, Mr Chairman, the fact in issue. Let us define that, let us limit (20) that, let us curtail that to a couple of points and say: "we think for the purposes of answering the two questions that you should just bring out the finding on this".

Admissions: Admissions are not the same as facts in common cause. Facts in common cause is that a person entered, but an admission is yes, we overstepped in the following, yes we fired the first shot. Let us sit around a table. Let us not try and debate it. Let us not try and cross-examine a person to try to get through to him, to use him as a conduit to get admissions. Let us be responsible and try and get (30)

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admissions and if we cannot, put them in the column "denials".At least then you know Mr Chairman, this is what it is all about.

Witnesses: Why should we hide this? You know the court.Why can't we go to Mr Pretorius? Why must he battle with that?Let us bring our witnesses. Let us give them names. Why must I sit here on the Thursday that they are calling a rape victim, now I must start to run around and to guess. Why the secrecy?Tell us: "Listen, I am calling Paulina". Tell us that. At least we can say: "yes, do not call her, we know that or we (10) accept the medical report, why do you want to call her", but we are playing games and we are missing what we are about to do. Let us now sit and say that is what they think you should call and we go to Mr Pretorius and say: "well, for example I think you should call that person and that person and that person, we make them available". We have not done so. We can cut the proceedings short if we do that.

The last one: let you then, once we have given you all those facts, determine the procedure how you want to deal with that. We can advise you how we feel and you can do it, but if (20) we do not do it that way. Let us look at the alternative. The alternative is to block us on cross-examination for reasons of sympathy, for reasons that you feel that that would not really contribute to the answering of a question on overstepping, but the other inference would also be that you have accepted right from the start of the proceedings, overstepping and that that acceptance was caused by evidence outside the commission, fot

example reports, for example say so's and so on. Cut that out.Bring out a finding on facts before you, on facts that we have agreed upon, because I will tell you what will happen. You can (30)

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stop me, I will be hundred percent ineffective in cross-exami­nation if I am limited to a point. You can stop me to ask other persons about the injuries sustained, but you cannot say one thing then Mr Chairman, that we had a just hearing, that is impossible, but you can give us a just hearing by just listening to what I say, by considering, not listening, by considering to what I say, that we should stop and put before you facts in concise stated form. Then it is easy to answer, but to answer a question on misconduct, has in itself an accusation, has in itself a question, there is misconduct. (10) There is misconduct by 32, let us just look at the degree of overstepping or not. That is not fair. So, we accept there was a rape, we accept there was an assault. That is not fair.Let us put the things before you on the basis that we suggest,Mr Chairman and you then, if we cannot agree, decide on it.

Otherwise you will bring out your finding, it is a simple finding: yes, 32 battalion overstepped. You know what you will do, Mr Chairman? If you bring out that finding on merits, there will be no problem, but if you bring out that finding on a basis that you extremely curtailed the proceedings, did not (20) curtail the proceedings in cross-examination on 32 witnesses, but curtailed the proceedings on cross- examination on complainants, you would get the opposite of what you want. You would achieve exactly that and that is what we say and that is our attitude. What we say, let us place the thing on table, let us co-operate with you in that sense, let us revive the spirit and let us do it in that sense. Otherwise we are *starting with just dancing around and say: we are not calling, we are not making available witnesses, you say: I am not allowed to cross-examine the poor man and we say: thank you (30)

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for the fair hearing and that is all I can say at the end of the day, that we can avoid that and I am asking you to consider that in order to avoid adverse perceptions.

Kay I just consult with my attorney? I see I am - and that is the most important part that I omitted, Mr Chairman.If this exercise that I have suggested, is successful, there are all the chances in the world that if might not be necessary to call any of the complainants, because you can then come, on stated facts before you, to a solution.

So, at the end of the day I am not asking you to allow me (10) now to continue with tedious cross-examination, to try and break that, I am not asking you that. I am asking you to consider an alternative method to see if we can avoid exactly that, that we have sympathy for and not to cross-examine, but we cannot avoid cross-examination and avoid this. It is the one or the other and that is our point. Thank you Mr Chairman, for the opportunity.

MR JOSEPH: Mr Chairman, I beg your pardon. I know that my learned friends have the opportunity to ... (intervenes)CHAIRMAN: Are you replying to what he said? (20)MR JOSEPH: Yes, no, I am not replying. I just want to clarify something about the evidence.

ICHAIRMAN: Before you go into details, it is 10:59 now and ...(intervenes)

MR JOSEPH: It would take less than one minute what I have to say. My learned friend Mr Pretorius, who acts on behalf of the commission, on a Monday morning showed me pictures taken by the CID investigating these crimes. I understand that those photo­graphs are not before the commission. I am quite happy to accept my learned friend's invitation. There is a photograph (30)

i

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of Mrs Msimango, the deceased, lying on the floor of the shack with her legs shattered and the other photographs of that particular shack with bulletholes in. If my learned friend wants to make admissions, I would invite my learned friend to consider whether he will admit that the bullets which struck Mrs Msimango, whether the bulletholes were caused by fire fired by the South African Defence Force.

