Amnesty Hearings — Bloemfontein — 1997-05-15

MR WAGENAAR: Mr Chairman, insofar as we do have an interest, may we be allowed to perhaps clarify certain points.  May I however, preface what we are going to say now by saying that it certainly isn't our objective to stand in the way of anybody who wants to ask for amnesty, where he is obviously entitled to it, but what has occurred here, Mr Chairman, is that at the last hearing, which was, I think the 23rd, 24th of March, when we were in Bloemfontein, we were presented with the hand-written statement which became handed in as Exhibit P28, the one that you have been referring to now as the statement to the TRC.  At the time we requested Mr Mpshe to explain to us what the status of the document was, which at the time he was apparently not able to do.  He, however, wanted to hand it in, and we had no objection to him doing so, and Mr Chairman, unfortunately again, we haven't got a transcript of the record, but there was something placed on record by Mr Mpshe in regard to Exhibit P28.  Unfortunately, I cannot remember what was said about it, but what I do remember, Mr Chairman, is that we stated our position to be that we don't object to it being handed in, but we question its status in an application for amnesty.
	Now Mr Chairman, may I take you to last week.  On Wednesday I was confronted by 13 people in my chambers, who came to consult with me on what was stated in the further document which was referred to as Annexure B.  Apparently that had been forwarded by Mr Mpshe to some of the implicated persons as part of Section 19(4) notifications. When we - that is my attorney and myself, were confronted with Annexure B, my attorney acting on my instructions, telephoned Mr Mpshe and he asked him what the status of Annexure B was.  First of all, I am sorry, Mr Chairman, may I repeat. First of all, we asked Mr Mpshe to please forward us the complete application, so that we could see what was intended to be the application.  We then received the original application form signed on the 8th of November.  We received Exhibit P28 and we had received Annexure B.  My attorney thereupon telephoned Mr Mpshe again.  And he said -he asked him what the status is of Annexure B and what the status is of - I'm sorry, Exhibit P28 and Annexure B.  Mr Mpshe then tells my attorney that he wasn't dealing with the matter, Ms Thabetha was.   Ms Thabetha then spoke to my attorney.  In the course of which my attorney told her that we have serious doubts as to the legality of both Exhibit P28 as well as Annexure B. We intimated that we believed that it was our duty to bring this, draw this to the attention of the Committee at this stage.
	Now today Mr Chairman, Justice Ngoepe has stated the position exactly as we attempted to state it to the Commission's officials. Maybe the first point of departure is whether Mr Motsamai intended this to be an application for amnesty.  If we assume that it was, the next question is whether ...  (TAPE FADES - INDISTINCT).
	... and then over the page at Section 18, which you have already read today, Mr Chairman, makes it plain that an application for the granting of amnesty must be completed in the prescribed form.  That is the one promulgated by regulation and that is the typical form 1 which we have here before us in all these applications.  Then, Mr Chairman, we read on and we came to Section 20, which is quite explicit, in our submission, Section 20, where it says -
"Granting of amnesty and effect thereof, the Committee, after considering  an application for amnesty is satisfied that;
			(a)	the application complies with the requirements of the Act."
We read through the Act, Mr Chairman, in order to attempt to find any jurisdiction on the part of the Committee to condone any non-compliance with the Act, and we could find none.  Again, Mr Chairman, we are not here to stand in the way of Mr Motsamai, but these are the considerations which prompted us to inform Ms Thabetha at the time. We will inform the Committee that there is only application for amnesty before you and that is the murder in Melck Street.  	Having said that, Mr Chairman, we have prepared on all the other incidents and we leave it in your discretion, Mr Chairman, as to what you are going to do about it.

JUDGE WILSON: The suggestion was, not that we should give a ruling at this stage, but that we should get on with the evidence and we can then apply our minds to the question which has been raised by you, which I think it must be fairly obvious to you, is exactly the same, we have had the same problems ourselves, and have raised them with the applicant and the leader of evidence, as to what is the thing. The question is, and it is perhaps a complicated legal argument, are we condoning or are we estopped from accepting in the light of the action taken, that that's a matter which will have to be decided, but in the meantime we felt that we could get on with the evidence and finish the evidence in this matter.  People have been here for some time and will be able to finish the evidence this afternoon now?

MR WAGENAAR: Mr Chairman, speaking for myself in reply to your question, I heard your sentiments that you expressed
that you are not at all certain that one should continue with the evidence.  But from a practical point of view,  whether we do not or not hear the evidence today, is going to make no difference to whatever your ruling might be at a later stage. So that with great respect, we would suggest if we have time, let us rather use the time constructively.  I know that is against the sentiment that you have expressed, but we would like to get on with it.

JUDGE WILSON: I said my sentiment is that we should hear the evidence.

MR WAGENAAR: Yes.

JUDGE WILSON: So I presume, but the evidence will not affect the ruling on the question of law.  So there is no prejudice to anyone, we can consider that at a later stage, but we are here, let us, if we can, finish it today.

MR WAGENAAR: We would certainly not object to that, Mr Chairman.

MOHONAETSE STEPHEN MOTSAMAI: Am I allowed to ask something, Sir?  I want to explain to the Committee the issue that has been discussed now, if I am given an opportunity.  I filled in the amnesty form and I wrote on clean pages all the acts that I committed. On the 8th I gave Mr Phule all the documents to post.   He is a member of the TRC.  he took those forms to post them and after a while I think, it was on the 11th, I received a letter. The top part of this application was sent back.  I was told that this was not done under oath.  I was asking myself questions why didn't they bring back all the forms.  I was asking myself the reason why only one page was sent back. I went to be under oath and I sent it back.   I think I was filling in these forms and space was not provided at some of the questions.

JUDGE WILSON: I'm afraid I don't understand what your client said.  Perhaps you would like to clarify it.

UNKNOWN: I don't have instructions on the issue, M'Lord.

JUDGE WILSON: Well, you said you didn't have space for some of the questions.  Have you got the application form in front of you?

MOHONAETSE STEPHEN MOTSAMAI: I didn't have enough pages to add all the acts I committed. That is why I used other additional pages to elaborate on the acts that I committed.

JUDGE WILSON: Sorry, are you saying that when you filled in the application form, the original form, which you filled in on the 8th of November, you also had other pages attached to it?

MOHONAETSE STEPHEN MOTSAMAI: Yes, three pages, Sir.

JUDGE WILSON: What would they have looked like?

MOHONAETSE STEPHEN MOTSAMAI: This is a lined page, three of them in number.  I wrote the houses and the names of the people we attacked.

JUDGE WILSON: Are those here?

MOHONAETSE STEPHEN MOTSAMAI: No, this one I filled in when we were here in Bloemfontein the last time.