Amnesty Hearings — Durban — 1998-11-25

CHAIRPERSON: Good morning everybody.  Today we will be hearing the application of Messrs Mhlambo and others.  Before we start, I would like to introduce the Committee to you.  We are all three of us, members of the Amnesty Committee of the Truth and Reconciliation Committee.
	On my right is Mr Ilan Lax.  He is an attorney from Pietermaritzburg.  On my left is Mr Jonas Sibanyoni, he is an attorney from Pretoria, and I am Selwyn Miller, I am a Judge from the Eastern Cape, attached to the Transkei Division of the court there.
	I would ask the legal representatives please to place themselves on record.  Sorry, Mr Sipho, you must push the button so that the red light shines.

MR SIPHO: My name is Vasist Sipho and I represent the applicants in this matter.

MS THABETE: I am Ms Thabela Thabete, I am the Evidence Leader in this matter.

CHAIRPERSON: Thank you Ms Thabete.  For those people who are attending, the proceedings will be simultaneously recorded and in order to benefit from the proceedings, you have to be in possession of one of these devices.
	You've just got to choose the channel for the languages.  English I believe is on number 2, Zulu will be on number 3.  These devices are available from the front, from the sound technician.  Mr Sipho?

MR SIPHO: Mr Chairman and Honourable members of the Committee, there are certain matters to draw to your attention at this stage.
	It has come to our knowledge, that two of the applicants do not appear to have completed forms which are in the possession of the TRC.  They actually say that they did complete forms and were left with the prison authorities, but which didn't seem to have arrived at the TRC.
	They are present here today, and they feel that something must have gone wrong, because they have done what they were supposed to do and they have in fact received letters to say that they should in fact be present here today.

CHAIRPERSON: Those letters, I don't know what they say, but usually letters are sent off, not only to applicants, but also to implicated people, in other words if his name has been mentioned by other applicants, they would have got a letter in their capacity as an implicated person.

MR SIPHO: I wonder whether some explanation could perhaps be given to them by the Committee so that they would understand the position better?

CHAIRPERSON: What is the position Mr Sipho, do they say that they had filled in forms?

MR SIPHO: Yes, they do say that they had filled in forms, and they left them with the prison authorities and as far as they were aware, they should have been heard today as well, and that view of theirs was confirmed by the fact that they received these letters.
	That is as far as I wish to take that matter.

CHAIRPERSON: Mr Thabete, do you know anything about forms of those two persons?  Sorry, who are they?

MR SIPHO: Perhaps I should just read out their names Fano Patrick Tsotetsi and Bongani Sacharia Gwala.  They are listed as accused 1 and 5 when they appeared in court.

CHAIRPERSON: Ms Thabete, do you have any knowledge about any applications relating to these two people?

MS THABETE: If I may explain Mr Chair, we received the applications of all the others, except Bongani Sacharia Gwala and Fano Patrick Tsotetsi.  Before I came to you, members of the Committee, I went to speak to them in the presence of Mr Sipho.
	Mr Mandla Mhlambo explained to me that he completed application forms for all the other people.  I then asked him why didn't he complete the forms for Fano Patrick Tsotetsi and Bongani Sacharia Gwala.  He told me that it is because they were not in the same prison as them.
	Thereafter I asked from Bongani Sacharia Gwala and Fano Patrick Tsotetsi, as to why they didn't make application forms.  One of them said I think it is Mr Tsotetsi, said he didn't know anything about the fact that there were application forms that needed to be completed.  The other one, Mr Gwala said to me he was not in the same prison as the others, that is why he did not complete the forms.
	The letters that they are referring to, it is the Section 19(4) notices, that were sent out to the implicated persons or interested persons, applicants and victims.

CHAIRPERSON: Mr Sipho, we as a Committee are a statutory body.  We are therefore confined to act within the parameters of the enabling statute, namely the Promotion of National Unity and Reconciliation Act, 34 of 1995.
	We as a Committee do not have a discretion to condone the failure to submit an application.  We just don't have that power or authority to do that.
	What I would suggest at the moment, because of this, that the two persons Messrs Tsotetsi and Gwala, we can cause further investigations perhaps to be done as to whether or not they have completed application forms, because we have got, from what you said, they said that they did complete and from what they told Ms Thabete, they said that they didn't complete.
	The fact is we don't have the application forms and there is, to say the least, a doubt that it has ever been received, because even on what you have told us, they may well not have been received by the Commission, even though they were completed, they might have got stuck in the prison.
	We can make further enquiries and if it is found that there are, in fact there were forms that did reach the Commission, which is unlikely, but if it did happen, and for some reason or other, those forms were not registered or numbered, etc, then a hearing can be held at a later stage in regard to those two persons.
	But without there being application forms before us, we  are just not able to hear them as applicants, as much as we would like to, it would be far more efficient if we could deal with them all together, it is after all the same incident.  The evidence of the various applicants, I can imagine will be pretty much the same.
	We cannot be dictated to by convenience in a matter of this nature, we are just bound, not to be able to hear them as applicants without the application form.

MR SIPHO: As the Court pleases.  I have just one other matter to raise before we get  on with the applications, and that is there is one applicant who is not present here today.

CHAIRPERSON: Sorry, if you could push the button.

MR SIPHO: Sorry, there is one applicant who is not present here today.  His name is Gendor Hector Sipho Sikakane, he appeared as accused 3 in the court and I believe that he is not here because of some mental illness that he is suffering from and that the other applicants are able to say whether he will ever recover from it and whether he may ever be in a position to bring his own application at any later point.
	In those circumstances, perhaps his application might be removed from the role at this stage.

CHAIRPERSON: Yes.  I will agree with you there Mr Sipho that if he is unable to be present for health reasons, what we can do at this stage is just merely remove his application from the roll without depriving him of his right to be heard later.
	We will remove it from the roll with a view that if his health improves and he is able to attend, the matter will be set down on the roll at a later stage for hearing then, as a separate hearing.

MR SIPHO: Thank you.  I now wish to proceed with the leading of evidence.  I think I am ready at this stage, to start with the leading of evidence in regard to the support of the application for amnesty.
	The first witness that I want to call is Mr Mandla Mhlambo, who was accused 8 in the court.

CHAIRPERSON: What page number is he in the document?  The top page?

MS THABETE: 84.

CHAIRPERSON: 84?

MR SIPHO: 184.

MS THABETE: Oh 184?

CHAIRPERSON: 184?  Yes, thank you.

ALFRED MANDLA MHLAMBO: (sworn states)

CHAIRPERSON: Thank you.  Mr Sipho?