ON1 THE 25th OCTOBER 19B2 ON RESUMPTION : APPEARANCES AS BEFORE RULING ON ADMISSION OF AFFIDAVITS BY COURT On the 2nd March, 1982 the first date of the hearing in public of this Inquest, the presiding magistrate remarked; "..I don't want to be dogmatic about this but I think it would be very helpful if you could furnish such statements as you propose to place before me by the 26th March, would that be suitable to everybody?" (101 Mr Bizos responded - It is a good date to work to your Worship, but as your Worship has indicated, there may be difficulty, but we will certainly try whatever statements we have readily available to us, to file them with your Worship before or On that date." On the same date Mr Bizos indicated that the lawyers for the Aggett family wanted to obtain statements from fellowdetainees of the late Dr Aggett, which might throw light on the circumstances of his death. It appears from a copy (201 of a telex dated 3rd March, 1982, addressed to the Minister of Law and Order, that the persons they had in mind were Auret van Heerden, Keith Coleman, Elizabeth Floyd, Phiros Kgatshalia, Sisa Njikelane and Thomasile Kwetha. In this telex it was requested, inter alia, that an assurance be given by you that no detainee at present in the custody of the South African Police, will be approached or interrogated in connection with the information which he has or gives in connection with the Inquest. In reply to the aforementioned telex, the Minister oberserved inter alia; (30^ "..If you are in possession of any relevant information/
mation which you believe would assist the magistrate in holding a meaningful enquiry, you are requested to convey the information to the investigating officer concerned. He will institute a proper investigation and submit his findings to the Public Prosecutor as prescribed by Section A of the Inquest Act, 1959." It appears from further correspondence that the lawyers for the family were not prepared to approach the investigating officer, see for instance the telex sent to the Minister of (10J Justice on the 3rd March, 1982, paragraph 4.3, in spite of the fact that Section 3 of the Inquest Act places a duty on the police to investigate the circumstances of the death. When the Inquest was resumed before us on the 13th of April 1982, no affidavit by an ex-detainee or a detainee had been submitted for consideration. by Mr Maurice Smithers was handed in. On this date an affidavit Nevertheless, we began to hear evidence. During the proceedings it became obvious that a decision under the notion of similar facts, whether admitted or not, (20 would greatly affect the course of the proceedings expressly the scope of explanation of the witnesses. In spite of this, and in spite of undertakings by the legal advisers, these affidavits were then still not submitted. I then postponed the proceedings for a number of days, to afford the lawyers for the Aggett family the opportunity to submit the affidavits for consideration. A number of affidavits by detainees or ex-detainees were then submitted. All the persons aforementioned, except Auret van Heerden submitted affidavits. I was then in- (31 formed that Auret van Heerden was not prepared to submit a written/
written statement at that stage. There was no specific mention of affidavits by any other detainee intended to be handed in, in future. After hearing the argument of both Counsel I announce my ruling on the admissibility on each one of the affidavits. Some of.the affidavits, including those of Phiros Kgatshalia, Samson Ndao and Montgomery Narsoo were not admitted and it was not directed that they be called to give oral evidence. The proceedings were then proceeded with, and examina- (1C tion allowed in accordance with these rulings. June, 1982 the matter was postponed to the 13th On the 29th September, 1982. The attorneys for the Aggett family thereafter submitted the following further affidavits; on the 13th September, 1982 an affidavit by Eric Ntonga, on the 15th September, 1982 a supplementary affidavit by Montgomery Narsoo. On the 20th September, 1982 a supplementary affidavit by Phiros Kgatshalia, and another one by Samson Ndao, and an affidavit by Frnk Chikani and another affidavit by Auret van Heerden. On the 23rd September, 1982 an affidavit by (20 Barbara Anne Hogan. On the 5th of October, 1982 an affidavit by Gilbert John Marcus, affidavits by Denis Anthony van Heerden, Ruth Estelle Becker, and Gilbert John Marcus attached to it. On the 13th of October, 1982 an affidavit by Dr Ivan Cohen. It may be mentioned that recently I also received affidavits by policemen implicated by the ex-detainees who testified, Dr Jacobson and Advocate Swanepoel. But the circumstances of these affidavits are clearly different from those submitted by the attorneys, and it is not (30 necessary to deal with them in detail in the present context. It/
