Amnesty Hearings — Cape Town — UNKNOWN

ADV SANDI: Mr Arendse, is this not exactly the situation Section 32 was designed to deal with?  And can I hear from you what you've got to say about the AD decision on this very point?  There was a decision by the AD some time, I think early this year.  I do not have the exact reference of this case, I think it was du Preez and du Plessis, versus Mthimkulu where the AD had an occasion to express it's views on the interpretation of this section here.
	Are you not dealing with a Section 32 situation here, where a person's name has been mentioned and that person has been given an opportunity to refute what has ...[inaudible] about him, it doesn't have to be said by the applicant.

NORMAN ARENDSE: With respect, I ...[intervention]

CHAIRPERSON: Miss Qunta, do you have reference to that Appellate Division Judgment with you here?

MS QUNTA: No, Mr Chairman, I do not but I don't pre-empt my learned friend here but I think the point that he's trying to make and which we were not able to make prior to your adjournment, is that in fact it's the applicant - it is the applicant that has to implicate.  Now I appreciate it that in some - obviously if you're going to have an investigation and someone other than the applicant raises a very serious point and there's lot's of evidence, you can't ignore that simply because of Section 19.1.
	But I think the point here is that it's the applicant that has to implicate the person that has to be notified and here in this - the applicants in fact specifically denied any knowledge of this thing, they did this in paragraph 6 and paragraph 7.  Mr Madasi was interviewed at Victor Verster prison on the 25th of July '97 and he denied - he confirmed what the operational vehicle is, that is the document we looked at prior to the adjournment Mr Chairman, and he denied two, three days later at an entirely different venue in the Free State or in Bloemfontein.  
	Mr Gqomfa was approached and he also said that he doesn't know anything about an Audi, so what we are saying is that the applicants not only doesn't mention an Audi, they specifically deny both in their early evidence and here at the hearing  and it's on that basis that I'm saying there was not sufficient evidence.  
	On a proper reading of 19, Section 19 (1) and (2) and Section 30 (2), our view is that there was not sufficient reason to serve a notice on our client in terms of Section 19 and that's all Mr Chairman.  Perhaps what I would like to say now is that I will leave it to you, I would like to perhaps - once you've informed us of the decision that you have made, I would just like to make one brief sentence before we can proceed but I will hand it over to you now.

NORMAN ARENDSE: Mr Chairman, then the other aspect is  that ...[intervention]

CHAIRPERSON: I wish these arguments had been addressed to us before we adjourned.

NORMAN ARENDSE: I did indicate Mr Chairman.  The other aspect is this - is that we are here now, the witness is here and there's at least one good reason - one compelling reason why we should ventilate this matter fully and that is the public interest regardless of the decision that is going to be given.  Lot's has been made of this, his - Mr Sibaya's statement has been leaked to the press, it's public knowledge and I think that's a good enough reason for the matter to be ventilated properly here today.  And  we had - I'm saying this because we had the opportunity of discussing this from this side - from the bar and the side bar, to discuss this matter and we are - there's consensus amongst us here that we should proceed.

CHAIRPERSON: Is that so?

NORMAN ARENDSE: Yes.

MS QUNTA: Yes, Mr Chairman, subject to one thing I can just add.  I would like, like Advocate Arendse says, the matter is of public interest, there's been various press leaks leading up to this hearing and it's now important that the matter be raised but I want to state quite categorically on behalf of my client, that I do not believe that my client should be trial here or he should - this is an amnesty application, it's not a place for my client to be vindicated.  He should have been brought to trial if there was evidence that in any way he was implicated - which we deny, he should have been brought to a criminal trial and ...[intervention]

CHAIRPERSON: I think I'd better put a stop to this please.

MS QUNTA: Yes.  Mr Chairman, sorry?

CHAIRPERSON: Your client has not been compelled to come here, do you understand?  I have before me the notice which was served on him in terms of Section 19.4, it says
"Take further notice that as a person implicated in the application, you have the right to be present and to be represented by a legal representative at the hearing and to testify, adduce evidence and submit any article to be taken into consideration"
In other words please understand, your client has not been told that he's required to be here.  This notice says that he has a right to be here if he chooses or wishes to be here.  Do you understand?  He cannot be compelled to be here and he is not being compelled to be here.

MS QUNTA: With respect Mr Chairman, I really would not like to engage in a long debate about this but it is very important for my client, particularly in view of the standing of client in the community.

CHAIRPERSON: I understand the standing of your client and I'm puzzled as to why he should find it necessary to come here, when all this notice says to him
"That you have been implicated, you have a right"
Do you understand?  We are of the view that Mr Ntsebeza doesn't have to be here.  If he chooses to be here, well and good.  If some evidence is going to be led, no matter how tenuous that evidence may be against him, it Mr Ntsebeza chooses to challenge that evidence he will have a right to do so.

MS QUNTA: Mr Chairman, that's why I said with respect, I think in view of what has transpired after the notice was issued, particularly since it was leaked to the press Mr Chairman, it is very crucial and it's now in the public domain and I'm not suggesting that my client is compelled Mr Chairman, I agree with you.
	He's in fact not compelled to be here but what we - I've queried first of all the fact of the matter of him being sent that notice, that's the first thing.  The second thing is, now that the witness is here we are prepared to listen to the witness and take this matter for the benefit of the public because it has become a public issue.

CHAIRPERSON: I'd like to express a purely personal opinion in the matter.  When I heard that Mr Ntsebeza was being involved and he was going to be here, I didn't see the relevance of his presence to the application for amnesty - that's a purely personal view I've had on the matter and I haven't been persuaded that I'm wrong in that regard.  	However this witness is here - Mr Ntsebeza, since you say that this has now become a matter in the public domain and it has unfortunately received publicity, please understand that if it has reached the press, it isn't as a result of the activities of this Committee, we have no hand in all this.  And to the extent that it gets publicity, I personally regret that that has happened but let us proceed now so that this chapter is brought to finality and to a conclusion without wasting too much time.

CHAIRPERSON: Will you lead this evidence, he's been sworn in already.

MR PRIOR: Thank you Mr Chairman.  Mr Ntsebeza, is it correct that you made a statement ...[intervention]

ADV SANDI: Mr Sibaya.

CHAIRPERSON: Mr Sibaya.

BENNET SIBAYA: Are you referring to me?

MR PRIOR: Sorry, that's the second one today Mr Chairman, I apologise.
	Mr Sibaya, is it correct that you made a statement to the murder and robbery unit in Bellville South on the 5th of January 1994?

BENNET SIBAYA: That is correct Sir.