Amnesty Hearings — Durban — 1999-06-23

CHAIRPERSON: Today we are going to hear the application of Nyawose Ziphakamise aka Khumalo which is application AM6192/97.  Ms Thabethe and Mr Mlungisi, I hope we are now ready to proceed.  We should have commenced with this application at 9 o'clock.  Again our proceedings have been delayed for almost an hour.  I do not expect you to advance any reasons for the delay.  I however which to register our dissatisfaction with the manner in which these proceedings are going.  We hope and trust that we will always be time conscious because if we are not, we will not be in a position to conduct our proceedings in an equitable manner.  I expect counsels and lawyers to conduct themselves in a proper manner and that includes observing the time that we have mutually set as a Committee in consultation with counsel and lawyers.  I shall now give Mr Molohlanye an opportunity to commence with Mr Nyawose aka Khumalo's application.

MR MOLOHLANYE: Thank you Madame Chair.  I'd like to apologise for the delay and I would like to call the applicant in this matter Ziphakamise Nyawose aka Khumalo.

CHAIRPERSON: Mr Khumalo, will you please come forward?  Mr Khumalo, which is your correct surname?  Is it Khumalo or Nyawose?

ZIPHAKAMISE NYAWOSE: Nyawose.

CHAIRPERSON: Do you also use Khumalo as a surname?

ZIPHAKAMISE NYAWOSE: Yes.

CHAIRPERSON: Which surname should we use?  Khumalo?

ZIPHAKAMISE NYAWOSE: Nyawose.

ZIPHAKAMISE NYAWOSE: (sworn states)

CHAIRPERSON: Before you proceed, Mr Molohlanye, I note that you have now handed up another affidavit further to the affidavit that was handed up to the Committee on Monday which paragraphs are different from the ones that was handed to us on Monday.  Are you in a position to quickly point to us which paragraphs have been included or have been amended from the one that we had on Monday?

MR MOLOHLANYE: Thank you Chairperson.  There has been several changes in the affidavit as such.  We'll start at the first one, was in connection to paragraph 1 and the second one is paragraph 5 and paragraph 9, there was a change also there.  Paragraph 10 was also a change.  Paragraph 11 there was a change but I'm not in the position of that.

ADV DE JAGER: Paragraph 11 resembles the old paragraph 12.

MR MOLOHLANYE: Yes.

ADV DE JAGER: You've combined paragraphs 9 and 10?

MR MOLOHLANYE: That is correct.
	Also changes in paragraph 12.  According to the new affidavit it's paragraph 11 and paragraph 13 of the old affidavit which is now paragraph 12.  That's how far the changes have been.

ADV DE JAGER: Am I correct in saying that the essential paragraph for this application is paragraphs 11 and 12?

MR MOLOHLANYE: That is correct, Honourable Member.

CHAIRPERSON: You will recall that you were to apply for an amendment?  Could you please proceed to do so?

MR MOLOHLANYE: Thank you.  Before I do so, Madame Chair, I've noticed that after paragraph 19, paragraph 20 to 21 of this is missing in your affidavit.  Can I ask our logistical manager to make copies for you before we proceed?

MR PANDAY: Sorry Madame Chair, if I may just intervene here for a moment?  Madame Chair, I've been given the amended affidavit as of now as well as the old affidavit as of now.  Madame Chair, in the circumstances would it not be advisable that my learned friend get the entire documentation in order so that I can be put in a position to follow what is happening because given the missing pages as my learned friend has indicated to Madame Chair that paragraph 21 of the amended affidavit is now not in it's place, I don't have that as well.

CHAIRPERSON: So you will have it, I mean it is now going to be distributed to all the parties involved.

MR MOLOHLANYE: Madame Chair, I'd like to proceed with my application for an amendment.  Madame Chair, I'd like to apply for an amendment in terms of the application by the applicant Mr Nyawose.  Mr Nyawose originally applied for amnesty for a murder, for the killing of Mr Bhukunda Cele only and apparently Mr Khumalo was convicted of murder, attempted murder and escaping from prison.  I therefore apply to this Committee that we include the attempted murder and escaping from prison because they form part of the same act.

