Amnesty Hearings — Vanderbijlpark — 1999-05-12

CHAIRPERSON: Okay.  So what you want us to do is that in the event of someone raising the Report, we must now pronounce on whether or not we are bound by that Report?

MR LOWIES: Yes, but I must qualify, I can't agree unqualifiedly with it.  I must qualify that there is a specific nexus between this Committee and the Commission, and the TRC, and that by its very nature makes it relevant.

CHAIRPERSON: What is the new point?  What is the new point that you hadn't made?

MR LOWIES: I have raised it just now, the fact that you must also interpret the Act.

CHAIRPERSON: ...(indistinct).  What about that?

MR LOWIES: Well Chairman, with respect, I indicated to you that there are three aspects which are relevant.  The first one is, you can, even if the Act does not tell you specifically that you have a right to issue a declarator, you have certain inherent rights, like for instance I've mentioned the fact of the procedure, I've mentioned the recusal aspect and the other aspect which I think is also relevant is the fact that you must also by necessary implication have the right to interpret the law.

CHAIRPERSON: I cannot - I don't understand this submission.  I don't understand the last submission.

MR LOWIES: The submission is simply, Chairman, as a matter of law you must decided whether or not you're bound by a decision or not.

CHAIRPERSON: Yes, very well.  Do you have any further submissions to make?

MR LOWIES: I have no further submissions.

CHAIRPERSON: Mr Mapoma, is there anything that you want to say further?

MR MAPOMA: None, Chairperson.

CHAIRPERSON: Yes, very well.  Mr Malindi, is there anything you want to say further?

MR MALINDI: Nothing, Chairperson.

CHAIRPERSON: Mr Berger?

MR BERGER: Nothing, Chairperson.

MS THOMAS: Nothing further to add.

CHAIRPERSON: Yes, very well, okay.
MACHINE SWITCHED OFF

CHAIRPERSON: The time now is about ten to one.  I will give the decision at ten to two.  We'll take the lunch adjournment at this stage.
COMMITTEE ADJOURNS
ON RESUMPTION

CHAIRPERSON: Ms Tanzer, Nosenga is not part of this application, is he?

MS TANZER: No, as I mentioned earlier.

CHAIRPERSON: Yes, okay, very well.  I do not propose to give any detailed reasons for the ruling which now follows, suffice to say the following
R U L I N G
	This is an application brought by the applicants, save for Mr Nosenga, for an order inter alia that the circumstances under which Mr Nosenga's application was made be investigated.  Secondly, for a declarator as to the status of the findings of the TRC, which are contained in the TRC Report of October last year.  Thirdly, requesting the records of the meetings which led to the findings in issue.  
	The applicants no longer persist in the order that the circumstances relating to Mr Nosenga's application be investigated and also in regard, with the order requesting the records relating to the findings of the TRC, however, they do persist with the declaratory order.
	The background to the application is briefly as follows:  
	The TRC in its Report has made a finding to the effect that the police colluded with the hostel dwellers and took part in the attack on Boipatong.  The presence of the police during the attack is a hotly contested issue before us.  The applicants, all the applicants I should say, except for Mr Nosenga, have denied that the police were present during the massacre.  We were told that because of these findings by the TRC, the applicants entertain a fear that the Committee may well have prejudged the issue, as the Committee is part of the TRC.  Unless the Committee indicates whether it is bound or not bound by the TRC findings, we are told the applicants may well entertain a reasonable suspicion that the Committee would be biased against them.
	In order to allay their fears, it is therefore necessary that this Committee issue a declaratory order as to the status of the findings of the TRC, in particular whether the findings of the TRC are binding on this Committee. 
	None of the applicants have deposed to an affidavit setting out what fear they have, or the basis of that fear.  None of the applicants have deposed to an affidavit in which they indicate that they fear, or I should say they are likely to entertain a reasonable suspicion that this Committee is biased or would be biased against them unless this Committee issues the order sought by them.
	Mr Lowies, who argued the matter on behalf of the applicants, conceded that the issue of the findings is not before us and indeed none of the parties to these proceedings has asked us to have regard to those findings.  Nevertheless, Mr Lowies has argued that the matter may or may not be raised.  
	It seems to me that the threshold question is whether this Committee has the power to make the order sought by the applicants.  This Committee is a creature of statute, it has no other powers other than those which are set out in the Act which constitutes this Committee.
	Mr Lowies could not point out to any provision of the Act, which either expressly or by necessary implication gives this Committee the power to make the order contended for by the applicants.  He made a broad submission, which if I understood it correctly, was to the effect that under the Act this Committee has the power to regulate its procedure.  That is the provision which he relied upon for the submission that we have the power to make the order sought by the applicants.  However, he conceded that the nature of the order that he is seeking is not a matter of procedure.  In a somewhat feint tone he suggested that it is something akin to a procedure.  This submission is manifestly devoid of any substance when it only states that proposition in order to dismiss it as devoid of substance.
	There is nothing in the Act which manifestly gives this Committee the power to make the order sought by the applicants.  For that reason alone, the application ought to be dismissed.  
	In any event, having regard to the provisions of the Act, it is difficult to fathom how the applicants or any reasonable person for that matter, could entertain a reasonable suspicion that this Committee will act as a rubber-stamp for the findings of the Commission.  There is no foundation for the fear that we are told the applicants have.  
	Again somewhat in a feint tone, Mr Lowies conceded that it is highly unlikely that this Committee can find that it is bound by the findings of the Commission.  
	I agree with Mr Mapoma when he submits that any such, if the applicants indeed entertain any such suspicion, such a suspicion has no foundation and it is therefore unreasonable.  For these reasons the application is DISMISSED.

CHAIRPERSON: Ms Thomas, thank you, you may be excused.

MS THOMAS: Thank you, Chairperson.

MR LOWIES: As it pleases you, Chairman.

CHAIRPERSON: Mr Baloyi, may I remind you that you are still under oath.

MACHIHLILE WILSON BALOYI: (s.u.o.)

CHAIRPERSON: Yes, Mr Strydom?

MR STRYDOM: (Cont)
	Thank you, Chairperson.
	Mr Baloyi, I'm going to ask you about the positions of the various police vehicles you saw.  If you listen to the question and answer me directly, we can go quickly through this.  After the attack on your house you went outside and at that stage did you see vehicles?

MACHIHLILE WILSON BALOYI: The ones that I saw was the Koyoco that had left my place, it was parked under a tree in Amatola Street and then it left to join the other two vehicles near the Metal Box and there were now three of them.

MR STRYDOM: Yes.  And at that stage did you already see the other two Koyokos down close to the footbridge?

MACHIHLILE WILSON BALOYI: After shooting there was this huge flare that made it possible for us to see the vehicles.

MR STRYDOM: So then you saw two vehicles.  So if I say that you saw three vehicles then close to Metal Box and two down at the bridge, so we're talking about five vehicles in total, is that correct?