Amnesty Hearings — Pinetown — 2000-02-15

UNKNOWN: Thank you.  Mr Chairperson, I want to begin by saying that insofar as the applicant is concerned there are indeed some problems and the problems do appear to be pitched at a level that there is a variance in the version presently adduced to that, adduced at the trial but I dare say if one dissects that difference it does not become so mammoth, so counter-productive, so self-defeating as to negate the application for amnesty.
	Principally there are three fundamental contradictions in his version between that at the trial without a record of course, looking at the record or the bundle as we have it.
	The one is that he says "we stabbed the deceased".  He explained that when Mr Sibanyoni asked him the question that by "we" he meant the one Nsomi held the deceased was "I stabbed him and because we both participated in this, I said we" and I think that is a fair explanation.
	The other contradiction that he has is he stabbed the deceased with his knife, meaning the deceased's knife as opposed to the applicant's knife.  Now there are three points to be made there.  The first is this, there is indeed a statement which the applicant testified - sorry, deposed to, it is the statement contained on pages 5 to 7 of the bundle, it is no doubt a statement that was made under oath and it is a statement in which he says:
	 "I had a knife in my possession."
Now when I took instructions from him he said it should have read:
"I had no knife in my possession."
His evidence makes it very clear that he did not have, that means the applicant did not have a knife in his possession.  The applicant makes it very clear, crisply clear, that he took this knife from the deceased and that having used the deceased's knife he stabbed the deceased to death.  Now what turns on this?  If he had a knife of his own, premeditation would probably be the argument.  If he had a knife of his own it exacerbates his problem.  If he had dispossessed the deceased of his knife it's supports his contention of self-defence.  Now to support the contention that there must be some truth in the fact that he must have dispossessed the deceased of his knife, one looks at the earlier versions contained on pages 24 of the bundle - sorry, 24 and 25 of the bundle.  When this applicant, then the accused number two, appears before a magistrate unrepresented, unaided by any person, even though unaided whilst the police were allegedly assaulted him, being present in court, he says words as crisply and clear as:
"I stabbed the deceased with his knife"
and later in the middle of that page says:
"I admit that I stabbed the deceased with his own knife."
So support for the contention that there is a level of veracity in that version more than in the version that the knife of the applicant was used is to be found in the unaided version of the applicant when he was unrepresented as early as when he appeared at court on the 22nd January 1992.
	Mr Chairperson, that being the two contradictions, there is the third and that is where he says on these pages 24 and 25:
"We chased the deceased".
Now that contradiction I concede is one that he did not explain at best.  His explanation there is not very satisfactory.  In fact he says or rather he responded in response to Mr Sibanyoni's question about this by saying
"I did not say that, that is an error, it was recorded incorrectly."
There appears to be a ring of truth about his explanation.  Now when one ties that explanation with the fact that he was unrepresented with the fact that he had just made a statement to the police which talks about five persons as opposed to about six or seven, to a policeman who allegedly assaulted him and a policeman who is now present in court and who as an accused then is speaking through an interpreter to a magistrate who now records the matter, there is the possibility of a level of confusion, is intrinsically present, it cannot be argued that it may not be possible that this was an error.
	Those are the only three contradictions of merit.  There is nothing else that the applicant has made.  Generally the applicant was forthright in his testimony, he spoke with candour, in a manner that showed that he was being as honest as he could.
	Now one must look at the applicant's testimony against the background of what truly is the position today.  This is an applicant who has been convicted of this murder, this is an applicant who has been to jail on the sentence, has served his full sentence, appears before this Committee in the pursuance of an application for amnesty.  In truth, in effect, no purpose would be served on this applicant's lay life if the application for amnesty were granted or refused.  If it were refused ...(intervention)

JUDGE DE JAGER: When he applied for amnesty was he still in jail?

MR DEHAL: Indeed he was correct, but he had the option when last he appeared in these Pinetown courts at a time when Alzina Luthuli was not present and his matter came to be adjourned to consider, on my advice, whether he should not withdraw this application or not.  He said to me and I can place this on record as an officer of the court, that he did not know quite what to do but he reasoned on the basis if he were to come to the Committee and say it as truthfully as it is, hopefully when he gets back to society there will be a level of reconciliation and at that level perhaps I should pause and interject with this digression.  Shortly after Alzina Luthuli testified and this Committee adjourned, I talked to the applicant and Alzina Luthuli and they both met with each other and apologised, or the applicant apologised to Alzina Luthuli, they've embraced each other, they've forgiven each other and in that spirit of reconciliation which is indeed an intrinsic element of this TRC process, that purpose has been achieved.  I can place that on record.  Okay, apart from that ...(intervention)

CHAIRPERSON: Didn't she say he should be telling the truth to us today?

MR DEHAL: Oh yes indeed, she said so.

CHAIRPERSON: She said no reconciliation till he tells the truth which he's not doing?

MR DEHAL: Yes correct, at the level that her version must be the believable one.  I will address on that shortly but just for the sake of the reconciliation, he has apologised to her for having caused the death of the deceased, which is common cause, whatever the reasoning being and she says "well I accept that and there was a fight going on between the ANC and the IFP at the time and I accept that."
	Now apart from that, the applicant as I've just submitted has served his time, he is now free and whether he gets amnesty or not, the only effective positive is that it will clean the slate.  When I explained that to him he said even that makes no difference to him because he is not so gainfully employed in high echelons of society where a record has a meaningful impact on him and that even if it's not granted he will still continue with his life unaltered.

CHAIRPERSON: Can I go back a little in your argument?  Why didn't he mention this falling down till he did it right at the end in the statement that you produced?

MR DEHAL: Well quite frankly I do not know.  I must say that when I consulted with him the aspect of the falling down was as the backbone of his case came off as lucidly from him as breathing and I asked him why didn't he mention it and he said he doesn't know whether he did mention it, it never seemed to him very important.  We must understand ...(intervention)

CHAIRPERSON: What he said was contrary to it?  It wasn't just not mentioning?
"I then turned around and stabbed the deceased."
That is clearly contrary to "I, falling down and being grabbed."