— liQUX. X have got a short answer. I am sorry, it is teatime. One minute. Mr Chairman, that is exactly what I warned against. He is entering the arena, he is inviting us (10) to respond. He is inviting us now to make admissions. I tried to explain to you, please let us sit down, stop the animosity and see what we can sort out. All I am getting back from Mr Joseph, is: will he be prepared to admit that. That is what I am trying to stop, Mr Chairman. That is all I have to say. CHAIRMAN: At this juncture it is now 11:00 and we have got to adjourn for 15 minutes. I would suggest that we adjourn for 15 minutes for tea and during which period the rest of us would mulling over what Mr Barry has said and to see whether that is acceptable to each one of us, or whether it needs to be added (20)

we need to subtract anything what he has said and to consider it while we are smoking and having tea and so forth and to come up with an alternative to what he has said or to indicate whether we agree with what he i£ saying. That is all I can say right, now.THE COMMISSION ADJOURNS FOR TEA.THE COMMISSION RESUMES.

CHAIRMAN: Right, I take it we have had a sufficient occasion to prepare our pieces to reply to what has been said. It is your chance, Mr Danie Pretorius. (30j

MR DANIE/___

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MR DANIE PRETORIUS: Thank you, Mr Chairman. In vast respects I am in agreement with my learned friend, Mr Roux. It is my submission that this committee, because it is not a court of law and because it works to a set of extraordinary rules, has the power to decide what they want to hear, how they want to hear it, when they want to hear it and it is this committee that has to make a finding upon what they needed to hear and what they in fact heard. All that as it given, it is my submission that once this committee has made a ruling as to what it wants to hear, it should, with the greatest of respect, (10) abiae by its ruling. I would submit that the defence force has given its wholehearted support to the workings and procedure of this committee. Firstly, a witness was given at very short notice to give evidence before Mr Justice Goldstone. Then thereafter the defence force was told that they should give evidence first, without going into an argument as to who should have given evidence first or whether it should have been the people making the allegations against the defence force or whether it should be the defence force in this instance. The defence force provided its witnesses. I know that this (20) committee has the power to curtail cross-examination, it has the power to not even allow cross-examination, but it is my submission that after a ruling was given that the defence force would put up two witnesses and on Monday the ruling was enforced, the complainants, if I can call them that, would put up three witnesses and after the defence force witnesses had been cross-examined at length that it would be with respect not be correct not to allow proper cross-examination of the witnesses of the complainants thereafter. I would submit that in this instance the ruling given, should be adhered to and (30)

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that audi alterim partem should also be adhered to and that the opportunity be given to the defence force to test the allegations levelled against it in the only manner known to jurists and that is by way of cross-examination.

As cross-examination had already taken place of the defence force witnesses, I would submit that it would only be proper that the defence force has the opportunity to cross- examine also, because Mr Chairman, if one looks at what is before you at this stage, the only thing that can really be held against the defence force, and this is regarding the (10) second question, is the admission or the concession if I might call it that by Capt. Hermansen that there might have been some heavyhandedness. That is all. Regardless of what has been published in the press, regardless of what Mr Msimango has said, if the opportunity is not given to test this witness, then his evidence must be held to be pro non scrinto. then his evidence must be expunged from the record, because cross- examination had been allowed of the witnesses of the defence force and then the only thing that there is before you, is a allegation made by a person not even on the ground, that there (20) might have been heavyhandedness due to the provocation that took place. That is all.

It is the committee that has to decide what it wants to hear and what not. It is merely my submission that even though we all have sympathy for this witness and even though it might not be helpful to changing his perceptions if we cross-examine him at length. I do not believe that one will change his perceptions because he has a perception that it is in fact and indeed the defence force that perpetrated these acts and being nice to him or not being confrontational to him is not going (30)

fn /

to change that perception and what this committee must be in pursuit of, is the truth and even though one should in a committee as this shy away from an advisorial process, it is my submission that the only method of obtaining the truth as to the second question would be an advisorial approach and because of this, it is my submission that, even though I am wholly in favour of a meeting to attempt to limit the issues, to attempt to obtain certain concessions, get certain facts to be common cause between the parties, I would submit that the ruling given that three witnesses will give evidence, that that (10) ruling must be adhered to and that there can be no, none whatsoever, attempt to curtail cross-examination of these witnesses.

MR TUCKER: Mr Chairman, could I just interrupt on one thing only and that is that there was no ruling given that there would be three witnesses. The chairman indicated that we had discussed whether we should hear three witnesses, but there was not already.

MR DANIE: PRETORIUS: I beg the committee's pardon then on that, but witnesses that are brought or witnesses that the committee (20) wishes to hear, should be heard in the course that had taken place previously, with regard to the witnesses of the defence force. Thank you.

