Amnesty Hearings — Johannesburg — 1998-12-02

CHAIRPERSON: ...(inaudible)

MR SAMUELS: All of the same volume.  The last one is 3884/96: Joseph Bongi Nkosi Mtsweni: M-T-S-W-E-N-I, page 145 to 147 of volume three.  That concludes my ...
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CHAIRPERSON: Then there is left the matter of ...
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MR SAMUELS: Sorry, Mr Chairman, I had briefly mentioned I wished to present argument.  I don't wish to waste the time, and the points I've already argued during these hearing is in fact the same points I wished to make, the question of the discrepancy between the founding affidavits and oral testimony.
	I don't think - I don't want to say anything more, unless the hearing wishes.  I don't have anything to say.  May I conclude?

CHAIRPERSON: ...(inaudible)

MR SAMUELS: Thank you.

CHAIRPERSON: Yes, Mr Shein?

MR SHEIN COMMITTEE: Mr Chairman, the instructions that I received remain the same, as far as the application for amnesty for murder is concerned.  In the circumstances my client withdraws his application for amnesty regarding murder.  The only amnesty he now seeks is for the possession of unlicensed firearm and ammunition, firearms and ammunition and distribution thereof.
	Very briefly, Mr Chairman, my instructions are regarding the firearms, during 1990 the applicant with others purchased from an IFP hostel in Vosloorus ...(intervention)

CHAIRPERSON: Is this not a matter for chambers?

MR SHEIN: It might well be.

CHAIRPERSON: Because the offences that he's applying for are not human rights violations.

MR SHEIN: Are not, certainly not.

CHAIRPERSON: Well then I think it should be transferred to a chamber matter.

MR SHEIN: In other words, can I just furnish Ms Patel a short affidavit on that?

CHAIRPERSON: Whatever.  You can deal with her on that issue.

MR SHEIN: I will then.

ADV DE JAGER: If you can only sort of give particulars in the sense, like an indictment so that if we grant amnesty, we will grant it in terms of a specific offence which would be identifiable, possession of an AK47 or whatever it may be, during the period 1990 up to 1992 or whatever period it may be, so that it will cover the whole incident and period.

MR SHEIN: I'll do so, Mr Commissioner, thank you.  Then there's just one more matter.  I think my client is
Mr Jeremiah Mgoneni Mabusa.  Now I have consulted with him.  He is a member of the South African Police Service stationed at Khatlehong.  I have endeavoured to get him to come here today, I know Ms Patel has, I know we have both not been successful.  
	I just wish to state that as far as the applicant who is now before you, Xholi Letsopa, he was in fact given notification to appear on the 8th, but due to efforts of my instructor from the ANC, they managed to secure his release from the Defence Force to testify today and he is here.  
	Now this witness Mabusa, he was given notification in terms of Section 19(4), to appear before the Commission on the 10th and 11th of December.  I understand this Commission won't be sitting at that time and I would ask for the matter to then be postponed till next year at your earliest convenience.  I don't believe - I believe I could get him to appear possibly on Monday or Tuesday, which is the 8th.

CHAIRPERSON: I don't think you must try anything.  Ms Patel, is it possible to hand over to the applicant's attorney a notice for the 8th of December?  You can hand it over today and it will be accepted that notice has been given.

MS PATEL: I will attend to the necessary arrangements.

CHAIRPERSON: In the circumstances, Mr Shein, the matter then will be postponed.  I must say I'm not charmed by the applicant's attitude but so be it, to Palm Ridge Community Hall, Palm Ridge Road, Palm Ridge in Alberton, the 8th of December 1998, a notice of which he would receive today.  You will be handed that notice.

MR SHEIN: I will make every effort to ensure his appearance, Sir.

CHAIRPERSON: Well that's why I'm asking Ms Patel to hand you a notice so that he's got no reason or no lawful reason to be absent.

MR SHEIN: Yes.

CHAIRPERSON: And he runs the risk of the matter being struck off if he refuses to go.

MR SHEIN: I understand, Sir.

CHAIRPERSON: You can tell him that he may be under the misunderstanding that he is doing us a favour.

MR SHEIN: I understand that, Sir.  In fact, I will send the notice to his officer commanding because he is a member of the Police Services, so the officer ...(intervention)

CHAIRPERSON: Well you can tell him also by way of your own communication with him, that the notice you have in your hand, when that happens and it reads the 8th for Palm Ridge, and you've sent it to his officer commanding and you expect him to attend that hearing and consult with him.

MR SHEIN: I'll do so, thank you, Sir.  May I then be excused, the matter's finished.

CHAIRPERSON: Yes.

MR SHEIN: Thank you, Sir.

CHAIRPERSON: Mr Swanepoel, we really appreciate your attendance.  We just need to hear your argument on the question of whether the application and the basis upon which applications are based, in terms of times and actual offences, what the status of an absence of clarity in the written applications has if it is supplemented by oral evidence.

MR SWANEPOEL COMMITTEE: As you please, Mr Chairman.  I have endeavoured to find something in writing which is more than my mere opinion in this regard, but I have been unable to do so.  I've also contacted my colleague, Mr Hewitt at the Durban Bar, who is well versed in the Truth Commission's doings and he was unable to help me in this regard.
	I do have a few submissions to make in this regard, and the first one of that is that the wording of Section 18 or Section 18(1) is clear, that the written document submitted in the prescribed form forms the application and that that document must be an application for amnesty in respect of any act, omission or offence, and those are words used in the singular, their meaning is quite clear from the wording of the text.
	I do however accept that it is amply clear from the wording of the text, and it's subsequent articles pertaining to further investigation, that an applicant may at any time, whether it be by virtue of a request for further particulars from the Committee or whether it be by virtue of oral evidence at a hearing which was convened by the Committee, supplement his founding papers, if I may call it that, in the form of his written application.  
	In that regard I submit to the Committee with respect, that it seems clear and only logical from the wording of the text of the Act, that a person must be allowed where a general statement has been made, to specify that general statement and supplement it further.  And if that were not the case, then of course the sections dealing with further particulars would have been irrelevant and superfluous.  It must have been the intention of the Legislator.
	A good example of that in this case, is the application of Meneer, who is mentioned in almost all the applicants' applications and he himself deposes to a general application but then he came and he testified to two specific events.  I'm prepared to accept that, Mr Chair. 
	There is however, in this matter before the Committee, a somewhat different aspect and that is that not only are there applications in writing which are vague and of a general nature, which have been clarified and more specifically attested to in oral evidence, but there are also applications which have, the contents of which have been contradicted in oral evidence.  And my submission to the Committee is that these two types of applications should be distinguished.

CHAIRPERSON: ...(inaudible)

MR SWANEPOEL: My apologies ...
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CHAIRPERSON: Which two do you say should be distinguished?