Amnesty Hearings — Durban — 1999-09-22

CHAIRPERSON: May I interpose?  Are you now making your submissions because I thought you were merely speaking with regard to the documents?  It looks like you are now proceeding to address us?

MS MOODLEY: Yes I'm going to actually do my submissions and make my address now.

CHAIRPERSON: Well before you do that, we haven't given Ms Mtanga an opportunity to find out whether he wants to lead any evidence in respect of this application.

MS MOODLEY: But I don't know if Ms Mtanga has sight of the copies of the exhibits as well?

CHAIRPERSON: Well I mean you don't seem to be addressing us on the exhibits, you seem to be addressing us on the merits of the application?

MS MOODLEY: And the merits supported by those exhibits as they appear.

CHAIRPERSON: Yes, I think you will do so once you do your oral submissions.

MS MOODLEY: Fair enough.

CHAIRPERSON: Maybe you'll reserve what you want to say in respect of this until you make your oral submission.  Does this conclude your case, you don't wish to call any further witnesses?

MS MOODLEY: I intended to call Peter Kirschoff but he is not here any more.

CHAIRPERSON: Yes, you no longer intend to call Mr Teaspoon Mkhize?

MS MOODLEY: No.  Mr Bladen Nsimande I tried to call but he is not available.

CHAIRPERSON: So this concludes your testimony with regard to the applications of both applicants?

MR MALAN: Just for the record, this Mr Peter Kirschoff that you wanted to call, who was he?  Which expert?

MS MOODLEY: He was actually the person responsible for, that I actually tracked down by the monthly Report Monitors, he was responsible for collating information that came through in relation to violence.

MR MALAN: What is his position, who was he?

MS MOODLEY: The Human Rights Committee referred me to him in Pietermartizburg in relation to the reports that he made.

MR MALAN: What was his occupation, what did he do for a living?

MS MOODLEY: Well he was employed by Paxa I think it was.

MR MALAN: Paxa?

MS MOODLEY: Yes.

MR MALAN: And when did he die?

MS MOODLEY: I think in last month, in August.

MR MALAN: Thank you.

CHAIRPERSON: Thank you Ms Moodley.  We will now give Ms Mtanga an opportunity.  Ms Mtanga, do you wish to tender any evidence on behalf of the victims in respect of the applications of both applicants?

MS MTANGA: No Chairperson, I won't be tendering any evidence.

CHAIRPERSON: Yes, is Mr Thulani Mkhize present?

MS MTANGA: Mr Phewa has indicated that he ...(intervention)

CHAIRPERSON: Sorry, Mr Phewa.

MS MTANGA: Mr Phewa, the brother to the victim here has indicated that he doesn't intend to attend the hearing but he still opposes the application on the grounds referred to in his affidavit.

CHAIRPERSON: On the grounds that the deceased was not politically active?

MS MTANGA: Yes Chairperson.

CHAIRPERSON: Thank you.  That being so, Ms Moodley are you in a position to address us?

MS MOODLEY: Thank you Chairperson.

CHAIRPERSON: May I find out if Ms Mtanga will also be ready to address us?

MS MTANGA: Chairperson, I was not intending to submit any argument save to say that my instructions from the victims are to oppose the applicant, the application, but in the absence of him here and evidence to the contrary, I am unable to pursue that direction.

CHAIRPERSON: But you are in a position to give an indication of what your opinion is, taking into account the evidence that has been handed before this Committee?  You should be able to do that, whether you are in support of them being granted amnesty on the facts before you?

MS MTANGA: Chairperson, my initial position was that I will leave that in the hands of the Committee.  Thank you.

CHAIRPERSON: Yes you may elect to do so.  You will give that indication at an appropriate stage.

MS MTANGA: Yes Chairperson, thank you.

CHAIRPERSON: Ms Moodley over to you?

MS MOODLEY: In respect of this application I believe that the applicants satisfy the requirements in terms of Section 20 for this application to succeed and I will proceed to indicate the support for my submission.
	It has been the view that this particular incident was a personal incident and it did not relate to a political objective.  In regard to that opinion, I would like to submit that the Mkhize and Phewa conflict was a conflict of a political nature and that this is not just an opinion that is plucked out of the air, it is supported by information collated at the time by people who were charged to do that particular job and in this regard I refer you to the Human Rights Commission.  I've already mentioned the April 1994 report which deals with the very incident under the spotlight here today.

MR MALAN: I think, Ms Moodley, I may assist you here and I'm sure I'm speaking on behalf of my colleagues too, that at no stage did we have any indication that it was a personal thing, that it was indeed in a political context.

MS MOODLEY: I'm very heartened to hear that.

MR MALAN: So that you can accept.

MS MOODLEY: Okay.

MR MALAN: Whether that qualifies the applicants to be granted amnesty is what you need to be - the nature of this political context and the nature of the act is what you need to argue but you don't have to satisfy us that it was not personal.

MS MOODLEY: But I do have to satisfy you that there was a political objective which I am now attempting to do.  In the course of my instructions, confined not just to the two applicants but in the general research of work in relation to the Wembezi area, it has become apparent to me that the conditions that pertained at the time have actually been ventilated and the full picture now emerges and the full picture speaks of third force activity.

MR MALAN: Really, we have no such evidence before us by neither of the applicants.

MS MOODLEY: Yes I'm going to refer you to the particular exhibit.

MR MALAN: No, really I'm arguing that that's not before us as evidence.  You had to lead evidence if you wanted to include any third force activities.  Your witnesses specifically excluded it and very pertinently so, the second witness.

CHAIRPERSON: Ms Moodley, I personally would like to accommodate you as much as I can.  What is, however, the relevance of the third force activity with regard to the offence committed by the applicants which you only have in your submission to show that it was an offence committed as an act associated with a political objective.  What would be the relevance of even alluding to third force activity in an attempt to show us that what the applicants did, they were doing for a particular political objective?  The objective of furthering the interest of the ANC, that they had a conflict as members of the ANC and supporters of that organisation with members and supporters of another political organisation being the SACP.  I just want to find out what would be the import of alluding to third force activity because in my opinion I don't think it has any bearing nor relevance at all?

MS MOODLEY: Honourable Chairperson, in my discussions with the leadership that has been mentioned during the course of the evidence of the two applicants, Mr Bladen Nsimande in particular, I was advised that the so called leadership struggle between Mr Mkhize and what would appear to be Mr Phewa was something that was - there was tensions that smacked of orchestration by third force elements and the view that the organisation had been infiltrated to an extent.  I stand here, I mean I'm presenting submissions today in terms of information that I have been furnished by responsible members of the organisation who were involved in particular in this particular conflict.