affecting/ It goes without saying that this delay, the submission of affidavits by the attorneys, whether done deliberately or not, cannot be approved of. It might serve the purpose of the deponent or somebody else, but it certainly causes at least much inconvenience to the others who are taking part in the proceedings. I n Timol & Ano vs The Magistrate, Johannesburg. 1972 ( 2 ) 5A 7B1 T the Learned Judges observed at page 290 C - "The magistrate must have all the documents in his possession, not only to decide on whether he should (loj hold an Inquest, but also to take various other decisions and to exercise his discretion in a number of respects. " And at page 292 B - "Other duties of the magistrate such as ensuring that the conduct of the Inquest does not pass out of his hands, have already been mentioned". The procedure adopted by the attorneys, tends to ignore these observations and to make it very difficult for the presiding officer to exercise his function properly. It also tends (20 to frustrate the policy expressed in the maximum interest res publicae ut cit finis litium(?). However, I receive the affidavits, again I afforded both Counsel the opportunity to address me on the question me on whether the deponents should be called to give evidence or not. Again I considered each affidavit on its merits in the light of the information available to me. I will now deal with each one of the affidavits. Phiros Kqatshalia : It appears that the supplementary affidavit submitted by Mr Kgatshalia, is done with the in- (30 tent to manoeuvre around the Ruling I have made previously
would/ affecting him. It must be borne in mind that he was in detention when he compiled the initial affidavit, apparently with the assistance of an attorney. On his own admission he withheld vital information in his initial affidavit to serve his own purposes. When I ruled the information coming from him inadmissible I remarked, inter alia, he does not mention the names of the person or the persons responsible. In his supplementary affidavit he stated, and I quote : "..In paragraph 13 of my previous affidavit I described the unlawful treatment to which I was submitted by members of the Security Police while I was under interrogation at John Vorster Square. However, I purposely did not name the members of the Security Police who committed the unlawful acts, for the following reasons - 1. At the time of making my previous affidavit the legal representatives of the Aggett family who were unable to advise me with any degree of certainty, that I would be called upon to give evidence at the Inquest, 2. Having already been detained three times, I could not discount the possibility that I would have future contact with the Security Police, and in particular I could not discount the possi bility of being detained and interrogated by the Security police at some time in the future. 3. At the time of making my previous affidavit, I was of the view that by naming the Security policemen whose unlawful conduct is described in paragraph 13 of my previous affidavit I -
would be exposing myself to the additional risk of being maltreated by the Security police, so named, during my future period of detention which I could undergo." After this supplementary affidavit was submitted, I requestion the senior.pub1ic Prosecutor to make a statement, made by Mr Kgatshalia to Sergeant Blom and referred to in paragraph 10.(b) of his affidavit available. In this statement, he related to his treatment during his detention and stated inter alia; (11 "The person who assaulted me is the same person who brought me to Detective-sergeant Blom who took my statement on the 9th of January, 1982. I don't know what his name is and I will(won't? - not clear aeroplane flying overhead)... be able to identify him again if I should see him." And further, in his statement, "I want to say that the first assault was not as bad as the second occasion, and that Captain Swanepoel was present on the second occasion as well as another(2 person whom I can't remember, as well as the officer in question, whom I was assaulted by." Now it is remarkable that firstly Mr Kgatshalia did not know the name of his assaillant when he made the statement to Sergeant Blom, contra; his supplementary affidavit where he did mention it without explaining how he got to know it. And secondly, he did give a clear indication of the identity of his assaillant, and later mentioned Captain Swanepoel as being present when he was assaulted. This tends to make nonsense of the reasons advanced for not naming the police- (3 men involved. Notwith-/
