Amnesty Hearings — Bloemfontein — 1997-08-25

CHAIRPERSON: Thank you.  Mr Mbaqa has also applied for amnesty?

MOKOTEDI MPSHE: Mbaqa, Mr Chairperson, has also applied for amnesty and what goes for Mr Nkhohla goes for Mr Mbaqa as well, denial of guilt.

SISI KHAMPEPE: Mr Mpshe, has he also been notified as an interested party?

MOKOTEDI MPSHE: Mbaqa?

SISI KHAMPEPE: Yes.

MOKOTEDI MPSHE: Yes, both of them have been identified and both are right inside this arena.

CHAIRPERSON: Thank you.  Mr Visser, I am sorry to have interrupted you.  I wanted this on record.

MR VISSER: I am sorry, Mr Chairman. Yes, I am through, Mr Chairman. I just want to summarise.  The critical factor here, Mr Chairman, is that two other people than the applicants were convicted of the incident for which the applicants today apply for amnesty.  They were convicted on the strength of the evidence of Mr Themba Nkosi Ngquele.  He has not been notified, Mr Chairman, and we submit, with respect, that he is clearly a person implicated, and it has to be so, because unless you can find at the end of the evidence, that the two present applicants perpetrated the offence, they cannot receive amnesty. That is clear on the requirements of the Act.  In order to do that, Mr Chairman, it follows by necessity, that his Lordship Mr Justice Munnik must have been incorrect in his finding and that could only have been based on the evidence of Themba Nkosi Ngquele.  	Therefore, we say, Mr Chairman, that you cannot sensibly hear this application unless Ngquele is here to come and tell you whatever he wants to tell you.  He may either tell you that he lied to the Judge or that he spoke the truth, but whatever he has to tell the Committee, you will have to hear him, in order to be able to decide the truthfulness or otherwise, and particularly whether there has been a full disclosure by the present two applicants.  That is all we want to say, Mr Chairman.
	We are ready. May we place on record we are ready to continue, we are prepared as far as cross-examination is concerned, so we are not asking for a postponement on our behalf.  We want to make that perfectly clear, but we also believe that you should be aware of these background facts before we start, Mr Chairman, so that you can make the proper ruling in this regard. Thank you, Mr Chairman.

CHAIRPERSON: Thank you.  The people you have mentioned, whom you represent, what interest do they have in the present application?

MR VISSER: Mr Chairman, all of them were involved in the investigation of the incident of the explosion of the hand-grenade. In regard to all of them, in some respect or other, they are implicated in bringing about the injustice that two innocent people were convicted by a Judge and assessors.

CHAIRPERSON: Well, only if they are implicated by the evidence that we hear today. If they are not implicated, then they have no interest in the matter.

MR VISSER: Mr Chairman, with respect, their interest is this.  Should this Committee find that the two present applicants were in fact the people who perpetrated the offence, by necessary implication, they are implicated in defeating the ends of justice, because Mr Chairman, there is a piece of evidence which you will hear about, and that is this; after the trial commenced, the defence attorney and counsel, who was Mr Denzil Potgieter, approached the State advocates, who appeared for the Attorney-General with a witness and that witness, by coincidence, is Mr Smiles, who is an applicant before you here.  Together with an affidavit that had been made and signed by Mr Smiles, in which he assumed the guilt for throwing the hand-grenade.  The State chose not to follow the suggestion by Mr Denzil Potgieter to release the two accused and to charge Mr Smiles.  As a result of that, Mr Chairman, Smiles was told to go away by the Attorney-General and the case proceeded.  During the trial Mbaqa gave no evidence in his defence, and in fact, no defence was put to any witness, apparently.  Nkhohla had an alibi, Mr Chairman, and that alibi was rejected.
	The important thing here is this; during the investigation by my clients of the case, Nkhohla made a pointing out and a confession.  The confession was cryptically "this is where I stood when I threw the hand-grenade".  We say this, Mr Chairman, unless Nkhohla is here to give that evidence you cannot decide on the truthfulness of any of their evidence.  Clearly, my clients are implicated, because if the present two applicants give evidence which is truthful, then my clients have all committed to a more or a lesser extent, some act in order to defeat the ends of justice.  Apart from the allegations of assault, et cetera, which have been made during the course of the trial.

CHAIRPERSON: I am now going to proceed with the trial, in the absence of the State witness who gave evidence in that case.  I am going to allow you cross-examination only to the extent that any of your clients are implicated by any evidence that I hear here. If there is no evidence implicating your clients, I will not allow you any cross-examination.  Is that clear?  May we proceed.

PROF DE KOKER: Mr Chairman ...

CHAIRPERSON: The applicant, are you ready to proceed with your client?

PROF DE KOKER: Mr Chairman, I would like to raise another matter in respect of one of my clients, Mr Adriano Cassandro, if I may do so?

CHAIRPERSON: Yes, please.