Amnesty Hearings — East London — 1998-04-28

MR SIBANYONI: Thank you, no further questions Mr Chairperson.

CHAIRPERSON: Mr Nxkwa when you became a member of the action committee you knew what their job was?

NORMAN GILINDOTA NXKWA: Yes, I knew.

CHAIRPERSON: And that included killing impimpis?

NORMAN GILINDOTA NXKWA: Informers, councillors and the police.

CHAIRPERSON: All agents of Apartheid?

NORMAN GILINDOTA NXKWA: Correct.

CHAIRPERSON: And when an impimpi or a councillor or a policeman at that time was killed by the action committee it was done on behalf of the action committee. It did not matter who the actual perpetrators were. Is that correct? In other words the people would know that the action committee had done its job? Not so?

NORMAN GILINDOTA NXKWA: Yes that is so.

CHAIRPERSON: And you knew that, that was the position during that time?

NORMAN GILINDOTA NXKWA: Yes that is correct.

CHAIRPERSON: And you accepted responsibility of being a member of the action committee when you were a member of it?

NORMAN GILINDOTA NXKWA: Correct.

CHAIRPERSON: Thank you. Mr Martindale we would hear further submissions now.

MR MARTINDALE: Thank you Mr Chairperson.

CHAIRPERSON: If Mr Nxkwa could just switch his thing off please?

MR MARTINDALE: Mr Chairperson I would like to deal with it in two parts. The one part will be dealing with the question the committee raised yesterday and the other part I would like to just make some further submissions about the other matters yesterday, just to continue them. Mr Chairperson I submit that the committee can grant amnesty in respect of Thando Dlala and I submit that the committee should indeed grant amnesty in respect of that one. Mr Chairman I refer to Section 20 of the Promotion of National Unity and Reconciliation Act, your founding act. And my submission is that although the applicant did not directly participate in the killing of Mr Dlala he still falls within the ambits of this section. I submit that what the committee must do is find that, that act; the killing of Dlala was an act associated with a political objective. Once the committee has done that then it must decide whether the applicant has made a full disclosure.

CHAIRPERSON: Are you saying that he falls within the category of Section 20(g)?

MR MARTINDALE: Yes that is one of the categories yes Mr Chairman. He certainly is a person who associated himself with the act. Now the circumstances of the commission of the act appear in the judgment in the court case and (...intervention)

CHAIRPERSON: Mr Martindale you do not need to go through all that. We have no problem with the actual activities. The only issue we needed to clear in our mind was the legal position which you refer to in Section 20(g).

MR MARTINDALE: Yes that is my submission is that where it states that it is an act associated with a political purpose and it was advised, planned, directed, commanded or ordered - okay in this case, it was by the action committee. And Mr Nxkwa is a person who associates himself with that. And therefore I submit that it is Section 22 subsection (g) that applies. Does the committee wish me to on that aspect make any further submissions?
	Then Mr Chairperson I would like to just make a few general observations about the other two. I submit that what must be taken into account that the form that Mr Nxkwa filled in, it must be seen in the light of the fact that he is a layperson. It was not filled in with the assistance of a lawyer, that is the first form that was filled in, in Xhosa. And therefore if there is any latitude that should be given or any interpretation should be given it should be seen from the point of view that it was filled in by a layperson. 
	Secondly Mr Chairman yesterday there was an allegation that in fact he might not have been a comrade. Well Mr Chairman the person that made the allegation I believe it is a relative or family member had the opportunity of testifying in terms of section nineteen four b. and they did not testify. So I submit that Mr Nxkwa's statement under oath that he was a comrade should be accepted.

CHAIRPERSON: Wasn't he convicted on that basis in any event?

MR MARTINDALE: Yes that is right, he was Chairperson. I was just putting it on the record that, that issue was raised. And I submit that as regards the final element, the full disclosure element I submit that the applicant has made a full disclosure. He is mentioned that he was involved in the stabbings and actively participated in the tying of the hands of one of the deceased.
	As far as Dlala is concerned he does not know anything about it. And that can be a full disclosure in this particular case. He has got nothing to gain by not associating himself with it. In fact he might have more to gain had he said that he did participate. But I submit that he is being honest when he has come along and I submit that in respect of all three cases he has made a full disclosure and he has made out a case for amnesty.

CHAIRPERSON: Is that all?

MR MARTINDALE: Yes Mr Chairperson.

CHAIRPERSON: Mr Mapoma have you got anything to add?

MR MAPOMA: No Sir I have nothing to add. Thank you Sir.

CHAIRPERSON: As we are not in a position to give immediate decision we will have to consult each other on it and make a decision thereafter. We will do so as soon as is possible. That brings an end to this hearing in Mr Nxkwa's instance. We will adjourn for a short while.
COMMITTEE ADJOURNS
ON RESUMPTION

CHAIRPERSON: Judge Pillay.

ADV POTGIETER: And also for the purposes of the record I am Advocate Potgieter.

MR SIBANYONI: And my name is J B Sibanyoni, a committee member.

CHAIRPERSON: Will the different representatives please announce their names for the purpose of the record?

MR MAPOMA: Thank you Sir. My name is Zuko Mapoma, I am the leader of evidence.

MR HOLE: Thank you Mr Chairman. My name is Mpumelele Hole. I am the attorney for the two applicants before the committee. Thank you Sir.

CHAIRPERSON: Mr Hole tell me why has this application been made?

MR HOLE: Mr Chairman I can appreciate why the committee is asking that here. What has happened Sir is that the two applicants were involved in some way in the killing of the deceased, Mr Maseti in this matter. And subsequent to that an inquest was held where the inquest court found nobody to blame for the murder but all the same the two applicants they intend applying for amnesty. I might put it on record Sir that they are not in custody. They have never been charged. And there does not seem to be any prospects of them being charged in this offence Sir.

CHAIRPERSON: Why haven't they been told what their rights are and given legal advice as to their position?

MR HOLE: Sir from what I understand they have been told and nonetheless they have still decided to proceed and make application for amnesty.

CHAIRPERSON: And have you told them?

MR HOLE: Yes I have Sir.

CHAIRPERSON: And they want to come make an application?

MR HOLE: That is so.

CHAIRPERSON: You know Mr Hole we have thousands of applications that must be dealt with and here we are being asked to deal with an unnecessary application? In any event this matter was set down for hearing this week as long ago as in the middle of March, not so?

MR HOLE: I understand that a notice notifying the applicants was delivered on the 26th of March Sir 1998.

CHAIRPERSON: And the various officials of the TRC have been in contact with you since, not so?

MR HOLE: Yes that is so.

CHAIRPERSON: Now can you explain why the affidavit relating to the application was only handed in yesterday?