Notwithstanding the aforementioned observations, I again consider the information coming from Mr Kgatshalia.. Samson Ndao : This appears to be another case where a supplementary affidavit was filed to manoeuvre around the Ruling I have made previously affecting him. When I announced that ruling, I remarked inter alia, 'he mentions assaults but doesn't state where and by whom." In his supplementary affidavit, the names I have mentioned - and he says, I quote : "..In paragraph 10 of my previous affidavit I de- (1C scribed the unlawful treatment to which I was submitted by members of the Security police while.in detention. However, I purposely did not name the members of the Security police who committed the unlawful acts, because at the time of making my previous affidavit I was not certain whether my affidavit would be used in the proceedings and was accordingly of the opinion that to risk making any mention of the Security police that some certainty that I would make a meaningful contribution (2 to the Inquest, would not be in my interest." After this supplementary affidavit was submitted, I requested the Senior Public Prosecutor to make a statement referred to in paragraph 9(b) of the initial affidavit by Mr Ndao, available. In this statement, dated the 25th January, 1982, he stated inter alia: "..On Tuesday 12th January, 1982 at approximately 7.00 a.m. three of the investigating officers came to me at my cell, and took me to the 4th floor of (3 the same police station. They were all White
males and their names are unknown to me." And further on - ".. The said persons had no right to assault me, and I will be able to identify them at any time. I desire police investigation and prosecution against the matter." Now it is clear that Mr Naisoo said firstly he did not know the names of the persons involved, contra: In his supplementary affidavit where he did mention the names without explaining how he got to know them, and secondly he did give a (10 clear indication that he is able and prepared to identify them, and that he wanted steps to be taken against them. This is hardly reconcileable with the reasons given in the supplementary affidavit, for not naming the persons in his initial aff idavit. The striking similarity between the reasons advanced by Mr Naisooand Mr Kgatshalia as aforementioned, is remarkable. On his own admission, MrNaisoo witheld vital information in his initial affidavit, to serve his own purposes, notwithstanding this observation, I again consider the information (20 coming from Mr Naisoo. Montgomery Naisoo : Mr Narsoo is one of the persons I previously decided not to call to give oral evidence. In a supplementary affidavit he gives more details, and seems to give full reasons why my ruling affecting him should be reconsidered. Both the affidavits by Mr Naisoo are again considered. Eric Ntonqa: I perused his affidavit carefully. Some of the information here is clearly hearsay and of no evidential value, and furthermore he has nothing new to say (30 which might assist us on the legal issues before us. He was not/
and/ not assaulted but alleged that he was threatened. Frank Chikani: It appears from his statement that he has nothing new to say about the late Dr Aggett. Barbara Anne Hogan: Her name was frequently mentioned during the proceedings before us. She alleges that she was assaulted on the. 22nd of October, 1981 and the 14th. November 1981 - that's prior to the detention of Dr Aggett. It is well known that two policemen were tried on these allegations in a criminal court, and that they were acquitted. It is also now known that she is at present serving a sen- (10 tence of imprisonment resulting from a conviction in the Supreme Court, of inter alia High Treason. There is nothing in her affidavit indicating that she ever saw Dr Aggett in person, and that she knows anything about treatment he received at John Vorster Square. It appears from the affidavits by Messrs Chikani, Ntonga, Narsoo, Ndao, Kgatshalia and M i s s Hogan, that none of them witnessed and assault of any kind of illtreatment onr.dr Aggett. It is obvious that their affidavits are tendered to give evidence on their own treatment, and in some cases to give (2C an account of observations of Dr Aggett. It must be pointed out that we have already heard a number of ex-detainees testifying on the condition of Dr Aggett, and of their observations of him, and I intend to call another one, one who seems to have had close contact with Dr Aggett during his detention. I want to emphasize that I consider every kind of information which they can possibly give. That was also the case when I previously considered their admissibility. I think it is not necessary to stress the fact that when I (3C exercise my discretion on what to admit, not only the nature
