Amnesty Hearings — Vanderbijlpark — 1999-05-12

CHAIRPERSON: The Amnesty Committee is a creature of stature, it has no other powers other than those that are set out in the Act.

MR MAPOMA: Yes, Chairperson.

CHAIRPERSON: Is there anything in the Act which gives this Committee the power to issue a declarator?

MR MAPOMA: There's none, Chairperson.

CHAIRPERSON: Yes, very well.  Yes, what's your next submission?

MR MAPOMA: Chair, I'm not taking the matter any further now, I think I've covered all the aspects.

CHAIRPERSON: Yes, yes.

MR MAPOMA: Thank you, Sir.  I pray that the application be dismissed.

CHAIRPERSON: Yes, very well.  Mr Berger?

MR BERGER: Thank you, Chairperson.
	Chairperson, my learned friend, Mr Lowies ...(intervention)

MR LAX: Just hold on, I'm just making notes.

CHAIRPERSON: Yes, Mr Berger?

MR BERGER: Thank you, Chairperson.
	My learned friend, Mr Lowies, says simply that prayers 1 and 4 fall away, but Chairperson with respect, the papers that were produced last Monday contain the most scandalous allegations against a number of people, including my colleague, Ms Cambanis, her partner Ms Nichols, their firm, Mr Kopedi, Mr Tshongwene, myself, and it's not good enough to simply say that those prayers fall away, without a public withdrawal of the allegations against us.

CHAIRPERSON: Mr Berger, the issue that is before this Committee is the application.  We are now told that he is not persisting with the prayers that he's indicated ...(intervention)

MR BERGER: Indeed, indeed.

CHAIRPERSON: I'm not going to call upon him to make any public withdrawal ...(intervention)

MR BERGER: But, Chairperson ...(intervention)

CHAIRPERSON: We're concerned with the application that is before  us.  If you want to pursue that matter, you can peruse that matter in a different forum, not here.  What are we supposed to do?  Are you going to ask us to deal with those prayers when they are longer in issue?

MR BERGER: Chairperson, this application is a public document now, the allegations have been made public in this forum, and I submit that it's not good enough simply to withdraw the prayers, the allegations must be withdrawn.

CHAIRPERSON: Yes, yes.

MR BERGER: Chairperson, I don't know why the seriousness of the allegations are brushed aside.  They have been made public and they stand until they are withdrawn.  And if this application had been proceeded with and if this application had been dismissed, that would have been one thing, but the allegations still stand despite the fact that the prayers have been withdrawn.  And they are most serious allegations which have been made.  I don't suppose it will help if I go through the application to point out which allegations I'm referring to, so I won't.
	My learned friend submitted to you that those allegations are simply of academic value now, that's not so, they're not of academic value.  They were allegations made on the basis of opinions of a journalist and the applicants called for an investigation, and our submissions would have been that the proper place for that investigation should be here before this Committee, not some other investigation which was being called for by the applicants.  In the same way as the circumstances surrounding the making of Mr Nosenga's application, were investigated here in this forum, so the other allegations of fraud and laundering through the TRC, all those allegations must now be investigated here in front of this Committee.
	The applicants refer to Section 5(l) and (m) of the TRC Act, which says that this Committee has the same powers as the TRC, and we would have argued that that must be read in the context of amnesty hearings.  And yes, it's correct, this Committee has the power to investigate matters, but it must be done within the context of this very hearing, and that's what we would have submitted, and then those allegations against us could have been canvassed and dealt with here.  Those allegations are part of, at the moment part of the record of this amnesty hearing.  The allegations of laundering, of fraud, of forgery, which have been made against us, are part of the record of this very amnesty hearing, and how are they going to be dealt with if not by an investigation here before this Committee into those allegations?  That is why I submit that it's not of academic interest only and it's not - I'll move on.
	My learned friend talks about bias and he says that his opinion as a lawyer is immaterial.  His opinion as a lawyer, with respect, is most relevant and his duty is to inform his clients what his opinion as a lawyer is.  And if he informed his clients that this Committee, as the correct legal position clearly is, is not bound by the findings of the TRC Report, then his clients who have employed him to give his legal opinion would then have their feelings allayed.  I agree with completely with the submission made by my learned friend, Mr Mapoma, as to the status of the TRC Report and as to the powers of this Committee, this Committee has no power to issue a declarator.
	If the findings of the TRC report were binding on this Committee, then the evidence of, for example, Mr Baloyi, would be irrelevant.  The very fact that his evidence is being entertained as being relevant to an issue to be decided by this Committee, should indicate to Mr Lowies, and through him to his clients, that this Committee is not bound and does not consider itself bound by the findings of the TRC Report, because if it were so, then Mr Baloyi's evidence would not be heard.  I submit that there is nothing this Committee can do other than what it has been doing all along, to hear the evidence, and that it is for my learned friend to allay the feelings, the fears, if they exist, of his clients.  I have no further submissions.

CHAIRPERSON: Yes, very well.  Yes, Ma'am.

MS THOMAS: My learned friend, Lowies, has decided to withdraw what I will call prayers 1 and prayer 4 of his application.  Chairperson, a lot of allegations had been made in the affidavit with a view to support those prayers, which really put my client, being the ANC, in a very bad light.  My instructions are merely Chairperson, to deny each and every allegation levelled against the ANC, insofar as it seeks to show that the ANC formed part of a scheme that was all out deliberately engineered towards indicating that there was police involvement in the Boipatong massacre, as and when it took place in June 1992.
	Chairperson, insofar as the rest of the prayers are concerned, I am in full agreement with what my learned friend, Mr Mapoma has submitted and it is not my intention to delay the proceedings unduly.  I can therefore make no further submissions insofar as this application is concerned.

MR MALINDI: Chairperson, Ms Cambanis and myself associate ourselves with the submissions by Mr Berger.

CHAIRPERSON: Two issues.  One is the basis of your application is that the applicants have a reasonable suspicion that this Committee might be biased in view of the Commission's finding in regard to the presence of the police and the role played by the police.  Mr Mapoma's answer to that is that having regard to the provisions of the Act, if there is such a suspicion, such a suspicion is unreasonable.  What do you say to that?