AMNESTY HEARING

DATE: 11-08-1997

NAME: CLIVE JOHN DERBY-LEWIS

____________________________________________________________ ADV MPSHE: Today is the 11th of August Mr Chairman, in the application of Janusz J. Walus, application number 270/96 and Clive J. Derby-Lewis, application number 271/96 Mr Chairman.

All the parties are here present as well as all the affected and interested parties, they are present. I will then hand over to the Chair to allow all members herein present representing people, to put themselves on record Mr Chairman, thank you.

CHAIRPERSON: Thank you. Yes, for the applicant?

MR PRINSLOO: As Mr Chairman pleases, H.J. Prinsloo on behalf of the applicant, instructed by the firm of Attorneys Swart, Redelinghuys, Nel & Partners and Mr J. Lubbe is the Attorney present on my left Mr Chairman.

MS VAN DER WALT: I appear on behalf of Mr Janusz Walus, I am Louisa van der Walt and I am under the instructions of the firm Swart, Redelinghuys, Nel & Partners, thank you.

MR BIZOS: May it please you Mr Chairman. I appear for Mrs Hani and the South African Communist Party, my name is Bizos, together with my learned friend Mr Malundi, instructed by Nicholson, Khampanis solicitors in Johannesburg.

CHAIRPERSON: Thank you. The Amnesty Committee comprises of myself as Chairman, Judge Andrew Wilson on my right, Judge Vernon Ngoepe on my left, Ms Sisi Khampepe, Attorney on the left, Adv Denzil Potgieter, senior counsel on the right of Judge Wilson.

I would like to make a short announcement for those of you who have these headphones. Channel 1 will give you the Afrikaans translation, interpretation. Channel 2 will be English. Channel 3, Tswana and channel 4 Polish.

Some of you will be hearing that language for the first time no doubt. Ms Van der Walt?

MR PRINSLOO: Mr Chairman, this morning at quarter to ten we were served a bundle of documents comprising approximately 500 pages. Which documents we haven't been able to study. These documents were served upon us by the representatives of Mrs Hani and the South African Communist Party and the ANC.

At a glance of these documents, they appear to contain certain statements purportedly made by the applicant, Mr Derby-Lewis and which statements were not tendered at the trial of Mr Derby-Lewis and these statements were purportedly made whilst the applicant was detained in terms of Section 29.

We were not informed by my learned friend Mr Bizos or any of his representatives that such documents will be used and we would need time to study these documents. It may be that these documents will also be regarded as inadmissible having been obtained whilst the applicant was detained in terms of Section 29 and other reasons as far as the admissibility of statements are concerned.

At this stage, we would ask that the matter stands down until tomorrow morning to afford us the opportunity in order to study the documents and take instructions from Mr Derby-Lewis in this regard.

I must stress Mr Chairman, this is absolutely no fault on our part that this adjournment is sought, otherwise we would have been ready to proceed.

MS VAN DER WALT: Chair, it is correct and I want to affirm what Mr Prinsloo has said to you. I have had no access to certain of these documents. I have made an attempt in the 15 minutes prior to the beginning of these hearings to page through these documents.

It would appear that there really is matters that must be discussed urgently with my client and I would also ask for an extension, thank you. A postponement, my apologies.

CHAIRPERSON: Mr Bizos?

MR BIZOS: Thank you Mr Chairman. Firstly let me indicate in relation to the size of the bundles. They are not as lengthy as their apparent number of pages may indicate.

They are statements, they are hand-written and we thought it necessary or rather the investigation when it was conducted, thought it necessary that those should be typed out so you will probably find that in the bundle there is a hand-written and a typed statement, which reduces it to less than half.

Also there are matters there which are of vital, we submit, importance on the issue as to whether full disclosure has been made or not. They are vital documents for the ascertaining of the truth.

It is correct that these statements were not tendered in evidence in the criminal trial, we do not know why they were not so tendered, but we submit that it is irrelevant for the purposes of this Committee as to why the Attorney General did or did not tender those statements.

There is authority which is supplied that statements made under Section 29 are in fact admissible once the authority of a person in the employ of the State has been obtained, the docket was obtained by us from the Attorney General of Gauteng who is the Officer mentioned in the Section.

They are therefore prima facie admissible. It is of course open to the applicants to say that those statements were not freely and voluntarily made.

I do not want to pre-empt such a statement by them, but we have the investigation diary which will of necessity be put in in order to show how well the applicants were treated whilst they were in detention.

We regret Mr Chairman, that we only gave them to them this morning. This is not the first time that the applicants' counsel have had notice of the fact that the contents of the docket would be made available. A pre-trial conference was held in which we disclosed that we had asked the Commission to issue subpoenas duces tecum, that is a subpoena to bring documents to court on the Attorney General's office and the Investigating Officer.

We were informed that generally speaking the Committee does not require original documents to be placed before them. We made the copy available that we had to counsel for the Commission. We were informed that the facilities of the Commission were not sufficient in order to make copies for members of the Committee and the other interested parties and at considerable trouble and expense to our clients, we made copies which we delivered to the Committee over the weekend and to the applicants' counsel this morning. I can understand that my learned friends want to take instructions, and they may well be entitled to ask you for time in order to take those instructions.

But I submit that it need not necessarily be a lengthy one, the statements are there and I am sure that clients know about them. But they are nevertheless entitled in our submission, to give instructions.

We are going to persist in our intention to place those statements before the court because in our respectful submission they contradict the case which the applicants are trying to put before the Amnesty Committee and above all they contradict the evidence of Mrs Derby-Lewis who gave evidence before the Judge President of the Transvaal in her own defence and part in defence of the applicants.

So it is an important matter and I would leave it to the discretion of the Committee how much time they may be entitled for the purpose of taking proper instructions.

CHAIRPERSON: Can you off hand tell me whether this volume of documents that was served on us, does it have a special, has it been designated and numbered, can it be easily identified?

MR BIZOS: What we have done Mr Chairman, for the purposes of convenience is that we have marked by agreement A, B and C the applicants' documents, and what we have done as respondents is we have marked all the documents that emanate from our side, R1, 2, 3, 4, 5 and anything else that we tender we will asked to be marked R and the subsequent number.

The docket before you is in two volumes, R4, there is only one. R4 and R4 continuing. There was too much to put into one bundle, but those are the documents.

Not all of them are as relevant as the statements made by the two applicants and Mrs Derby-Lewis Mr Chairman, but we put in other documents for the sake of completeness in case certain side issues arise.

CHAIRPERSON: Thank you.

MR BIZOS: May I say Mr Chairman, that we have the cases decided in our courts which make Section 29 statements admissible and we may say that the Section 29 that was in operation in 1993 when the statements were made, was a much more human rights friendly Section to the ones that the cases deal with.

We are prepared to make the cases available to our learned friends and to members of the Committee so that they may consider the situation.

And I have already indicated that the Attorney General handed us over the document.

CHAIRPERSON: Yes. Mr Prinsloo and Ms Van der Walt, we have had a hurried look through these documents, bundle of R4 and continued bound separately in this bundle, we are of the view that you are entitled to time to consider these documents.

There are in all approximately a little under 100 typed pages. And we feel that if we allow you until two o'clock, that would be adequate time for you to read those documents and consider the matter.

I am now going to therefore, subject to what you may have to say, I am going to adjourn the Committee now, this sitting, until two o'clock this afternoon. Do you understand?

Mr Bizos, it is quite clear that an adjournment has become necessary and I have consulted my Committee members and it is our view that this matter should be adjourned until two o'clock this afternoon.

This matter is therefore adjourned, the Committee rises.

CHAIRPERSON: ... called and they will give evidence and I appeal to you please to allow them their say so that everybody can hear what is being said, thank you very much.

Yes, are you ready?

MR PRINSLOO: Honourable Chair, Committee members, during the postponement granted until two o'clock this afternoon, we want to place on record first of all that R4 provided by Mr Bizos and his team to us, we do not recognise this document, it was not part of any of the discussions of the 4th of August, of Monday the 4th of August during the pre-hearing conference, secondly it would appear that there is reference to cassette tapes.

Mr Lubbe the attorney who has given us our instructions has approached Mr Bizos' team in this regard. This team has informed us or Mr Lubbe that the cassette tapes are not in their property. We would want to listen to these tapes, compare the tapes to the contents of the actual statements as transcribed.

Thirdly, with regard to the pre-hearing conference, Mr Bizos was only available very briefly since he had other responsibilities at the Supreme Court. It had been discussed whether the Supreme Court documents would be recognised and it was said during that meeting that this document would not be contested by ourselves and we do accept a copy as provided.

It was also mentioned by the team of Mr Bizos that consideration will be given to the judes tecum subpoena and it was pointed out that Mr Mpshe does not have the necessary powers. It was also clearly stated to Mr Mpshe and he responded that with regard to Section 29 testimony or that this would not be applied.

Furthermore, with regard to the statements in R4 we would like to address the Committee in full on this matter. In the first place Mr Bizos without prior consultation with us already on Friday, according to Mr Mpshe, made R4 available to the Committee. It would appear that the statements therein would appear to be documents contained in interviews during a Section 29 detention, as well as statements during such a detention.

It was not determined by us from Mr Bizos, or by Mr Bizos whether we would contest the acceptability of these documents. It was his responsibility as an experienced criminal advocate that the contents of a document containing statements such as these and in which the contents would be considered, that the acceptability or liability of this document, or admissibility would first have to be determined.

It would appear that the Committee already had access to the documents and it would appear that these statements were available to the Committee on Friday.

Furthermore Mr Chair, the documentation which had been made available to us consists of approximately and if you would grant me a moment, 337 pages. We were availed of a single set of these documents by Mr Bizos.

These documents will need to be studied very carefully by the clients. The clients would have to have opportunity to do so. Mr Bizos had been availed of a considerable amount of time when he objected against the volumes of documents in his words served on him at the airport on the 8th and we would ask that a similar amount of time be made available to us since the two hours availed to us, have not been sufficient.

We want to submit in the first place that with regard to the statements, in the first place, that these are not admissible. Furthermore, that we will argue and we want to be granted the opportunity to obtain the necessary authority that Mr Bizos who wants to place these statements before the Committee, must first prove the admissibility and the voluntary nature of these statements.

This will be his responsibility and duty. We must be granted sufficient opportunity to make the necessary research after the Honourable Committee has made the decision who has the responsibility for proving the admissibility and then we will address you with regard to our additional problems in this regard.

In summary, therefore, we want to request that the matter be postponed until tomorrow morning to allow us to prepare an appropriate legal argument and to present this to the Committee with regard to the documents now placed before the Honourable Committee. After this legal argument and after a decision by the Committee, we will then follow the decision of the Committee as it pleases you.

CHAIRPERSON: Do I understand that you would like the application to be postponed at this stage without first hearing Mr Bizos arguing the admissibility of these documents?

