Amnesty Hearings — Durban — 1999-06-23

MS MOODLEY: In respect of the, as you have outlined so ably, you Honourable Chairperson, but in addition he is then going to then be able to give the amnesty the benefit of his history with Wembesi and the conditions as they pertained then.

CHAIRPERSON: Yes, bearing in mind obviously that Mr Mkhize is not an applicant?

MS MOODLEY: Absolutely.

CHAIRPERSON: Yes.  We are here concerned with the applications made by the applicants.  I must hastily advise you that our concern is to make sure that we hear applications of persons held in custody as quickly as possible.  In fact we have been enjoined by the Act to do that right at the beginning of the life of the Amnesty Committee.  We have not been able to do that as best as we would have liked to.  This Committee is now coming to an end and our main concern is that we don't want to postpone applications of people who are held in custody unless there is a very good reason advanced why their applications should be postponed because they continue to be incarcerated in situations where if the applications are expedited they could have been released or at least the applications disposed of.  Now we are also aware that we'd like to have Mr Mkhize coming to give evidence in support of the applicants' application.  As far as we are concerned, having read the papers, we are not dealing with people who had just come into Wembesi, the applicants had stayed at Wembesi. The applicants were actually staunch members of their organisation.  They were in support of Mr Mkhize's organisation.  They are quite familiar in our view reading from their application of the political situation in Wembesi.  You are, however, not precluded to call in as many witnesses as you wish to support their application at any given stage.  We are satisfied that the requirements of Section 20, sub-section 2(a) do not require people other than the applicants to put us in a better picture, to satisfy ourselves whether they fall within that cluster of the provisions of the Act or not.  We wish to make this quite clear to you at this early stage before you proceed further with your application.  If you persist with your application for a postponement, we are not likely to grant you that indulgence because we feel that issues that have to be ventilated in order to satisfy this Committee whether to grant amnesty or not are peculiar and within the Province of the applicants concerned.

MS MOODLEY: Thank you, your Honourable Chairperson.

ADV DE JAGER: Would your witness be in a position to be here tomorrow?

MS MOODLEY: Yes, let me give you an undertaking because he said he was going to be here at 12 o'clock.  I mean I can't guarantee that but I ...(intervention)

ADV DE JAGER: So you could now proceed to lead the two applicants?

MS MOODLEY: Yes but I just want to address you Honourable Chairperson on the issue of expediting matters.  I think it would be short-sighted of me as responsible counsel not to have alerted the Committee to my difficulties because the application that I am charged with is not the - I'm not saying that the application is exceptional, but what I'm saying is there are issues there that are peculiar in relation to the question of the requirements as they are laid out in the Act and that is my only concern.

CHAIRPERSON: And just to respond to your concern and we really appreciate your concern, our response is that we don't think that situation would require anyone other than the applicant to be in a position to put you in a better position to argue, really, I mean they are they ones who committed the deed for which they seek amnesty, they themselves were motivated by what they believed to have happened at that time at Wembesi and nobody else I think can give a better context of the situation at Wembesi other than the applicants who committed the deeds for which they seek amnesty.  People can come in and support their application but nobody can come and give a version on behalf of the applicant other than the applicant himself.

MS MOODLEY: Honourable Chairperson, I take the point.

CHAIRPERSON: Yes.  In short therefore, are you now - can we say we are on the same page?

MS MOODLEY: Yes.

CHAIRPERSON: That we will proceed with the application?

MS MOODLEY: Yes.

CHAIRPERSON: But it is open to you to call in as many witnesses as you wish to, obviously, to support their applications.  We don't want to prevent you from doing so.

MS MOODLEY: Thank you Honourable Chairperson.

CHAIRPERSON: Yes.

MR MALAN: Chair may I just add on this point, I think it must be clear in our understanding that the applications succeed or fail on the basis of the applicants' understanding and belief, not of the reality divorced from their understanding.  They cannot qualify for amnesty on the basis of an external position of which they had no knowledge of, which motivated them to do certain things.  They can only base their applications on their own motivation, the objectives as they saw and understand it or understood it at the time of the organisation to which they belonged or whose interests they had the furtherance of in mind.

MS MOODLEY: Commissioner Malan, with due respect, I take the point that you make as well but I then do want to place on record that obviously the applicant can only depose to what is within their knowledge but there is an addition, not in relation to the applicants but for purposes of the information for the Committee, that myself as counsel can bring to the Committee to supplement?

CHAIRPERSON: Yes.

MS MOODLEY: And that is what I'm about to, in respect of my witnesses ...(intervention)

CHAIRPERSON: Precisely, you really are at liberty and we give you room to call in as many witnesses as you wish to, to support your clients' application.

MS MOODLEY: Honourable Chairperson, may I start by firstly handing over copies of an affidavit prepared by ourselves in respect of the first applicant, Happy Mngomezulu?

ADV DE JAGER: Well could you call him to the...

CHAIRPERSON: Ms Moodley, what do you propose doing, do you want to read this application into the record or it would be sufficient to the applicant to confirm it's correctness and for us to accept it as an exhibit?

MS MOODLEY: Yes Honourable Chairperson, I think that would be sufficient.

CHAIRPERSON: Then you would lead him ...(intervention)

MS MOODLEY: Sorry, before I even start with the exhibit, as we will call it later on, may I then first deal with the question of the amendment to matters that appear in the application for amnesty, if I can turn to Form 1, page ...(intervention)

CHAIRPERSON: Page 4?

MS MOODLEY: Page 4 yes, item 9(a)(i).

CHAIRPERSON: Yes?

MS MOODLEY: We need to move for an application to amend the acts or omissions or offences committed by Mr Mngomezulu.

CHAIRPERSON: Yes?

MS MOODLEY: And if I could turn to page, as the Honourable Members to turn to page 60 of the judgement?

CHAIRPERSON: Yes?

MS MOODLEY: And more correctly I think page 43 of the indictment, sorry 41, if we could amend the particular section to include in respect of Mr Mngomezulu counts 2 and 4 which relate charges as reflected on the indictment.

CHAIRPERSON: Yes?

MS MOODLEY: Because we will moving an application for amnesty in respect of those as well.

CHAIRPERSON: That would be possession of 7.65 mm CZ pistol?

ADV DE JAGER: Were those the weapons used in the attack?

MS MOODLEY: Yes.

CHAIRPERSON: You also want to include the unlawful possession of a 9 mm pistol?  Was he convicted of that?

MS MOODLEY: Yes he was convicted on count 4.

CHAIRPERSON: And what about count 3?

MS MOODLEY: No, count 3 and 2 relate to the other accused.

CHAIRPERSON: So with regard to Mngomezulu the application for an amendment is with regard to the inclusion of the unlawful possession ...(intervention)

MS MOODLEY: Of an arm.

CHAIRPERSON: Of a 7.65 mm CZ pistol as well as count 4 which is the unlawful possession of ammunition for the said weapon.