Amnesty Hearings — Umtata — 1998-04-20

CHAIRPERSON: Mr Silva, I would advise that you get into contact with those who set out the rolls in these matters, explain to whoever is going to do so, the urgency of the matter and please see to it that this matter receives priority, since seeing that the applicants are still incarcerated.

MR SILVA: I will surely do it so Mr Chairman, before the end of this week.

CHAIRPERSON: In the circumstances then, the matter is postponed (indistinct) and hopefully it will be before one of the Committees in the near future.

MR SILVA: Thank you Mr Chairman.

CHAIRPERSON: You are excused Mr Silva.

MR SILVA: Thank you Mr Chairman.

CHAIRPERSON: Mr Mapoma, we have a second matter.

MR MAPOMA: Yes, Mr Chairman, we have a second matter sir.  The incident involved in this matter sir, is the death of Mr Sipho Phungulua.  The applicants in this matter Honourable Mr Chairman, is Mr Ndibulele Ndzamela, Pumlani Kubukeli and Mfanelo Matshaya.
	I understand my learned friend is appearing for them.  I would ask him to put his name into the record.

MR NOTUNUNU: Honourable Chair, may I confirm that I appear for three applicants in this matters and for the purpose of records, Honourable Chair, my name is NM Notununu.  Honourable Chair, I was saying I do confirm that I appear for three applicants in this matter, and Honourable Chair for the purposes of the record, ny mane is Notununu and the initials N.M. Notununu, and I am appearing for the three applicants in the matter sir.

CHAIRPERSON: Is there any appearance or representation for the victims?

MR MAPOMA: Mr Chairman, there is no legal representation for the victims as yet in this matter, but the victims have been duly notified of the hearing.  They are before the Committee, they are appearing in this matter too.  Any way they are present Chairperson, and I have had a chat with them about the matter and I have advised them of their interest and that I will be able to take care of their interest accordingly.

CHAIRPERSON: Are they aware of the fact that they can approach you at any time to give you information or put certain things to you?

MR MAPOMA: Absolutely sir, they are aware of that.

CHAIRPERSON: Let us then proceed.  Mr Notununu, where are your applicants?

MR NOTUNUNU: They are down that side, because the arrangement was that they will come up after the other matter.

CHAIRPERSON: I think they should come up.

MR NOTUNUNU: Would they come up please?
MACHINE SWITCHED OFF - ON RESUMPTION

CHAIRPERSON: I have just discussed the following issue with my two colleagues.  We seem to be in agreement because it is convenient, the nature of the affidavits are that there is one main deponent and the other two applicants align themselves totally with the contents of the main affidavit.
	Unless there is cogent reasons, we do not see the necessity for the two who align themselves with the main affidavit, to come and give evidence merely to say under oath that they align themselves with it.
	Unless there is serious objection, so that we propose that be the way that we proceed in the matter.  Unless you have contrary views?

MR MAPOMA: Mr Chairman, I don't have objection to that arrangements.

CHAIRPERSON: If you can be so kind as during one of the adjournments, to find out from the victims with whom you are in contact, whether they would have any serious problems with that procedure.

MR MAPOMA: I will do it Chairperson, thank you.

MR NOTUNUNU: Honourable Chairman, thank you very much then.  Honourable Chair, I will start by saying that this is an application in terms of Section 18 of course of the Promotion of National Unity and Reconciliation Act, 34 of 1995.
	What I have done here, this also involves the death or killing of Mr Phungulua who was gunned down sir in Khangaliswe some time in June of 1990.  What I have done here sir, Honourable Chair and members, was to comply one lengthy affidavit.  The person who have deposed thereto is Mr Mfanelo Matshaya, one of the applicants.
	The others, what they have actually done is simply to confirm the contents and the facts of the affidavit as deposed to by Mr Matshaya.  I may mention sir, that I have done that because I have felt that if they go again (indistinct) be it the same thing.  But I am indebted to the Honourable Chair to in fact say that in fact there would be no point of them going, making some other lengthy affidavits.
	I propose ...

CHAIRPERSON: Let me put it this way, that there is no apparent point at this time.  There may be cogent reasons by victims or some other person may deem it necessary for them to testify, in which case the decision would be theirs and yours.
	But I mentioned the proposed procedure merely to facilitate and speed up things.

MR NOTUNUNU: I thank the Honourable Chair.  As I have already said Honourable Chair, it is an affidavit of Mr Mfanelo Matshaya that I have prepared.  I propose to read the affidavit through for the purpose of the record, I will thereafter, after I have gone through, reading through the affidavit to the record, call Mr Matshaya to just make some few points.
	May I read Honourable Chair?

CHAIRPERSON: I just want to apologise to the audience for the slip up we have made in not giving them earphones.  Hopefully that matter has now been rectified.  Yes sir?

MR NOTUNUNU: Thank you Honourable Chair.

CHAIRPERSON: Mr Notununu, I don't think it is necessary to go through all the formal issues in the affidavit.  I would suggest we get to the merits straight away.

MR NOTUNUNU: Is Honourable Chair suggesting that I don't read the affidavit through to the record?

CHAIRPERSON: You can start with the actual merits of the application.

MR NOTUNUNU: Thank you very much Honourable Chair.  Honourable Chair, our application as I have already indicated, we have made the affidavit of Mfanelo Matshaya and as I already indicated Honourable Chair, the application is in terms of Section bla, bla, bla, but what is actually happening Honourable Chair, herein is that we have in fact complied with the provisions of the Amnesty Act, in that the offence or the act in question was in fact committed with a political objective, and further Honourable Chair and Honourable members of the Panel, that it in fact occurred within, that is before the cut off date, and further than that, we have in fact made a full disclosure of the circumstances under which this whole thing occurred.
	I may mention Honourable Chair that there was a war between the African National Congress ...

CHAIRPERSON: Mr Notununu, the actual facts of the merits as I understand the affidavit, falls directly within the definition of the Human Rights Violations, therefore we have a public hearing.  Those facts are to be testified to by the applicant himself.
	If you can lead him on that basis.

MR NOTUNUNU: Thank you Honourable Chair.   I want to lead the applicant and I call Mr Mfanelo Matshaya.

CHAIRPERSON: He can put on the ...

MFANELO MATSHAYA: (sworn states)

MR NOTUNUNU: Thank you very much Honourable Chair.  Mr Matshaya, you have already deposed to an affidavit which has been handed over to Honourable Chair and also the Honourable Panel.  Do you in fact confirm that?

MFANELO MATSHAYA: Yes.

MR NOTUNUNU: Well, Mr Matshaya, the requirements of the Act are that the actions you committed, were in fact committed with a political objective, do you understand that?

MFANELO MATSHAYA: Yes.

MR NOTUNUNU: Do you know the late Mr Phungulua?

MFANELO MATSHAYA: Yes, I do know him.

MR NOTUNUNU: Were you in any way Mr Matshaya, involved in the killing of the said Mr Phungulua?

MFANELO MATSHAYA: Yes.

MR NOTUNUNU: And with whom were you Mr Matshaya?

MFANELO MATSHAYA: It was myself, Mr Ndzamela and Mr Kubukeli and Mr Akga, who is late.

MR NOTUNUNU: Is it the position that Ndzamela and Kubukeli are the co-applicants, your co-applicants, they have also made applications, it was that of the same action?

MFANELO MATSHAYA: Yes.