MR PRINSLOO: Mr Chairman, unless Mr Bizos has some answers to this as far as the admissibility of the documents are concerned, we respectfully submit that the onus is on Mr Bizos to show that the statements were freely and voluntarily made.

CHAIRPERSON: My question is do you wish to adjourn this matter without affording or hearing argument on the admissibility at this stage? Because if you are not, I am going to call upon Mr Bizos, if it is convenient, to argue this question of the admissibility of these documents.

MR PRINSLOO: Mr Chairman, my submission is with respect that we must be afforded the opportunity to present legal argument why we say that these documents, that the onus is first of all on Mr Bizos to show that it was freely and voluntarily made.

Secondly that Mr Bizos will then be afforded the opportunity to reply thereupon. Unless Mr Bizos will be prepared to start at this stage to present his argument and we are going to reserve the right to reply thereto with regard to a proper argument which we will prepare to present to the Commission.

CHAIRPERSON: I have no doubt that you will have all the opportunity to reply to whatever arguments are raised and both sides will have all the opportunity that is required to deal with matters that are going to be placed before us.

Mr Bizos at this stage, it seems that apart from the fact that they have had inadequate time to consult with their clients on the contents of the documents labelled R4, the point is made that you have to satisfy the Committee about the admissibility of these documents.

Are you at this stage in a position to deal with that aspect of the matter?

MR BIZOS: Yes, Mr Chairman. But there has to be, firstly that I want to place on record that it was intended to subpoena the police officers who took these statements to produce them duces tecum this morning and we were told that we could make copies available and that it was not necessary for subpoenas to be issued.

What I want to say is this, that we are entitled and the Committee is entitled to know from counsel of the applicants whether they contend that these statements are inadmissible because their clients, the two applicants, were held under Section 29 when these statements were made which we are ready to argue, because that is a matter of law.

And the authorities are clear that they are not inadmissible merely because the person concerned was held under Section 29. Or do they contend and we are entitled to know that, because my learned friend is correct in saying that the onus is on us to show that the statements were freely and voluntarily made, but although the onus is on us it is for them before that onus is placed on us, to tell the Committee and through the Committee, us, who was it who they say unduly influenced them to make these statements and how they did it so that we may consult with those persons and give them, call them in evidence, that in order to prove that they were freely and voluntarily made.

I want to place on record that we have had a consultation with Captain Holmes who was the Investigating Officer, who assured us that these statements were freely and voluntarily made. If the applicants contend that any undue influence, whether of whatever nature, such as would make an ordinary statement inadmissible, was imposed on them before any further steps are taken, they must please tell us who it was and in what manner do they suggest that they were unduly influenced to make these statements.

If they want to separate the two it would be inconvenient in my respectful submission, the question of admissibility should be decided on both issues, but if need be we are ready to argue that the mere fact that they were taken at the time that they were held under Section 29 does not render them inadmissible.

This is what we submit and we believe with respect, that it is for the applicants and their legal advisors to make a choice whether they want to place before the Committee the grounds upon which they say the statements are inadmissible so that we can be guided as to what evidence we have to call in order to prove that they were freely and voluntarily made Mr Chairman.

So that if we could have a précis or what it is that they contend makes the statements inadmissible, that would put us in a position to, although this Committee in our respectful submission does not appear as far as I know, to have detailed rules in relation to how this matter should be dealt with, I believe that the procedure that I have outlined is familiar to everyone of the persons on the Committee, particularly the three Judges, that is the way it is usually done in the superior courts of the country and I suggest that in fairness to the applicants and the victims, that that is a fair procedure that should be followed here.

CHAIRPERSON: Can we then clarify the position, is your objection two-fold? Are you objecting that the statement is inadmissible because it was taken at a time when they were under Section 29 detention? Is that one issue?

The second issue is, are you contending that the statements were not made freely and voluntarily?

MR PRINSLOO: That is the case Mr Chairman. These statements were taken while they were held under Section 29 and these statements were not voluntarily given as well as the interviews.

It would appear furthermore Mr Chairman, that there were persons present who were not Officers. Furthermore that the persons who took down these statements were part of the Investigative team. There would need to be a more complete consultation with the client to be able to state this fully to Mr Bizos.

Captain Holmes was not the Investigative Officer in the sense that he took part in the interviewing process. It would appear that he only carried the docket. There were persons involved in the Security Branch of the South African Police Service and it was these persons who took down the statements and it is these particular statements that are put in dispute as contained in R4.

INTERPRETER: The interpreter could not hear the speaker.

CHAIRPERSON: I think you did not come on the machine with your last sentence.

MR PRINSLOO: Mr Chairman, the persons involved in the investigation or the interviewing were persons, were members of the Security Branch. These were the interrogators as well as the persons who took down the statements.

With respect Mr Chairman, these statements were not presented by the then Attorney General Mr Klaus van Lieres and he must have had good reason for not presenting it. He was an experienced person.

Captain Holmes as I have mentioned, was the person who carried the docket, he was not the person who actually took care of the interrogation.

CHAIRPERSON: So it is clear that your objection is on two grounds? (a) that because they were in custody at the time in terms of Section 29, that ground is a factor on which you say that the statement is inadmissible and as I understand you to say that the statement is also inadmissible because it was taken under interrogation by members of the Security Branch?

MR PRINSLOO: It was not made freely and voluntarily Mr Chairman.

CHAIRPERSON: Are you saying that there was any violence or any force used on them?

MR PRINSLOO: I am saying we will have to take full instructions to comprehend this fully to put it before the Commission. I am just sketching this briefly Mr Chairman. I am just sketching this briefly Mr Chairman.

JUDGE NGOEPE: Sorry, I am sorry, I don't quite understand. Are you saying that you are not able to tell us now as to the nature of the undue influence?

MR PRINSLOO: Mr Chairman, we are not saying that violence was used, but we say that there was undue influence in the making of these statements.

CHAIRPERSON: Yes, as my brother here says are you in a position to tell us what was the nature of this undue influence?

MR PRINSLOO: Mr Chairman, in as far as that is concerned, we will have to take full instructions from our clients. That is the brief instruction we were able to take because of the volume of documents before us, 339 pages which 267 comprises the docket, we are unable at this short time and looking at authority to be able to answer that in proper perspective at this stage.

We will need more time.

MS VAN DER WALT: Mr Chairman, I would want to also put the position of Mr Walus on record. It differs from that of Mr Clive Derby-Lewis, namely that Mr Walus was never held in detention under Section 29.

However there were certain statements received this morning. One of these statements comprises 56 typed pages of which three quarters of the statement was in Afrikaans which I would need to have translated into English for my client.

We have only obtained a single set of documents, although we are two distinctly separate legal representatives. I want to also take you back with regard to these statements to what was decided on Monday during the pre-hearing conference.

Mr Mpshe did have difficulties with the subpoena that had to be brought out and he informed us that he did not have the necessary powers. We informed Mr Bizos' team that normally in the Commission as from our previous experience, copies are used, copies of statements are used.

However, without doubt we did not thereby relinquish our right to contest a statement. In the brief time available to me I was able to look at a single so-called statement of Mr Walus. Then there is a similar statement in the same bundle, with a different wording.

This in itself is somewhat strange and what in addition is disturbing is that Mr Bizos claims that these statements are excerpts from the docket, however the statement on page 304 of R4, does not have any writing at the top as one would note in the other statements from the docket, there would normally be a MR number at the top of the statement as is commonly done by the Police.

On behalf of my client I would therefore without doubt need to see the original document to be able to consult. Since my client contests the voluntary nature of the statement that had been made and I would conclude from that this was a statement to a Captain Nicholas Johannes Deetliefs, it would appear to me as if this statement was made by means of questions and answers and that a junior officer was also present.

My client would contest the admissibility of this statement. In addition I would need to have access to the original to be able to determine the nature or the true nature of the statement. It would seem that words had been entered by this Captain Deetliefs at a stage after the original statement had been drafted.

In addition I want to confirm that Captain Holmes was without doubt only the Investigative Officer who carried the docket and that Captain Deetliefs if I were to look at the statement, in fact did the investigative work with regard to my client, Mr Walus.

I would also contest the voluntary nature and would also ask for a postponement and would therefore support the argument of Mr Prinsloo to you.

CHAIRPERSON: I assume in your consultation with your client, with reference to the first point you have made, or have you already done so, but I would assume that you are going to find out from him whether in fact and I appreciate the point that you are saying that the statement was not freely, possibly not freely and voluntarily made, but what I am asking you is whether at this stage you are or you are going to clear up with your client as to whether or not the statement that we have with all the defects that you have referred to and the possible queries you have raised, whether your client at any rate admits that in fact that is the statement that he made.

Be it through undue influence or not?

MS VAN DER WALT: Mr Chairman, that exactly is my problem. I would have to look at the original document. My client has exactly a problem with certain sections appearing in this statement.

As I have said, we have briefly glanced through the English sections.

CHAIRPERSON: All I wanted to say to you was is your argument that you challenge "die egtheid van die dokument", is this not presumptive? Would you not have to first consult with your client and then determine whether you can contest the legitimacy of the document, is that not presumptuous?

MS VAN DER WALT: With respect, it is exactly during the very brief period of time available to us and because of certain aspects pointed out by my client to me in this statement, it is not at all presumptuous on my part to say that I do need to see the original document.

Since under the circumstances in this very brief span of time, I may well, I have already determined that I may need to question the true nature of this document and this is in brief only some of the aspects that I would contest in addition to the voluntary nature of the statement.

JUDGE WILSON: May I ask you something. I am a little confused. We were given bundle R4 and that contains various headings. 1. Clive Derby-Lewis and a list of statements by him. 2. Janusz Walus and a list of statements by him. 3. Gaye Derby-Lewis. 4. Nicholas Johannes Deetliefs and 5. Arthur Benjamin Kemp. Now you have just referred us to a statement at page 304, that is found in a statement, that is indexed as being one by Deetliefs?

MS VAN DER WALT: That is correct Your Honour.

JUDGE WILSON: In the middle of his statement as far as I can see, I just glanced at it now when you drew our attention to the page numbering, he suddenly starts apparently quoting your client? Have you had a chance to see if he does it again anywhere in his statements?

MS VAN DER WALT: With respect, that is exactly the problem I have. It is this particular excerpt or quotation on page 305 which should be exactly the same as that on page 87 since it is a verbatim version of what is said on page 87. However, there are differences, there are words added.

Such as for instance I took the, I drove on, which does not appear in the original statement and with respect my client wants to know from me, why this difference?

On face value it would appear to be an excerpt and at first glance it would appear to be an excerpt to what is stated on page 87, but there are differences. There are things deleted, there are things added.

CHAIRPERSON: ... these documents being made available at short notice Mr Bizos.

MR BIZOS: We will have to approach the then Captain Holmes and the Attorney General in Johannesburg and I am sure that the originals will be made available fairly quickly Mr Chairman. May I be permitted to respond to one or two of the matters that have been mentioned?

CHAIRPERSON: Yes Mr Bizos.