MR TUCKER: Mr Chairman, before we go on, I really would like for clarification. You started off by saying that you were in substantial agreement with Mr Roux. Your entire address then seems to be divergent from Mr Roux, because Mr Roux, I understood to be saying: let us go into informal meeting and it might be that we do not come back at all, that everything is on agreed facts. What X hear you saying, is that we have (30)

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got to go through with at least some witnesses and a full cross-examination of those witnesses and to that extent, as I understand you, you are divergent.

— DAN IE_PRETORIUS: I agree, we might be divergent on thatpoint. I would also wish to parties to go into committee and attempt to come to some sort of arrangement and if that is fruitful and an arrangement amicable to everybody's interests is arrived at, then it would not be necessary. At this stage I mere suggest that it is not my view that certain issues will be agreed upon or could be agreed upon and if they are not (10) agreed upon, then evidence is the only way in which this committee will be able to come to a finding and then that evidence must be tested in the only manner known to jurists and that has been applicable in this committee.CHAIRMAN: So, your submissions about applying the audi alterim gertem rule are in alternative, your submissions to that point are in alternative to what has been suggested by Mr Roux and which you support in toto. Is that how I must see it?MR.DANIE PRETORIUS: I support Mr Roux in his attempt, in his suggestion of an attempt to limit issues, in his suggestion of (20) an attempt to come to some sort of agreement as to admissions and concessions in the spirit of co-operation. It is merely my view that of what has already transpired before this committee, that certain things will not, or could not I will submit, be admitted and on those issues I would submit that cross-examination, that the leading of evidence must continue as it has done before.CHAIRMAN: Only on those things on which there is no agreement.MR DANIE PRETORIUS: Yes, but it goes even further. On those things that there are not agreement, it would not help to limit (30)

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cross-examination merely to that, because the system of cross- examination suggests that one must be able to test credibility and for that purpose one must be allowed to ask questions on prereferral collateral issues also and that is the point I am trying to make.CHAIRMAN: Mr Joseph?

MR JOSEPH: Thank you, Mr Chairman. Perhaps it would be thecorrect thing at this stage to consider what the functions ofthe commission are in fact and to appreciate that thecommission is a creature of statute. The functions of thecommission are twofold. On the one hand it is to enquire intothe phenomenon of public violence and intimidation in theRepublic, the nature and causes thereof and what persons areinvolved therein. Having completed that enquiry, the functionof the commission is then to make recommendations to the statepresident regarding five matters which are set out in thissection and each one of those matter has, as a goal, theprevention of public violence and intimidation. It is not thefunction of this committee to determine whether any person orgroup of people is guilty of any offence, but the function ofthe committee is to enquire into the phenomenon of publicviolence and then to make recommendations as to the preventionof the public violence. This is set out in section 7 of the act.

In arriving at your recommendation, Mr Chairman, you have to in fact as the first step determine certain facts. It must be a factual basis for the recommendation. You are given no help from the act as to the basis or the test to be implied in order to arrive at the factual findings on which a recommendation is based. It seems to me that your factual

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finding must be made by bringing you to play a blend of common sense and logic, based on the material that you regard as being relevant in order to discharge your duties.

It is clearly not your function enquire into specific acts of violence to determine who is guilty and who is not guilty.The function is to enquire into the phenomenon of public violence, the nature and causes thereof. It is not the function to pronounce on the guilt or liability of any party involved in the public violence.

I understand from my instructing attorney and certain of (10) my other colleagues that before this commission commenced, an invitation was made to the defence force to sit down and reach some agreement in regard to admissions. What I would propose we do at this moment in time and time is becoming a premium for everybody, my learned friend Mr Roux has handed out an invitation that the participants who represent the interested Parties down and try to reach some type of agreement. Iam more that willing to accept that invitation and once we have reached agreement or once we have reached a state where we agree to disagree, it will then be for you Mr Chairman, to (20) decide what type of evidence, what further evidence if at all, you require to discharge your functions in terms of this act.

To give you an example of what I have in mind: I know that there exists photographs taken by the South African Police. Those photographs depict the wife of Mr Msimango lying on the floor of her shack. The photographs depict what has been referred to as the "steeg", the alley where the shooting took place. The photographs show that the shack has been riddled with bullets. If that type of information comes before you as an admission, that will assist you in making your (30)

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recommendations and it will assist you in conducting the enquiry. What will not assist you and what clearly is not the purpose of this commission, is to hear the evidence of countless individuals who allege that they were assaulted. That is not the function.

The phenomenon of the public violence in this particular incident is clear. Although there is no evidence to contradict the evidence of Capt. Hermansen and Lt. Ras, what initiated the defence force presence in that particular place, was the firing of heavy calibre firearms. The next piece of evidence you heard from Lt. Ras. There are the medico legal reports showing people were injured. You know that there is no evidence to suggest that these people were injured by anybody else other than the defence force and that there is absolutely no purpose in being engaged in a multitude of criminal trials and civil trials, that is clearly not your function.

