Amnesty Hearings — Durban — 1998-10-19

CHAIRPERSON: Before we start, I would just like to introduce the panel that will be hearing this matter.  On my right is Mr J.P. Sibanyoni, he is an Attorney from Pretoria.  On my left is Mr Ilan Lax, also an Attorney from Pietermaritzburg, and I am Selwyn Miller, a Judge of the High Court, Eastern Cape, from the Transkei Division.
	I would like the legal representatives, also please to for purposes of record, place themselves on record.

MR MUKADAM: Thank you Mr Chairperson, my name is Talib Mukadam, I represent the victim in this matter, the Premier of Mpumalanga, Mr Matthew Phosa.

CHAIRPERSON: Thank you Mr Mukadam.

MR NEL: Thank you Mr Chairman, my name is Christo Nel.  I am representing four members of the Department of Correctional Services, namely ex-member Mr Roets, Mr Venter, another Mr Venter and Mr Joubert, and I have been instructed by the Provincial Commissioner of Correctional Services.

CHAIRPERSON: Thank you Mr Nel.

MR DIHAL: Mr Chairperson, thank you.  My name is Rochan Dihal.  I am on brief to represent the applicant, Mr Boy Gwamanda.  I am an Attorney from Durban.

CHAIRPERSON: Thank you Mr Dihal.

MR FALCONER: Thank you Mr Chairman, the name if Patrick Falconer, I am an Attorney from Durban.  I am instructed by numerous implicated persons, namely Nkosinathi Petros Gumedi, Babyi Vusi Mathi, Sibusiso Wiseman Gumedi, Sebata Sibusiso Sebisi, Maxwell Sibongonke Nkiba, Dinkiziwe Mfayela and Semo Mfayela.

CHAIRPERSON: Thank you Mr Falconer.

MOKOTEDI MPSHE: Thank you Mr Chairman, and members of the Committee, J.M. Mpshe, representing the TRC.  Thank you.

CHAIRPERSON: Thank you Mr Mpshe.  These proceedings will be simultaneously translated.  In order to benefit from the translation, one has to be in possession of one of these sets with an earphone, they should be freely available.
	I haven't been informed, but I should imagine what is ever said, will be translated into Zulu and English.  Thank you.
	Zulu is on channel 3 and English on channel 2.  Mr Dihal?

MR DIHAL: Thank you Mr Chairman.  Mr Chairman, I have some difficulties in this matter which forms the basis of an application myself personally, to withdraw in this matter, as a representative of the applicant.
	My difficulties are multipled.  Firstly, with respect to this Court, I want to mention that my brief to represent the applicant, arrived at my offices late on Wednesday, last week, the 14th of October and came before me on the afternoon of Thursday, the 15th of October, and I endeavoured on Thursday afternoon and on Friday the 16th, to make an appointment at Westville Prison to interview the applicant, but in vain.  I was told there were various reasons why an appointment could not be arranged to see the applicant.  One of which apparently related to some ANC members who were visiting the prisoners at Westville.
	Apart from that Mr Chairman, the difficulty I have, is one of a conflict of interest between the applicant and I.

CHAIRPERSON: Sorry, just before you leave that first point, when did you ultimately manage to meet with the applicant Mr Dihal?

MR DIHAL: Mr Chairman, in fairness, for the first time in regard to this brief, today.  Just a few minutes before we began.  I saw these papers as I said, on Thursday and canvassed them for the first time this morning.
	Again in fairness, I do represent the applicant in other unrelated matters, one relating to a matter where he was stabbed in prison and where my offices brought a civil action for damages against the Minister of Correctional Services, and the second matter where the applicant is presently a sentenced prisoner in a criminal matter, and he has instructed my offices to take that on appeal.
	Those are the only matters I have previously represented the applicant on, and in regard to which I have consulted with him.  None related to the present matter.
	Mr Chairman, the difficulty I have is the following.  Apart from the general conflict, I have in my offices of the many years gone by, represented human rights activists, largely those associated with the ANC as a party and the present government.
	Much of the documentary information of the applicant, is relative to the opposition in the form of the IFP and the AWB.  It is at that level, a conflict.  I have raised this with the applicant.  He is satisfied that I should withdraw.  He has prophet the argument that he is an ANC member at the moment, that he had been an ANC member prior to joining the IFP whilst in prison and that from that perspective, he felt that there would be no conscience difficulty between him and I in me representing him.
	I raised various difficulties I had with that, with him and he has agreed that I should now withdraw.  Apart from that, there are some administrative difficulties.  The applicant tells me that the present set of papers that were given to me, is only a brief summation of his Third Force activities, and of activities that he would like generally to apply for amnesty on.
	I obviously was compelled to ask him why all these things are not contained in his affidavits and he indicated that in consultation with Sheila Mkhize and Stephan Meyer of the TRC, he had given lots of information relating to his various other Third Force activities, which caused damage, prejudice, deaths to ANC activists, but he is surprised to see that they are not included in here, in the statement that I have before me and which presumably, each of us have.
	He has also indicated that one possible reason that this might have arisen is that this affidavit and statement was documented for the purposes of the Goldstone Commission a few years ago, and is therefore devoid of the information he is seeking amnesty on.
	Apart from that, he has dealt with the criminal trial in regard to which he has instructed me, my offices, to attend on an appeal.  He has indicated that his conviction in that criminal trial, is the subject matter of Third Force activities in that he was falsely and wrongly implicated and from that perspective, he thinks it is imperative that that matter be addressed in this application for amnesty as well, as an additional basis for an amnesty application.
	That again is lacking in these papers.
	So, from that perspective as well, I have difficulties in that it does appear clear that this application is only the tip of the iceberg, relative firstly to the applicant's activity in political circles, and secondly, for applications for amnesty.
	Given all those difficulties, I have as I have said earlier, one main difficulty, relating to myself personally, having acted for ANC activists, ANC members in the past and from a conscience perspective, I can't see myself continuing to act for the applicant.
	I apologise.

CHAIRPERSON: Just on what you have said Mr Dihal on this question about these papers before us only representing the tip of the iceberg of his applications.  Has he applied for other matters, because I notice from his application form, he restricts it to four attacks on ANC members in Sekomo Vally on the 28th, 29th and 30th of November 1993.
	Then he also mentions in the application form, the plot to assassinate Mr Phosa while he was in Mpumalanga.  If he is now going to be, will he be able to apply for amnesty in respect of other matters, if he hasn't done so already, taking into account that the cut off date for applications was September 1997?