MR BIZOS: Firstly, I don't want to be understood from anything that I have said that the principles applicable to a criminal trial, are applicable to a hearing under the Act because the rule against self incrimination on deciding guilt or innocence is one which is protected both by the constitution and our common law and all civilised states.

Here is not a question of guilt or innocence. Here the Committee is dealing with two convicted murderers. The issue is have they made full disclosure or not?

And we will in due course say that every bit of information that is available as to whether or not they have made full disclosure is admissible and relevant subject only to the obtaining of statements by coercion or trickery or the other matters which make statements inadmissible.

What we are entitled to with the greatest respect to our learned friends, before any indulgence is shown to them or any more time is given to be told, who is it that used methods which would render these statements inadmissible, the identity of the persons concerned and secondly what is it that they did or what is it that they did not do which makes the statements inadmissible?

And they are correct that there be an onus on us in order for us to be able to discharge that onus, the very least we are entitled to is the identity of the people that they say render these statements inadmissible and in the broadest outline, what is it that they allege against these persons in order to enable us to consult with them and to call them as witnesses in order to show that the statements were freely and voluntarily made?

JUDGE WILSON: Wouldn't it be sufficient Mr Bizos if they gave you the identity of these people? If they have nothing to hide, they will come here and tell us how they questioned them. They don't need to be warned in advance of things that are going to be put to them, are they?

MR BIZOS: No, not necessarily (indistinct) except possibly that if allegation A or B or C may be made, they may if they are forewarned of it be able to bring documents or corroborating witnesses in order to rebut the suggestion, but I do agree Judge with respect, that the very least we are entitled to is the identity of all the persons who had anything to do with the alleged misconduct by the persons concerned.

JUDGE WILSON: I think it is clear that you would be entitled not only to the name of the questioner, but if they are going to say somebody else standing outside the door, making threatening gestures or anything of that nature, you are entitled to have those people here so you can call them?

MR BIZOS: That is so. We do not want to do this piece- meal, this is why although they, our learned friends may be embarrassed, because they have not had sufficient time to delve very fully into their clients' alleged complaints with regard to the taking of the statements, we can understand that, but we are entitled to the identity and possibly some circumstance which will have the effect of curtailing the length of the proceedings.

But it is up to them and the Committee with the greatest respect, as to what particularity they would have to give if any. But the identity of all the persons concerned most certainly.

CHAIRPERSON: It is quite clear that the originals of these documents should be made available to you to enable you to verify whether there has been some tampering with them or what the cause was of the difference between the original and what is before us.

JUDGE WILSON: That includes tapes?

CHAIRPERSON: Yes, it is equally true that the applicant, Mr Bizos, if we are going to adjourn at this stage, that Mr Bizos should be told now by both of you as to precisely who it is that exerted undue influence on your clients and what the nature of that undue influence is so that tomorrow we don't have another adjournment to enable the calling of witnesses. If the identity of those persons are made known now, then we would like that to be placed on record.

MS VAN DER WALT: Mr Chairman, my client will claim that Captain Nicholas Johannes Deetliefs was the person who questioned him. My client will also claim that he had not placed a single word on paper and for this reason I would want to have access to the original hand-written document of Captain Deetliefs, not a typed version, since the questions and answers or the statement drafted had to be drafted in writing.

My client would claim furthermore that all questioning or interrogation had been done after 12 o'clock at night, in the early hours of the morning. My client will further claim that certain of the information written down by Captain Deetliefs cannot be recalled by my client as having been given to Captain Deetliefs, and that would be all, thank you.

CHAIRPERSON: Well, the fact that he can't recall, by itself doesn't amount to undue influence. We wanted to know what was the nature of the undue influence and you mention the nature of the undue influence and that is that he was questioned after midnight.

MS VAN DER WALT: Could I just confirm with my Attorney?

CHAIRPERSON: Yes.

MS VAN DER WALT: Mr Chairman, my client will claim in addition, or state in addition that after having been taken out at night, Captain Deetliefs continually used hard liquor.

That he made available hard liquor to my client, to the extent that at a particular time my client did not know how he was able to return to his cell. And under these circumstances, statements were taken from him.

CHAIRPERSON: Will you tell us who was responsible, as far as your client is concerned, of exerting undue influence?

MR PRINSLOO: Mr Chairman, at this stage I ask for a brief adjournment of ten minutes in order to give the details to the Committee.

CHAIRPERSON: I will be pleased if you can.

MR PRINSLOO: Thank you.

CHAIRPERSON: We will adjourn for ten minutes.

ON RESUMPTION:

MR PRINSLOO: As it pleases you Mr Chairman and Honourable members of the Committee. The applicant Mr Derby-Lewis will submit that he was arrested on the Saturday and that he was kept awake up until the Monday, during which time information was drawn from a computer.

The person involved in this exercise, the names of the persons involved in this particular exercise, is not known to him. Colonel Van Niekerk, attached to the Security Branch at that time, threatened the applicant with detention in terms of Section 29 and also promised him that were he to make a statement, he as well as the other applicant Walus, would be granted amnesty and in this manner he was unduly influenced.

In addition it was promised to him that Mrs Derby-Lewis would not be arrested and would be protected. Captain Deetliefs as well as Warrant Officer Beetge interrogated the applicant while he was in detention under Section 29 of the Internal Security Act.

He was extensively interrogated, promises were made to him. He was kept awake irregularly for long periods of time for interrogation, for extended periods of time and in addition threatened with continued detention under Section 29.

Broadly speaking this would be submitted with the limited period of time made available to me. The names known to us therefore are Captain Van Niekerk, Captain Deetliefs, Warrant Officer Beetge and other persons whose names are unknown.

In addition Mr Chairman, the applicant would submit that on a particular occasion someone whom he thought would be a Black policeman not dressed in uniform, rushed in on him and told him that he would be arrested. There was an additional person whom he thought would have been a Black person who uttered threats against him outside his cell, but he does not know who this person would have been.

Furthermore Mr Chairman, I do not know what the position would be with regard to statements of Mrs Derby-Lewis, who also are a part of R4 and should my learned friend, Mr Bizos place these statements before the Commission, then there would be further consideration of the persons involved in that regard.

In that event names can be availed to Mr Bizos. I do not know whether the Chair could determine whether Mr Bizos would want these names?

CHAIRPERSON: You heard the last point, and that is ...

MR BIZOS: Yes, we will appreciate the names of the persons who Mrs Derby-Lewis alleges induced her to make a statement that she made. Their identity, and in what manner does she suggest that she was unduly influenced Mr Chairman.

CHAIRPERSON: Which means that questions may be asked or will arise out of her statement, so you will tell us who are the people that would have exerted influence on her?

MR PRINSLOO: Mr Chairman, the persons mentioned are Van Niekerk, Colonel Van Niekerk, Captain Deetliefs, Captain De Waal, Warrant Officer Beetge.

JUDGE WILSON: Captain De Waal?

MR PRINSLOO: That is correct Mr Chairman.

CHAIRPERSON: Thank you.

MR PRINSLOO: Thank you.

MR BIZOS: The manner, and the manner for the sake of completeness Mr Chairman, please.

CHAIRPERSON: What was the nature of the influence on her?

MR PRINSLOO: Since Mrs Derby-Lewis is not an applicant I did not go into full detail with regard to this. I only obtained the names from her.

CHAIRPERSON: Perhaps at a convenient stage, before we move very much further, you will get the necessary information about the manner in which Mrs Derby-Lewis says that she was unduly influenced. But I think that between now and then we can proceed with the work of this Committee.

Mr Bizos you have before you the names of the people who it is said exerted undue influence. You have some idea of the nature of the undue influence, at least in respect of the two applicants. I want to know whether at this stage, in order to save a lot of time, whether it would not be appropriate for you to advance your argument at least on the admissibility of these statements, because despite the fact that they were in detention under Section 29, because it would then afford an opportunity to counsel on the other side, to be able to formulate legal argument in response to what you may have to say.

I would rather we do that now than postpone this part of your argument till tomorrow morning, only to find that at the end of your argument a further adjournment is requested.

So Mr Bizos, if it is convenient, we would like to hear you on that aspect of the matter.

MR BIZOS: ... that would become available. May I ask the Committee to issue subpoenas duces tecum and for the purposes also in so far as it may be necessary for them to give evidence.

My Attorney has already tried to get hold of the Investigating Officer who is not in, who will probably have knowledge as to where these people are at this stage. Could I ask the Committee to please authorise the issue of the subpoenas and because they would require a reasonable period of, I would suggest of not less than 24 or possibly 48 hours, but if the subpoenas could be issued on that basis, but our Attorney will in the mean time try her utmost to get those who may be available, here before the period so that we can proceed.

And in so far as I am sure that they will want to cooperate, then there needn't bee undue delay, but lest anybody stands on his rights in relation to reasonable notice, I would suggest with respect that the subpoena is issued that they come to the hearing on Thursday morning.

We will try our utmost to get them here before with their cooperation. This does not mean with respect, that the matter has to be adjourned until Thursday. There are other aspects of the case which the applicants are able, if they so choose, to give evidence. I will undertake not to cross-examine them on their own statements or the statement of Mrs Derby-Lewis during this period, until the Committee has made a finding as to whether the statements are admissible before the Committee or not.

And whilst we are talking about subpoenas, Mr Chairman, there is one other aspect and that is that we have information that the first applicant, and the late Chris Hani, appeared on the same public debate on the SABC on a certain matter and we will submit that having regard to what they have to say about him, in their application, it is relevant for the Committee to see how they interacted with one another a few months before his assassination.

We have been trying hard to get this tape from the SABC. We are being promised for the last six weeks or so that it will be made available, but it has not yet been done.

Could the Committee please issue a subpoena on the keeper of video's and we will cooperate with whoever draws up the subpoena to give a description of the video that we actually want?

And whilst I am about it, in order to avoid all these matters, one of the issues in the case is whether or not the applicants acted on behalf of the Conservative Party.

We as you will see from R3, Mr Chairman, have made available to the Committee and to the other side, public statements said to have been made by leaders of the Conservative Party, dissociating themselves from the act and clearly stating that it had nothing to do with the Conservative Party.

This is an important issue because they now say that they acted on behalf of the Conservative Party.

CHAIRPERSON: They haven't said that?

MR BIZOS: I beg your pardon?

CHAIRPERSON: They haven't said that yet.

MR BIZOS: Yes, they have said that. Now, we would like to know whether the names that I am going to read out, are going to be called to deny their public statements or whether they are going to stand by their public statements that this was not Conservative Party policy and that they had nothing to do with it.

We would like our learned friends to go on record as to whether they are going to call their supposed erstwhile political friends to support them that they acted on the authority of the Conservative Party or whether they are going to stick to their public statements.

The names are Dr F. Hartzenberg, Dr W.J. Snyman, Daan du Plessis, Dr Willie J. Snyman, Mr Thomas Langley. We would like clarity on that because we want to know where we stand.

Are these gentlemen going to take the stand on behalf of their applicant to contradict their public statements at the time or are they going to stand by their public statements of the time that they made it?

