Amnesty Hearings — Johannesburg — 1998-11-25

MR SAMUELS: If my logic which I've tried to present, that this applicant should be heard on the basis which I've tried to argue and if this hearing feels that there is no substance to us bringing that application, may I ask that we still, I still wish to call this witness, call Mr Nkosi as a witness to explain two issues because it is important I submit: the question of the chain of command and what was the structure within the SDUs and how is it that people got instructions and what was the effect of the code of conduct.

CHAIRPERSON: I don't know if we made ourselves clear yesterday, but even before Mr Kassrils came to give evidence, we told you that we accept and we have been given written submissions, thick volumes at that, which includes the events and the structures in Thokoza and elsewhere in the country because Thokoza was not the only flash point in this country, and we accept that those phenomena existed.
	We are of the view that no amount of evidence regarding the history of this issue is going to improve the matter.

ADV DE JAGER: Mr Samuels, if you have a look at Sections ...(intervention)

INTERPRETER: The speaker's mike is not on.

ADV DE JAGER: ...(inaudible) for a specified - we're entitled to grant amnesty for a specified offence according to Section 20(5) ...(intervention)

CHAIRPERSON: And in terms of the High Court judgment that we are saddled with.

ADV DE JAGER: Yes.  They say we should give sufficient particulars about this offence, so that if he is being charged later they could say: "We could identify this offence.  It's been committed in Thokoza in Khumalo Street on the 22nd of February 1990 and it related to the killing of people there, the murder of people or the killing of people, whatever you could call it.
	It wouldn't then include an offence that's been committed in Buthelezi Street on another date and other victims being ...   So that is the reason why the Act requires that we should be very specific about the amnesty we are granting, because otherwise it may turn out that we grant amnesty in respect of a murder of a personal enemy or whatever it may be.  That is why we are asking, give us the particulars, are you asking for amnesty in connection with the funeral procession for instance? 
	Then we've got a further problem, and I think you should have a look at that too, we've got an application and it's long after the cut-off date.  In this application no specific offence has been mentioned.  We've been lenient about this and we've widely interpreted it and said: "Okay, give us particulars later, we're asking for particulars".  But in this case I don't know whether particulars were asked for, but we received no further particulars about a specific act, and if we would grant amnesty and it's not mentioned in this application, this application as wide as those applications that the Supreme Court have set aside be amnesty granted.
	So even if we would grant amnesty on this application, the result would be that it would be invalid, and that is why are attempting to get something from you so that we could, if we give amnesty it should be valid amnesty we're giving.

CHAIRPERSON: What's more, Mr Samuels, I find it strange that nobody can say: "I committed", or you can tell me: "My instructions are, ...(indistinct) committed the crime of attempted murder by common purpose or murder or assault or malicious injury to property or whatever.  There is a distinct reluctance or inability to tell us or give us a simple answer to a simple question.

MR SAMUELS: Mr Chairperson, may I have leave to ask - or rather, can I ask that Mr Nkosi address the hearing on this specific issue only?

CHAIRPERSON: Are you not able to give us answers?

MR SAMUELS: No, I think Mr Nkosi may perhaps be able to explain.

ADV MOTATA: No, but is he going to tell us of specific incidents, because I am interested if you have regard to page 64, he says
"Casualties were suffered"
Listen to this.
"Casualties were suffered and property were damaged."
Then they say:
"If so, state the names of the victims."
He says:
"Details and background are in the branch submission."
Does it help his case if he says that?

MR SAMUELS: No, he should be specific.  I appreciate that.

CHAIRPERSON: Let me ask you, is he going to tell us that he committed a crime, in terms of criminal law?

MR SAMUELS: May I ask that Mr Nkosi have permission to address the hearing?

CHAIRPERSON: Mr Samuels, you are his representative, you undertook to represent him, you obviously, unless I'm drastically wrong, have consulted with him and you know more or less what his versions or what his version is.  All we are asking from one officer of the law to another, is he likely to admit to committing a crime?  If so, I will accept what you say and then we can carry on.  If not, then you know what the position is.

MR SAMUELS: In the circumstances of our discussions, my instructions are to withdraw this application.  And also, I had intended presenting some of the information if the hearing believes that those two issues that I mentioned, the question of the structure of the SDUs and what was the chain of command, if that evidence isn't required, I therefore will stand this matter down.

CHAIRPERSON: I told you that we'll give you an indication if we feel it's necessary, later.

MR SAMUELS: On that basis therefore, I will ask that this application be withdrawn ...(intervention)

CHAIRPERSON: On what basis?

MR SAMUELS: On the basis that there's no evidence to satisfy the requirement for amnesty.

CHAIRPERSON: Mr Samuels, can I just get some specifics here?  Do I interpret that as that there cannot be any allegations to the commission of a crime as we know it?

MR SAMUELS: Sorry there cannot be allegations?

CHAIRPERSON: That there has been a commission on the part  of this applicant, that a crime has been committed.

MR SAMUELS: Ja.

CHAIRPERSON: Yes, thank you.