Msy ̂ then suggest that this stays subject to the view of my learned friends, that you allow us to spend a half an hour with one another, or have a little hopefully less time to determine what we can agree to and what we cannot agree to and to present that for you Mr Chairman and then for you to decide whether that is sufficient to enable you to execute your duties and your functions in a proper manner.CHAIRMAN: Is it all?MR JOSEPH: That is all, thank you.CHAIRMAN: Mr Mosselson?

MR MOSSELSON: I am in agreement with Mr Joseph. I just query whether the time suggested by Mr Joseph would in fact be sufficient. If Mr Roux1s suggestion is that a comprehensive as it were stated case be achieved, I feel that probably more

time/. . .

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time should be allowed for this.

CHAIRMAN: What do you suggest should be the time allowed?MR MOSSELSON: I have no idea how long it will take, but (intervenes)CHAIRMAN: Can you make a projection?MR MOSSELSON: I would imagine that at least till lunchtime, but I would suggest that maybe the committee be kept informed on a regular basis of progress which might also help cut down on wasted time.'—CHAIRMAN: Mr Goldblatt?

MR GOLDBLATT: Mr Chairman, I am in respectful agreement with what has been said by Mr Joseph. I would however like to express myself on something which Mr Roux did do. He started off by objecting to trial by media reports. What he then did, is, mentioned specific issues which were raised in committee by this committee. He then proceeded to launch on a very aggressive and distortive attack on certain positions which certain of the legal representatives here had taken and I would just like to record that I think that amounted to a misuse of the occasion.CHAIRMAN: Mr Pretorius?

MR .PRETORIUS: Thank you, Mr Chairman. To a certain extent we have the benefit of the experience that we have been sitting here for nearly six months now. We have been through the long and tedious process of listening to witnesses in the same advisorial way, trying to solve disputes and usually there are two sides to a story and usually the parties do not agree about everything and that is exactly why there is a forum to try and play the arbiter and say yes, in the end I decide in this way, but then you have got to listen to everything. (30)

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( 20 )

Unfortunately as I said in the well-known English case Attorney General v Hitchcock, if we lived for a thousand years and every case was of sufficient importance, we could have gone into every question, into every assault there, but we do not have that time, so we must cut the proceedings short. A lot

criticism was levelled here and it is very important for this forum, for this commission of inquiry that all the parties should be satisfied and feel that justice is not only being done, it is seen to be done and that all the parties, including the defence force, feel that they had a fair opportunity of (10) presenting their case.

I differ as respects Mr Danie Pretorius' statement that the only manner know to jurists is by way of the advisorial way of cross-examination. On the continent of Europe for a long time it has been established that the inquisitorial method is another way of finding the truth and we have got a mixture sometimes here due to the specific function that we have here.

Mr Chairman, as the counsel for the committee I would suggest that it is a very helpful suggestion that the parties should sit together. I think there is a lot of ground that (20) they can still agree upon. One thing that must be remembered, in the end there will be a few points that they will agree to disagree upon. They will never be exactly ad idem and then unfortunately we must decide in which manner we should resolve those few issues that is left. So, I am in total agreement that there are a lot of things that the two parties can agree on that can be presented to you as agreed facts and in that respect I agree with that suggestion, but I just want to put the caveat that usually the parties do not agree about everything or to the detail of everything. (30)

I/. . .

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I think we want to take note of the feeling of unease by one of the parties that is represented here. I also have a feeling of uneasiness about the criticisms that have been levelled and that the finding has been influenced to say that the one party will think that you have taken note of outside evidence if you ruled in a certain direction. I do not agree with that. Thank you.CHAIRMAN: Thank you, Mr Pretorius. Is there anything anybody wishes to add to what has been said? Nothing?MR_ROUX: Mr Chairman, I do not think I should enter the arena. (10) Insofar as I am accused of misusing, I just wanted to achieve the opposite. That is all I want to say. I do not want to misuse this forum, I wanted to achieve the opposite and to revive co-operation. That is all I want to say.CHAIRMAN; it seems to me that what I would characterise as the communis opinio is that we should get together, or the parties must get together to thresh out the issues and see where they agree and where they disagree and to tabulate all that. Insofar as the committee's reply is concerned as far as what has been said this morning. Mr Tucker wishes to have some time (20) before we can give the committee's reply to that, but one thing stands out like a sore finger and that is that all of us do want to meet and to thresh out some few things and we have got to be given time to do it and I would suggest that we meet at 14:00. Mr Tucker, do you wish to ... (intervenes)MR TUCKER: I am sorry, Mr Chairman. I am actually in respect­ful disagreement. I agree with you entirely that that consensus is that we need to meet, but meet to do what? And I think that it is necessary for the committee to give the framework within which the parties should meet. (30)

MR TUCKER/...