The statements appear in R4 Mr Chairman. R3, I beg your pardon, R3.

JUDGE WILSON: Can you refer us to the numbers? My copy of R3 the index goes up to page 12, whereas the photographs seem to go up considerably longer, don't they, 43?

MR BIZOS: They are in three sections. In A, B and C. The bundle is divided and there is an index to each division.

JUDGE WILSON: Thank you, I see that now. What pages are you referring us to?

MR BIZOS: Page 1.

JUDGE WILSON: A1?

MR BIZOS: A1, yes Mr Chairman. If you can bear with me for one moment. A8, A11. I will give you the others Mr Chairman. C1 Mr Chairman, and if you go to F, all those on the index in section F and H3. Those are the, Mr Chairman, it is important for us to be told whether they admit those statements or not because if they are not admitted, we want timeous notice to call the reporters under whose name those reports are made in reputable newspapers to confirm that those leaders made those statements at that time.

And that may take a little while and we hope that the proceedings will not be delayed as a result of any delay on the part of our learned friends, to let us know one way or the other.

CHAIRPERSON: This is not a performance or a theatre ladies and gentlemen. And as far as possible, I would like to avoid any applauding from the audience because of that.

Are you in a position at this stage to deal with this aspect of the matter?

MR PRINSLOO: I beg your pardon Mr Chairman?

CHAIRPERSON: Are you present at this stage to deal with this question raised by Mr Bizos?

MR PRINSLOO: Mr Chairman, I would like to consult with my client in this respect, more fully before I give my definite answer.

It may be that we don't call any of those persons until we have called the applicant.

CHAIRPERSON: Yes.

MR PRINSLOO: And given his version. I don't know what Mr Bizos is going to put to them in cross-examination. I think in the other matters that we have dealt with, we didn't have this problem and I think at this stage it is not appropriate to reply to that particular problem. It can be bridged at a later stage.

CHAIRPERSON: Yes. Mr Bizos, we will cross the bridges as we reach them please.

MR BIZOS: No, except that crossing the bridges when we come to them and not being prepared to properly cross them, may lead to undue delays Mr Chairman. My learned friend says that I must put to them what I say, the public statements appear in published documents.

They don't have to wait for me to read them out to their clients, they have got notice of it. We have gone to a lot of trouble to collect the documents, to put them before the Committee and to give them a copy. They can easily tell us whether they will admit or deny that these public figures spoke the truth or not or whether they are going to call them to deny it, because they may say that the onus is on us to prove that the newspaper article doesn't prove anything, it is only viva voce evidence of the person who took the statement.

If we have to do that, we must have notice so that we can interview or subpoena or both the journalists that took the statements from these gentlemen.

They don't have to wait for me to put, what I am going to put to them is what appears on the document.

JUDGE WILSON: Do I understand Mr Bizos that what you want is an admission that the reports are, accurate and true?

MR BIZOS: Yes, Mr Chairman.

JUDGE WILSON: Nothing, and I don't think you can expect to be told more, but you want to be told whether they will contest the truth and accuracy if they are put to them?

MR BIZOS: That is what I am saying.

MR PRINSLOO: Mr Chairman, with regard to this particular aspect, it would at this particular time, particularly with reference to the bundle presented by Mr Bizos for us to be able to say whether we consider the contents to be true or not, we would need time to consider it. It might be necessary for us to consult with the particular persons to be able to determine whether it was in fact said as reported in the newspaper or not.

There is a particular instance with regard to Langley where the Afrikaans and English versions differ, which would be a single example and there would be additional time needed however, as soon as possible, we will convey the answer to this question to Mr Bizos.

CHAIRPERSON: I understand, we understand that counsel on both sides have sprung upon problems without having had adequate time to give considered answers one way or the other. Mr Bizos, it does seem that you may have to wait at least until tomorrow morning to get the answer to these questions. That might nevertheless afford you enough time to decide whether you wish to subpoena anybody, any newspaper reporters or any of the gentlemen concerned.

Now, that being so, may I ask you whether at this stage you are still in a position to deal with the point I raised earlier? Can you address us on the admissibility of that statement? Will you please, thank you.

MR BIZOS: The first submission that I want to make is that the mere fact that the statement has been taken by a person who is held under Section 29, does not per se make it inadmissible.

There is direct authority for that which I will refer the court to. But may I indicate to the Committee that the Section 29 was amended by Act 138 of 1991 in order to make it more human rights friendly as I indicated before, so that to remove all the excesses that were able to be perpetrated under Section 6 of the Terrorism Act and Section 29 of the 1981 Public Safety Act.

The period was reduced. A person could not be held indefinitely but only for a period of ten days and any extension would only be granted with judicial intervention to which the detainee was entitled to legal representation and had other rights.

I know that the amended statutes may not be readily available Mr Chairman, to the Committee, I have a copy of the Section as amended and I would hand it in so that you do not, the surroundings where there are no library, there is no law library, you may find it useful.

CHAIRPERSON: Thank you very much Mr Bizos.

MR BIZOS: We only have one copy, but it is the only copy we have, perhaps we can make copies for you and keep our own as well for the ...

CHAIRPERSON: Is this your copy or is this a spare copy?

MR BIZOS: This is our copy. This is why I appeal to have it back and we will cause copies to be made, five copies to be made and possibly a sixth one for our learned friends and we will keep one ourselves. But you may find it useful Mr Chairman.

CHAIRPERSON: Yes.

MR BIZOS: Then Mr Chairman, the next section that I want to refer to is Section 7 of the Act, which was not amended, subsection 7 of Section 29.

Now, mindful that the cases that I am going to refer the Committee to were prior to the watering down of the draconian powers conferred on Section 29, it was held that the mere fact that it is taken under Section 29, does not make it inadmissible and that of course it would be open to the person concerned, to prove that it was not freely and voluntarily made and of course the fact that the person could be detained indefinitely without the benefit of the advise of an Attorney or visitors or Doctor, or having food from home or other comforts, which according to the investigation diary appeared to have been afforded to the persons concerned, despite all that it was still admissible.

The authority for that is Mumbares(?) & Others, 1973 (3) 109 and I refer to the head note and more particularly at page 117(a) - (c).

I may say Mr Chairman that we have copies of the cases that I am going to be referring to, a copy of the cases that we are going to refer to. We ask counsel whether we shall make copies of the cases for each member of the Committee and which we could make with some difficulty, because we haven't got full facilities in Pretoria, we will make at least one copy available, but if you want more copies and if they are required, we will make them available.

CHAIRPERSON: One will be adequate Mr Bizos.

MR BIZOS: Thank you. You will see there My Lord that a much younger and then inexperienced counsel wrongly submitted that evidence of a pointing out by a detainee, was not admissible because that was given a way official information. His Lordship was the Justice Boshoff, would have none of it My Lord.

Similarly, the decision was followed in S v Motopeng & Others 1979 (2) (T) particularly at 185C-F. S v Simpetha & Others 1982 (4) 536, particularly at 539E-F.

CHAIRPERSON: Did you say 1982, 1980 volume 2?

MR BIZOS: 1982, volume 4 Mr Chairman.

CHAIRPERSON: Volume 4, thank you.

MR BIZOS: An apt statement at 534E-F "if ex-detainees free to testify in court as to what happened during detention, it would indeed by strange if not absurd for there to be a prohibition on anyone else testifying about the very same matter."

And S v Mzo & Others 1984 (3) 935, and particularly at 948E - H where the ratio decidendi is that the subsection precluded ordinary citizens from claiming access to the information contained in such statements, it did not prevent State from divulging this information (indistinct) to tender them as evidence and to prove their admissibility.

I have already indicated and put on record that both the Attorney General in Johannesburg and Mr Holmes made these available and therefore they can be used.

The S v Mzo & Others 1985 (2) 170, which the Section as it stood Mr Chairman, entitled the person to have a copy of the statement he made under Section 6 and or Section 29, this our erstwhile a legislature did not like and passed Section 335 amending a provision which made statements made by accused persons generally available to their counsel and to them exempting statements under 335.

But that did not last. It was held in the Mzo case that the accused is entitled to a copy if the Prosecutor indicated or referred to any portion of it and the S v Tsewu, I hope that I don't mispronounce it, President of the Regional Court, 1987 (3) SA 476 and Nkayi & Another v Henn of the Security Branch of the South African Police Pretoria & Others 1993 (3) SA 244 A.

The question was whether the visiting Magistrate or the Doctor was entitled to divulge the information. The Magistrate, the District Surgeon is not precluded from disclosing personal information relating to the detainee or from giving evidence in that regard in any court proceedings.

Now, all these cases were decided before the adoption of the democratic constitution which came into being at the end of 1993 as an interim constitution and a constitution proper passed by the Constitutional Assembly later.

In which secrecy and withholding information by the State has been enshrined in our constitution and those decisions are to be read in our submission together with the provisions of the constitution. There is also another aspect, let me look at the Act please, which the court will take into consideration.

Having regard to what the purpose or excluding statements under Section 29 in the past. I have already branched on that matter Mr Chairman, Members of the Committee. The rule against self- incrimination is a very important one which is to be jealously guarded and nothing that we say is to be read that we want that rule in any way limited much less, abrogated.

But on the question of admissibility, both on the grounds of it being a Section 29 statement and on the materiality of any undue influences that may be proved or suspected, one has to bear in mind that we are not here dealing with innocence or guilt.

The two applicants have been convicted of murder. Mrs Derby-Lewis was acquitted of murder and nothing can happen to her, whatever she may have said to the police because she is entitled to enter a plea of (indistinct), she cannot be in double jeopardy even if her acquittal was obtained because of the lack of evidence which may possibly become available later.

This Committee does not deal with questions of innocence or guilt which do not admit any tainted evidence to prove guilt because of the grave danger. The issue before this Committee is another, altogether and that is that the applicants admit that they murdered the late Chris Hani. We will draw attention to some contradictions, but let those be by the way.

What the Committee has to decide is, have they made among other things, have they made full disclosure, on whose behalf did they do it, what was the political objective that they wanted to achieve?

It is really an enquiry as to whether there has been full disclosure. Are they telling the truth when they contend that they acted on behalf of the Conservative Party? Is the political objective which they say in their papers the one that they spoke about on their arrest and thereafter, their credibility is in issue. A wide scope has to be covered by the Committee as to whether or not they have made full disclosure or not.

Let u assume for argument sake that it is taken outside the confines of the dramatis personae in this case, other than the two applicants, that there was a statement there that I kept Chris Hani under observation and tipped the second applicant off that he was coming home.

Irrespective of how that statement may have been obtained, the counts, the legal representatives of the victims in our submission, are entitled to put to the second applicant here is a statement which says that you received a telephone call, nothing to prevent us however that statement may have been obtained, to put that information to him.

He may admit it, he may deny it. His credibility however, is going to be in issue. And if that person happens to be closely related to one or other of the applicants, we are entitled to ask the question are you going to call that person to say that that telephone call did not take place?

