Amnesty Hearings — Mmabatho — 1998-09-23

CHAIRPERSON: Thank you Mr Van der Berg.  Mr Mpshe, do you have any submissions to make?

MOKOTEDI MPSHE: Thank you Mr Chairman.  Mr Chairman and Honourable Members of the Committee, may I with your consent be allowed to distance myself from the fray that is already existing and attempt to address issues that may be of importance and perhaps salvage the Committee from the quagmire that exist and I will do so by addressing the Act in particular and relate the evidence to the requirements of the Act.  I am going to restrict myself to the stipulations of the Act and not the factual quagmire that exists.
	Mr Chairman, I will first start by addressing the aspect of full disclosure.  Mr Chairman, may I state that it is important that we differentiate between credibility of a deponent or of the applicant as well as stating all relevant facts to the omission or to the act.
	The argument that is advanced Mr Chairman, by all parties so far, particularly the opposition party, is based on the credibility of the applicant.  I do not think the Act states that you can only be granted amnesty if you are a credible witness.

CHAIRPERSON: But then with regard to full disclosure, I am just talking generally now, what would be the position if you found a witness or an applicant not to have told the truth?  That is credibility, the credibility of his evidence is not accepted.  I am not saying that this is particularly so in this case, but generally just on your submission.
	That surely must effect full disclosure because if you don't say the truth, then it is not a full disclosure.  Full disclosure means a full and honest or truthful disclosure.

MOKOTEDI MPSHE: Thank you Mr Chairman, that is actually the point I was coming to.  Mr Chairman, I am saying the Act does not say that you can only give amnesty if a person is a credible person, the Act says or we should understand the Act to be saying is he telling everything that happened which may be believed, that is where credibility comes in.
	In other words, there are two phases.  The first phase is telling all relevant facts to the offence, the second phase is, can we believe all that which he has told about the offence.  That is the decision I was trying to reach Mr Chairman, but I do hear the Chairman's remark.

CHAIRPERSON: No, I will go along with what you have submitted now.  Now that you have clarified your initial, I would agree with that.

MOKOTEDI MPSHE: I am indebted to you Mr Chairman.  Mr Chairman, still again on the aspect of full disclosure.  I don't know whether to say unfortunately, but unfortunately the application for amendment in as far as the insertion of ANC support is concerned, we don't have a decision as to whether that has been accepted or not.  If my memory is my good servant and I have got no doubt that it is, at the beginning the Chair made a ruling that that will be addressed later, but allow me to even if there is no decision, to address that aspect Mr Chairman.
	Mr Chairman, if one addresses that aspect, the question of being a supporter of the ANC is correctly been addressed by my learned friend or by my learned friends, but may I hasten to state that even if it can be found that he was not actually a supporter at that particular moment, even if it can be found that even the evidence which he gave to the effect that when he saw the crowd, he raised a fist and thereby identified himself with the people who were, the majority of whom were ANC, I think Section 20(2)(f) and (g) of the Act should be looked into.
	I don't want to pursue that further Mr Chairman, less I be seen to be on a particular side.  I will let it rest there Mr Chairman.  But I still feel that the parties for the applicant in their address, should have said more than what they have said because this is an insertion that came in at a particular moment.  But I will leave it at that Mr Chairman.

CHAIRPERSON: Yes, with regard to that amendment as Mr Hendrickse said, parties are entitled to apply for amendment at any stage, if that amendment was granted, it wouldn't really make any difference at all to the argument submitted.  It would just be saying that adding those extra words into the application form, it wouldn't effect Mr Van der Berg's argument at all that that wasn't there when the application was made, it has only come in at the hearing.
	So I don't know if the actual amendment itself carries any great significance at all in that it won't have any dramatic effect on the deliberations of the Committee.  I suppose in that regard the amendment that was asked for, may as well be granted, it is not going to change the situation at all, because we know that it has only come in now.

MOKOTEDI MPSHE: Mr Chairman, I have no reason to again say what the Chair said, I am in full agreement therewith.
	Mr Chairman, the second requirement as required by the Act Mr Chairman, before coming to the Act, just to clear the dust that has been provoked by the arguments Mr Chairman, I just want to address the question of the war situation.
	The manner in which this has been canvassed and addressed by my learned friend, Mr Van der Berg, it comes through as though it is a requirement for you to be granted amnesty once more, you should have committed that particular act in a war situation.  It should have taken place during a war situation, or it should have taken place during some, a disturbance of some sort, or it should have taken place during a particular upheaval, and that is not the requirement.
	To go further on that Mr Chairman, we know of applicants, I don't want to say perpetrators, we know of applicants and we know for a fact the situation that prevailed in this country, orchestrated by the then Security Forces, where a person would be collected from his house and be killed by the Security Forces, in a quiet  moment when there would be no political upheaval, where there would be no political disturbance, people were collected from their houses.
	I can mention a few Mr Chairman, which are ...

CHAIRPERSON: No, we are aware of quite a few ourselves.

MOKOTEDI MPSHE: I am just putting this Mr Chairman, to remove this cloud as though it should have been within a war situation.
	Mr Chairman, I want to believe, I don't want to say this is what the Commission should do, but I want to advance and to say that may I attempt to look at the Act and perhaps this may be of assistance to the Committee.
	I am going to deal particularly with Section 20(3) Mr Chairman, the criteria that were laid down by the founder of the Indemnity as well as the Amnesty Act Mr Chairman.  If the Chair allows me, I don't want to labour this point.

CHAIRPERSON: Please.