Amnesty Hearings — Durban — 1999-06-23

CHAIRPERSON: We'll proceed to hear the application of Happy Mngomezulu and Thulani Christopher Madlala.  Will their legal representatives appearing in respect of the two applications kindly state their names for the record?

MS MOODLEY: My name is Ms ...(indistinct) Moodley and I appear for both the applicants.

CHAIRPERSON: For the evidence?

MS THABETHE: I'm the evidence leader, Ms Thabile Thabethe.

CHAIRPERSON: Yes Ms Moodley, are we in a position to commence with the two applications?

MS MOODLEY: Honourable Chairperson, I would like to address the Committee on an issue that I think is pertinent before we proceed to the application after my address?

CHAIRPERSON: Yes.

MS MOODLEY: Briefly, my concerns about the application being properly heard before this Committee, I believe is going to be compromised if reference is not had and evidence is not furnished by persons in a leadership position in relation to the political disputes that have arisen in this particular area of Wembesi.  I'm mindful that the Committee is under strong time constraints and I do believe though there is equally an important concern that I have that the applicants be given the full opportunity to disclose fully before this Committee all facts some of which are not within their own knowledge at this particular point and that is why I make the request that without delaying unnecessarily the time of this Committee that we be afforded the opportunity to present witnesses who would then give a full picture in relation to the context and the commission of the offences that we now seek amnesty for.

ADV DE JAGER: What would the nature of that be?

MS MOODLEY: It would relate to the issue of the alliance and the issues that I would, as legal representative, deal with in my application by reference to Section 20 of the Promotion of National Unity and Reconciliation Act No. 35 of 1995.  I believe that as I read the Section 20 together with the qualifying sections, I am going to face a difficulty in relation to the aspect, more particularly if I could read it and I think the Honourable Members are well informed of the particular section, Section 20, sub-section 2, sub (a).  Any member or supporter ...(intervention)

CHAIRPERSON: You don't have to read it, just refer to the particular section, we are all familiar.

MS MOODLEY: I will refer to it, you want references?

CHAIRPERSON: Yes.

MS MOODLEY: But in order that we do not delay the process unnecessarily, I think the leading of evidence of the first applicant in the matter would not prejudice anyone's particular rights but I want the Commission to be mindful of the fact that I do require witnesses to be led and because they turn on the issues that I've mentioned just before.

MS MOODLEY: May you just explain to us how the leading of evidence from persons in the ANC leadership would actually assist your application with regard to the Sections that you've drawn this Committee to, that being Section 20, sub-section 2(a), how would that assist the applicants?

MS MOODLEY: On a very legalistic narrow interpretation of the particular section, I would concede Your Honourable Chairperson, that it does not necessarily imply those particular witnesses are going to be peremptory witnesses required by the Commission but I'm saying if one has reference to the affidavits that have been ably drafted by Mr Molohlanye and to which I've added a last paragraph, there is reference therein to individuals who would then be in a position to clarify matters because with all due respect I will say that the applicants are really the foot soldiers of what we are about here.  There are elements that I think would come to the fore in relation to activity that was orchestrated and organised, not confined to Wembesi but throughout the midlands in kwaZulu Natal so I think there would be some reasonable good value for witnesses that would lend more light, shed more light on the circumstances and the situation as they arose in Wembesi.  These individuals are not simply plucked from the leadership positions of any of the alliance organisations, it's simply people who have been intrinsically involved at grassroots level.

CHAIRPERSON: So if they are intrinsically involved at grassroots level as you allege, that would put them in the same position as the applicants?

MS MOODLEY: With all due respect, Honourable Chairperson, the qualification that a foot soldier does not - is not meant to demean of take away from the abilities of the applicant, is not fully apprised and aware of the vacuum in which he operates or she operates.

CHAIRPERSON: Yes?

MS MOODLEY: When you further the objectives of your organisation and my concern is that leadership and I can say this with my engagement as late as last night, it became apparent that there was some valuable information to share with this Committee from a person who was on the ground at the time and who continues to be deeply involved in the Wembesi area.

CHAIRPERSON: What would the import of that information?

MS MOODLEY: It would relate to why you have an anonymous situation of alliances brokered at national level which should permeate throughout the structure of an organisation but somewhere between that level and the ground, there seems to be blockages and impasses.

CHAIRPERSON: Yes.  Without really interfering with you, I want to be on the same page as you, do I understand you to be addressing us with a request for an application for a postponement of this matter?

MS MOODLEY: Yes, Your Honourable Chairperson, only insofar as I might require it at some later stage during the course of the day because my concern is that my witness who I expected to be here at 12 o'clock sharply today does not appear to have presented himself.

CHAIRPERSON: Now are you in a position to proceed other than that?  How many witness do you propose to call in support of these applicants?

MS MOODLEY: At this stage two because they would be the same witnesses that I would use in both the applications.

CHAIRPERSON: And who are they?

MS MOODLEY: I could furnish you with the first witness, it's Teaspoon Bunu Mkhize.

CHAIRPERSON: Yes?

MS MOODLEY: The second witness I actually have not confirmed.

CHAIRPERSON: Was Mr Mkhize made aware of the fact that we would be proceeding with this application at about 12 o'clock as we had earlier on indicated to you?

MS MOODLEY: No your Honourable Chairperson, he was actually informed the early part of this morning that in fact if he could be here a 9 o'clock it would be in the interests of the applicant.

CHAIRPERSON: So he's aware that he should have been here at 9 o'clock?

MS MOODLEY: No, I think - let me explain and then maybe you can hear where I'm coming from in relation to Mr Mkhize.  I spoke with him at half past 5 yesterday afternoon for the first time and I indicated that I might require him before the Commission.  He indicated that did not have an objection to being here but because he was councillor and otherwise engaged with council work, he was not in a position to present himself at 9 o'clock and then I said to him that we would like you to keep in touch because I think it is important for you to be here.  I called him during the course of this morning and he said he would make attempts to be here by 12 o'clock, having taken the cue from consulting with you in chambers and there is now no Mr Mkhize and I'm concerned if you go on without his input, I mean my concern is we need to know that he is going to be here tomorrow at least.

CHAIRPERSON: Yes.  Now you are only concerned about the importance of Mr Mkhize's evidence which would present a better picture as you allege with regard to the political context at Wembesi at the time when this incident occurred?
Do I comprehend you properly in that regard?