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MR TUCKER REQUEST A SHORT ADJOURNMENT TO WORK OUT A FRAMEWORK(

WITHIN WHICH THE PARTIES SHOULD MEET.MR-ROUX: Can I just ask this? I am in agreement. What I wanted to suggest from my side depending on what you say Mr Chairman, is that you give us assistance, if there is a possibility of what we have termed the "informal meeting", to get the framework that we all make suggestions and you can then give us the framework, otherwise we are going to scatter around and be involved in shadow boxing, but the only point that I would ask, is not for you to give us the framework, but rather (10) for you to sanction the framework, can we assist in airing our views and saying: "I think we should put it in this form" and at the end you can say: "well, in the informal meeting, just put the parties now. Say well, I have heard you and that is what I think should be the framework". If we can play some role in that, Mr Chairman.MR TUCKER: Mr Chairman, I think that will be accommodated in what I would like to propose.CHAIRMAN: All right, then we shall have a ten minutes adjournment to consider our reply to what you have been saying (20) and thereafter we will invite suggestions on the framework.THE COMMISSION ADJOURNS FOR TEN MINUTES. THE COMMISSION RESUMES. -

CHAIRMAN: We proceed. Having collated everything that was said here and having digested it, all that remains for me to do, is to call upon Mr Tucker to reply to what was being said and to give a synopsis of the framework which is desired here and hopefully each of the parties will add to the framework as we want it to be. Mr Tucker, please.MR TUCKER: Mr Chairman, thank you very much. If I could say (30)

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on behalf of the committee at the outset how grateful we are to the legal representatives for the argument which they have given, we found it exceedingly helpful. Then, if I may point out that the powers and functions of this committee are defined in terms of the act as amplified by the specific terms of reference which were given to us by the Goldstone Commission itself at the point in time at which we were asked to investi­gate the circumstances and the occurrence on the night of 8 April.

The functions and powers of the commission is detailed in (10) section 7 of the Prevention of Public Violence and Intimidation Act and they are essentially to inquire into the phenomenon of public violence and intimidation and the natures and causes of that violence and then to make recommendations to the state President relative to that phenomenon of public violence and intimidation.

The specific terms of reference which were given to us on this occasion were to inquire into the reasons why battalion 32 went into Phola Park on the night of 8 April and whether members of battalion 32 committed acts of assault. It is quite (20) clearly beyond the powers and functions of this committee to maKe any findings of the guilt or otherwise of any particular person in relation to any particular crime. That is the function of the normal legal forums of our country and the normal legal process.

The difficulty which we have here becomes very clear from the address of counsel for battalion 32, is that battalion 32 effectively stands accused of having perpetrated a range of different offenses on the night of the 8th and that those accusations had been made in the public media. What counsel (30)

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for the battalion 32 made clear in his address, is that to the extent that it is possible, he would like to see battalion 32's name either cleared or alternatively confirmed in relation to those accusations which have been made in the media and he points out that to the extent that this committee does not either clear battalion 32's name or find battalion 32 guilty of those offenses. This committee has effectively compounded the damages suffered by battalion 32 as a result of those accusations in the media.

I am not going to express the views to whether it is (10) regrettable or otherwise, but in any event, it is beyond the powers of this committee to perform that function of clearing battalion 32's name of that of which it stands accused in the media. We cannot do it. The only thing which we can do, is to confirm or to come to conclusions as to why battalion 32 went in, whether battalion 32 actually performed that which they went in to do and whether members of battalion 32 overstepped the mark and committed acts of assault. We cannot go further than that, but what we can do in addition, is that in coming to our decisions as to why battalion 32 went in, (20) whether it did it and whether members of battalion 32 committed acts of assault, we can make it absolutely clear that we Ineither had the power nor did we have the mandate, nor did we in fact make any attempt whatsoever to establish whether member of battalion 32 committed the specific crimes of which they stand accused in the media and we trust that in making that clear at the time that we give our ruling on the first three specifics, we alleviate the difficulty of possibly aggravating the problems of battalion 32.

It is possible to have read certain of the things said by (30)Mr/...

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Mr Roux for battalion 32 as being a valed accusation followed by a warning to the committee, but we are confident that that was not the case and that what Mr Roux was saying, was indeed intended as being constructive towards arriving at a satisfac­tory ruling and we take what he said in that context and indeed what he did say, has helped us to come to the understanding which is implicit I hope, in what I am now saying.

We therefore come to the question of how do we proceed from here. What the committee requires, is evidence or agree­ment and it can be either evidence or it can be agreement as (10) to why battalion 32 went into Phola Park on the night of 8

April, whether battalion 32 performed that which it went in to do and whether members of battalion 32 overstepped the mark and committed acts of assault.

