Amnesty Hearings — Bloemfontein — 1997-03-27

MOKOTEDI MPSHE: Mr Chairman the next matter is the matter that was supposed to be number one on the Monday roll, Ngo's matter.

JUDGE WILSON: What is the position with that now?

MOKOTEDI MPSHE: The matter is going on, the advocate is coming with the client.  He is represented.
	Thank you Mr Chairman and members of the Committee, before we commence with the applicant's evidence I want to draw the Committee's attention to the attached statement by the applicant, starting on page 5 thereof.

ADV DE JAGER: Mr Mpshe this matter was due to start yesterday morning as matter number 1.  The reason why we couldn't start was because there was nobody representing the applicant.  But now we've got Advocate Nemane, I don't know why this - when did Advocate Nemane get instructions, could you please tell us?

MOKOTEDI MPSHE: Advocate Nemane got instructions this morning. But initially when I contacted the Legal Aid Board I spoke to one of their personnel a Mrs Nortje, she said to me Mr Mthembu, who was now present in the former matter, Mr Mthembu has been instructed to represent the applicant.  And when I conveyed this to Mr Mthembu yesterday Mr Mthembu said no he does not know of such an instruction, he has not been given an instruction.  And I took it up again with Mrs
Nortje here in Bloemfontein who then apologised to me and said she thought that Mr Mthembu was given the instruction but it has transpired that the instruction is still on her desk in the office.  It has not been given to Mr Mthembu.  And I said to her Advocate Nemane is available to assist, and she said to me Advocate Nemane is briefing another matter that is why he is here, he is here on another Legal Aid matter.   But if he is available they can arrange that he take the matter.  Then she gave the instruction to him to take the matter.  And I immediately thereafter gave him all the application and all relevant documents and he has consulted with the client this morning.

JUDGE WILSON: When was the Legal Aid Board informed of the necessity for legal aid to be granted to the applicant?

MOKOTEDI MPSHE: Mr Chairman the Legal Aid Board, if my memory serves me well, was informed a week or two weeks ago.  Now the procedure that was followed is that Mr Machaka takes the application forms and refers them to the nodal point, that is in Durban, and our nodal point in Durban is Advocate (...indistinct) who then wrote out the certificate as required in terms of the Legal Aid Board agreement with the TRC and processed this to Bloemfontein and then Bloemfontein Legal Aid Board appoints lawyers to come and appear.

JUDGE WILSON: Well I think we should make every attempt to give more notice so that proper arrangements can be made.  It is grossly unfair to counsel and attorneys that they should be asked at the last moment to undertake something which may be inconvenient to them, and also I think the Legal Aid Board should have more than a week to process things.  I request that the various hearings we are going to have in the next few months we endeavour to make sure that
proper notice is given.  Thank you.

JUDGE MGOEPE: I do recall that Mr Mpshe spoke to somebody at the office last week in Cape Town about this particular matter and I requested that the office of the State attorney be contacted with regard to this particular applicant because it seems to me he's saying that - I mean he was a policeman isn't it?

MOKOTEDI MPSHE: Yes.

JUDGE MGOEPE: And then he actually says that when he did this he did this on the orders, whether that was true or not is something that we are still going to decide upon, but he said he was a member of the South African Police and he said that he did that on the orders of the police, and I suggested that this applicant would seem to be entitled to the services of a State attorney, and I mentioned that point deliberately because we are being criticised by some of the people, or rather questions have been directed to us with regard to the quality, and I am not saying that any other type of representation would not be of adequate quality but, queries have been directed to us with regard to the type of legal representation that is being enjoyed by certain people while other people are not entitled to it.  And I specifically requested that in order to avoid that kind of criticism this particular, because he was a police office, a policeman, must also be represented by the State attorney, or at least enquiries be made as to whether or not he too should not be represented by the State attorney.  It seems to me that course was not followed.

MOKOTEDI MPSHE: Mr Chairman I must state that I was not aware of that directive.  Up till now I am hearing it for the first time.

JUDGE MGOEPE: I am very uncomfortable about the fact that this particular applicant, there have been a number of applicants who were former policemen, who appeared before us who were, because of the nature of their work, were entitled to the services of the offices of the State attorney, and they did get such services, but this particular applicant is not getting such services.  And I don't know whether or not the office of the State attorney would have agreed to represent him, I don't know, but I am just uncomfortable that such an enquiry had not been made.

ADV DE JAGER: Mr Wapenaar, sorry to interrupt you, but Nyou've been (...indistinct) State attorney, what would the policy be, would he be entitled to be represented by the State?

MR WAPENAAR: Mr Chairman, ja, under normal circumstances that would have been the position, but as far as I know the Minister of Justice has issued a directive that because the State attorney is the lawyers for the Truth Commission that there may be a clash of interest situation for the State attorney when representing individuals at any proceedings of the Truth Commission, and therefore it was decided that private practitioners should represent people like the present applicant as well.

ADV DE JAGER: What about the (...indistinct)(speaker's mike not on) ... would the representatives be paid on a Legal Aid basis or on a basis of being instructed by private attorneys?

MR WAPENAAR: A system has been introduced Mr Chairman whereby members or ex members of the security forces may apply via their previous or present departments for assistance at State expense.  So the present applicant he
can contact Police Head Office in Pretoria, I will give him the particulars at a later stage, the specific people, and he can then apply via that office for legal assistance at the expense of the Department of Police.  It can be done.

JUDGE WILSON: Mr Ngo have you heard what has been said?

MPHITHIZELI NELSON NGO: Yes I did hear that.

JUDGE WILSON: Now you have now got Legal Aid assistance, you have got an advocate appearing for you, you can continue with that or if you would prefer to make application through the Department of Police for an attorney to be appointed at their expense we can adjourn to allow you to do so, which would you prefer?

MPHITHIZELI NELSON NGO: As I am already here, I think we can continue with the matter because I already have an advocate.  I do not know if the Committee would take how long to get me an attorney to represent me.

JUDGE WILSON: I am afraid I can't give you any undertaking as to that.  Very well we will continue.  But I trust that what my brother has said is noted and that in all future cases involving policeman, whatever rank they may that they be informed that they can apply through the address that we must have and supply them with in Pretoria so that should be done as soon as applications are received from policemen.

MOKOTEDI MPSHE: Thank you Mr Chairman.