Amnesty Hearings — Johannesburg — 1998-12-02

MR SWANEPOEL: He was indeed.  But in that regard they received their instructions directly from Ben.  And all the applicants in their oral evidence were adamant that Ben gave them the instructions to abduct and murder Sibongile and her sister.

CHAIRPERSON: Okay, can I get back to the first point you make on there, that whether they knew the names or not, that may be an issue we have to deal with under the heading: "Full Disclosure and Truthfulness" etc., but in terms of the point we ask you to argue on, that concerns us, hasn't there been sufficient identification of the event?

MR SWANEPOEL: My submission with respect, Mr Chairperson, is that the oral evidence given contradicts the written application sufficiently to deduct that that is not the event that they applied for amnesty for when they filed their applications.

CHAIRPERSON: I see what you say.

MR SWANEPOEL: It could not have been.  Logically it does not follow from the contents of their applications.  It follows from Meneer's application, it follows from Jabu's, from these two people's written application, and that is the application ...(intervention)

CHAIRPERSON: Can't we have regard for Meneer's application and his evidence?

MR SWANEPOEL: To supplement their own applications?

CHAIRPERSON: No, no, to identify the event for which Modikoa and Mhlapho makes.

MR SWANEPOEL: Yes, the difficulty with that approach, Mr Chairperson, is with respect, that Meneer does not specify the events either in his application.  He however gave oral evidence which does not contradict his application.

CHAIRPERSON: Which clarifies the ...(intervention)

MR SWANEPOEL: Exactly, it narrows down ...(intervention)

CHAIRPERSON: The event for which he takes responsibility and for which he gave these two orders.

MR SWANEPOEL: Indeed.

CHAIRPERSON: So can't we refer and rely and that kind of evidence to rectify any defect that there may be in applications that you complain of?

MR SWANEPOEL: My difficulty remains, Mr Chairperson with respect, that as I've already pointed out, I distinguish matters where oral evidence supplements a written application on the one hand, and matters where oral evidence contradicts a written application.  The question is not whether they actually did go and kidnap Sibongile, there can be no doubt in that regard.  The question with respect, is whether their applications ...(intervention)

CHAIRPERSON: There's a valid application ....(intervention)

MR SWANEPOEL: Their applications cover that event.

CHAIRPERSON: Ja.

MR SWANEPOEL: And my submission to you is, on a proper reading of the application ...(intervention)

CHAIRPERSON: You can't go outside the ...(intervention)

MR SWANEPOEL: They could not have contemplated these events when they deposed to these applications because the details differ materially.
	Similarly in the matter of Msizi's house, the burning of Msizi's house, both Xaba and Perry Dlamini, if my memory serves me correctly, apply for amnesty for deeds which were done between specific dates, the 28th of February 1992, 1991 to 1992.  And the 28th of February is a very specific date, they don't 1991 to 1992, which leaves room for relaxation and their evidence relates to an event that happened in 1990.  That is a matter totally different from Meneer's affidavit, where all his details and his oral evidence correlates and corroborates each other, the one is a specification of the other.  
	This is a contradiction and with respect, this application cannot have bearing on the oral evidence that the Committee heard.

CHAIRPERSON: If we accept that there was an error made in terms of the date, what would then be the position?

MR SWANEPOEL: Obviously with respect, the Committee has a wide ranging discretion ...(intervention)

CHAIRPERSON: No, no, I accept that, let's for argument's sake say we do find that there was a mistake in recording a particular date, would there be any other defects in identifying the event, for the purposes of a clear application?

MR SWANEPOEL: Yes, the only defect which I can hold out to the Committee is again, while both of these applicants knew Msizi very well, neither of them disclosed his identity or the damage caused to his house, which on their own version they realised the following day in their applications.  And on the balance of probabilities, and I know it's difficult to implement a test such as that in proceedings such as this, but the fact of the matter is that we must work with probabilities.

CHAIRPERSON: You see what concerns me, and I speak for myself, we haven't discussed the matter and I'd like you to deal with it, is that one the witnesses, one of the applicants says, you know someone in particular, I don't know if it was George or some other person or they may be both, just filled in these forms as a matter or urgency and he was told to sign.  Now even at the best of times we know those things do happen.  It explains to me to some degree why this cloud of secrecy that is apparent in these applications, why there's no specific issues mentioned.
	There is of course one exception to that, I'm saying generally, for example, this one phrase here:
"Offences during the SDU activities"
or whatever, it certainly by itself wouldn't qualify for a successful application.
	Now I'm not saying we're going to find this, it is an issue of concern to me that an applicant who are generally, and I viewed them, some of them cannot, and I say this with the greatest of respects and it's not their fault, cannot be regarded as mentally equipped to understand this document, let alone complete it.  Therefore I can understand that other people who claim to be au fait with the rules and are able to fill it in properly, by the way we discovered thereafter that they also themselves are not equipped, can we hold anything against the applicant for such defects?

MR SWANEPOEL: Mr Chairperson, the only submission I can make in that regard is that the question, even though it was distinguishable in that there was no hearing and no oral evidence, was tested in the Cape High Court when the blanket amnesty granted on similar papers to 37 high-ranking ANC members were considered.  I tried to get hold of that judgment but I couldn't, I ...(intervention)

CHAIRPERSON: We are aware of that, it was a non-hearable matter that was reversed and the effects of the granting of the, or the effects of the basis for which amnesty was in fact granted was that we take responsibility as the executive of the African National Congress, both inside and outside, wherever they may be, for everything that was done and unlawful in the name of the ANC.

MR SWANEPOEL: Yes.

CHAIRPERSON: Because amongst other things we gave a general approval, fighting apartheid in whichever way we could.  That was of course general blanket amnesty.  I don't know if any one of the people, of those 37 could very well have supplemented it with oral evidence, I'm not too sure.  But here we have something a bit different.