Amnesty Hearings — Umtata — 1998-08-25

MR DUKADA: Thank you Mr Chairman.  Mr Chairman, the latest report by the Psychiatrists set out very clearly, the last page, paragraph 1 of the conclusion that the evidence he gives, will be unreliable and misleading, and it doesn't get into the state of mind of the witness.  He is not mentally unfit to testify.
	It is only the quality of the evidence which he is likely to give, and that is entirely in the hands of the Committee to decide as to whether that evidence is unreliable or not.  It will be like any other witness who is declared to be unreliable, and the question of his mental status is irrelevant.  We oppose and we find that the submissions that are made with due respect, have no substance.

CHAIRPERSON: Mr Mapoma?

MR MAPOMA: Mr Chairman, for the record, we are of the view that the witness must come and testify.  That is our submission that if the witness for one reason or another is said to be unfit to testify, it is incumbent upon the witness to show the Committee that he is not fit and this Chairperson, has been put by me to Mr Hobbs yesterday, that in the event of him wanting to show the Committee that the witness is not fit and proper, then he must see to it that he brings evidence today.
	Therefore Chairperson, we insist that the witness must testify, thank you Chairperson.

CHAIRPERSON: Mr Hugo, do you have any submissions to make in this regard?

MR HUGO: No thank you Mr Chairman, it has no bearing on the applicant's application.

CHAIRPERSON: Mr Knight?

MR KNIGHT: Mr Chairman, similarly it has no bearing on my applicant's application.

CHAIRPERSON: Mr Dilizo?

MR DILIZO: Mr Chairman, I endorse what has been said by my colleagues.  It doesn't have any bearing upon the application of my applicant, my client.  Thank you Mr Chairman.

MR HOBBS: Mr Chairman, may I add just one point to my ...

CHAIRPERSON: Is this now in reply or what?

MR HOBBS: I am asking your leave if I may add one point.  Mr Chairman, Section 34 of Act 34 of 1995, provides that any person, referring to subsection 1, any person questioned by an Investigation Unit and any person who has been subpoenaed or called upon to appear before the Commission, is entitled to appoint a legal representative.
	Now, that right in my submission is nugatory and of no  force if such legal representative is not in a position to consult meaningfully with the person he is to represent in the proceedings, which I submit is the case in point.  Thank you.

CHAIRPERSON: What do you say to the submission by Mr Dukada that what these reports do, is merely to go to the reliability or otherwise of his evidence, they do not go to the question of whether or not giving evidence by him, would be detrimental to his health?

MR HOBBS: My response to that is that Mr Dukada is being selective in looking and raising issues from these certificates.
	I would draw your attention to the second paragraph of Dr Uys' report and I read "I did a mini mental status examination on Mr Matanzima.  He scored 15 out of 30, a score below 24 out of 30 is indicative of dementia.  Mr Matanzima did poorly with the orientation part, memory part, calculation part and drawing part.  I therefore believe he suffers from a dementia of Alzheimer's type.  It therefore renders him incapable of giving any coherent account of himself or any events."
	Mr Chairman, more clearly than that, you cannot have it in my submission.

CHAIRPERSON: You cannot have what?

MR HOBBS: I beg your pardon?

CHAIRPERSON: Mr Dukada is relying on the report by Prof Mkhize, the conclusion where he expresses the opinion that the evidence will be unreliable.  That is what is relied on.

MR HOBBS: Yes, Mr Chairman, I am aware of that, but once again, I must refer you to an earlier part of the same person's report, which is to the effect, a finding of fact, not an opinion, a finding of fact that there is gross impairment of immediate short and long term memory.  The attention is poor, concentration poor, judgement poor, there is a total lack of insight.

CHAIRPERSON: We have considered the submissions made on behalf of Mr Matanzima and in particular we have considered the medical reports that have been filed on his behalf.  In our view, the import of these medical report is that his evidence is likely to be unreliable.
	In our view, the reliability of the evidence of Mr Matanzima will have to be assessed in the light of all the relevant factors.  We will certainly bear in mind what the Doctors have had to say.  We mention that there is no suggestion in these reports that if he were to testify, that will be detrimental to his health.
	Our ruling therefore is that Mr Matanzima must come and give evidence.  We want to make it clear though that the questions which are to be put to him, will have to be restricted to the statement that he made, which he is alleged to have made of and concerning the death of Batandwa Ndondo.  Thank you.
	Yesterday Committee indicated that it would like to hear Colonel Willy.  Is Colonel Willy here?  Would you please call him please.

MR DUKADA: Mr Chairman, may I get clarity on this situation.  Although he is a witness, he is not called and will not be allowed to (indistinct)

CHAIRPERSON: No, the Committee will put questions to him and he will be, and each and everyone of these representatives will be allowed to put such questions as they may desire to put.

MR HOBBS: Mr Chairman, may I with respect, intervene at this stage and seek your indulgence to excuse my presence for a short while.  I need to take instructions on the status quo and to consider my client?

CHAIRPERSON: Yes, very well.  Mr Willy, what language are you going to speak?

EDMUND THEMBA WILLY: Xhosa.

EDMUND THEMBA WILLY: (sworn states)

CHAIRPERSON: Yes, very well.  Mr Willy, there is a statement which is before this Committee, which is dated the 3rd of October 1985, which on its face indicates that it was taken by you.  Do you have that statement in front of you, it relates to one Mbuso Enock Tshabalala?

EDMUND THEMBA WILLY: I do have it.

CHAIRPERSON: Do you confirm that the signature which appears at the beginning of that statement, is that your signature?

EDMUND THEMBA WILLY: Yes, this is my signature.

CHAIRPERSON: Yes.  What this Committee wishes to do is to put to you questions relating to the circumstances under which this statement was taken, do you understand that?

EDMUND THEMBA WILLY: Yes Sir.

CHAIRPERSON: Do you know Mbuso Enock Tshabalala?

EDMUND THEMBA WILLY: No Sir.

CHAIRPERSON: Have you ever met him before?

EDMUND THEMBA WILLY: No, I met him for the first time at the court of law.

CHAIRPERSON: Where was that?

EDMUND THEMBA WILLY: It was at the Supreme Court at Umtata.

CHAIRPERSON: Could you just tell us the circumstances under which you met him very briefly?

EDMUND THEMBA WILLY: The way we met, it was when he was supposed to be charged.  I had already been given the statements, not having been collected or compiled by me.

CHAIRPERSON: Was that in connection with the death of the deceased?

EDMUND THEMBA WILLY: Yes Sir.

CHAIRPERSON: Yes.  Were you the Investigating Officer in that case?

EDMUND THEMBA WILLY: I was assisting the one who was investigating the case.  It was Major Gileli.

CHAIRPERSON: Yes.  Do you know anything about this statement?

EDMUND THEMBA WILLY: This statement Sir, was given to me by Major Booi who was working for the Security.

CHAIRPERSON: Who gave you this statement?  What is the name of the Officer?

EDMUND THEMBA WILLY: It was given to me, it and others, by Major Booi.

CHAIRPERSON: Were you told what to do with those statements?

EDMUND THEMBA WILLY: During the investigation, I had requested the statements from the Security People, telling them that I wanted those statements.
	I told them they must either see that they get to give me the statements or get to go and find that person, in the same fashion they used to do.