Amnesty Hearings — Nelspruit — 1997-06-12

ADV TEE: If I recall correctly he was given the opportunity to cross-examine Mr Conrad Nkuna and declined and said he did not need to and moved off to go and prepare his own application.  Maybe Mr Black, Advocate Black can help us on that.

MR BLACK: Mr Chair, may I just in defence.  Mr Mojapelo is not here, but I understand that this argument will be recorded, it is being recorded and he will be afforded an opportunity of submitting his written statement and argument, but the actual position, as the Committee will recall, that during the course of the hearing, of the initial hearing Mr Skosana's name was mentioned in a statement which was prepared and, on the first day of the hearing.

BERNARD MAKGABO NGOEPE: Sorry Mr Black, let us take it only from yesterday.  We know the history, the whole history.  I just want to know at the time when we took notice of Mr Mojapelo precisely where, where were with the proceedings.

MR BLACK: I think I must deal with a little bit of the history not the proceedings.  As far as access to Nkuna's statements and documents are concerned my learned friend is not correct in saying that Mr Mojapelo had access to those documents.  It was only yesterday and I have and I think he was present, Mr Tee was present, when I made a copy available, because Mr Tee indicated that he would be referring to those documents.  So in that aspect, and Mr Mojapelo would, I want that to be corrected.  He had not had access to the Nkuna documents from the beginning.  When Mr Mojapelo appeared yesterday in court he was not present throughout, as the Committee is aware, he was in the process of preparing a statement for Mr Skosana and he was going to represent Mr Skosana in presenting his application as I understood it.  I do not recall him ever declining or indicating that he had no intention or wish to cross-examine.

ADV DE JAGER: But in fact did not cross-examine and he did not ask for an opportunity for cross-examine.  So it is common cause there was no cross-examination and we should deal with it on the basis that there was no cross, what the reason might have been that may differ, but there was not so let us deal with the facts as they stand.

BERNARD MAKGABO NGOEPE: Except that you want more than that.  You want us to say, to attach some weight to the fact that Mr Mojapelo did not cross-examine. You want us to do that and I am saying to you we cannot attach the weight till his failure to cross-examine the witness, because he was not here.  I mean he was just not, he did not, he was not part of the proceedings and the fact that he did not cross-examine cannot be used as an argument to confirm the truth of what your client said, because he was simply not here to cross-examine.  We can only note that he did not cross-examine, but we cannot attach weight to the fact that he did not cross-examine and read a lot more into that.  It does not really help us.

ADV TEE: Mr Chair, the first submission is I accept that it is common cause that he and I think that is the proper way to deal with it, that it is common cause that he did not cross-examine, but if I recall correctly and perhaps one will have to read the record, I thought he was actually invited by yourself whether or not he wanted to cross-examine.

BERNARD MAKGABO NGOEPE: What I know is that we excused him, because he wanted to go and prepare statements.  I am not even sure whether he would have made any meaningful contribution by cross-examining witnesses that he never listened to anyway.

SISI KHAMPEPE: I recall that Mr Black drew our attention, in fact I think it is the Chairperson who drew Mr Black's attention to the fact that Mr Mojapelo had come into this forum, but Mr Mojapelo came in long after Mr Nkuna, Conrad Nkuna, had begun to give his evidence and he requested to be excused in order to go and prepare for My Skosana's application.  So I do not think he was part of the proceedings at all in so far as Mr Conrad Nkuna's matter is concerned.

BERNARD MAKGABO NGOEPE: Deal with other aspects.  We are not going to attach weight to the fact that Mr Mojapelo did not cross-examine the, I mean, the applicants.

ADV TEE: As the Committee pleases.  The second aspect relates to the fact of no opposition to the application for amnesty and in that regard we have luckily got the record typed.  If I may refer to page 22 of the typed record and what is stated there by Mr Patel in answer to a question by the Chair.  The people that you represent is the question.
"Do they oppose the application for amnesty or do they not?".
and Mr Patel's answer is,
"In so far as there has not been disclosures made as far as all the relevant facts are concerned to that extent".
And then again,
"They oppose the application".
and his answer is,
"Yes, they oppose the application".
Now, that was Mr Patel's answer first position.  Later during that day he was then given an opportunity to consult and if you recall we stood down and then commenced straight after lunch.  The next aspect occurs on page 36.

BERNARD MAKGABO NGOEPE: Can we assist you on that point to indicate to you what Mr Patel's positions is and, in fact, that is the point on which he is going to submit written argument. His position is that, his, the application is being opposed on the basis that there was no, there has not been any full disclosure.  Otherwise they would not be opposing the application, but they feel that there has not been a full disclosure on that point and he is going to make submissions on that point and say there has not been a full disclosure in particular with regard to the fact that Mr Joe Nkuna was present during the attack.  So let us not fool ourselves in trying to think that, well, Mr Patel is not opposing the application and then try to argue that therefore the applicant is in entitled to amnesty because Mr Patel is not opposing the application.  It is, if ever he said that he did not oppose the application.  He did so with a very strong qualification and yesterday when he left here he told us that he is going to submit written argument and it is obvious his written argument is, which he is going to submit, it is not in support of your client's application.  The written argument he is going to submit will be in opposition your client's application on the basis that there has not been a full disclosure in the sense that I have described to you.

ADV TEE: Mr Chair, if I may just complete the argument, because it is important if I read to you, I agree exactly with what you have said here, because he said at the top of page 36, he directed the statement to Mr Joe Nkuna. He said,
"Mr Nkuna, we want you to bear in mind that our clients, that is the ANC and the victims are not opposing your application for amnesty, but opposing the incomplete disclosure by you in support of your application".
and that is where I wish to address my argument.  Now, in reply to me, Mr Chair, you have just said that one of the reasons why he is going to oppose it is because Joe Nkuna did not say that he was present at the actual attack.  Now, I do not recall Mr Patel ever having cross-examined to that point.  What seemed to be the tack and the trend of the question relating to disclosure varied all the time, but what we do not have out of the mouth of Mr Patel is where does he allege the disclosure was not full, on what actual points.  There has been no evidence led by the victims despite frequent requests and so on as to what could have been disclosed that was not disclosed.  There has been no aspect of this case in respect of which we can say Joe Nkuna's evidence can be gainsaid by something else that has been led to contradict that.  
	What we do know is that some cross-examination concerning the initial attack on Joe Nkuna himself related to an affair, but that was not taken up.  Some cross-examination related to the conflicts within the ANC relating to funds, but ...