Amnesty Hearings — Johannesburg — 1998-12-02

MR SWANEPOEL: I'm saying that an application where the written application has been of a general nature, and if oral evidence has been delivered to specify the acts and to narrow down the general scope of the application, without contradiction of what is written in the written application, that is one matter and that must be perfectly acceptable in terms of the Act.

ADV DE JAGER: Suppose you've got an application saying: "I'm applying for amnesty, I've been a member of the SDU for the period 1990 till 1994, during that period murders have been committed."  Then if I understand you correctly, you say the applicant could come and say: "Murder A, Murder B, Murder C, on such and such a date."   But on that same application he is now applying for arson, could that be included in the application if nothing was mentioned at all about burning of houses or whatever it may be, there was no mention at all about burnings and ...?

CHAIRPERSON: I think if I could make it easier for you, Mr Swanepoel, what Advocate de Jager is probing at is that in the event of them having chosen to identify offences, even in a limited way and for example the identified offences were let's say murder and attempted murder, having opted for that line of disclosure, can an applicant come here and also apply for arson which he made no mention of ...(inaudible).  ... which wasn't related to the murder?

MR SWANEPOEL: Mr Chairperson, with respect, no.  My submission in that regard is, no, he cannot.  Where an applicant - and it must be remembered that the Act is clear, the application is contained in the written document, anything else is amplification of the written document, it can never constitute a new application.

CHAIRPERSON: ...(inaudible)

MR SWANEPOEL: Of course.  And the fact of the matter is, there is a good reason why a written document in a prescribed form was required by the Legislator, and that is simply that certain investigative functions must have been facilitated.  And that is the only way to do that.  It is clear from the wording of Section 18(1), that no oral applications can be entertained firstly, and secondly, that only written applications in the prescribed form can be entertained.  And if an applicant chooses a limited wording in his written application, then he is bound through the course of the proceedings, by that limited wording.
	My submission to the Committee is, where he chooses a general wording, he is at liberty to refine the general wording by the furnishing of further particulars or oral evidence, as the Act envisages, but he is not at liberty to broaden the scope of a limited wording to include acts which were not included in his original application because the application must stand in its written and prescribed form, anything else is amplification.

CHAIRPERSON: He may be in the fortuitous position of having been un-descriptive initially, in which case he may have been able to include arson or whatever, but having chosen to be specific, he's really solidified his block, as it were.

MR SWANEPOEL: It can follow logically.  If it is accepted that the written application constitutes the application, that there cannot be any oral application or any other written application, then it follows logically that limited wording is limiting on the route that the applicant may take.

ADV DE JAGER: Except if he sort of amended it before the cutoff date of course, then it's another ..., but we're talking about after the cutoff date.

MR SWANEPOEL: The matters we are concerned with here are matters which have been filed timeously and which have not been amended before that, and they are before the Committee as they stand at the moment.
	Now from the applications that I am concerned with, and that is relating to the two events, the burning of Mr Msizi's house and the abduction and murder and attempted murder of Sibongile and her sister, the only two applications with respect, that conform to the requirement of the Act before the Honourable Committee, are the applications of Jabu Nyete, which is found on page 166 of volume two and the Patrick Mkwebe, known as Meneer, which is found on page 237 of volume 2.
	There is an important aspect which I would like to point out to the Committee.  Jabu's application is a perfect example of how an application should look.  It specifies the deeds, his evidence is perfectly in line with what he specified and it was deposed to and signed on the 10th of May 1997, as was each and every other application that we heard.
	Now the excuse for irregularities and indiscrepancies was that they were in a hurry, but the fact of the matter is that person who deposed to his application on exactly the same day, had the time and took the effort to inform the Committee and to inform the TRC as a whole, the Investigative Unit, of exactly who he dealt with, exactly what his offence was.  There was no logical reason for the other people not to do the same.
	The person known as Meneer is a classic example of someone who took the liberty of using wide language initially and narrowing it down to specific offences, and the offences of course were mentioned by his representative counsel to the Committee, they also include attempted murder and not only arson as stated on the list that was supplied to the Committee.
	The other people with respect, could never have on the evidence, contemplated the deeds and the events that they testified to when they deposed to these applications.  It is clear from the evidence, and I will go through them one by one if the Committee requests me to ....(intervention)

CHAIRPERSON: Are they all the same?  Are you making the same point in respect of each applicant that you now want to deal with?

MR SWANEPOEL: I'm making similar points regarding two of the applicants on the one side and two of the applicants on the other side.

CHAIRPERSON: I think you can deal with the same argument two by two.  Just give us the names of those applicants you refer to.

MR SWANEPOEL: As you please, Mr Chairperson.
	In the matter of Sibongile, her abduction and the murder of her sister, the gentleman called Mogura Modikoa whose application ...(intervention)

CHAIRPERSON: Modikoa.

MR SWANEPOEL: Modikoa, my apologies.  His application is found on page 142 of bundle 2, and Mhlapho if my memory serves me correctly, his accomplice in that specific event, Kifue Mhlapho, the testimony on page 187 of bundle 2, the testimony was abundantly clear, that they gave evidence that they received instructions from Ben, firstly to go and commit whatever deeds they testified about and secondly, that they did not know the names of the victims or if any damage was caused - or that they did know the names of the victims, my apologies, I confused their testimony with what their applications state, that they did know the victims, they knew it was Sibongile that they had to go and kill together with her sister, they knew her house, especially in Modikoa's case, especially in Mhlapho's case, where he actually was involved in a bombing of a house a month before.  He knew her very well, and yet he writes in his application that he does not know the names of the victims or if anybody was injured, while he full well knew that all the time.
	Secondly, the mention that they received their orders from the commander of Extension 2, and also Meneer.  Now if the person known as Meneer's application is perused it will be noted that during that time he says on page 240 of bundle two, that:
"I was the commander of Extension two SDU."
So they could not have been referring to the matter of Sibongile in their applications, in their written applications, because they did not on their own version, receive instructions from Meneer and they did know the names of their victims.

CHAIRPERSON: But was Meneer not the commander in Section 2?