Amnesty Hearings — Port Elizabeth — 1997-09-08

CHAIRPERSON: In other words there is no independent evidence in support of either one or the other.

MR NYOKA: On the basic principle of our law that he who alleges must prove. It is Mr Nieuwoudt who seeks amnesty, he must try to squash the evidence of Mr Jack.

CHAIRPERSON: There is no doubt about that.  The onus in that sense of the word, one talks about onus in that sense.  Every applicant has to satisfy this Committee that he is entitled to amnesty, in the broad sense. But I think that the question that is put to you here by my colleague, is how must the Committee approach this situation where on an issue such as this, you have two mutually exclusive or contradictory positions?

MR NYOKA: May I suggest humbly that the Commission should look at the totality of the evidence, and try to fit the question of the assaults within the framework of the circumstances and bearing in mind that my client's attitude is not as such to oppose the application.

CHAIRPERSON: Yes, I understand your client's attitude.

MR NYOKA: Yes.

CHAIRPERSON: Your client says that he understands that during those turbulent political days, if the police did what they did, he is not surprised, they were doing their duty at the time, I think, Mr Jack said something along those lines.

MR NYOKA: Yes.

CHAIRPERSON: On the question of non-disclosure or failure to make a full disclosure, what would Mr Nieuwoudt have to gain by not disclosing the names of others, personally, what has he to gain? He is trying to best to try and avoid being lumbered with the allegation or the suggestion that he has done something terrible to Mr Jack.  He is facing a number of other similar challenges of a more serious nature. In the light of all that, what has he to gain?

MR NYOKA: My impression, Mr Chairman, is that even in the other applications, those that are implicated are core applicants.  No one is mentioned outside of the applicants. That poses a question as to why that is the case. It seems as if a person has decided that I am going to apply for amnesty, I am just going to mention myself, not any other person. Except, that he is a co-applicant.
	Even in those applications I stand to correction, in the serious cases, although I doubt that a violation of a human right, even if it is a minor assault, is not serious. Even those cases, people that are mentioned, are core applicants. No one is mentioned outside the applicants. That is very, very strange. 
	In that regard, he stands to gain, with the co-applicant, who is being mentioned, who coincidentally is also an applicant.  In this case Mr Nieuwoudt is alone. I am sure if there was another applicant, they will have referred to each other's statements. That is my point.

CHAIRPERSON: In this particular case, it is common cause that the injuries sustained by Mr Jack was as a result of him being sjambokked.

MR NYOKA: Yes.

CHAIRPERSON: That sjambok was in the hands of Mr Nieuwoudt when those injuries were inflicted and Mr Jack admits that that is how he got hurt.  That is the injury or that is the assault in respect of which amnesty is sought.
	Is there any matter relating to that issue where you say that there has been no full disclosure?

MR NYOKA: Yes, your Worship.

CHAIRPERSON: What is that?

MR NYOKA: Yes, because we are saying that event was, did not occur on the 12th of August, it occurred on the 3rd of August when there were other gentlemen who Mr Jack mentioned, like Mr Coetzee, Mr Strydom and Mr Bezuidenhout who are not conveniently not mentioned. That is why he was saying so.

CHAIRPERSON: Yes, but I mean Mr Jack doesn't say that those other people were the ones who had the sjambok with which he was assaulted.

MR NYOKA: I did mention it when I put the case.

CHAIRPERSON: The sjambok was in the hands of Mr Nieuwoudt, wasn't it?

MR NYOKA: They took turns in assaulting Mr Jack. I did put that to Mr Nieuwoudt.

CHAIRPERSON: Yes.

MR NYOKA: With Mr Jack's statement, that they took turns, ja, in hitting Mr Jack.

CHAIRPERSON: No, unfortunately we don't have that statement.

MR NYOKA: I am sorry for that, Mr Chairman, but it is in his statement.

CHAIRPERSON: I see.

MR NYOKA: And in fact, even the helicopter treatment is an assault on its own, it doesn't have to be a sjambok.

CHAIRPERSON: No, I understand that, but that occurred on another occasion.

MR NYOKA: On the same occasion, on the 3rd of August, not on the 12th as alleged.

CHAIRPERSON: Yes, do carry on.

MR NYOKA: That is all.

CHAIRPERSON: Mr Mpshe?
MR MPSHE ADDRESSES COMMITTEE ON MERITS OF CASE
	Thank you, Mr Chairman. Mr Chairman, I am not going to belabour the points that have been canvassed, but just to say something on the two requirements, very briefly.
	I will start with the question of full disclosure. Mr Chairman, before I do that, I want to put it on record that as a member of the TRC, representing the TRC, I am not here saying what I am going to say in order to oppose the amnesty application, but the purpose of my duty is just to place before the Committee what I think is necessary for the Committee to know.
	I will first start with the full disclosure part, Mr Chairman. Mr Chairman, I have been listening very carefully that the evidence of Mr Nieuwoudt, the applicant, has been gainsaid by Mr Jack and vice versa. That may be the case, Mr Chairman, but the point I am trying to make here is that full disclosure has not been satisfied and I want to believe that what I am talking about as to full disclosure, is very much relevant in casu, because we are talking of assaults, plus minus four assaults on the very same person, Mr Jack. This evidence has not been contradicted whatsoever by the applicant. In fact, the applicant's lawyer at a certain stage, whilst making the submission, said we do not dispute the evidence of Mr Jack, which then means that Mr Jack's evidence stands, which then means that the assaults did take place.  Which then means that the application as put forward before the Committee today, selectively choosing the 12th and leaving out the rest.  Then there has not been full disclosure.
	On the question of political objective. Mr Nieuwoudt, the applicant during cross-examination, stated that the emergency regulations gave them "wyer magte" (wider powers) to do what they did or what he did.  But under questioning by the learned Committee member, Adv Potgieter, the answer was so specific and so direct, when he was asked about the assault, as it being included in the regulations. The answer was very clear, no, the emergency regulations did not provide for the assault.  This was an admission that the assault was not authorised.
	Granted, he may have acted in order to stop the activities of activists then or particularly of Mr Jack. That I do not want to dispute. He was carrying out his normal duties as a police officer. But, in as far as the assault is concerned, that cannot be condoned, because it was outside his ambit of jurisdiction and that assault then becomes unauthorised, and if it becomes unauthorised, it is not politically motivated.
	That is all, Mr Chairman.

CHAIRPERSON: I am going to give you another chance, Mr Van der Merwe. Is there anything you wish to reply to?

MR VAN DER MERWE: I don't think I can take it any further. I have taken it as far as I can, thank you.

CHAIRPERSON: The Committee will make its decision known in due course.  Thank you very much.  Do we adjourn now, Mr Mpshe. Do we adjourn now?

MOKOTEDI MPSHE: Yes, Mr Chairman, that completes the work for the day and the Committee will not be sitting tomorrow, but will be sitting on Wednesday, the same venue.

CHAIRPERSON: Very well.  This Committee now adjourns and will resume at 09:30 on Wednesday morning.
COMMITTEE ADJOURNS