Amnesty Hearings — Durban — 1998-12-01

MR HEWITT: At this point Mr Chairman, and this is where I think the Committee has to make a ruling now, I am going to now apply for reserve my further cross-examination of this applicant, pending our satisfaction and investigation that in fact he does have an amnesty or indemnity rather, for these two attempted murders which has been referred to.
	My reason for this is as follows, it is quite clear from the present application that this applicant is applying for indemnity or amnesty in respect of him being in possession of an unlicensed firearm, illegally and discharging shot on a particular night in September 1984.
	He clearly doesn't believe that he already has an indemnity on amnesty in respect of the earlier part of the evening.  Our submission and obviously this submission is valid only if he has not been given an indemnity for the two counts of attempted murder, because if he has not been given an indemnity for the two counts of attempted murder, our submission will be that there has not been a full disclosure of the shooting events with an unlawfully possessed firearm during a specific night in September in 1984, and that because of that, he is applying for amnesty in respect of the events of that night, and shooting with an unlicensed firearm.
	We would be entitled to cross-examine him on that aspect, but obviously if he has been in fact granted amnesty in respect of it, that would be an exercise in futility, so we submit that in fairness to deal with this issue, we should be given the opportunity to investigate this aspect of indemnity, because if he hasn't been given it, it is relevant to our further cross-examination.

CHAIRPERSON: But Mr Hewitt, Mr Sithole has specifically stated that he is not applying to this Committee in respect of the attempted murders of Mr Khumalo and Ms Mchunu, he specifically said he is not applying.
	We are not going to make any decision whatsoever relating to Ms Mchunu or Mr Khumalo, because it is not before us.
	He says that on that night, as far as we know, three incidents occurred.  One was at the meeting, when he escaped and he shot a couple of shots in the air, and then later, it is alleged that he was involved in an attempted murder.  He is only applying for the shooting, so if you wanted to cross-examine him about what happened to Ms Mchunu, why should we as a Committee listen to such cross-examination if Mr Sithole says that he is not applying for amnesty in respect of the act involving Ms Mchunu?

MR HEWITT: It is all too easy for an applicant to say when he is confronted with an act or a crime with which he has, which is put to him and which he has committed and has not mentioned in his application for amnesty, to say oh, but I am not applying for amnesty in respect of that particular crime.
	To avoid the consequence, to avoid the simple consequence that it can no longer be argued by the cross-examiner or those opposing the amnesty, that he has not made a full disclosure.  That is the potential prejudice.

CHAIRPERSON: Sorry, it is alleged that I have shot X.  I come and apply for amnesty for another shooting that evening, it has nothing to do with the shooting of X.  I say I am not applying in respect of the shooting of X, now you are saying that you, who are representing X, are prejudiced because I haven't given a full disclosure relating to the shooting of X, which has got nothing to do with it?

MR HEWITT: No, what we are saying is this, anybody who applies for amnesty, must make a full disclosure.

CHAIRPERSON: Must make a full disclosure of all relevant facts pertaining to the matter in respect of which he applies for amnesty for.

MR HEWITT: Yes, and he is applying for amnesty in respect of his possession of an unlicensed, unlawful firearm on a particular night in September, and his discharge of that firearm on that same night in September, yet he does not, he does not mention all the acts and all the discharging of the firearm which he mentions.
	But because when the amnesty application starts, it is stated on record that there are further acts involved, it is too easy with respect for his evidence then to be tailored by saying, well, I am not applying for amnesty for the second part of the evening, I am only applying for amnesty for the first part of the evening.
	That is a very simple way of avoiding a situation where it may be that Ms Mchunu represented by me, can argue at a later stage that this man has not made a full disclosure in respect of the very evening, the same date, the same offence, the use of a firearm.
	He has not made full disclosure in how much use he has made of that firearm.  With respect, we should for those reasons be given the right to investigate whether he has been given this indemnity in respect of those, because if he has not, with respect it is highly relevant to my continued cross-examination of this applicant along the lines which I have submitted, namely there has not been full disclosure.
	You cannot at this stage, with respect, Mr Chairman and members of the Committee say, because my learned friend has now said after I have apprised him when this case started this morning, of the existence of a Ms Mchunu, and this applicant in his evidence, has now said no, there was an incident, but I am not applying for amnesty.

CHAIRPERSON: No, sorry to interrupt, if you take a look at Mr Sithole's application, page 25 through to 33 or 34, whatever it is, he says look, I am applying for three incidents, three categories if I can put it that way.
	One is the SDU's, one is the Empangeni, Golela arms, and the third is the shooting that took place outside such and such a school at Empangeni which is described in his application.
	If he were to succeed in his application, and amnesty were to be granted for purposes of argument, amnesty will be granted not in respect of any shooting that he may have done on the night of such and such September, it will be in respect of shots, two shots fired in the air, at such and such a place, such and such a school.

MR HEWITT: I appreciate this Mr Chairman.

CHAIRPERSON: So in other words, whether he went on a shooting campaign in the afternoon and the evening, and it is not going to be involved in the hearing, or even considered because he hasn't applied for it, what is the relevance?