Very clearly it would be helpful to us if we had that by way of agreement and the purpose of any informal meeting of the legal representatives must be to the end of moving as far towards agreement as is possible on the specific issues which I have now identified. If I could repeat that: why battalion 32 went in; whether it did it; and whether members of (20) battalion 32 overstepped the mark in committing acts of assault.

To the extent that the parties are not able to come to an agreement on those issues, we have no alternative whatsoever but to hear evidence. To the extent that we then need to hear evidence, we believe that the warnings directed to us by counsel both for the Minister of Defence and counsel for battalion 32 are apposite and correct and that is that once you have a witness in the witness box and he is giving evidence on certain things that you want to hear about, it must be within (30)

the/...

C296.1223GOLDSTONE 4298 ARGUMENTS

the rights of the parties to cross-examine him on prereferral issues and other issues to test him on credibility as to whether you can rely on that man on the specifics which you are wanting to hear, so that to the extent that the parties cannot come to an agreement, hopefully they will come to an agreement as to what witnesses should then be led. Once that witness is in the witness box, it is open to the parties, on the issue of credibility, to go beyond the specific three issues which I have identified so as to test him on credibility.

If I could then address the specific issue of Mr Msimango (10) and that evidence, I think with the benefit of hindsights, the position wherein with Mr Msimango is that we did not thrash this out before we put Mr Msimango in the witness box and by the time he was in the witness box, not to the issue of testing his credibility, but to the issue of whether Mr Msimango's wife was raped or not, so the evidence was led and the cross- examination then continued. That is clearly beyond the functions and purpose of the committee. It is not our function to come to a decision whether a member or members of battalion 32 did or did not rape Mr Msimango's wife. It is our function (20) and he was actually in the witness box to give us evidence as to whether: A. He and/or his wife were injured, not by whom, but whether he and his wife was injured. Secondly, as to whe­ther members of battalion 32 entered that shack at all and the reason for that is that if he and/or his wife were injured and members of battalion 32 entered the shack, why were they not according to battalion 3 2 's own statement as to why it went in­to Phola Park in the first place, why were the injured then not removed and thirdly, as to whether Mr Msimango and/or his wife and/or his child were assaulted by members of battalion 32. (30)

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C296.1319GOLD STONE 4299 ARGUMENTS

That is the reason that Mr Msimango is in the witness box, accepting that in order to test him on credibility, you might have to go beyond those issues.

As a committee we anticipate that you, the legal represen­tatives, might very well be able to come to an agreement on the specific issues which the committee wants to hear about and that it might not be necessary to pursue the cross-examination of Mr Msimango. However, if you are not able to come to agreement on the issues which the committee wants to hear about, then we have no alternative but to pursue the cross- (10) examination of Mr Msimango, but at the point in time at which that cross-examination of Mr Msimango is continued, it must be within the context of this ruling.

For that reason, Chairman, what we would like to do, is to convert the essence of what I have said now into a ruling and in particular to adjourn at this point to allow the legal representatives to get together and to see to what extent they can come to agreement on the issues which we have identified and to the extent to which they are not able to come to agreement on the issues which were identified, which witnesses (20) should now be led and what evidence should be presented to the committee to bolster the agreement which you are able to reach, but I suggest that we should hear the parties before we make this ruling final.CHAIRMAN: I concur with Mr Tucker. I shall now call upon the legal representatives to express themselves on this ruling before we make it a final ruling.MR ROUX: I am happy, Mr Chairman.CHAIRMAN: You are happy. If you are happy, I am happy. Mr Pretorius? (30)

MR ROUX:/...

C296.K34GOLDSTONE 4300 ARGUMENTS

MR— ROUX: Mr Chairman, if I might just inquire, if you will recall, on the day that Mr Justice Goldstone presided over the commission, he identified three questions and the second one was whether battalion 32 was provoked. It was held in meeting up in chambers. Then the representatives of the complainants said that they do not want that question and the learned judge said well, it is incorporated into question 1 in any event, why did they go in. Shouldn't that also be added to one of the requirements of the committee, whether battalion 32 was provoked?

Mg_TUCKER: Mr Chairman, to the extent that I am allowed to be in respectful agreement with the judge of the appellate division, I am in agreement with the decision of the judge of the appellate division and that is that it is essentially embodied within the first question, why did battalion 32 go in.MR,.-ROUX: My point merely being, shouldn't it be one of the things that the parties should address and attempt to find consensus on, if at all possible?CHAIRMAN: I do not think, look, if we agreed that that question of provocation is subsumed in the main first question, (20) you know, why did they move in, then it is not necessary to right it down expressly as one of the questions to be addresses, because it is subsumed in that questipn, but this does not mean that anybody is debarred from discussing it, because it is subsumed in that question. Logic of the book.MR ROUX: As the committee pleases. Can I just say one thing,Mr Chairman, that I failed to say? I think what is necessary when we do it, we need a person like Mr Pretorius just to •^assist and to facilitate the whole thing and to give us the information. ^ o )

CHAIRMAN:/...

