Amnesty Hearings — Johannesburg — 1998-12-02

CHAIRPERSON: I don't know what the wording of the Act as yet, I'm going to look it up again, but the effect of the Act as I understand it, is an unequivocal admission of guilt is what is required before you can entertain the idea of an application.

MR SHEIN: Sir, if I may say this.  He is asked to: "Furnish particulars of acts, omissions or offences."
That is the wording, with respect Sir.

ADV DE JAGER: Ja, but in the next sub-article you will see that
"An act associated with a political objective is defined as an offence."
So it must be an offence.  And in Section, is it 19, no, 20(5) and (6) we could grant amnesty in respect of a specified offence.  So at the end of the day there should be an offence.  You've told us now there was a killing of two persons.

MR SHEIN: Correct.

ADV DE JAGER: Prima facie the killing of a person would be illegal because we're not allowed to kill people unless we are killing, for instance, in self-defence.  Now if on the facts his life was threatened at that stage and he killed in self-defence, then he wouldn't be entitled to amnesty, but that would depend on the facts he's testifying to.  I don't know what the facts are.  You've been asked according to your instructions, what are the facts and would it boil down to an offence.  So we're in your hands there.

MR SHEIN: Sir, if I may just be ...(inaudible).  Sir, I've been asked now to ask for a short adjournment of 10 minutes to consult on this aspect, but before we do that Sir, all I wish to state is that with the greatest respect, if one undertakes the defence of someone in a trial, one would raise certain defences.
	Now this is not a trial, I just raised this, the applicant has killed two people.  If he were tried in a criminal trial for example, Sir, the fact that he would raise this defence does not mean that he would be acquitted, it might not succeed in a criminal trial.  Even though it might be the opinion of his lawyer that it would succeed, it doesn't mean that it would.  And if he were charged with - I would submit that from what I have been told by the applicant, there is sufficient prima facie evidence for a prosecution to take place, and he would raise a certain defence of self-defence.  It doesn't mean that that is going to be a successful defence, it might be rejected.

ADV MOTATA: Mr Lawrie(?) Shein, the purpose of this process is that people are unequivocally admitting an offence which they have committed and that they appear before us is that, should be accept his story under which circumstances he did it, we would grant him amnesty and the Court of law would not prosecute him.

MR SHEIN: Yes.

ADV MOTATA: Taking what you have said, that probably this would come into self-defence, are you suggesting that we should close our ears to what you have said, because the impression, I speak for myself now, created is that he is taking chances and this process is not created for that purpose at all.  And we would say; let's not enter into a debate, take fuller instructions with that in mind and we will allow you, I'll implore the Chairman to allow you 10 minutes to do that.

MR SHEIN: Mr Commissioner, if I might just state that the instructions Sir, he's not trying to abuse any process or trying to avoid a prosecution.  And the fact that if I had not mentioned that he would rely on the defence of self-defence, from my questioning and from leading him and from cross-examination of this applicant, it would be clear from that evidence that self-defence is going to be relied on because he would then disclose it in his testimony anyway.  I just did this before he disclosed it, with respect.

CHAIRPERSON: Mr Shein, you needed feel apologetic or bad about mentioning it, you are correct to have mentioned it to us.  You acted in terms of what is expected of an attorney of this country, and I thank you for that.
	I'm pointing out to you that there is a flaw in the application to the extent that the applicant is not going to admit to having committed a crime, and Section 19, I think it's (5) or thereabouts, creates a compulsion that upon application there must have been an offence, either by action or omission or whatever, upon which the application is based.  
	Now if there is no admission to an offence in either of the possible ways to commit it, either by omission or commission, then the application must fall flat.  Do you follow what I'm saying?

MR SHEIN: I do Sir.

CHAIRPERSON: Now I'm going to give you time, 10 minutes, to satisfy yourself and to deal with your client as if he's come to you for advice, and we'll take it from there.

MR SHEIN: Thank you, Sir.

ADV DE JAGER: When was this murder committed, or the killing?

MR SHEIN: During 1993, Sir.

ADV DE JAGER: You're sure about the date?

MR SHEIN: Just bear with me, Sir.  I apologise, 1991 was the time of the killing.

ADV DE JAGER: ...(inaudible)

ADV MOTATA: Then look page 90.

MR SHEIN: ...(inaudible)  Yes, Sir, thank you.
COMMITTEE ADJOURNS
ON RESUMPTION

MS PATEL: I request leave to re-open the matter of Cyril Chisoma.  Certain information has come to light after the matter has been closed.  I believe that it is material information that effects the credibility of the applicant.

CHAIRPERSON: I'll tell you what I'm prepared to do.  You can lead this witness in the ordinary course of the hearing.  If Mr Samuels is of the view that whatever transpires now is sufficiently important for him to counteract, then I would allow an application to recall his client.

MS PATEL: Fair enough, Honourable Chairperson.  Okay, I then call Faith Sefatsane.  That is spelt: S-E-F-A-T-S-A-N-E.

CHAIRPERSON: Mrs Sefatsane, what language would you prefer to use?

FAITH SEFATSANE: Zulu.

CHAIRPERSON: Have you any objections to the taking of the oath?

FAITH SEFATSANE: (sworn states)

CHAIRPERSON: Please be seated.

MS PATEL: Thank you, Honourable Chairperson.
	Mrs Sefatsane, is it correct that you are the niece of Mr Zulu, the person who was killed or who was mentioned in the amnesty application of Mr Cyril Chisoma?

FAITH SEFATSANE: That's correct.

MS PATEL: And you stated that - where do you live?

FAITH SEFATSANE: 612, Extension 2.

MS PATEL: You said that your uncle used to live in that area but that he left to go back to Natal, can you please tell this Committee when he left?

FAITH SEFATSANE: He left 1991 for Newcastle.

MS PATEL: Can you state more or less when in 1991, was it the beginning or the end?

FAITH SEFATSANE: Beginning of 1991, before the violence.

MS PATEL: Do you know which political party your uncle belonged to?

FAITH SEFATSANE: He was an ANC member.

MS PATEL: Was he ever an IFP supporter, to your knowledge?

FAITH SEFATSANE: No, he never.

MS PATEL: Do you know whether he ever attended any IFP meetings or associated himself with the activities of the IFP?

FAITH SEFATSANE: No.

MS PATEL: Did your uncle have family in the vicinity when he was staying here?

FAITH SEFATSANE: Yes, he did.

MS PATEL: Do you know whether there was any contact between him and the family?

FAITH SEFATSANE: Yes, there was.

MS PATEL: Did they visit each other?

FAITH SEFATSANE: Yes.

MS PATEL: Alright.  Thank you, Honourable Chairperson.
NO FURTHER QUESTIONS BY MS PATEL

CHAIRPERSON: Mr Swanepoel, have you got any questions?

MR SWANEPOEL: No questions, Mr Chairperson.
NO QUESTIONS BY MR SWANEPOEL

CHAIRPERSON: Mr Samuels?

MR SAMUELS: Thank you.
	Mrs Sefatsane, you say that ...(intervention)

MS PATEL: ...(inaudible).  Sorry Mr Samuels, she's ready.

MR SAMUELS: Ma'm you say that your uncle was not an IFP supporter and that you know that he didn't go to meetings, is that correct?

FAITH SEFATSANE: Yes, that's correct.

MR SAMUELS: I see.  Were you with him all the time that he was in Thokoza?  Did you spend all the time with him?

FAITH SEFATSANE: We were not staying in one house but he used to come and visit in our house.