Simply part of the inquiry as to whether full disclosure was made or not, so that we would submit that if there are statements which indicate that a person other than the two before you Mr Chairman, were involved, and we will submit that they were, you are entitled to take into consideration what is in this docket and we are entitled to put to them this is what was said, what do you say about it?

And on that basis, we will submit that the objections to the admissibility of these statements should be decided in favour of the respondents, the victims and as somewhat indirect but cogent authority in relation to this, we want to refer to Section 31 (2) of the Promotion of National Unity and Reconciliation Act, the Act that you are enjoying to administer Mr Chairman, and Members of the Committee, it reads

Now, self incrimination of Mrs Derby-Lewis cannot do her any harm, she has been acquitted. This Committee will not allow statements to be introduced if there has been violence or if there has been trickery or anything else was done which is not acceptable in a democratic society.

So that the test of admissibility in relation to a criminal trial is a much more stringent one than the one that this court may adopt in order to ascertain are these persons telling the truth? We will argue that having been told that your wife will not be detained, knowing that a visit of the wife is likely to take place, that a legal representative can be approached, that a medical practitioner will come in, that an appeal can be made to the Magistrate, will that induce one of the members of a loving couple to falsely implicate himself or herself or his or her partner, and that will be the test in terms of this situation.

So that I mention this because I hope that our learned friends before embarking upon trying to prove that there was undue influence, they don't have of course to accept the correctness of our submissions as to the test, they can advise themselves, but I hope that we don't have to have a trial within a trial of such length, duration as to the proceedings getting somewhat out of hand.

We will submit that the fact that in Section 29 does not make them admissible, and that at least some of the matters which were raised as elements of undue influence, are hardly likely to qualify as material which will exclude the statements, but of course I am not for one moment suggesting that the Committee should make a finding on the second leg if evidence has to be heard, it has to be heard.

But clearly that Section 29 simpliciter does not exclude the evidence, it is clear on the authorities that we have available. Thank you Mr Chairman.

CHAIRPERSON: Thank you Mr Bizos. Mrs Van der Walt and Mr Prinsloo, we are going to adjourn at this stage and resume at 09:30 and we trust that you have heard this argument and that gives you enough time to make legal submissions in reply tomorrow morning.

MS VAN DER WALT: As it pleases the Chairman.

CHAIRPERSON: Yes, thank you. The Committee will now adjourn and resume at 09:30 tomorrow morning. I will please once again thank the people at the back who have behaved so well, and I hope they will continue to observe the same measure of decorum and balance when they come here to listen to these proceedings, thank you very much.

CHAIRPERSON: In this matter I was approached by counsel for the applicants, to be allowed a little more time to prepare himself for the proceedings this morning.

He has suggested that we should start at half past ten, instead of the agreed time of half past nine. Counsel for the objectors raised no difficulties, they are agreeable that an extension of time should be given. My Committee has therefore decided to agree to the request of the counsel for the applicants which now means that we will not start as we were scheduled to start at half past nine, but we will commence at half past ten, thank you very much.

Are we ready to start?

MR PRINSLOO: As it pleases the court.

Honourable Chairman and Members of the Committee, with regard to the statements which my learned friend, Mr Bizos made available to the Committee as set of documents R and our objection against this statement, would be in the first place that this testimony is not admissible and that the onus lies on the person who claims that these statements were made in a voluntarily manner.

COMMITTEE HAVE DIFFICULTIES WITH THE INTERPRETATION SERVICES INTO ENGLISH - DOING TESTING:

MR PRINSLOO: Honourable Chair and Members of the Committee, in reply to the argument of my learned friend Mr Bizos, with regard to the statements contained in bundle R4 against which we object with regard to the admissibility of these statements, since these statements were not made in a voluntarily manner and since there had been undue influence.

Chair to start off I want to refer to volume 6, page 367 which would be the document before Judge Eloff, this could be in your volume R1, bundle R1 Chairman, the volume would be volume 6 and this would be typed page 367 of the document, of the public records, page 367, volume 6 in bundle R1.

It is page 367 Mr Chairman and in brackets page 507, also typed on the page.

CHAIRPERSON: Is in brackets page 367, is that the one?

MR PRINSLOO: Chair, it is page 367, typed 367 of the public record. It is contained in volume 6 of the public record which is in bundle R1 it would appear.

JUDGE WILSON: Can you read out the top line because my pages do not have any numbers on them?

MR PRINSLOO: I will rather begin on page 366 at the bottom "I, the undersigned Clive John Derby-Lewis states", the Committee might want to compare this in Afrikaans rather. Right at the top is the surname Holmes.

CHAIRPERSON: Okay Andrew? Yes, proceed.

MR PRINSLOO: Thank you Chair. Mr Chairman, on page 367 there appears the statement which during the court case was handed in on the merits of the case and the witness Holmes, read the statement into the public record as it appears on page 367.

This statement which had served as E1 in the court case and in this statement the applicant, Mr Derby-Lewis, states and in particular on page 368 in paragraph 7, subsequent to his arrest I want to place it on record that "I do not wish to many any statement." This was signed 18 April 1993, immediately after midnight, 20 minutes after midnight.

It is significant or it is clarifying to note in the first paragraph of the statement that the applicant was arrested on the 17th of April of that year, six o'clock at night or in the evening and that he made the statement immediately after midnight.

He was then warned by Captain Deetliefs as it would appear from paragraph 2. What is very important and very clear and which is clearly stated therein is that he does not or did not wish to make any statement if you refer to paragraph 7.

My learned friend, Mr Bizos, despite this wish expressed by the applicant on that evening, desires to place statements before this Committee claiming that these statements were made in a voluntarily manner.

I want to refer to honourable Committee also to S v Mqweta (2) 1993 1567 a decision in the Cape court, and a judgment of his Honoured Judge Williams. I want to refer to the heading thereof on page 577.

Honourable Chairman, in this instance after the applicant had made this decision he was held in terms of Section 29 and subsequently the claim of Mr Bizos is that further statements were taken which statements is claimed was being made to Captain Deetliefs and Warrant officer Beetge.

With respect Honourable Chairman, a statement made to a Warrant Officer who is a junior officer, in itself, is not admissible even if it is a statement. It cannot be placed before the Committee. It is clear that Beetge as well as Deetliefs acted together in taking down the statement.

It would appear very clearly in addition that on the appearance of the statement, if it can be called a statement under certain circumstances, no warning had been made in terms of the necessary rules, no such warning was presented to the applicant. It appears clearly if we pay attention only to the document that no court and no legal officer would be able to determine from the appearance of the document, what might have led to the making of this statement.

As we would want to present to you, these so-called statements by the applicant was taken during a detention under Section 29 of the Internal Security Act. It has already been argued to you or presented to you that these statements were not taken down or given voluntarily. My learned friend, Mr Bizos now has the problem that prior to this Committee being able to receive this document R4, the voluntary nature would have to be proven and the onus of proof would be with Mr Bizos.

In terms of the constitution of this country, the applicant does have the right to remain silent and we would argue that the applicant has the right ...

JUDGE WILSON: Are you saying he has the right to remain silent when he is applying for amnesty?

MR PRINSLOO: Honourable Chair this is not my argument. My argument is that on the day when the statements are claimed to have been given to the police, he had the right to silence, to remain silent.

JUDGE WILSON: But before us, he should make a full disclosure, shouldn't he? Before us he should make a full disclosure, shouldn't he, in terms of the Act?

MR PRINSLOO: In terms of the determinations of the Act, he must make full disclosure and that is what he has in fact done.

JUDGE WILSON: Which includes the fact that he may have made certain statements, is that not part of full disclosure?

MR PRINSLOO: The statements has to be proven to have been made in a voluntarily manner. The statements presented by Mr Bizos to the Committee ...

CHAIRPERSON: Oh, I think the question that is being directed really boils down to this - (a) we are not here to try the guilt or innocence of your client, (b) in terms of the Act he is required to make a full disclosure. Does that not place a burden on him to tell us all the statements he has made, now matter how contradictory they may be? He may give reasons and explanations as to why there are contradictions, but ought he not to tell us that on such and such a day he has signed a document, he made this statement, he made a statement which went contrary to his defence at the trial?

Ought he not to be the one to tell us and give an explanation as to why there were differences between these statements? That is really the point that concerns us.

MR PRINSLOO: With respect Honourable Chair, it is unconstitutional when documents which cannot be allowed, which are not admissible are being placed before the Committee. The applicant can still explain that these statements were taken from him when he was being kept in detention in terms of Section 29, which the determination has been scrapped as being unconstitutional in this country.

How then can the Committee remove its thoughts from this if a document of this nature is placed before the Committee, without determining the manner in which the document was obtained and what the nature of the document in fact is?

With respect then Honourable Chair, one would then have to make an extensive investigation to determine what was in fact said and was recorded on the cassettes, whether this is in accord with what was in the typed statement and the applicant can then make a further statement in this regard.

The Committee must at this point decide whether these documents which Mr Bizos, not the applicant is placing before the Committee, is admissible or not.

JUDGE WILSON: Should the applicant not place these before the Committee if he is making full disclosure? Does full disclosure not include the fact that inadmissible statements were taken from me?

Not debating the contents of these statements at this time, but the fact that statements were taken? Should he not, is that not part of his full disclosure?

MR PRINSLOO: Honourable Chair, if this is required at this point, the applicant can mention this. The problem however is that Section 29 statements are privileged in the hands of the Commissioner and the Minister and the applicant did not have these documents available during his court case to him. If this is the only problem presented by the Honourable Chair that he should have mentioned that he had made statements, under certain circumstances, this can be made, but then a further problem emerges namely whether the documents are admissible or not?

My learned friend wants to place the documents before the Committee, before it is determined whether this statement was in fact made by the applicant. Are these the words of the applicant and what the circumstances are, were, under which the statement had been made.

Then the onus rests on the person who claims that the statement was made in a voluntarily manner, namely Mr Bizos. This argument cannot be bridged before the Honourable Committee has decided on whom the onus rests to show whether these statements were made in a voluntarily manner or not.

CHAIRPERSON: The Act says that the applicant must make a full disclosure of all relevant facts and those facts may be palatable or unpalatable. Indeed it may be that those facts includes facts which were extracted from him through duress or whatever.

Now, if those facts are relevant, if the contents of that statement, of those statements are relevant, then they must be disclosed to us. If however, an applicant feels that the contents were extracted improperly, the applicant is free to do so. He will explain to us, explain away, explain to us that look, those things were obtained from me through improper means.

But that is a different thing from admissibility, they must first be admitted, first. The contents must be admitted in as much as they are relevant, they must be admitted to us. As to what weight we will attach to that, is a different thing. We may decide that after the applicant has explained to us that look, this information was extracted from me through improper means, then we would decide what weight to attach to that. But that is a different thing.

MR PRINSLOO: Before a document can be relevant, it must be admissible. The contents of the document, if we look at the judgement in the S v Mkaba (A) 1985 476 in which the ...

