Amnesty Hearings — Ermelo — 1998-07-28

CHAIRPERSON: Well let's put it under Sub-Section (i) or small (1):  To put him at ease to give his evidence as best he can, would surely be in the interest of Justice?

MR HATTINGH: Mr Chairman, my opposing representation ...[intervention]

CHAIRPERSON: I just wanted to know what your attitude was to this.

MR HATTINGH: My opposing application would merely be based on the fact that it may leave the community with the sense that they were excluded and once again we are not making progress with reconciliation.  That is all I think I can really ...[intervention]

CHAIRPERSON: That's the difference between representatives and presiding officers.  I have to take both sides into consideration.

MR HATTINGH: I could not really take it any further, thank you Mr Chairman.

CHAIRPERSON: Very well.   Mr Mapoma?

MR MAPOMA: Mr Chairman, I would leave it in the hands of the Committee but Sir, I just want to note that the IFP and the ANC have been notified by the Committee in terms of Section 19 Sub-Section (iv) as interested parties.  They have been notified of their right to attend the hearing.  I have not received their attitude to that in this application but I would ask the Committee to also perhaps take into account their interest.

CHAIRPERSON: Mr Black, have you got any particular attitude?

MR BLACK: No, I have got no views on this matter, thank you.

CHAIRPERSON: Mr Patel, as it were, the horse is bolted isn't it?

MR PATEL: With respect Mr Chairman, my submission would be that it hasn't, the man hasn't testified yet,  a lot of people in the public don't know who he is yet.

CHAIRPERSON: I accept that, but once the victims hear what he says are you seeking that I swear them to secrecy?  Surely it will be an exercise in futility.

MR PATEL: As it pleases you Mr Chairman.

CHAIRPERSON: I'm raising the issue because it is a consideration.

MR PATEL: As it pleases you Mr Chairman.  The idea behind leaving the victims where they are to listen to the application, I think I made quite clear.  One must also bear in mind that the threats have come about during the course of the application an not before, hence there was nothing we could do save to bring it at the time when he is about to give evidence.  I think to a large extent, if for example the media is excluded, his face won't be plastered all over TV, less people will know about him.  He doesn't reside in this area and at the end of the application hopefully he will go back to where he comes from and will no longer be scrutinised by members of this particular community where he could possibly be targeted as a hit.  May I just ...[intervention]

CHAIRPERSON: ...[inaudible]

MR PATEL: As I understand it, the threat does come from members of this community.

CHAIRPERSON: ...[inaudible]

MR PATEL: Well maybe I should then limit the application to just exclude then the media, particularly the TV because in essence he is very uncomfortable with that particular aspect.  	There was some mention made by my colleagues in objecting to the application with regard to more concrete evidence being led on these threats you know and I would expect that they would accept my word for it.

CHAIRPERSON: ...[inaudible] the revised application serious consideration.

MR PATEL: As it pleases you Mr Chairman.  I think at the end of the day what it boils down to is a weighing up of rights and interests.  There can be no right or interest greater than preservation of life and safety, in my submission.
	The Act doesn't talk as Mr Hattingh says, of a real likelihood but merely of a likelihood that harm may ensue.  The Act doesn't say that it must be a witness as suggested by Mr Prinsloo, it relates to any person in ...[intervention]

CHAIRPERSON: ...[inaudible]

MR PATEL: Yes, but in effect he is an applicant.

CHAIRPERSON: ...[inaudible] a short adjournment.
COMMITTEE ADJOURNS
ON RESUMPTION

CHAIRPERSON: I'm not going to make a ruling because I don't need to I don't think.  As perhaps a forerunner to what I hope is going to occur in this area, I've negotiated with the media and they have undertaken to be very sensitive.  They have heard what you've got to say and to be extremely sensitive in what they publicise.  I'm happy that they would have complete regard for the sensitivities at hand.

MR PATEL: I appreciate that Mr Chairman.  I beg leave to call the next applicant, Mr J A Mkhwanazi.

CHAIRPERSON: Mr Mkhwanazi, which language would you prefer to use?

J A MKHWANAZI: Zulu.

CHAIRPERSON: That's fine.

J A MKHWANAZI: (sworn states)

CHAIRPERSON: Mr Mkhwanazi before we proceed, your advocate has made an application to me regarding your fears.  I have not made a ruling on the issue because I have negotiated with the media and they had undertaken to be extremely sensitive towards the issues which your advocate has fully explained to us.  I just thought that I would tell you what the position is so that you will have peace of mind when you testify.
	Proceed Mr Patel.

MR PATEL: As it pleases you Mr Chairman.  May I just mention by way of introduction that there were a whole lot of supplementary statements made in respect of all the applicants that I represent.  None of these statements had been signed and due to what happened last week with regard to the unsigning or the non-signing of statements, I took it upon myself with the commission of all my learned colleagues that the statements could be signed and they have now been signed.  As it pleases you Mr Chairman.

CHAIRPERSON: Would you see to it that the signed documents are at the appropriate stages in the hands of Mr Mapoma?

MR PATEL: Yes, I will do so.
	Mr Mkhwanazi, you were not born in Ermelo, is that correct?

J A MKHWANAZI: Correct.

MR PATEL: When was it that you came to reside in Ermelo?

J A MKHWANAZI: It was in the early '90's.

MR PATEL: And at that time, what was your occupation?

J A MKHWANAZI: I was a commander of the Umkhonto wesizwe.

MR PATEL: Now you have heard the evidence of Mr John Mndebele, do you confirm the background statement which I read to him and he confirmed insofar as it relates to you?

J A MKHWANAZI: Yes, that is correct.

MR PATEL: In your statement or rather in the schedule which details the offences for which amnesty is claimed, which appears on page 20 of Volume 1, if you turn to page 20 of those documents in front of you.

CHAIRPERSON: Mr Patel, if I may just point out, there is precedent much publicised about Item 6 on the schedule.  We I think are only able to grant amnesty in specifics and if the specific issues relating to robberies and setting defence units etc., amnesty would only pertain to those issues that are being discussed here.
	We are not, I don't think able unless you are going to persuade us by way of argument, in which case we would have to look at the matter afresh, we are not able to give general amnesty for undetailed crimes.  I just thought I'd mention it.

MR PATEL: As it pleases you Mr Chairman.
	You will see on page 21 your name appears - if I may just approach - if you turn to the next page you will see your name appears on the next page at Point 4 and you claim amnesty firstly for the same offences that Mr Mndebele claims amnesty for, do you confirm that?

J A MKHWANAZI: Yes, that is correct.

MR PATEL: In addition you claim amnesty for illegal possession of an AK47 and Makaroff pistol and ammunition, do you confirm that?

J A MKHWANAZI: That's correct.

MR PATEL: If we can just go to page 20 and look at the offences for which Mr Mndebele and yourself claim amnesty for.  This is firstly for the murder of Jwi Zwane, do you confirm that?

J A MKHWANAZI: Yes.

MR PATEL: You also claim amnesty for the attempted murder of Happy Mhlongo, Sibusiso Tito Nkosi and Eric Nkosi?

J A MKHWANAZI: Yes.

CHAIRPERSON: What bout ...[inaudible]

MR PATEL: I'm still at Point 2, Mr Chairman.

MR PATEL: I don't follow ...[inaudible]

MR PATEL: I beg your pardon?

CHAIRPERSON: ....[inaudible]