Amnesty Hearings — Bloemfontein — 2011-01-21

MR VISSER: No, I am not saying this, but his name is now mentioned in regard to something else which is unrelated to the application for amnesty, Mr Chairman, and there is another person, Khanya, now.  I do not know what the evidence is going to be about them, but I do not appear for him, but just by way of, of demonstration, Mr Chairman, if you going to allow this evidence to go on, this is the problem we are going to run into and it remains irrelevant.

BERNARD MAKGABO NGOEPE: Mr Memani, do you concede the possibility of us granting amnesty to Mr Motsamai in respect of an incident which is not included in his application?  Forget about what he said in his evidence.

ADV MEMANI: My Lord, I am not in a position fully to answer the question, I am taken by surprise, so to speak, but my understanding is that the list that was drawn up, was drawn up on the basis that Mr Motsamai had applied for, except for amnesty in respect of a certain incidents and my understanding is that if at that time he had mentioned Serame Molefe, therefore, it must have been the understanding of all parties involved that he was saying that he did something to Molefe that requires of him to apply for amnesty.  Now, as I am saying I am not fully prepared to deal with the question at this stage and I am not able to take it any much further than it is now.

CHAIRPERSON: It appears there may have been some misunderstanding.  I am looking at the record now and as far as I can see you are taking him through the matters for which he has applied for amnesty and then at page 702 you come and you say,
"And the next incident is the incident relating
to the assault and torture of detained or 
arrested political activists."
Then you,
"Are you able to tell the Committee about this incident?",
and he said
"Yes, I am ready.  Where did the torture take place ..." (end of tape 1A).
It would seem that he was not considering or you were not considering that you were bound by a decision taken at the pre-trial hearing to limit yourself to the persons involved in crossing the border crossing, the 19 people, that you were taking it as it is set out at 6.15, "Assaults and torture at the police office" and you were listing all the assaults and tortures that took place there.  Was that your intention?

ADV MEMANI: It seems to have been so, my Lord, because the other people were mentioned that like Brian Nagedi, who was not part of the group that attempted to escape or rather to skip the country.

CHAIRPERSON: And you dealt with all of them?

ADV MEMANI: Yes, and Renegade is mentioned at page 703.

CHAIRPERSON: Ja.

ADV MEMANI: He is Mos Mogamesi.

CHAIRPERSON: So you do not say, as far as I can recollect, you were, what you were, or at least as far as I estimate, you have not said that, you have said that, in fact, that when the objection was taking place that Lieutenant Shaw was behaving more lawfully than I have ever known a security officer to do, in that he had obtained a warrant before he was searching premises.  Is that the evidence that was being led?  There was no question of an assault.  Was not the last thing he said, Captain Shaw said they had a warrant?

MR VISSER: Are you addressing yourself to me Mr Chair?

CHAIRPERSON: Yes.

MR VISSER: May I make a crisp point?  If you look at page 712 of the record, Motsamai says specifically, he did not assault this witness.  He, therefore, does not apply for amnesty in regard to that incident, that makes it irrelevant, Mr Chairman.

CHAIRPERSON: We do not know what happened after that, he is not applying for amnesty, he is not purporting to apply for amnesty for arrests made at persons houses.  The application is assaults at the building.  That is the general amnesty 6.15.  He has not got to that stage yet.  I do not know if he is going there.

MR VISSER: Mr Chairman, we have had his evidence, Mr Motsamai, he never gave evidence that he assaulted Mr Molefe, for which he is applying for amnesty.  It is not before you.  Look at page 712 if you will, with respect, Mr Chairman, the second paragraph line three.  May I read it to you?
"We took him ...",
and that is why there was not cross-examination about this.   "We took him, it was in the morning, he was assaulted and he was screaming.  When I opened the door he was wrapped in a blanket.  I did not want to see who were responsible for the assault, because he was quiet and he wrapped with a blanket and lying on the floor.  He would explain very well that who were responsible for his assault."
It is implicit in that, that Motsamai says I did not assault him, I did not even want to see who assaulted him.  Now that is there.  That is the last words spoken about this issue, there is nothing about any assault on him by Motsamai according to his evidence at the Fountain Building of the police in Bloemfontein, Mr Chairman, with respect.  It does not really have to do anything with Shaw, but the fact is that is just the basis for my locus standi to object.  And as my learned attorney points out, Mr Chair, Mr Stander, in his cross-examination, did not put any questions about this to Mr Motsamai and that you will find at page 779 over the page to 780.  In fact it takes the matter no further at all, but Mr Chairman, if you are going to allow this evidence it will, in my respectful submission to you, and I do not want to waste time, be tantamount to extending yet again the application of Mr Motsamai in regard to yet another incident for which he has not applied in the beginning.

BERNARD MAKGABO NGOEPE: Mr Visser, I do not have a copy of the record further on.  Is it apparent from the record that not only does he, Mr Motsamai, deny any assault at the house at the time when the witness was in a blanket, does he also cover the offices as well?  Does he also deny the assault at the offices?

MR VISSER: I must speak from recollection, let me place that on record first, but my recollection is that he never referred to anything that happened at Fountain's, but I may be wrong, I have not had time to study the record.  My attorney is busy reading now, the period, Mr Chairman.  It is just a page and a half.  Can I quickly glance through it and perhaps I will find your answer, Mr Chairman.
	Yes, I believe my attorney is quite correct when he says that the only relevant question put by Mr Stander is at page 780, at the bottom of the page.  Let me start a little before that.  Mr Stander says, 
"Is it true that this person ...",
and let us assume now for purposes of argument he is talking about this witness, Mr Molefe.  
"Is it true that this person also was
constantly kept under constant 
observation by the security police.

MOHONAETSE STEPHEN MOTSAMAI: That is correct.

MR STANDER: That he had been arrested
numerous timesand assaulted.

MOHONAETSE STEPHEN MOTSAMAI: That is correct.

MR STANDER: Due to his political
activities?

MOHONAETSE STEPHEN MOTSAMAI: ...",
at 781,
"

MOHONAETSE STEPHEN MOTSAMAI: That is correct, he
was a member of the PAC and Apla and 
Task Force.",
and that is it.  Again, there is no identification that these assaults took place anywhere which would form part of the application of Mr Motsamai.  That is the way we understood the evidence, Mr Chairman, there was no cross-examination on this issue.  If there was any indication that Mr Motsamai was applying for amnesty in this regard, obviously, we would have cross-examined him.  We would put aversion there.

BERNARD MAKGABO NGOEPE: If Mr Motsamai denies having assaulted the witness, does that not put an end to the debate?

MR VISSER: That is exactly our submission.  That is the end to the debate, it is irrelevant, irrevocably, irrelevant, Mr Chairman, and the evidence should not be allowed.