CHAIRPERSON: Before you go far, you say before it should be admissible, it must be relevant? Did you say that?

MR PRINSLOO: What I mean thereby Honourable Chair, the contents of the document - if the applicant contests the contents of the document, then this document cannot be placed before this Honourable Committee before it is decided whether it is admissible.

Once it has been decided that it is admissible, it becomes relevant to the investigation.

JUDGE NGOEPE: But admissibility for the purpose of proceedings ...

JUDGE WILSON: Is it not a relevant fact that he made the statement as part of what was going on? He can then explain how he made it and we can decide no value can be attached to it.

CHAIRPERSON: My brother had said for example it was suggested to us that in respect of one of the applicants, the statement was made at a time when he had been drinking, he had been given a lot to drink. We were told that.

That is a circumstance we take into account when we decide what value to attach to the contents of that document. We may come to the conclusion that we attach no value to the evidence contained in that document, but that doesn't affect the question of the admissibility of the document. Do you understand that?

MR PRINSLOO: May I just consult with my ...

CHAIRPERSON: Certainly.

MR PRINSLOO: Mr Chairman, we would need a brief adjournment in view of the argument presented to us by you, we would request a brief adjournment.

JUDGE NGOEPE: Before you do this, can I just put this a little bit bluntly, because it conveys, you know, it describes the problem very clearly.

At this point, what is admissible to us is anything which is relevant. If the contents are relevant, then that hurdle has been crossed, then it is admissible to us. Unless you say the contents are irrelevant.

Once they are relevant, they must be disclosed and as I said, the questions of assault and the like are related to what weight to attach to that.

CHAIRPERSON: We don't want you to understand that we are making a ruling on the point that you are arguing. We are merely testing our questions are testing the submissions you are making. Please understand, we haven't made up our minds as to the admissibility or otherwise.

We think we are entitled to ask you questions to test the validity of your submissions. But you wanted some time to consider your answer to that, to the points that have been raised, we will certainly afford you that opportunity.

You require a short adjournment?

MR PRINSLOO: We request a brief adjournment to consider this aspect.

MR BIZOS: Mr Chairman, before the court adjourns and because our learned friends want to consider their position, may I be permitted to make two very short submissions for their consideration by referring to the Act, because I don't want - I want to try and avoid a even further adjournment after I have made the submission.

Firstly, I submit that our learned friends in equating the proceedings in a criminal trial to an investigation of this nature, they are misguided. There is not question of onus in inquiries. That is the first point that I want to make and in support of that submission I want to refer to two subsections of the Promotion of National Unity and Reconciliation Act, 34 of 1995.

Firstly 19 (2), the Committee shall investigate the application and make such inquiries as it may deem necessary. That is not the function of a court in a criminal trial.

Subsection 8(a), subject to the provisions of Section 33, the applications, documentation in connection therewith further information and evidence obtained before and during an investigation by the Committee, the deliberations conducted in order to come to a decision or to conduct hearings (indistinct) shall be confidential, but that is subject to another Section.

What I am really contending for is that you've been told about the Mpeta case or any other criminal trial having regard to the admissibility of confessions which are in any event governed by a specific Section in the Criminal Procedure and Evidence Act in relation to writing and to whom they may be made before they become admissible, are completely out of place in an investigation of this nature.

The other matter that I want to refer to Mr Chairman, is this, that I thought that we were going to hear from our learned friends a limited argument as to why the statements are inadmissible in terms of the provisions of Section 29.

It has not been limited to that. I take no objection to it, but it may well be as has been suggested by members of the Committee, that in referring to those statements, evidence may be led and I have already indicated that we intend call in the police officers in order to show that they were freely and voluntarily made, there is no reason in our respectful submission, on the reasoning adopted by our learned friends, from excluding them.

And I would appeal to them Mr Chairman, to continue with what we suggested yesterday, that they address the court in relation to Section 29. I am prepared to hold back any cross-examination on the contents of the statements until they have had a proper opportunity of doing whatever investigations they want to make.

But I submit that we should get on with the matter. The applicant has no right to remain silent before this Committee, he has to make full disclosure and I would submit that we should try and expedite the proceedings and get on with the substance of the matter, thank you.

CHAIRPERSON: Thank you very much. We will afford you an opportunity to consider your position. You can call us as soon as you are ready, but we will adjourn until we are called.

MR PRINSLOO: Honourable Chairman, I thank you for the adjournment. Honourable Chair, with regard to the application of the applicant referred to by the Committee, with regard to full disclosure, with respect you have referred to this that during the court hearing now effort had been made to present these statements now before the Committee.

Since the applicant believed and was advised that these statements were in fact not admissible, the statement referred to is a single particular statement, found in Exhibit R4, it is a written statement on page 27, found on page 27.

This is the only statement of which the applicant is aware. Then Honourable Chair, in Exhibit R4 there appears what would seem to be interrogations of which tape recordings were made. No meaningful decisions could be made on the grounds of these, except if we were to listen to the cassette tapes themselves.

If we were to make a reasonable case on behalf of the applicant. The applicant does not have a very good memory of these interrogations, but his memory might be refreshed by listening to the tapes.

In addition in Exhibit R4, there is a document presented as a statement by a Deetliefs, found on page 375. I am told that this document does not appear in a docket kept by anyone. This is the instruction which I have received.

What the origin of this document might be, we do not know. It would also appear as if sections have been added to this which would have been part of the interrogations and so forth, which we have not thoroughly studied yet.

As previously stated to you, we would want to look at the original of this document to determine its origin. What I would like to present to you then in addition, is that we would continue with our argument that the statement and the interrogation material is not admissible since this was obtained in terms of Section 29 detention, that it was not presented voluntarily or made voluntarily.

In addition the applicant is willing, after a proper study of the documentation, to make a statement with regard to the documents presented by Mr Bizos with the proviso that we are availed of the originals, that we have access to the original and can have a full consultation with the applicant with regard to this material.

In addition we want to argue to the Committee that it would not make any sense to present this in a piece meal manner since these documents have bearing on the entirety of the case and it would therefore be not in any way to the advantage of the applicant to handle this in a piece meal manner. Thank you.

CHAIRPERSON: As far as you response to the argument and the cases advanced by Mr Bizos about the admissibility of these documents, the fact that they were taken at a time when he was detained under Section 29, the authorities according to him show that these would be admissible.

MR PRINSLOO: Honourable Chair, yet again with regard to the authorities regarding the admissibility will return us to the authority of the Criminal Procedure Act.

And then one would have to use all of the appropriate measures in that regard to see for instance whether the document was made with the purpose of prosecution. It was made while the person was in detention under Section 29, it was made to a member of the Investigative team, it was made to a Warrant Officer Beetge and such an admission may not be made to a Warrant Officer, that is not admissible.

In so far as it is with regard to the right to obtain such a document, as Mr Bizos has referred to the case of Mubaros(?) & Others, which had reference for instance to medical documents in terms of the Section 66 and Section 29, which were considered to have been official documents in the possession of the Commissioner or the Minister, that would be a different basis than a statement.

However, Mr Bizos has obtained the documentation. All that is at issue here is whether these documents are admissible. We want to say that these statements were not made in a voluntarily manner, it is therefore not admissible and further argument in terms of the content of the documents, would seem to appear that it does not meet the requirements with regard to the admissibility of documents.

We would therefore simply argue that the documents are not admissible.

CHAIRPERSON: Is there anything you wish to add?

MS VAN DER WALT: Mr Chairman, I have pointed it out pertinently to Mr Bizos that my client, Mr Walus' case differs from that of Mr Clive Derby-Lewis, namely that my client had not been detained in terms of Section 29.

You have already this morning mentioned our reasons. I am struck by the fact that Mr Bizos did not argue at all with regard to the case of my client. I simply would then assume that Mr Bizos accepts the argument of my client with regard to his statements.

MR BIZOS: Mr Chairman, may I disabuse my learned friend's assumption that I accept her claim, her client's version of the facts or arguments. I dealt with them on the basis of even if the statement was under Section 29 and I dealt with them both at the same time, and I take this opportunity of disabusing her conclusion, which I don't know from which facts she has inferred that I do not ...

CHAIRPERSON: The issue of whether transcripts, documents which are transcripts taken from a tape, the issue of the genuineness of those documents still remains and quite clearly the other side would be entitled, if those tapes are available, to hear those tapes.

MR BIZOS: We have reason to believe that they are available and in the possession of either the Attorney General or the Investigating Officer. At the consultation we were told that they believed that they were available.

And they can be made available, but Mr Chairman, with respect, I have not heard what the proposal is. We have said that we will withhold cross-examination on the documents until such time as they are reasonably satisfied that they have all the information that they want.

Can we get on with this case or what is the proposal?

CHAIRPERSON: The proposal now is that we can get on with the case, we are anxious to get on with the case. It is quite clear that Mr Bizos has made the position clear.

He will not cross-examine witnesses on information contained on documents which are transcripts from tapes until you have had an opportunity to verify or check the contents of these transcripts that they are a proper transcript of what transpired and what is recorded on the tape.

But until that stage, he is prepared not to cross-examine your clients and we will then proceed with calling your witness. Can you now proceed with your witness please?

MR PRINSLOO: Chairman, no, we would argue against this. Our argument is that we want to be wholly prepared by investigating these documents, obtaining the cassette tapes, consulting conclusively with our client, with regard to R4 which was served on us because of Mr Bizos' responsibility, at a late stage on us, we want to check these various aspects, the information that was not contained in the docket. We want to make our argument as a whole and present our testimony as a whole, rather than a piece meal way so that Mr Bizos will then be able to cross-examine on the whole, the basis of the whole testimony, since the documents presented by Mr Bizos has reference to the entire case.

We would need to have this entire matter therefore be adjourned until we are able to provide the Committee with a written statement of our client in response to this set of documentation and the cassette tapes.

CHAIRPERSON: What is your answer, you have had chance to reconsider, what is your answer to the questions that are being put by members of the Committee, about the duty that is on your client to make full disclosure?

MR PRINSLOO: With respect, Honourable Chair, the clients have made a full disclosure with regard to the matter on which they have been charged.

Whether they have made statements while under detention or not, with respect, Chairman, the statements made during their detention, the clients are of the opinion that these statements are not admissible, the Committee seems to have a different view of this.

There are additional and further documents which have not been contained in the docket, which we have only been availed of now and we would need to present a further statement with regard to this information. It is not that we are not willing, we are willing to make such a further statement, we do however, need to be provided with an opportunity to do so.

CHAIRPERSON: Can you say precisely what it is now that you require?

MR PRINSLOO: Honourable Chair, at this stage we request the cassette tapes, we request the original documents which are copied in R4 to be able to check these.

In addition we have not heard any information in regard to the source of the statement of Deetliefs which have not been contained in the docket, an extensive document, so that we are able to determine the authenticity and the source of this statement.

