Amnesty Hearings — Bloemfontein — 1997-05-15

JUDGE WILSON: As result of enquiries made by my Brother, Judge Ngoepe, we have been informed that there are three pages relating to this applicant's application at the office in Cape Town.  We understand that they are at the present time being faxed up here and that the first page or two have arrived.  In these circumstances it seems impossible to proceed with the matter at the present time. These pages must be made available to the parties and an investigation made as to when they were received, because if that is - if they were sent, as we were told they were, we can stop talking about the Annexure B and everything else.  It appears that a proper application was launched at the proper time, with the necessary annexures, because our attitude has been that we do not insist that everything must be written on the principal page, as long as it is attached to the application in terms of the Act.  And if that was done here, well, then the question we have spent a great deal of time on today debating goes out by the window.  We continue and the parties must obviously be given an opportunity to investigate the incidents which he in fact applied for amnesty originally. And it appears that having regard to the time now, it would be impossible to conclude the matter today and it would be unfair to commence the evidence of a witness when one is going to have to adjourn halfway through his evidence in chief, which means that his legal advisers can't talk to him and months later he has got to remember what he said.
	That appears to us, subject to anything that may be said, that the only answer at the present time is to adjourn to a date to be determined and the matter can then be disposed of.  We say this, because there is a matter set down for hearing tomorrow, this has already been crowded out once, and we feel that this matter certainly not be ready to proceed tomorrow.  It also appears to us, having regard to the new incidents which the applicant now, I think is going to introduce, if they are similar to those in Exhibit B, that the argument in favour of hearing the two applications together, becomes very untenable.  
	There are at the most, I think, two incidents in common and numerous other incidents that were not committed by the same people at the same time and it would be far preferable in those circumstances to hear the applications separately.  We propose accordingly, to adjourn this matter to a date to be arranged.
	It may well be that when we - communication is kept up between the parties that it would be desirable to set it down for hearing before or after the other matter that we have already adjourned, because they are the same legal advisers engaged in both matters, that we could do one and the other one immediately thereafter.  But I do not think it possible to continue, certainly, it is impossible to finish it today and I regret very much that it seems that the delay, the wasted day has been caused by the fact that these three pages were not made available. They are the pages that should have annexed to the letter written to the applicant's legal advisers. They are obviously the pages which one says are these part of your application, if they were lodged with the application it is clearly that is a very proper question to ask.  For some reason there has been some misfiling or something of that nature, I cannot say what, but the papers must be made available to all parties. This is the application form which you are all entitled to have access to.

MR WAGENAAR: Mr Chairman, yes, we do agree with your suggestion that the two matters really should or ought to be if possible, placed in close proximity to each other for another reason, and that it that quite clearly, on a question of credibility, there will be cross-examination of both these applicants individually, referring to the other applicant, as it must be of necessity and it might be a good thing to have them available.

JUDGE WILSON: It may be that they wish to call one another in support of the other application.

MR WAGENAAR: Precisely, yes, Mr Chairman.

UNKNOWN: Do I understand it as being the position that when we adjourn this matter, we come here and hear Ngo first and then when we hear Ngo we will then call the policemen who will come and refute his version, and then once we have finished that we can start with Motsamai and the police again will be called, further they have to be called for the second time or not?

JUDGE WILSON: Or the other way around.

UNKNOWN: As the Chair pleases.  Now I hope this is now, this concludes this matter and the Chair is adjourning this matter now.

JUDGE WILSON: Yes.

UNKNOWN: Now may I then mention the matter of Mengha again.

MR WAGENAAR: Mr Chairman, just before he does this.  May I, reverting to Mr Motsamai and Mr Ngo, may we just enquire, with respect, whether it is a firm ruling that police witnesses who are implicated, will have to come and testify twice or is it just a possibility presently thought about, because Mr Chairman, there are a number of considerations apart from the considerations of convenience, not least of all the time limit under which you labour, which we submit, would make it necessary, if at all possible for them, just to come and give evidence once.

JUDGE WILSON: As a matter of practicality I would assume that that is the position.  If they are destroyed once you will not be calling them the second time.  If they are not, if they are capable and in the one, then it will not be necessary to call them in the second.  We are certainly not here just to go through that exercise of repetition.  So this matter is now adjourned.
	One of the other factors, why we think it should be adjourned now, is that the applicant in this matter are not in custody, is he?

UNKNOWN: No, he is out, Mr Chair.

JUDGE WILSON: So we will adjourn this matter to a date to be arranged.  I would also recommend in this matter, as in the Ngo matter, that discussions be held between the legal advisers of the parties and that if a pre-trial conference is held for the one, it be held for the other, that we sort out as much as possible beforehand and discover if there are any more missing documents or things of that nature before we come to trial, a hearing.  The matter is now adjourned to a date ... (intervention).

MS THABETHA: Mr Chair, before you adjourn the matter, I just want to explain one point here, on the issue of the three pages.  As you are aware of the system, the administration system in Cape Town, apparently these were in a box, that's where they were found.  So I just want to say that for the record.

UNKNOWN: Now Mr Chair, before the Committee adjourns ... (intervention).

JUDGE WILSON: All that is clear is that they were not where they ought to be and that is the file relating to this applicant.

UNKNOWN: Mr Chair, before the Committee adjourns, may I mention the matter of Menera again.

MR WAGENAAR: May we excused, Mr Chairman?  We have no interest in that matter.
LEGAL TEAM ON BEHALF OF POLICE EXCUSED

UNKNOWN: Mr Chair, the matter of Menera.  During the lunch adjournment a member of Correctional Services has conducted myself and Ms Thabetha and he has indicated that there is - he has made a summary of an extract of the prison records.

JUDGE WILSON: He also made them available to us and the prison records.  Do you accept the correctness of that summary?

UNKNOWN: I do, I do.

JUDGE WILSON: Do you accept that?

UNKNOWN: I do, Mr Chair.  Mr Chair, I beg leave to hand them in.  May I then perhaps read them through for the record, we are on Menegha now.

JUDGE WILSON: Yes, it will be filed with that.  Have you got other copies?

UNKNOWN: We don't have copies at this stage.