Amnesty Hearings — Durban — 1998-12-01

MR WILLS: If I can just also add a final bit, I maintain my opposition on the basis that I think that the cross-examination would be irrelevant.
	Assuming and I don't assume this, but assuming Mr Hewitt is correct, as I understand Mr Hewitt's position, is that should he not, should the applicant not have been granted amnesty in respect of these two murders, then it is only then that Mr Hewitt would have an interest in cross-examining him.
	On the other hand, if it is established that the applicant has got indemnity in respect of these two attempted murders should I say, then Mr Hewitt would have no problem and he would not want to reserve his cross-examination.
	On the assumption that the applicant has not got indemnity for these matters, which is an assumption which I don't believe is correct, but on that assumption, I would certainly advise the applicant not to testify and not to subject himself to cross-examination in order that I would reserve his rights against self-incrimination.
	If the applicant in those circumstances would take my advise, it would seem to me that there would be no fruitful result in Mr Hewitt's cross-examination, with the result that there would have been no point in the first place, of reserving his cross-examination.

CHAIRPERSON: I think just with regard to this government gazette, it would seem that this government gazette does not relate to the Khumalo or Mchunu incidents, because it says under the powers invested in me, etc, etc, amnesty is granted to any person who prior to twelve o'clock on the 8th of October 1990 underwent training as referred to in Section such and such an Act, and then there is a list of dozens of names, we've just got one page of the s's, so there must have been several pages.
	This looks like this is a type of general indemnity that was granted to people who had undergone training, military training in contravention of Act 83 of 1967 prior to October 1990.

MR WILLS: Except Mr Chairman, paragraph (d) refers to who has furnished the full information required and I think that this is what the applicant was referring to when he filled out the papers in exile.

MR LAX: Let us just take some time, but my recollection on the various - as preparation for serving on this Committee, one obviously read all those Act, because the criteria under those Acts are relevant to the criteria for amnesty, and if you look at Section 20 you will see that reference is made to this.
	My recollection was that this wasn't just a blanket indemnity.  One, people were required to specify the specific acts or offences they may have committed, and there were certain acts or offences which were excluded for the purposes of indemnity, in other words you couldn't get indemnity for everything.
	But be that as it may, perhaps we will just take some time.

MR HEWITT: There is just one other point, that my learned Instructing Attorney has drawn to my attention, the two documents I have been furnished, the one is dated the 6th of March 1991 and bears number 13068 whereas the second document is dated the 22nd of March 1991 and ...

CHAIRPERSON: Different gazettes?

MR HEWITT: It appears that we have been given two pages of two different gazettes.
	We are plunged even deeper into confusion over the effect of this.  I don't know, what I am asking for Mr Chairman, is really an opportunity to be able to check with this Detective Sergeant Mune Sammy, the Investigating Officer who presumably will know what the fate of these attempted murders are.
	I am not asking for a long period.

MS THABETE: Mr Chairman, I hadn't finished what I wanted to say.  Secondly, I am objecting on the basis that I think first of all we need to ascertain from the applicant whether these incidents are separate or they are linked, because we are going on here, we haven't asked him whether the incident which happened at a school, is actually linked to the one that happened earlier on.
	I think we need to ascertain that, because if they are not linked, still it doesn't take us anywhere to discover ...

CHAIRPERSON: Yes, but that might open up the whole cross-examination that we are concerned with because the applicant might say well, they are not linked, but that might be disputed by Mr Hewitt and then we are going to hear all the cross-examination that goes to the whole question, if he asks that.
	We will sit here and will have to listen to everything about the Khumalo and Mchunu incident, to determine whether it is not linked, or whether it is linked.

MS THABETE: Mr Chairman, with due respect, but isn't it important for us to ascertain whether these incidents are ...

CHAIRPERSON: You see, what you want to say, what you are saying, we can hear Mr Hewitt on it, to ascertain from the applicant, but what I am saying is if the applicant says it is not linked, that might not be accepted by Mr Hewitt, then we would have to go into the full merits of Khumalo and Mchunu to determine whether or not it is linked, to determine whether or not he should reserve cross-examination.

MS THABETE: Which is not what I am suggesting.  I think nevertheless it is very important to ascertain whether these offences are different, or whether they are not different.

CHAIRPERSON: I don't think we can do that, it will involve too much.  We will take an adjournment for five or ten minutes, and then we will make a ruling.

MR LAX: Mr Chairman, perhaps Mr Wills can just try and find out about the wrong front page here, in the mean time.
COMMITTEE ADJOURNS

CHAIRPERSON: We have considered Mr Hewitt's application to reserve further cross-examination of Mr Sithole, specifically in regard to the incident or incidents relating to his client Ms Mchunu and a Mr Khumalo.
	After consideration, we rule that the application be refused for the reason that the witness, Mr Sithole has specifically testified, stated in his testimony that he is not applying for amnesty in respect of the alleged attempted murders of Ms Mchunu and Mr Khumalo.
	Those matters are therefore not before us and the applicant has given evidence relating to the firing of two shots outside the premises where a meeting was held, on apparently the same night as the attempted murders referred to and unless the attempted murders arise out of the firing of those specific two shots, we are of the view that whatever may have happened later that night, or earlier that night, whenever it might have been, is not before us and therefore it is not our concern to delve into those two incidents.
	We believe that this ruling would apply whether or not the applicant, Mr Sithole has been granted indemnity in terms of either the Indemnity Act of 1990 or the 1992 Act, it doesn't make any difference, and we, on that point of whether or not the applicant, Mr Sithole has been granted indemnity in respect of those two attempted murders, we make no finding in that regard.  We don't find that it is necessary to make such a finding.
	We also are of the view that this ruling would in no way prejudice either Mr Khumalo or Ms Mchunu, because if the applicant has been granted indemnity previously, referring specifically to those two incidents, such indemnity would obviously effect their right.  If they haven't, then our ruling in no way effects any rights that they may have with regard to those incidents.
	We do not grant the application to reserve further cross-examination.

MR HEWITT: As the Committee pleases.

MR WILLS: As the Committee pleases.

MS THABETE: As the Committee pleases.

MR HEWITT: On that basis Mr Chairman, then it would follow sure as night follows day, that any cross-examination by me, of the present applicant, relating to those two what we can refer to as the two attempted murder charges, would be irrelevant and therefore I cannot conduct a cross-examination on that basis, and therefore have no further questions.