Then our client will present a further statement with regard to all of these matters, so that we are able to present our case as a whole and not on a piece meal basis.

JUDGE NGOEPE: I am not sure I understand why you have problems with the suggestion by Mr Bizos that you could proceed with the matter, or we could proceed with the matter and he would refrain from cross-examining your clients in respect of the statements in issue.

It is so, isn't it, that in any trial whether civil or criminal, from time to time, even in the middle of a trial, documents may emerge which may be of some relevance, and which may be used and some adjournment may be given so that the party against whom documents may, are going to be used may be given the opportunity to have a look at them and respond appropriately.

Now, you seem to suggest that we shouldn't start the hearings at all simply because documents, Mr Bizos produced documents which in my view he could have produced them during the course of the trial, he could have allowed this proceedings to commence and in fact only produced them at a time when he wanted to cross-examine your clients, at which stage you would have been, perhaps quite properly, been entitled to say well, hold on, I want an adjournment to go and have a look at these documents.

MR PRINSLOO: With respect Chairman, that is exactly what we are asking for at this stage. To be able to work through these documents, since the documents now presented have bearing on the entire hearing. They are not just relevant to certain pieces of the case.

If the client does not have a proper opportunity to be consulted with regard to this, we have only been availed of a single set of the documents, we are not asking for an indefinite adjournment, only for a reasonable period of time, if the cassette tapes are available now, we can go and listen to them now.

If the original documents are available, we can go and look at them now and we can cross-refer and we can continue with the case.

JUDGE NGOEPE: That is the point, I am saying to you, you are appearing for the applicants. To start off, as far as I can recall, the applicants have not in their papers, in the application forms or in their papers, have not disclosed to anybody that they had made statements to the police.

Whether those statements were under duress or not, but they have not indicated in their papers that they made statements and nobody would have known had some people not gone out to go and look for those statements, nobody would have known that they had made such statements.

And here we come, you were ready to proceed with the trial, with the hearing, and somebody produces some documents and he is saying to you I undertake not to cross-examine in relation to those documents.

Let the hearing proceed. I just can't understand what problems that causes you.

CHAIRPERSON: It really boils down to a question of your convenience. You merely think that it is convenient for all this to be made available before we can proceed and the Committee is now left to decide whether we think it is convenient or not, whether your evidence in chief of your clients ought not to be led at this stage, is a matter which we have to now take a decision on.

Do you understand?

JUDGE WILSON: And who do you think should go and fetch the tapes for you? They are not available here, you have heard that Mr Bizos hasn't got them, we haven't got them, but you are demanding that they be produced.

MR PRINSLOO: With respect Chairman, I am certain that it is easy to arrange for this. Our Attorney can collect it for us if we are told where these tapes are because apparently these cassette tapes were not in the docket, otherwise it would have been in the possession of Mr Bizos.

In all honesty, we believe and with respect, we believe that we will be put at a disadvantage if we are not given an opportunity to properly consult on this matter. A single set of the documents were availed to us and these are matters presented to us by Mr Bizos, we would need to check these before we are able to continue with testimony on behalf of our client, or with our client.

JUDGE WILSON: Did you never asked your clients if they had made any statements?

MR PRINSLOO: With respect, Honourable Chair, they were advised that these particular statements were not admissible.

With respect Chairman, I want to add to this that in previous cases which I have handled, no such further information had not been made available, and we consider this unfair under the circumstances.

CHAIRPERSON: Do you concede that this is not a criminal trial with the provisions of the Criminal Procedures Act don't govern an inquiry, do you concede that?

MR PRINSLOO: This may well not be a criminal court case, but we are simply in the dark with regard to what rules are followed with regard to admissibility. We are expecting of the Committee to give us a ruling to determine whether this or that document is admissible or not and who has the onus of presenting the document?

MS KHAMPEPE: Mr Prinsloo, are you contending that your client should not have disclosed the fact that certain statements were taken from him, even albeit in circumstances which were improper, is that your contention?

Having regard to the fact that full disclosure is an important element to be satisfied by an applicant who is applying for amnesty?

MR PRINSLOO: Honourable Chairman, this would depend on the particulars of a particular case, to determine whether it is important to make this, to disclose this. We knew that the document was in the possession of the police, we knew that there was an Investigative team, we are still awaiting a report by the Investigative team.

We are completely in the dark, we cannot expect of a client to say what he said or what was asked of him, during an interrogation, if he does not have a copy of the document in his possession. The determinations of Section 29 could at that time imply that he could not obtain a copy of the interrogation transcript. If the police has a copy of the original cassette tape, one can honestly not, and with respect, not expect of a client to be able in detail, to say what he had been asked during interrogation in the absence of the transcript or the cassette tapes.

CHAIRPERSON: What you regard as inconvenience, are there any other reasons why you cannot proceed with the evidence in chief?

MR PRINSLOO: With respect Your Honour, I want to argue that under the circumstances and because of the documents now made available to us, we want to go through this carefully, I want to properly consult with my client, to be able to present the case.

He will be disadvantaged if he is not availed of this opportunity.

CHAIRPERSON: On the documents that he has made available and the statements that are before us in support of his application, can you not lead that evidence?

MR PRINSLOO: Are you referring to the original application? With respect, Your Honour, this can be presented. I do not want to argue with regard to that, however, because of the documents now presented in addition, we want to be able to present our case as a whole, rather than in parts.

I will not have an opportunity to consult with him while he is under cross-examination, that will not be proper.

CHAIRPERSON: Mr Bizos, Mr Prinsloo and Mrs Van der Walt, my Committee is going to take a very short adjournment to arrive at a decision on whether we think it appropriate that you should start leading your evidence or not.

We are taking a short decision to consider that matter, we will give a ruling on that aspect of the matter.

MR PRINSLOO: Mr Chairman, I couldn't hear, there is a bit of noise.

CHAIRPERSON: Do you understand? We are going to take a short adjournment to consider this matter.

CHAIRPERSON: ... has no bearing on the admissibility or otherwise of the documents that we have been talking about. Counsel for the applicants were presented statements, copies of statements contained in R4, they told us that they hadn't had enough time, there was short notice. We gave them additional time to consider the matter.

They are now aware of the contents of those documents, they are aware of the transcript of certain tapes and the position now is they would like more time (a) to look at the original documents, to listen to the tape, to find out whether the transcript is a correct transcript, to find out the source of the affidavit or statement taken by Mr Deetliefs and matters of that kind.

Mr Bizos has indicated that he is not going to cross-examine the applicants until the applicants' counsel have had time to listen to the tapes and to examine the original documents to see how they vary from the copies that have been made available to them.

A great deal of time has already been taken up in this matter, my Committee has come to the conclusion that we must now call upon counsel for the applicants to commence to lead the evidence of their clients in their evidence in chief and Mr Prinsloo, you must now begin.

MR PRINSLOO: Mr Chairman, in view of the decision of the Committee, I would ask for a brief adjournment to consult with my client and Attorney.

CHAIRPERSON: Is it really necessary because you knew that this is going to happen one way or the other?

MR PRINSLOO: Honourable Chair, under the circumstances, I am not asking for an extended adjournment, only for a brief adjournment. Under the circumstances it is in fact necessary. Up till now the entire matter has been with regard to legal aspects, and now it has to do with the presentation of testimony and I would beg your indulgence and patience for a brief adjournment for such preparation.

CHAIRPERSON: I will afford you a short opportunity to consider this matter and if possible, we should make a beginning within the next ten minutes or so. You will call us as soon as you are ready.

MR PRINSLOO: Before I present the testimony of the applicant, I want to place it on record in view of the fact that the Honourable Committee is forcing me to continue with testimony at this point, I want to make it very clear that under the circumstances I do not consider myself ready to continue. I will, however, submit myself to the instruction of the Committee. I do this with the proviso that I will not be willing to do this to the disadvantage of my client.

I also request the Committee to instruct that the cassette tapes as well as the original documents, referred to in R4 be availed to us as soon as possible and I will as the testimony proceed, ask for a adjournment to consult with my client when these matters arise.

With regard to the documents R4 made available to us at quarter to ten, on Monday morning, documents of an extent far beyond 100 pages, I want it noted that this is the case, thank you.

JUDGE WILSON: Should it also be noted that you were given a three hour adjournment to consider them?

MR PRINSLOO: Honourable Chair, I want to place on record that the documents made available to us, had been a single set. My client, the applicant had not yet had the opportunity to read through this set of documents.

The larger part of the adjournment provided had been to consider the legal aspects, rather than the merit of the documents with respect, Your Honour.

CHAIRPERSON: Very well, you may proceed. Mr Bizos will no doubt take the necessary steps to make sure that the originals that are required will be made available as soon as possible and so will the tape be made available as soon as possible?

MR BIZOS: Yes, we have taken steps together with the Commission's employees to try and get it as soon as possible. We had difficulty in communicating with (indistinct) - we are instructed that they are continuously trying to get in touch with the people responsible.

CHAIRPERSON: Yes. Thank you. Yes, Mr Prinsloo.

MR PRINSLOO: Mr Derby-Lewis, may I commence the evidence?

CLIVE JOHN DERBY-LEWIS: (affirmed)

EXAMINATION BY MR PRINSLOO: Mr Derby-Lewis, you are the applicant in this matter in which you are applying for amnesty, is that correct?

MR DERBY-LEWIS: That is correct Mr Chairman.

MR PRINSLOO: Mr Derby-Lewis, your application relates to a charge of murder of which you were convicted in the Supreme Court, is that correct Mr Derby-Lewis?

MR DERBY-LEWIS: Correct, Mr Chairman.

MR PRINSLOO: The charges relate to that you murdered Mr Chris Hani, is that correct?

MR DERBY-LEWIS: That is correct Mr Chairman.

MR PRINSLOO: And that your co-accused at the time, Mr Janusz Walus, is also an applicant in this matter?

MR DERBY-LEWIS: Correct.

MR PRINSLOO: You were also convicted for possession of an unlicensed firearm and ammunition?

MR DERBY-LEWIS: That is correct Mr Chairman.

MR PRINSLOO: Is it correct Mr Derby-Lewis that you were arrested on the 17th of April 1993 in connection with this particular case?

MR DERBY-LEWIS: This is correct Mr Chairman.

MR PRINSLOO: And after being detained you were subsequently detained in terms of the provisions of Section 29 of the Internal Security Act?

MR DERBY-LEWIS: That is correct Mr Chairman.

MR PRINSLOO: For how long were you detained in terms of the provisions of the Act, can you recall?

MR DERBY-LEWIS: 20 days Mr Chairman.

MR PRINSLOO: So in other words, after a period of detention of 10 days, there was a renewal for an additional period of 10 days, is that correct?

MR DERBY-LEWIS: That is correct Mr Chairman, and during those 10 days I wasn't asked a single question.

MR PRINSLOO: During the second period?

MR DERBY-LEWIS: That is correct, Mr Chairman.

MR PRINSLOO: Is it correct that your wife, Mrs Gaye Derby-Lewis was also at some stage arrested and detained in terms of the same provisions?

