Amnesty Hearings — Umtata — 2000-03-27

CHAIRPERSON: Good afternoon everybody.  This afternoon we'll be commencing with the amnesty application of Mr Siqhola, Nkosinathi Siqhola.  Before we proceed, I'll introduce the Panel to you.  I did it this morning, but for those of you who were not here, I'll do it again for your benefit.  On my left is Mr J B Sibanyoni, he's a Member of the Amnesty Committee and he is an attorney and he comes from Pretoria.  On my right is Mr Ilan Lax, also a Member of the Amnesty Committee, also an attorney and he comes from Pietermaritzburg.  I am Selwyn Miller, I'm a Judge of the High Court, and I come from Umtata and I'm attached to the Transkei Division of the Court.  I'm also a Member of the Amnesty Committee.
	As you can hear, these proceedings will be simultaneously translated into isiXhosa.  Before we proceed, I'd request the legal representatives to kindly place themselves on record.  Mr Dukada?

MR DUKADA: ...(inaudible)

INTERPRETER: The speaker's mike.

MR DUKADA: I'm Sorry.  Thank you, Mr Chairperson and Honourable Members of the Committee.  My name is Nceba, N-c-e-b-a Dukada, I'm a member of the local bar.  I've been briefed by the State Attorney to represent the applicant in this matter.

CHAIRPERSON: Thank you, Mr Dukada.

MR STOFILE: My name is Lungisile Stofile, I'm an attorney of the firm L L Stofile and Company, I represent Mrs Nomonde Matoti in these proceedings.

CHAIRPERSON: Thank you, Mr Stofile.

MR MGIDLANA: I'm Thandewefika Mgidlana, I'm appearing for the victims, as well as the implicated persons.  Thank you.

CHAIRPERSON: Did you say victims and implicated persons?

MR MGIDLANA: And some of the implicated persons, yes.

CHAIRPERSON: Sorry, which implicated people are you appearing for?

MR MGIDLANA: As they appear in the list referred to by the applicant.

CHAIRPERSON: And there won't be any conflict?

MR MGIDLANA: It does seem there won't be any, Chair.

MR MAPOMA: Thank you, Chairperson.  My name is Zuko Mapoma, I'm the Evidence Leader for the Committee.

CHAIRPERSON: Thank you, Mr Mapoma.  Mr Dukada, are you going to call the applicant?

MR DUKADA: Yes, thank you.  Mr Chairperson, I understand Mr Mgidlana to be representing the victims and he says some of the implicated persons.  I don't know whether all of them, if he can just clarify that Chair, before I lead the witness.

CHAIRPERSON: Mr Mgidlana?

MR MGIDLANA: Is the question that Chairperson, all of the implicated persons or some of them?

CHAIRPERSON: Well that's what Mr Dukada wants to know.

MR MGIDLANA: In particular I'm appearing for Col Jekem, however I also received instructions in respect of the other people that are implicated.  May I indicate that the attitude that I adopted was that because on the application itself it is not clear to what extent the applicant is going to implicate all these people.  I've just received an affidavit now which seems to be setting out the extent of the implication.  However, the position is so far that we would listen and after he has given his evidence, it's then that we'll make up our mind as to whether I can be able to appear for all of them.

CHAIRPERSON: What we don't want to arise, Mr Mgidlana, is for us to pick up a part-heard matter.  You know if it comes like halfway through you can't represent people and then they've now got to get another attorney and then that would mean - we don't want to pick up a part-heard, it's extremely for the TRC to rearrange hearings, getting the same Panel together, getting the same legal representatives together, it's not easy.  It's far more difficult than postponing a matter in Court, the logistics involved are far greater.  So we don't want that sort of situation to arise.  Which victims are you appearing for?

MR MGIDLANA: It's all the people that were tortured by the applicant, as well as the Jafta family whose property was destroyed and who were also tortured by the applicant.

MR LAX: Sorry, may I just enquire.  You say all the people, do you agree with the list referred to at paragraph 12 of this affidavit which has just been handed to us?  Excluding of course, the people that Mr Stofile represents?

MR MGIDLANA: Yes, the person that is represented by Mr Stofile, who is Nomonde Matoti.

MR LAX: That's at G, yes.  Thank you.

MR MGIDLANA: I hold the instructions in respect of all the others.

MR LAX: Okay.  Alright you carry on and then I'll ...

MR MGIDLANA: May I also indicate that there was also the view that probably the matter could be postponed till tomorrow, so that the question of the representation of the implicated persons could be addressed, because it does seem that they got to know when they appeared here, that they were not going to be represented, it was only one person that I was instructed to represent initially.  And from the application it seems then that there wasn't much mention of him except that he had issued orders of which we thought we would have clarified and then it could be clear as to whether or not there would be any instructions - any conflict of interest insofar as the application is concerned.  But I had indicated earlier on to the other implicated police officers that probably it might be better for them to try and find whether or not the office of the State Attorney could not send somebody else.

CHAIRPERSON: Well you see as far as I know the practice is that implicated people, their representation isn't paid for by the TRC.

MR LAX: Not necessarily.

CHAIRPERSON: No, but that's the rule, unless there's a exceptional circumstance, then that will have to be considered but generally speaking, the legal representation is no longer paid for by the TRC, of implicated people.  So it's not a question of getting hold of the State Attorney to appoint a representative.  It might be if they were policemen and it's done through that, but not through the TRC, they don't pay for implicated people's legal representation, just for applicants and victims.

MR MGIDLANA: In fact as I understand it, the instructions will be coming from the office of the State Attorney, because they were members of the Police Force outside the TRC legal aid instructions.

MR LAX: Just one last question, not to you but to Mr Mapoma.  Just in terms of our statute, 19(4) notices were obviously sent to various people, the people mentioned in this affidavit at paragraphs 15.3, 15.4 and so on, 15.2, they are people who are mentioned in other places in the various documentation.  Did they receive 19(4) notices?

MR MAPOMA: Chairperson, I will not be able to say offhand that all these people whose names appear in this document at this point, have been given Section 19(4) notices, but all I can say Chairperson, is that all the persons who are implicated in the documents that were in the possession of the TRC as at the time we prepared this matter, have all been given Section 19(4) notices.  	I may as well point out Chairperson, that I did speak to one of the implicated persons and explained, as the Judge has just said, the question of their representation by the TRC, and I have even made it clear to them that this Committee will not necessarily make a finding concerning themselves.  All that they were notified is that they have got a right to be present here to the extent that they may be implicated and then make whatever representations they want to make, having heard what has been said by the applicant and the extent to which they are implicated.
	And Chairperson, if I may move further, I suggest at this point in time that we proceed with the application in-chief and representation and in the meantime the implicated persons will be here to consider their rights, and in the event of legal representation having to be made on their behalf, then I will take it upon myself to assist them in securing whoever may represent them.

CHAIRPERSON: Thank you.  Mr Dukada, can we proceed now, are you satisfied?