Amnesty Hearings — Durban — 1998-12-01

MR HEWITT: I thought I had explained this.  Possibly I haven't, I could explain it in another way to make it clear.
	Obviously I don't want in front of the applicant, to disclose what my cross-examination would be, but if such cross-examination demonstrated incidents before the matter in which he claims amnesty today, that is the shooting at the meeting, and there was association between the two or existing motives from the applicant towards Ms Mchunu, prior to the first shooting, then the incident involving her immediately thereafter, is readily explained.
	What we have said and this was the submission I made, and obviously I don't want to disclose the evidence at this stage and the nature of my cross-examination, I make the submission on the instructions I have received, that the shooting incident involving Mr Khumalo and Ms Mchunu, are inextricably tied up with the very shooting incident for which he claims amnesty.
	This was the point I tried to make to Mr Chairman.  You cannot at this stage pre-judge that they are two separate incidents, until you have heard the whole story.  If the man has got amnesty, or indemnity for those two shootings, then I am not going to waste this tribunal's time, but if he hasn't, then clearly you have to hear the whole story of why he used his gun that night, why he shot, how many people he shot at and why and the reasons preceding it are relevant.  They are all tied up with each other, they are not separate watertight compartments.
	Therefore full disclosure is relevant to that consideration.

MR LAX: Except to say this, that even on the present application, which for the sake of discussion excludes the two succeeding incidents, if on what your client's instructions to you are, he is already not making full disclosure, because if they are intricately linked, then he is not making full disclosure.
	You are arguing, or your client would be arguing that he's got a different motive, which he hasn't disclosed.  Why is your client leaving the matter be, if he's already got indemnity for those two matters?
	Let me put it another way, why would your client not persist in an objection if he still is not making a full disclosure?  How does the fact that he got amnesty for those two matters, change his lack of full disclosure?

CHAIRPERSON: He has testified, he has given his evidence in chief.  He hasn't made mention, well, he has just made mention on being led, the briefest mention of the Khumalo and Mchunu incidents.  So whether he has been granted indemnity or not, what Mr Lax asks, what difference does that make regarding whether or not he made full disclosure?

MR HEWITT: Well, are you saying that I can go and cross-examine him?

CHAIRPERSON: Not at all, but you can argue.

MR HEWITT: My learned friend obviously is going to have the right to reply to this, my learned friend's problem is that if he hasn't been given an indemnity in respect of those two attempted murders, my learned friend may well object to any cross-examination, then we will have another argument on the question of whether it is relevant for me at the level of full disclosure, to deal with it or whether he is entitled to advise his client, not to reply to any of these questions on the basis he exposes himself.
	There is (indistinct) in effect between my learned friend and I wish may well come about in the future, over which this Committee will have to decide.

CHAIRPERSON: What are you suggesting then Mr Hewitt, what you are wanting is that you reserve your cross-examination and this becomes a part-heard matter and we convene some time next year, set a date to hear whether you are going to proceed with your cross-examination?

MR HEWITT: No, no, I am not suggesting that kind of delay.  I am suggesting a fairly short delay, we are talking about something like a week, so that I can make investigations through the Investigating Officer.  I have his name, Mune Sammy, but as I explained ...

CHAIRPERSON: But you see in a week, this panel will be split up and Mr Lax will be hearing applications in Maritzburg, I will be down in Cape Town, I don't know where Mr Sibanyoni will be, we can't just come together next week.

MR HEWITT: Well, these are factors over which none of us unfortunately have control.  I have a duty to discharge to my client, and I am trying to accommodate that duty, discharge that duty to my client and by the same token, I don't want to drag this out.  We will expedite matters as soon as possible to establish if this man has indemnity for those two attempted murders.
	We have tried to establish this, unfortunately Ms Mchunu only found out yesterday as I explained earlier on, this matter was coming to court today.  In that time, I have consulted with her thoroughly, but I have not been able and I have established from her that the same Detective, Inspector Mune Sammy, strangely enough who is mentioned in this applicant's actual application, there is a letter you will see in which he mentions the same Investigating Officer's name and in fact it appears at page 37.
	It is a letter by him in reply to an earlier letter by the Amnesty Committee and if you look at paragraph 1 on page 37, that is the paginated page 37, he says I was charged at Empangeni police station and the Officer who was handling my case was Detective Sergeant Mune Sammy.
	We can possibly try and communicate with him immediately after these proceedings to establish what the position is.  
	I am envisaging no more than a week Mr Chairman.

MS THABETE: Can I come in here please Mr Chairman.  I am actually objecting to what Mr Hewitt is suggesting, because first of all the applicant has led evidence to the fact that he applied for indemnity with regard to the incidents, the killing of Mr Khumalo and Ms Mchunu.
	We have got in front of us a government gazette saying that he has been granted indemnity.  Are we suggesting that he has been granted indemnity for something else?
	He has specified that he applied for indemnity with respect to these acts, and here is a government gazette proving that he's got indemnity.  Are we suggesting that he got indemnity on something else?

MR HEWITT: Well, first of all, this has just been placed in front of me, I haven't had the chance, I have been busy in fact dealing with the ...

CHAIRPERSON: All that this document, well, you can look at it Mr Hewitt, it basically says the following persons have been granted indemnity in terms of the Indemnity Act, 1990, and then there is a whole list of people.

MS THABETE: Sorry Mr Chairman.

CHAIRPERSON: What Ms Thabete is getting at is, we have evidence from Mr Sithole saying that he applied for indemnity in respect of two incidents, namely the Khumalo and Mchunu incidents, and then he was informed that he in fact had been granted indemnity, and there is this to confirm that he was in fact granted indemnity.
	She says, are you suggesting that there is anything else that he might have been granted indemnity for other than those acts that he applied for?

MR HEWITT: This is one of the puzzling aspects of this indemnity which we now have.  If this gave him indemnity for the, we will refer to it as the Khumalo and Mchunu incident, then ergo it should follow that he was granted indemnity for the September 1984 shooting at the school meeting, which he is applying for amnesty for, it will follow too.

MR LAX: Except that he made it clear that when he was in exile, he didn't apply for the actual school shooting incident.  He said because nobody was injured, that was his reason he gave why he didn't apply for that one.
	Presumably somebody must have informed him that he was charged with these matters.