C296.1543GOLDSTONE 4301 ; RGUMENTS

CHAIRMAN: Yes, this is what I was going to say. You see, initially the committee felt, that is Mr Tucker and I in the absence of Miss Baqwa, we felt that we should sit in with you to participate in thrashing out the framework of this thing, but I came up with the suggestion that we would rather be on call, or on tap you know, to assist if needs be rather than sit in as I suspect that there might be some sparks flying which we are not supposed to see when they start flying an so forth.So, I decided that we keep out of it, but be on call or on tap for your assistance and that is what we decided on and this I (10) was going to say that in any event. But I have to stress, I feel I must stress, while I concur with Mr Tucker, with everything that he has said, I must stress that this forum, it would be ultra vires for this forum to provide a platform of four counsel for battalion 32, a platform to rebut what the newspapers are saying about battalion 32. I must stress that.This is not the right place to do that and this forum cannot do that. It is not our function. It would be ultra vires for us to provide such a platform. It is just humanly impossible for one to stop the newspapers, the media from, stop them from (20) what they are writing about battalion 32 and the manner in which they are writing it and so we cannot provide a platform for counsel for the battalion 32 to rebut what the newspapers are saying about them. They must find a way of dealing with that in some other manner, but here we know what we are doing and we cannot allow that. Right, is there any comment, Mr Goldblatt, Mr Joseph?ME_JOSEPH: I have got no comment about the. ruling or theprocedure. I have just a little comment about what time or when we will recommence. I understand that certain people will (30)

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not be here at 14:00.

CHAIRMAN: Yes, but it is hoped that they shall have agreed on the framework of this thing by that time.MR ROUX: I am just not optimistic time wise, Mr Chairman. Obviously we would like to do it that way, but let us be realistic about it. I say no, I think it is impossible. They have indicated they wanted to know two things. I do not think that is the purpose of the whole exercise. It is to sit with Mr Pretorius, to look at the photograph to say, to take a medical report, to say: do we agree that that is a (10) reconcilable thing, yes, next. It is impossible.CHAIRMAN: What time spand do you suggest?MR_ROUX: I cannot, speaking for myself, in my wildest dreams,I think if we work hard and we really do what we should do, that we are going to use the balance of the day for that. If you just look at the medical reports, if you look at the photographs, if you look at the firing line, look at the house, look at the damages, then we must work hard.CHAIRMAN: There is a suggestion that the whole afternoon be utilized for this purpose. Any objection to that? Mr Joseph? (20) MR JOSEPH: I have made my position clear and the fact that I will not be available should not in any way influence either you or my learned friends in the business on hand. I would imagine that, I do not know whether Mr Tucker intends remaining here for the course of the afternoon. Suppose he does not, if he gives an indication that the work will not be completed by 16:00 and an indication of my learned friend and I accept that it is going to take a long time. Under those circumstances I would imagine it is better to adjourn until tomorrow rather than to have people waiting around, but I exclude my personal (30)

situation/...

GOLDSTONE 4303 POSTPONEMENT

(tn

c

I situation from influencing any decision.MR TUCKER: Mr Chairman, could I just ask Mr Pretorius, to my knowledge you Chairman and Miss Baqwa have got to go down to Natal on Friday and I really am concerned about the delay.This is not th? only piece of this inquiry. Mr Pretorius, is ^ feasible for us to go on with other stuff this afternoon and tomorrow and to, for the parties with you, to work on this on Friday?

MR.PRETORIUS: To go on with other stuff would not be feasible, honourable member. The logistics of getting the witnesses that (10) is required from the police at this stage, we might possibly get one tomorrow. So, even I think Mr Max Mosselson indicated that he is also away on Friday. Is that correct?MR MOSSELSON: No, I just want to point out that the police are not available at the moment. Mr Hattingh in the absence of anything pointing to the police involvement, has actually gone off onto the trends to assist Mr Weppener there.MR PRETORIUS: So, logistically we cannot go on with that, but ... (intervenes)

MR TUCKER: Then Mr Chairman, I would suggest that we do as has (20) been proposed, that we adjourn until 09:30 tomorrow morning and ask the parties to do whatever they remotely can between now and 09:30 tomorrow morning to be in a position to present us with what has been agreed at the commencement tomorrow and then to then pursue the specific witnesses who need to be pursued. CHAIRMAN: I think that is the only way out. We have indicated that two of the committee members will not be here on Friday, so we shall not be sitting on Friday. We will be out in Durban attending to other violence whichHis flaring up there and so I think the best thing to create certainty, the best thing (30)

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C296.1875g o l d s t o n e 4 3 0 4 POSTPONEMENT

would be to adjourn this issue until tomorrow 09:30, but on the condition or subject to the proviso that Mr Tucker and I are on call this afternoon if you need any assistance on anything. THE COMMITTEE ADJOURNS UNTIL 09:30 ON 14 MAY 1993 SUBJECT TO THE ABOVEMENTIONED CONDITIONS.