MR DERBY-LEWIS: That is correct Mr Chairman.

MR PRINSLOO: Is it correct that she also appeared jointly with you and Mr Walus as a co-accused in this particular case?

MR DERBY-LEWIS: That is correct Mr Chairman.

CHAIRPERSON: Sorry, when was your wife arrested, can you remember?

MR DERBY-LEWIS: I think it was Tuesday or Wednesday which would make it the 20th or the 21st of April. Mr Chairman, I don't know whether you can hear me, it doesn't sound as though this thing is working. Can you hear me?

CHAIRPERSON: Yes, I can hear you clearly. Thank you.

MR PRINSLOO: Is it correct Mr Derby-Lewis, that since your arrest you were in detention until to date?

MR DERBY-LEWIS: That is correct Mr Chairman.

MR PRINSLOO: You were at no stage released on bail?

MR DERBY-LEWIS: Not, in fact the Attorney General used a special legislation to make sure that I couldn't apply for bail for three months and then after that, my Advocate decided that it was not advisable.

MR PRINSLOO: Is it correct that your wife, Mrs Gaye Derby-Lewis was after a period after the certificate issued by the Attorney General had lapsed, that she was released on bail?

MR DERBY-LEWIS: That is correct Mr Chairman.

MR PRINSLOO: That was after a bail application?

CHAIRPERSON: Once again, can you tell us when that was?

MR PRINSLOO: I beg your pardon Mr Chairman?

CHAIRPERSON: Can you tell us when she was released?

MR DERBY-LEWIS: I think it was approximately three and a half months after her original detention, Mr Chairman. But I am not one hundred percent sure.

CHAIRPERSON: Thank you.

MR PRINSLOO: Is it correct the time the Presiding Judge was his Lordship, the Honourable Mr Justice Eloff, the Judge President and two assessors?

MR DERBY-LEWIS: That is correct Mr Chairman. That is correct.

JUDGE WILSON: That is at the trial, not at your wife's bail, is it?

MR PRINSLOO: No, the trial Mr President, sorry.

MR DERBY-LEWIS: That is right.

MR PRINSLOO: Mr Derby-Lewis, is it correct, after you were convicted that you were sentenced to death?

MR DERBY-LEWIS: That is correct.

MR PRINSLOO: On a charge of murder?

MR DERBY-LEWIS: That is correct Mr Chairman.

MR PRINSLOO: And so was Mr Walus?

MR DERBY-LEWIS: Correct Mr Chairman.

MR PRINSLOO: And your wife was acquitted on all charges?

MR DERBY-LEWIS: That is correct Mr Chairman and Mr Walus and I were acquitted on the conspiracy charge.

MR PRINSLOO: Is it correct that you at present, that you lodged an appeal subsequent to the first of all, you made an application to lead new evidence, is that correct?

MR DERBY-LEWIS: Correct Mr Chairman. My application was refused.

MR PRINSLOO: And is it correct that you appealed against your conviction and sentence?

MR DERBY-LEWIS: That is correct Mr Chairman.

MR PRINSLOO: And that was also refused?

MR DERBY-LEWIS: Correct.

MR PRINSLOO: Is it correct that at present you are still under the death sentence?

MR DERBY-LEWIS: That is correct Mr Chairman. I don't know why certain elements of the media are conveying this misimpression that we have never been, although the death penalty has been ruled unconstitutional, our sentences have never at any time been replaced with any other sentence. We are still under sentence of death and we are detained at Maximum Prison under the strength of a death warrant.

MR PRINSLOO: Mr Derby-Lewis, I now want to revert your background. Where did you grow up, where were you born and where did you grow up?

MR DERBY-LEWIS: I was born in Cape Town, Mr Chairman, on the 22 of January 1936. I subsequently moved to Kimberley as a result of my late father's ill-health and grew up in Kimberley, attended school in Kimberley. I matriculated from the Christian Brothers' College and also achieved the Hoër Taalbond Certificate at that time.

I then entered into articles with a firm of chartered accountants, where I remained for approximately three years. After this, I was offered a post by the then Vacuum Oil Company, subsequently Mobil and I think they are now Engen.

I joined them and served a period with them. All of this time I was in Kimberley. During that time also I was very active in youth matters and became very involved and interested in politics at a very early age. In fact I think it was, I was 16 when I won, I was part of the winning team of a debating competition held at Christian Brothers' College, but ever since I can remember I have had this driving ambition, to unlike the majority of my English speaking compatriots, to be involved in some way in the future of my country.

As I considered it my duty to do military service, while my peers were thanking their lucky stars that they had missed the ballot for compulsory military service, I served 19 years as a volunteer, ending my military career as Commanding Officer, one of South Africa's better fighting regiments, the Witwatersrand Rifles Regiment.

I held that post for 6 years of my 19 year period of service, during which time my regiment became the second Citizen Force Unit to do border duty. I was also awarded the John Chard(? medal for meritorious service.

Whilst on border duty I initiated a practice which was to become part of the system, namely to provide as a gesture of goodwill free medical treatment to the local population. As a lead up to our border duty I also introduced my own method of training to the Unit, which involved the use of ex-servicemen from other armies who had seen active service in places like the Far East, Rhodesia and the Congo, where bush warfare was waged as well as experts from Universities such as Zoologists and the like so that my men, who were all city dwellers would know how to handle situations like confronting snakes and scorpions and I can tell you that on the border of this country and Zimbabwe and Mozambique, we experienced scorpions twelve inches long, 300 mm long.

I see Judge Wilson also nods, he knows the story, it is quite an horrific experience, Mr Chairman. And how to live off the veld should such a situation arise. When I became Officer Commanding of the regiment, I was the youngest ever OC in the regiment's history, a distinction I hold to this day.

I also became actively involved in the affairs of the city of Germiston where the regiment was based. As the regiment was highly regarded by city fathers, it being the only regiment that at that stage had been granted the freedom of the city.

During my period with the regiment, I was to become quite close to a man with a formidable record of achievement in every field he entered. Colonel Charles Stallard EDDSO and (indistinct), who in his day was Chairman of the Johannesburg Bar Counsel, Minister of Mines in the Coalition Government of General Jan Smuts, leader of the Dominion Party, Member of Parliament for Roodepoort and Colonel of the Duke of Kent's own regiment in the United Kingdom before settling in South Africa.

He was also the Honorary Colonel of my regiment, who not too long after I took command of the regiment, and in view of the SADF policy of retiring Commanding Officers after a single term of command, regardless of age, advised me to enter politics as he felt that I had a contribution to make.

On his advice, I became involved in Ratepayer affairs in Bedfordview where I lived and was elected Secretary of the Association in 1970. In 1972 when local government elections were held, I was asked to stand and was elected unopposed to the Bedfordview Village Council.

I was elected Deputy Mayor in 1973 and Mayor in 1974, becoming in the process the youngest Mayor in the history of the Village. During my Mayoral term I initiated many new activities involving the citizens of the community and was instrumental in raising a record amount for charity, a record that has not to my knowledge, been bettered.

During that year, I had the privilege of inaugurating the Seheti School, the fire station and the new post office. I will never forget the patriotic manner in which I was welcomed to the inauguration ceremony of the Seheti School.

It was one of the highlights of my Mayoral year and I think that Mr Bizos played a major role in that, in his capacity as Chairman of the Governing Body of the school at the time.

At the beginning of each Mayoral year, the Mayors of the Reef used to elect one among them as a kind of PRO, whose function was to introduce all of the visiting Mayors to the VIP's of each, whichever municipality they happened to be visiting.

In my Mayoral year that distinction befell me. Besides my involvement as Mayor, I also served as a councillor from 1972 to 1977 and introduced into Bedfordview the Civil Defence System, that was the first to be granted an A-category in the Transvaal.

I also was part of the council that succeeded in attracting the Eastgate Shopping Centre to Bedfordview in spite of strong competition from the Johannesburg City Council.

This success with Eastgate having the distinction of being the largest project of its kind undertaken in the southern hemisphere, was to be used by the liberals to unseat the whole council in 1977.

Their justification Mr Chairman, was that in bringing Eastgate to our Village, although it was located on the border between Bedfordview and Johannesburg and would ensure a rates income that would be of tremendous benefit to all residents, we had destroyed the Village atmosphere.

In September 1977, I see you also appreciate that Mr Chairman, in September 1977, a general election was called and I was approached by the National Party to be their Provincial Council candidate in the strong PFP constituency in which I lived, Edenvale.

This was one of the PFP strongest, held by Professor Nick Olivier, I think with a majority of 3 500 votes at the previous election. And as my running candidate, Senator Piet van Vuuren, as a Senator had nothing to loose and did not believe that we could win, I found myself having to run the election on my own.

I decided to do something that had not been done by the National Party up to then and involved an advertising agency in our campaign. When the dust settled on the 1st of December 1977, Edenvale had a National Party MP and Provincial Councillor and I became one of the few Provincial running mates to obtain a larger majority vote than my Parliamentary colleague.

We also became the only National Party candidates, to take a PFP seat at that election. In quick time I became one of the MP spokesman on education and hospital services in the Provincial Council and spearheaded the attack against the decision by private schools to open the schools to children of other ethnic groups, as all available information indicated at that time, that this would, if not properly handled, lead to a lowering of standards and the subsequent destruction of the schools concerned.

I must also state that it was quite strange that the Catholic Church which was mainly behind the integration of the schools, apparently suddenly had qualms of conscience after operating private schools in the country for something like 80 odd years, without ever once trying to integrate them either before or after the assumption to power of the National Party.

In retrospect, my opposition was justified by the subsequent closure of many of those schools and to a dramatic lowering of standards in those that remained. At a caucus meeting attended by the then Minister of Education, Minister Piet Jansen, I proposed that the National Party should instead of permitting the integration and destruction of those fine schools, support the erection in Soweto where the need for something better existed, of a superior private school, staffed by the best teachers available, to be paid for by those parents who could afford the fees they were already paying at private schools far distant from their homes.

My suggestion was vetoed on the basis that the erection of such a school could not be afforded by the State. It was becoming then more and more obvious to me that the National Party was not what it presented itself to be.

But I and many others had already decided to fight the battle from within, when after the confrontation arranged by Mr P.W. Botha and his henchmen, demonstrated that the majority feared the loss of their salaries and their positions, more than they feared the consequences of P.W. Botha's disastrous leadership, it was decided there was no longer any purpose to remain part of the treachery.

The break came and I decided to leave and aligned myself with Dr Treurnicht in February 1982 and became a founder member of the Conservative Party.

It did not take me long to become part of the top structure of the Party. I was almost immediately elected Chairman of the Johannesburg region of the CP and was also elected to the first General Council of the Party. In 1984, when the party, after winning its first two by-elections in the platteland, wanted to test its impact on English speakers, I was asked to by the Party's candidate in a Provincial by-election in Rosettenville in 1984.

This constituency was the last stronghold of the old New Republic Party and