Amnesty Hearings — Durban — 1999-09-21

ADV DE JAGER: It wasn't, according to what you are suggesting, it wasn't that I'm only assisting a member of my organisation against an attack by another member, because that wouldn't be political still.  It could be two opposite parties having a private quarrel between them, but the evidence was, these two members, the one in the one party and the one in the other party, didn't know each other, so there wasn't a private quarrel as far as we could ascertain from the evidence.  If in fact we accept that there was an attempt to attack the witness, Mr Lucky, that could have been connected with his brother sending somebody to attack him.  Could we then say that was a political attack, on the evidence?

MR PANDAY: Mr Chairman on the evidence it's that the person that had come to attack the witness, Mr Ntshetha, had come to incontrovertibly attack the leader of the group, of the ANC and Mr Ntshetha being the leader of the group of the ANC, obviously he would be promoting the organisation, that being the ANC.

ADV DE JAGER: Yes and there was evidence that he was the cause of the strength of this group.

MR PANDAY: He was the cause of the strength of the group and to destroy him would incontrovertibly destroy that organisation that existed in that small number of approximately 16 people, so as such the applicant's participation in this matter would have incontrovertibly been for the cause in that he would be protecting the organisation, the small organisation that was held together by Lucky Ntshetha.

CHAIRPERSON: I have only one problem.  I take it that you've now exhausted your argument, or were you still proceeding?

MR PANDAY: ...(indistinct) argument, Madam Chair.

CHAIRPERSON: Have you concluded your argument?

MR PANDAY: Yes Madam Chair.

CHAIRPERSON: Yes, now what weight do you think we should attach to this discrepancy that relates to the two versions given by Mr Dlamini and Mr Ntshetha with regard to what happened to the body of the deceased after he had been killed?  What weight should we attach to that discrepancy?

MR PANDAY: Madam Chair, whilst I accept that there was a discrepancy in that evidence as to the outcome of what had happened to the body, I think the charge that Moses Dlamini faces is that of murder of a person and in so far as the material aspects concerning the murder of that person, be it related directly or indirectly by virtue of it's common purpose, the material aspects in so far as the actual murder that has taken place, that Mr Dlamini's evidence and Mr Ntshetha's evidence, do not differ.  They materially correlate and corroborate the evidence.

CHAIRPERSON: Yes.

MR PANDAY: And as to the discrepancy so far as to what happened to the body, Madam Chair, I would submit that that not be held too heavily against the applicant because we've also asked Madam Chair to bear in mind that when the applicant was sentenced in this matter, the judge was of the opinion that the applicant is less than intelligent and it is a possibility given the fact that one has to go back approximately 4 to 5 years, that the applicant himself may not be able to recall all of the events that have taken place, but in so far as the material aspects that are concerned in so far as the murder, that evidence is not defective.

MR MALAN: May I just make sure?  Are you arguing that we should accept the evidence of the witness and not of the applicant in terms of what happened to the body?

MR PANDAY: Mr Chairman, in so far - that is correct, that we accept the evidence of the - even if we accept the evidence of the witness and even if the Committee upholds or believes that the evidence of the witness, ...(intervention)

MR MALAN: No, I'm asking you whether you're arguing that we should believe the witness, because that was what your argument was based on?

MR PANDAY: Yes, that is correct, Mr Chairman, we accept the evidence of the witness in so far as what has happened to the body.

MR MALAN: And not your client?  Not your client's evidence?

MR PANDAY: It's my submission that there is a possibility that my client could have made a mistake in so far as what has happened to the body, the evidence.

MR MALAN: Is there not a possibility that your client indeed may have given us the true account that ...(intervention).

MR PANDAY: Mr Chairman, that's the point.  Even if one accepts the version of my client, that it may possibly be true at the end of the day that evidence does not materially effect the conviction that he 's seeking amnesty for and the offence that he was charged for.

MR MALAN: Mr Panday, I really think that when we talk about a full disclosure, as far as the needs of the victims are concerned, it would include the disposal of the body.  Then when it's a fully disclosure you will have to argue that the applicant's version is the more logical and proper version.  The moment you discard that as not true, I think you're making it very difficult for the applicant.  I think so, and I'm reserving my final judgment on this.

CHAIRPERSON: I think what Mr Malan is merely expressing is his off-the-cuff opinion, but are you, do I understand you to be saying that full disclosure does not impinge on what happened to the body after the deceased had been killed, for purposes of amnesty where we are dealing with victims, where we are dealing with compassion where we have to disclose to the relatives about what really happened to their loved ones.  You're saying in so far as you are concerned, you are able to argue that full disclosure does not extend that far, that an applicant can lie about what happened to the body as long as that does not affect the conviction, then he would have satisfied the requirement of full disclosure as envisaged by the Legislature?

MR PANDAY: Madam Chair, it's my submission that whilst one accepts that there has to be a full disclosure and we accept that there has to be full disclosure in so far as what has happened to the body, and one accepts that one should be told, be it the family, be it all concerned parties as to what did happen to the body, Madam Chair, my submission is that we have two conflicting versions in so far as what had become of the body.  It is a possibility, or I submit that the Committee accept my version, the applicant's version as to the body that was left at the point where it was killed, of if alternatively the Commission does not accept the version of the applicant and chooses to believe the version of the witness in the matter, that the body was buried, Madam Chair, the weight to be attached to that evidence, I submit that the applicant's version as to what happened to the fody, may be viewed as being in terms of full disclosure, a harsher step that was taken to leave the body to either rot or to be, or to lie by the wayside as opposed to the witness's version that was to have covered the body.

CHAIRPERSON: But the objective facts indicate, don't they, Mr Panday, that indeed the body was discovered in a shallow grave?  Those are the objective facts.  Are we not sitting with objective facts here?

MR PANDAY: That is correct, Madam Chair.

CHAIRPERSON: Yes.

MR PANDAY: Madam Chair, at the end of the day, my submission is that whilst we have this conflicting evidence in so far as what has happened to the body, it is as I pointed out, that the applicant indicated that the body was left to lie whilst the witness indicated that the body was buried in a shallow grave...(intervention).