C296.19B9GOLDSTOVE 4305 POSTPONEMENT

( 10 )

( 20 )

(30)

THE COMMITTEE RESUMES ON 1992-05-14.CHAIRMAN: Good morning, ladies and gentlemen, Thursday 14 May 1992 and we pick up the strings of our enquiry from where we left them the day before yesterday. Mr Pretorius, what is the position, do we have Mr Msimango back, or ... (intervenes)MR PRETORIUS: Mr Chairman, Mr Msimango is not back. There was another operation in Phola Park this morning and there were some misunderstandings.CHAIRMAN: What operation?MR PRETORIUS: I am not too sure what type of operation. I know the police is there, MID is busy with an operation there with the defence force and it is a bit difficult to speak to the guys on the ground there. There were some misunderstand­ings and the witness is not presently here.CHAIRMAN: Is there any person who can enlighten us on the operation in Phola Park and why it affects us here?MR .HATTINGH: Mr Chairman, CIS went in this morning, the whole area has been cordoned off by the defence force and the police are in there in ... (intervenes^)CHAIRMAN: CIS is Central Intelligence Service? ^ q)MR HATTINGH: Indeed.CHAIRMAN: The counterpart of CIA, I suppose?Mg HATTINGH: Yes, I suppose so. They are busy with a very thorough search of the whole of Phola Park. They are not allowing anybody to come out of the area and they are searching the whole area, inter alia on the kind of information that they have at their disposal. I am told that the attorney for the witness arrived there this morning to bring him, to collect him and to bring him to the Commission. Enquiries were made in that regard and the defence force told him that it was alright, ^ q)

he /...

K297.0GOLDSTONB 4306 ' DISCUSSION

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he could go in and collect the witness on condition that the witness was able to identify himself as being the witness on coming out of the area and that apparently, I would not like to go into that, because that was something that happened between the defence force and the attorney in question and I am not going to become involved in the, there is a dispute as to what exactly happened, as a result of, but the net result was that the attorney departed without the witness. Thereafter when we found out about this, we contacted <the police and requested the police to try and get the witness, find him and to bring him here. Whilst they were busy trying to do this, they also had problems. Apparently none of the residents of the area are prepared to disclose their names to the police and there were several disabled people with crutches and they do not know what he looks like and so they had a difficulty identifying him in the first instance. But before they could do so, I was requested by the attorney for the ANC to request the police not to bring the witness. They did not want the police to bring the witness, for reasons that they can ...(intervenes)

( 20 )CHAIRMAN: That are best known to them.MR HATTINGH: That are best known to them, whereupon we phoned warrant-officer Nick de Goede again and asked him to find out whether he could ascertain whether the witness is in fact there and to contact us, but not to bring him to the Commission, at the request of the attorney for the ANC.CHAIRMAN: Is there anything which you wish to report on, Mr Lewies?

MR LEWIES: No, Mr Chairman. As far as I know, my clients are not involved.

CHAIRMAN

GOLDSTONE 4307 DISCUSSION

(30)

CHAIRMAN: Alright.

MR D . 0.— PRETORIUS : Mr Chairman, I have it basically the same as my learned friend, Mr Hattingh. I do not wish to comment as to what transpired between the attorney and the members of the SADF, because I do not really know.CHAIRMAN: Ms Cambanis?

MS CAMBANIS: I think it is also, it is best left that what transpired is not gone into at this stage.CHAIRMAN: Yes, but are we going to have Mr Msimango here this morning? (10)MS, CAMBANIS: I asked Mr Boshe Sithole to fetch the witness and I was subsequently asked by Mr Pretorius to ... (intervenes) CHAIRMAN: Who is Mr Boshe Sithole? Is he your candidate attorney, or what?

MS CAMBANIS: Sorry, the assistant. That is correct. Sorry, yes. To fetch the witness, arrangements would have been made for identification and so on and subsequently I was asked by Mr Pretorius to cancel the instruction to Boshe Sithole.CHAIRMAN: Ja. Are you in contact with Mr Sithole right now?MS CAMBANIS: Right now he is in Phola Park, but he can be ^0) paged.

CHAIRMAN: Is he going to bring the witness?MS CAMBANIS: Not for the purpose of the witness, for purpose of what is happening in Phola Park at this point.CHAIRMAN: So it is quite clear that we are not going to have Mr Msimango here today, is that not so?MS CAMBANIS: Mr Sithole is at Phola Park, he can be paged, he can be reached by pager number to bring him in, but given the difficulties, I would say it is very unlikely that we will have success.

CHAIRMAN /. . .

K297.4goldstone 4308 DISCUSSION

(30)

Collection Number: AK2702 Goldstone Commission of Enquiry into PHOLA PARK Records 1992-1993 PUBLISHER: Publisher:-Historical Papers, University of the Witwatersrand Location:-Johannesburg ©2012

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