Amnesty Hearings — Johannesburg — 1998-11-25

CHAIRPERSON: ...(inaudible)

MR SAMUELS: Thank you.  I call Duma Nkosi.

CHAIRPERSON: Before we get there, where is the list of people whose applications are going to be withdrawn and the list of applicants whose applications are going to be referred for chamber attention?

MR SAMUELS: Yes, I don't have it with me, my instructing attorney has just taken it out.  There is a list.  Currently there are 14 people on that list.  That number will increase.  Already I can tell you there will be three more people on that list and in addition that list will increase even further because that list so far of 17 people refers to volume two of the bundle.  There is also volume three, where in addition there will definitely be people withdrawn.  I will hand it up.  I can assure you there is a list and it is increasing in number.

CHAIRPERSON: And the other list?

MR SAMUELS: Sorry, which others?

CHAIRPERSON: The one's whose applications are going to be referred for chamber attention.

MR SAMUELS: For chamber, yes, I will also have that available.

CHAIRPERSON: But Mr Samuels, you made a promise yesterday already, you told us that you'd have that ready today.  Yesterday you said so.

MR SAMUELS: Oh, I will.

CHAIRPERSON: Now where would we find this applicant's application?

MR SAMUELS: Volume two.  His number is 7269/97.

MS PATEL: It's on page 62.

CHAIRPERSON: For what events or offences is this applicant ...(intervention)

MR SAMUELS: Yes, that will be my first issue that I will discuss.

CHAIRPERSON: Ja, well let's hear what it is first.  No, I want to hear from you what offences is he applying for.

MR SAMUELS: He's applying for offences where he gave instructions to members of the SDU to - sorry, may I throw this phone away?

CHAIRPERSON: You can do what you want with it.

MR SAMUELS: Thank you, Sir.

MR SAMUELS: For example, the instructions which he gave to the previous, Chechele, to defend the neighbourhood in which they lived.

CHAIRPERSON: Is that a crime?

MR SAMUELS: In which people were shot?

CHAIRPERSON: Is that a crime?  If they acted in self defence, albeit using a firearm, is that per se a crime?

MR SAMUELS: No, self defence is not a crime.

CHAIRPERSON: Well, that is exactly what I'm asking.

MR SAMUELS: May I have leave to have Mr Nkosi address you on that point?

CHAIRPERSON: On what point?

MR SAMUELS: On the question of this specific ...(intervention)

CHAIRPERSON: Mr Samuels we've been going through this, and I want to repeat myself.  The Act to which we are bound makes provision for the granting of amnesty, in fact in encourages the granting of amnesty for specific crimes committed with a political motive and amnesty shall be granted in those circumstances, provided full disclosure is made.
	No we've got to cross the first hurdle.  It's pointless us listening to an applicant if he's committed no crime.  Hence in the application here there is no hint of this applicant making or committing a crime, be it political or otherwise.  
	All I'm asking here is whether this applicant committed a crime and if so, what crime.

MR SAMUELS: Okay.

CHAIRPERSON: And I'm asking you as a trained lawyer.

ADV DE JAGER: If I could add something there.  He says
"Co-ordinated armed individuals into units, sections, with the commanders from Thokoza and Polla Park, under the agreed code of conduct."
The code of conduct makes it very clear that if they act according to the code of conduct, they can't commit a crime because the code of conduct only makes provision for self defence, but if they have exceeded then they are committing in all probability a crime, if they did not act according to the code of conduct.
	Now if you say they've acted contrarily or overstepped the code of conduct in certain events, then it could perhaps fall under the act.  But according to the statement here they acted according to the code of conduct, and as far as I can see it, the code of conduct was framed in such a way that it wouldn't allow a crime to be committed I think.

MR SAMUELS: May I have leave again, that Mr Nkosi explains these specific acts that he wishes to, to determine whether he does qualify to apply for amnesty, the issue of whether the acts were specific or not?  May I have leave that he argue or present some point on that?

CHAIRPERSON: Mr Samuels, without wanting to sound facetious, I thought that was your job.

MR SAMUELS: Sorry?

CHAIRPERSON: I would have thought that was your job, to explain to us whether the man is entitled to make the application and therefore I ask you, in terms of the instructions, whether in your view he has committed a crime and therefore sets him in this arena.

MR SAMUELS: ...(inaudible)

CHAIRPERSON: Mr Samuels, if you look at page 63 of volume two, paragraph 9, the whole of it, that was supposed to have formed the background of the application for this applicant.  He could supplement it with specifics but as I read it, and I gain the impression that my colleagues or of a similar view, that this as contained in the application itself discloses no crime.
	Now it is pointless to hear this applicant when in fact he didn't commit a crime, and we are bound largely to his application.  Now I'd like you to address us on that.
MACHINE SWITCHED OFF

MR SAMUELS COMMITTEE: Thank you for the indulgence.  It is my instructions that two courses of action may occur.  If this - we wish to argue that the acts for which the applicant will apply for, are cases where instructions, orders were given to defend the neighbourhood and the applicant is aware of situations where members of the SDU didn't follow completely those instructions.
	However, the argument being presented is not as simple as to say it is only people who acted outside the code of conduct therefore committed an act which is liable for amnesty, that the code of conduct, while the words code of conduct suggest a strong and finite, defined set of principles to act by, in the situation it wasn't a proper military operation and therefore the code of conduct is not as simple as; did a person act in or outside that code of conduct.  And that is why the application for amnesty is in part general in sense that one cannot specifically say yes, it was out of the bounds of the code of conduct.  That is why I wish to call this applicant and the two main issues, well apart from a brief background on history, the two main issues are the nature of general commands given and the fact that people did act outside those commands.  However, because of the situation of those code of conduct, it is not as simple as just to say yes, they acted outside that code and therefore ..(intervention)

ADV MOTATA: Just there, Mr Samuels, let's take this situation at the end of the day.  We say Mr Nkosi, we accept the political situation in Thokoza, we feel you acted correctly and then we say we want to grant you amnesty, in respect of which acts would we grant him amnesty?  Would we say in general you've got amnesty, would we say that?

MR SAMUELS: No.

CHAIRPERSON: Now that is precisely what we are asking.  If we are of the view that amnesty should be granted at the end of the day, must we grant it in respect of assault, murder, attempted murder, rape, whatever.  That is what we are asking.  Is this applicant one of those who falls in the category where specific crimes for which he applies can be identified?  That is all I'm asking you.  Has this never been done yet, Mr Samuels?

MR SAMUELS: I've tried, yes.

CHAIRPERSON: Now by now, either there is a crime that is identifiable or not.
MACHINE SWITCHED OFF

MR SAMUELS: My instructions are to ask, if our logic which I tried to present ...(intervention)

CHAIRPERSON: That's debateable but anyhow.