Amnesty Hearings — Bloemfontein — 1996-05-13

UNKNOWN: Mr Commissioner I made this request in the light of the impression that I had gained yesterday, that the committee was giving weight to the contents of the record in so far as the evidence suggests to that he stabbed the child and if the Committee is not going to attach any weight to that, I agree that it's not necessary to call Mr Menera to Mr Maluisani.

JUDGE WILSON: I asked him about it yesterday and he explained why he gave that evidence, do you recollect that?

UNKNOWN: I do My Lord.

JUDGE WILSON: And nobody has seen fit to call any of those other witnesses to rebut it.

UNKNOWN: I'm indebted to Mr Chair.

UNKNOWN: Mr Chair can I say something.  I don't know whether I will be clarifying or might be complicating the whole issue. I was under the impression that there are two types of denial. Where a person has been charged or convicted of an certain act, let's say attempted murder and he was convict on attempted murder on the basis of common purpose, then the Amnesty Committee can decide to grant amnesty or refuse amnesty on those bases even though the person may come here and say, I actually didn't murder the person but I was convicted on basis of common purpose.  So that would be denial but the person would still be charged of murder because of common purpose.
	And then another scenario would be the situation where the person says, I wasn't even there at the scene, I didn't do it, and that would be the denial we are talking about where the Amnesty does not have jurisdiction to ...(intervention)

JUDGE WILSON: But here he has denied the common purpose, that is the problem facing his application.  It's not a case, we have many of them where someone says, well actually I wasn't one of the people who did it but I was part of the mob who were there.  He specifically said, and he was led at great length on this, that they resolved to kill five named people, that they went there to kill those people only, that as soon as he heard this child screaming he went and intervened and stopped the attack on the child.  You remember all that evidence he gave?

UNKNOWN: I remember that but with due respect ...(intervention)

JUDGE WILSON: So on that evidence can you say there is common purpose?

ADV DE JAGER: But with all due respect now, do you want to argue the whole case now or do you want to go and have a look at the Act, both of you and prepare good written argument or do you want to argue the case and finish the case and then if you want to argue it, we'll finish the argument today and we won't postpone it for further argument? If you want to prepare for further argument, please ask for a postponement and we'll give you the opportunity to prepare and argument.  But we're not going to waste time to listen to arguments that's not well founded and not well studied at this stage. If you want time to really prepare a good argument we'll grant you the time.

UNKNOWN: With due respect Member of the Committee, I was not addressing my argument but I was merely trying to clarify an issue of denial that I thought can be differentiated into two perspectives.

ADV DE JAGER: That's a legal argument, isn't it? It needs no evidence to be given?  Are we finished with the evidence and then you could prepare your legal argument and give it to us.

UNKNOWN: Very well.

UNKNOWN: Mr Chair, that concludes the case of Mr Menera and I withdraw the application which I made earlier on, and in so far as argument is concerned, I am of the view that argument should be heard today and that the balance of the argument on the question whether he may granted amnesty in respect of the killing or the attempted murder on Patrick Phelane should be heard tomorrow, first thing in the morning.  I do not want to find myself being saddled with a matter which I could have finalised today or tomorrow morning, because essentially if this matter is postponed, it entails then the spending of more time at a separate stage on this matter and I believe that we can deal with that tomorrow morning.

UNKNOWN: Mr Chair, can I suggest something?

JUDGE WILSON: Are you just trying to avoid having to submit written argument?

UNKNOWN: There is also financial implications for it.  I do not know who's going to pay for the typing, I'm not going to be paid for the typing, I'm not going to be paid for dictating time and so on.

JUDGE WILSON: And who's going to pay for your fees till tomorrow?

UNKNOWN: I doubt if anyone is going pay because I'm on Legal Aid Board in this matter and as far as I'm aware, they don't pay for things like dictation time and typing costs.

JUDGE WILSON: It's Heads of Argument you're charging for, not dictation time and typing costs.

UNKNOWN: I don't believe that according to the scale that has been made available to me that I am entitled to that. And any way to me it seems as though it is a quicker way of dealing with the matter, costs aside. If we can finalise ...(intervention)

JUDGE WILSON: Well I'm not prepared to hear argument in two pieces.  If you want to adjourn now and submit argument tomorrow you can do so, but we're not going to hear two bits, one half today and one half tomorrow.  Are we prepared to hear it tomorrow morning?  9 o'clock tomorrow morning.

UNKNOWN: Thank you.

MR VAN DER MERWE: Mr Chairman...(intervention)

JUDGE WILSON: Do you want to participate?

MR VAN DER MERWE: No I want to do a written, I won't be able to be here tomorrow, that is my problem.  So if I could put my heads of argument in writing and be excused by excused by the proceedings of tomorrow.

JUDGE WILSON: Yes.

MR VAN DER MERWE: I'm indebted to you.

JUDGE WILSON: And you'll submit your argument to the other parties?

MR VAN DER MERWE: Indeed Sir.

ADV DE JAGER: And could it be done before the end of the month?

MR VAN DER MERWE: Indeed Sir.  Is there a specific date, then I can do it before that day?

ADV DE JAGER: Well let's fix a date say the 25th of May would that be okay?

MR VAN DER MERWE: That is in order.

JUDGE WILSON: I thought so, let's make it the 26th, the 25th's a Sunday.

UNKNOWN: Mr Chair I won't be handing my argument tomorrow because there are a few points I still need to verify with the investigators.  So I will also hand in my argument in writing.

JUDGE WILSON: Are you suggesting that more information may be available?

UNKNOWN: More information but based on what Mr Phelane has said.

JUDGE WILSON: Or what the witness has, what the applicant has said.

UNKNOWN: Sorry on what the applicant has said.

JUDGE WILSON: Well then it will be wrong if you are going to seek to place more information before us to ask anybody to submit argument tomorrow morning.

UNKNOWN: It's on matters like how long was Mr Phelane detained and...(intervention)

JUDGE WILSON: Those are relevant matters...(intervention)..credibility.

UNKNOWN: What I'm saying is my learned friend can proceed to...(intervention)

JUDGE WILSON: He can't argue in bits and pieces.  If he puts up one argument suggesting that his witness is entirely credible and then you produce information showing that his applicant is not, he then has to reframe his argument and approach it from a different aspect.  And I think it's unfair on him to say he must commit himself to one line now when you might come forward with all sorts of other things which he will have to explain.

UNKNOWN: I will make sure that I've got that information by tomorrow morning.

JUDGE WILSON: Well if you could let him have it before he argues, fine.

UNKNOWN: So that would conclude the matter.

JUDGE WILSON: Right.  But get the information, don't just because it hasn't come tomorrow morning decide it's no longer of any importance.

UNKNOWN: I wont do that Mr ...(intervention)

ADV DE JAGER: And when will you submit your argument then?

JUDGE WILSON: By the 26th.

UNKNOWN: My argument?

ADV DE JAGER: Ja.

UNKNOWN: Tomorrow then.

JUDGE WILSON: You said you were going to let us have written argument.