Amnesty Hearings — Bloemfontein — 1997-05-15

MS THABETHA: On the 15th of April I wrote a letter to Mr Mthembu, I have got it in front of me here.  I will make copies available to the Committee members. It reads as follows
"I understand you act on behalf of the above applicant."
The above applicant is Mr Motsamai.
"As you are aware Mr Motsamai was implicated in Mr Ngo's letter which was heard in Bloemfontein and which hearing would continue on Wednesday, 14th and 15th of May in Bloemfontein.  We intend placing Mr Motsamai's application on the roll together with Mr Nelson Ngo's matter, since the applications deal with similar incidents.  Kindly, clearly outline for us the following
1.	What was the nature of the murder committed by the applicant as reflected in the application form at 9(a)(i).
		1.1.	Kindly give us details of the murder committed, including the dates when, and the manner in which it was committed. Also furnish us with the names of all the victims involved in this act."
And then I say:
"Enclosed please find a copy of the above client's application, as the enclosed statement by applicant form part of his application."
That is my letter to Mr Mthembu.

JUDGE WILSON: And what is the enclosed statement?

MS THABETHA: And then the reply from Mr Mthembu
"Thanks for your fax of the 15th instant.  Enclosed find the applicant's statement, setting out in detail the act or omission that he is applying for amnesty. We trust that you will find same in order."
On the basis of such communication I accepted that these statements form part of the application."

JUDGE WILSON: Do you think that you have the right to amend the Act?  The Act says it must be done on prescribed form.  Why didn't you tell his attorney to do so?

MS THABETHA: I did consult with Adv Mpshe, I showed him the application form and as far as I know ... (intervention).

JUDGE WILSON: Did you show him Annexure B?  And that you now accepted that as part of the application?

MS THABETHA: Yes, I did.

JUDGE WILSON: How on earth could you have done so? Why did you not refer it to the Committee that was going to hear the matter?

MS THABETHA: Because I had ...

JUDGE WILSON: So you have misled this unfortunate gentleman in believing that he had made an application when he hadn't?

MS THABETHA: Because Adv Mpshe is my head, I consulted with him and he said there is no problem.

JUDGE WILSON: Well, we shall request a further explanation from him.

BERNARD MAKGABO NGOEPE: Excuse me.  Ms Thabetha, the statement which was sent by Mr Mthembu in response to your letter, is that the document that you are talking about now?

MS THABETHA: Annexure B, yes, it is.

BERNARD MAKGABO NGOEPE: What document did you send to him, to Mr Mthembu? You referred to - because in your letter you mention a document that you did send to him.

MS THABETHA: It is the hand-written statement.

BERNARD MAKGABO NGOEPE: Which one?

JUDGE WILSON: Where is it?

BERNARD MAKGABO NGOEPE: Is this the one ...

JUDGE WILSON: The hand-written statement.

BERNARD MAKGABO NGOEPE: Is this the one which is on the ...

MS THABETHA: On the TRC, yes.

BERNARD MAKGABO NGOEPE: You sent that to Mr Mthembu?

MS THABETHA: Yes, I did.

BERNARD MAKGABO NGOEPE: And in return he then sent you Annexure B under the circumstances that you have explained.

MS THABETHA: Yes.

BERNARD MAKGABO NGOEPE: You see, I think the important thing is for us to understand what the intention of the applicant was when he sent Annexure B.  It is of the utmost importance for us to understand that, and if his intention was that he was in fact making an application for amnesty, in respect of the acts or offences set out in Annexure B, the next question which is different from the first one, the next question would be whether or not in the manner and the form in which he is seeking also to be applying for amnesty in respect of those acts, that he complies with the requirements of the Act.  It may very well be that the applicant in fact, when he submitted Annexure B, in fact he intended to apply for amnesty in respect of those particular acts.  But then the next question would be, now how has he applied in a way that will comply with the prescribed requirements.  And that is a different issue which can be approached differently. For example, we may hear argument as to whether the initial application form could be amended et cetera, et cetera.  But we need to understand the exact basis or the exact understanding that existed as the basis on which this Annexure B was submitted.  Because if the applicant was having in mind that he was in fact applying for amnesty in respect of the things set out in there, it would be grossly unfair to answer to him, particularly because the closing date has come and gone.  To answer him on that technicality, while he was in fact under the impression that he has got an application before us.

JUDGE WILSON: You know fully well that one of the requirements is that they must state what the political objectives sought to be achieved.  Don't you?

MS THABETHA: Yes, I do.

JUDGE WILSON: And Annexure B does not contain a single reference to a political objective, does it?

MS THABETHA: No, it doesn't.

JUDGE WILSON: So why didn't you draw this to the attention of his legal adviser?  Why did you just - you say that Mr Mpshe told you, but you are the evidence leader in this case. It is your responsibility.

MS THABETHA: I said I discussed it with Adv Mpshe.

JUDGE WILSON: Why didn't you then say I note these things, they are not - because your letter was specifically relating to the application in respect of the murder.  You now get a whole lot of different facts thrown at you. Why did you not point out to the lawyer that this does not comply with the provisions of the Act.  It is not an application form, enclose a blank form, and say kindly submit fill in a form.

MS THABETHA: Well, maybe that was my mistake and I take full blame for it.

JUDGE WILSON: And how many other such mistakes have been made that we are going to find out?

MS THABETHA: Not any.

BERNARD MAKGABO NGOEPE: I don't think we should try to look too much into the future. I think we should restrict ourselves to this case and try to solve what we must do now, because I really don't think that it will be fair to an applicant, who thinks that he has applied for amnesty, and then after - to be told after the closing date that we can't hear your application for amnesty because of the fact of or perhaps oversight on the part of some other people.

ADV DE JAGER: Can somebody please explain to me; we have got a statement here headed "declaration".  It may be that it is Annexure A to the application.  That is a statement made by the applicant on the 24th of March for - and it contains a brief description of the violation of human rights. So this statement was made for the HRV Committee.  How did it come that a statement that should be completed by a victim, was presented to the applicant and how it had come that he had completed this statement, because this statement has nothing to do with amnesty but has everything to do with reparation and rehabilitation.

MS THABETHA: As far as I understood it, when this statement was handed over to me, inasmuch as it was filled in on an application form for HRV, but we could use the statement, because it was a TRC statement, as a statement which forms part of an amnesty application form.  That's why I say maybe I should take the blame for this, for overlooking such ... (intervention).

ADV DE JAGER: It can't form part of an amnesty application, but it could be used as evidence.  If you put it in a bundle so for evidential value, it may be relevant, but as I say it is quite a form addressed to a different committee.  It has got nothing to do with amnesty and the only thing that I wanted to know, is how it had come that the applicant, who is an applicant for amnesty, was requested to complete a form for the HRV Committee?