CHAIRPERSON: On what bases would you include the act of escape in your application for an amendment of this application?  We have no problem with regard to the act of attempted murder of Mr Ngcobo being included as an act which was omitted specifically as an act was omitted in his amnesty application because it arose out of the same incident to which he applied originally in his amnesty application?

MR MOLOHLANYE: I therefore withdraw the escaping from imprisonment, your Honour.

CHAIRPERSON: Your application for amnesty to include the act of attempted murder of Mr Ngcobo is granted.  The applicant will now lead evidence in respect ...(intervention)

MR MALAN: Can we just hear whether there is an objection?

CHAIRPERSON: You are representing the interests of the victims?

MR PANDAY: That is correct, Madame Chair.

CHAIRPERSON: Can we have your name on record?

MR PANDAY: It's Mr Panday, P-A-N-D-A-Y.

CHAIRPERSON: Mr Panday, an application has been made by Mr Molohlanye to include the act of attempted murder of Mr Ngcobo on whose interests we are now appearing today.

MR PANDAY: Your Worship, I represent the victim Goodman Ngcobo.

CHAIRPERSON: Yes, an application has been made to include the act of attempting to kill Mr Ngcobo.

MR PANDAY: No there is no objection ...(indistinct)

CHAIRPERSON: Your application is accordingly granted.

MR MOLOHLANYE: Thank you Honourable Committee.

CHAIRPERSON: You may proceed to lead evidence.
	Mr Khumalo, we have been given an affidavit.  This will be Exhibit A, page 21 has not yet reached my hands, I mean paragraph 20 to 21 has not yet reached our hands?

MR MOLOHLANYE: Thank you Chairperson.  I think the logistical managers are making copies.

CHAIRPERSON: Has paragraph 20 and 21 been read to Mr Khumalo?

MR MOLOHLANYE: Yes they have been.

CHAIRPERSON: Mr Khumalo, is this affidavit the affidavit that you have deposed to?  Mr Khumalo, did you depose to this affidavit?

ZIPHAKAMISE NYAWOSE: Yes.

CHAIRPERSON: Do you understand the contents of this affidavit?

ZIPHAKAMISE NYAWOSE: Yes.

CHAIRPERSON: Had you confirmed that they are true?

ZIPHAKAMISE NYAWOSE: Yes.

CHAIRPERSON: We will then accept Mr Molohlanye this as Exhibit A.  You don't need to lead him on any aspect which is contained in this affidavit.

MR MOLOHLANYE: That is so.
NO FURTHER QUESTIONS BY MR MOLOHLANYE

CHAIRPERSON: Mr Panday, is there anything that you - are there any questions that you wish to put to Mr Khumalo?

MR PANDAY: Madame Chair ...(intervention)

CHAIRPERSON: I am mindful of the fact that you don't have paragraph 20 and 21.  I think the crux of the matter really lies in what is contained from paragraph 10 or from paragraph 1 to approximately paragraph 12 which really gives an indication of what actually happened prior to the incident and what happened during the incident in question.  The other paragraphs relates to what happened after this incident which I think this Committee is least concerned with.

MR PANDAY: Madame Chair, I accept what Madame Chair has said.  As I've mentioned, I don't have in my possession the original affidavit that was handed up to Madame Chair and the members.  Now at this stage I'm not in a position to comment on both the affidavits that have been handed up or direct any questions.

CHAIRPERSON: There is only one affidavit that has been handed up and that's the affidavit that we have now accepted as Exhibit A.  Don't you have a copy of this affidavit?

MR PANDAY: Madame Chair, I have parts of it, I'm just waiting for the completed affidavit.

CHAIRPERSON: If you don't I will give you my copy.  Do you require time now to adjourn in order to have sight of this affidavit?

MR PANDAY: Yes Madame Chair.