and quality, but also the quantum must be borne in mind. I do not intend to call Messrs Chikani, Ntonga, Narsoo, Ndao, Kgatshalia and Miss Hogan to give evidence in this Inquest, and their affidavits are not accepted as proof of the facts stated therein. It' is my considered opinion that the evidence of the evidence of the aforementioned 6 persons will not assist us to make a finding on the issues before us. I intend to say more on the value, if any, of evidence admitted under the notion of similar facts, at a later stage. That I believe (10 will throw more light on this ruling. Auret van Heerden: I was informed that Mr van Heerden was approached to make a written statement relating to the treatment of Dr Aggett at John Vorster Square. However, after consultations with his legal advisers he declined to do so. He was at that time detained as a prospective witness for the prosecution in a criminal case. He was released on the 9th of July, 1982. Only on the 20th of September, 1982 he made and submitted the affidavit now under consideration. (20 Affidavits by Gilbert John Marcus and Denis Anthony van Heerden, Ruth Estell Becker and Dr I Cohen, were also submitted by the legal advisers for the Aggett family in support of the affidavit of Auret van Heerden. An affidavit by Advocate Swanepoel relating to his dealings with Mr van Heerden was also submitted. Now it is clear that information coming from Mr van Heerden1s affidavit can be divided into two categories, namely - 1 1. His contact with and observations of Dr Aggett in detention, and (30 2. Treatments which he received at the hands of the Securi ty/
Security police. As regards to the treatment, I have come to the conclusion that further evidence of this nature cannot assist us to decide the issues on which we have to pronounce, and shall therefore not be admitted. However, Mr van Heerden shall be called to give evidence on his encounters with and observations of Dr Aggett at John Vorster Square police station at the time of his detention. His affidavit, paragraphs 1 to 24, that is pages 1-11 is admissible, and may be handed in when he is called to give (10 evidence. The rest is not admissible. It follows that the affidavits by Mr Gilbert John Marcus, Denis Anthony van Heerden, Ruth Estelle Becker, Dr Ivan Cohen and Mr Swanepoel respectively, cannot contribute in any way and are not admitted as evidence in these proceedings. I would also like to add that the name of Dr Jacobson was mentioned when Counsel addressed me on the admissibility of evidence - I have already directed that he also be called to give evidence. Thankyou, I w i l l now adjourn to get the attendance of the testimony. (20 AT THIS STAGE COURT TAKE5 A SHORT ADJOURNMENT ON RESUMPTION : AURET DENIS VAN HEERDEN Sworn, states: EXAMINED BY ADV DE VRIES You were detained from the 24th September, 1981 until the 9th of July, 1982 under various sections of various acts? --- That is correct. Before your initial detention, did you know the deceased DrAggett? --- Idid. How well did you know him? --- Reasonably well. (30 On what basis did you know him? --- I knew him as a friend and/
Historical Papers, Wits University Collection Number: AK2216 AGGETT, Dr Neil, Inquest, 1982 PUBLISHER: Publisher:- Historical Papers Research Archive Location:- Johannesburg 2013 LEGAL NOTICES: Copyright Notice: All materials on the Historical Papers website are protected by South African copyright law and may not be reproduced, distributed, transmitted, displayed, or otherwise published in any format, without the prior written permission of the copyright owner. Disclaimer and Terms of Use: Provided that you maintain all copyright and other notices contained therein, you may download material (one machine readable copy and one print copy per page) for your personal and/or educational non-commercial use only. People using these records relating to the archives of Historical Papers, The Library, University of the Witwatersrand, Johannesburg, are reminded that such records sometimes contain material which is uncorroborated, inaccurate, distorted or untrue. While these digital records are true facsimiles of paper documents and the information contained herein is obtained from sources believed to be accurate and reliable, Historical Papers, University of the Witwatersrand has not independently verified their content. Consequently, the University is not responsible for any errors or omissions and excludes any and all liability for any errors in or omissions from the information on the website or any related information on third party websites accessible from this website. This document is part of a collection deposited at the Historical Papers Research Archive at The University of the Witwatersrand. http://www.historicalpapers.wits.ac.za/admin/cms_header.php?pid=98[2013/03/12 07:52:17 AM]