Amnesty Hearings — Johannesburg — 1997-04-09

PHINEAS NDLOVU: Yes, I am aware that the key co-accused which is Johannes Setocho was released on April 25th 1991, as a result of agreements between the organisation, the African National Congress and the then regime.  And the other three who I had been with in maximum after my - after the commuting of the death sentence that I was sentenced to, were released in 1992 during the record of understanding.  And the other one has since been released in 1995 in Modderbee Prison.

MR CURRIN: So the four that were released for political reasons as far as you know, were released as a result of political deals that were reached between the then government and the African National Congress.

PHINEAS NDLOVU: Yes, that is correct.

ADV DE JAGER: Were you a member of the ANC?

PHINEAS NDLOVU: Yes, I am a member of the African National Congress.

ADV DE JAGER: Did they negotiate on behalf of the others for their release?

PHINEAS NDLOVU: Yes, it is so.

ADV DE JAGER: Did they negotiate for your release too?

PHINEAS NDLOVU: Pardon me, M'Lord?

ADV DE JAGER: Did the African National Congress negotiate for your release also?

PHINEAS NDLOVU: Yes, they did.

ADV DE JAGER: Did they come back and report to you?

PHINEAS NDLOVU: Yes, they did come back and report to me.

ADV DE JAGER: Why did they say, why weren't you released then?

PHINEAS NDLOVU: Initially in 1992 I was informed that when a list was made of political prisoners, that were handed in to the government, an error happened, and it was indicated in the 1994 Human Rights Commission report that a certain Phineas Ndlovu was released in my place.  So that was the explanation that I got.  But however, upon pursuing this the then Minister of Justice, Minister Kobie Coetzee, said he was going to look to the matter and see what could be done, because some where released and some were not, and when I enquired, the last I heard of it is that the Minister had forwarded the recommendations that I be released to the office of the State President.  And ever since I was made aware that the opposition party in government wouldn't allow that I be released alone, and that a deal need to be struck politically that this should go across the political spectrum. If I be released alone as a member of the ANC, it would be taken as - it would offend other parties, so to
speak.  So the process need to be revisited and ultimately I was informed that I need to look at this from the angle that the TRC, the Truth and Reconciliation Committee was being installed and ultimately I will be afforded an opportunity to come and present my case and the decision would lie entirely upon the Commission.

MR CURRIN: Mr Chairman, I think it would be helpful just for me to give a - just a very brief explanation because I do know what happened in his particular case.  His name was left off as a result of an administrative error.  There was at the time a lot of backwards and forwarding and running and trying to organise this list of names of people that were to be submitted.  His is not the only name that was left off.  There are other cases where groups of people were found guilty and three or four or five or six of a larger group's names appeared whereas others did not appear.  When you read through this record you will see that his involvement was no more or no less than the others.  There is no reason in regard to the actual crime that would justify his name being left off. It was purely an administrative error.  My enquiries a couple of years ago, indicated that that was in fact the case.  The reason why, and I don't, I can't tell you why President Mandela did not approve the - what was in President Mandela's mind as to why he did not approve the recommendation, but the information that I got from other sources and my understanding of discussions that I had with other political players, was that throughout that period there were deals that were being struck; if we release a person from the left then we must release a person from the right, and what's good for the goose is good for the gander.  And that negotiation was going on right through the early nineties and at some stage there was a decision that they would stop releasing people on political deals and hand it over to the Truth Commission and at the end of the day let the Truth Commission decide.
	Another one, for example, which was similar was the case of Brian Mitchell.  In my capacity as chairperson of that advisory committee, we also recommended that Brian Mitchell be released.  And it was - because there was this general decision once it was known that there was going to be an amnesty committee as part of the Truth Commission, they decided to leave it up to the Amnesty Committee to deal with the matters as and when they came before the Committee. So one can say that they really transferred the responsibility of dealing with these matters to yourselves.

SISI KHAMPEPE: Mr Currin, when was this administrative error made, which resulted in his name being omitted?

MR CURRIN: It was made at the time that the names were submitted before the Record of Understanding which was in 1991, sorry 1992.  And if it would be necessary for you, one could get all the documentation relating to the background and the correspondence and the actual agreement and the names that were part of that Record of Understanding, and one could also speak to - which I have done - with members of the National Executive of the African National Congress, who confirmed to me that the omission of certain names was purely an error.  It was not a decision that was taken on merit, that Phineas' involvement, for example, was more than the others and therefore they were not putting his name on the list.

SISI KHAMPEPE: Speaking for myself (microphone not switched on - indistinct).

INTERPRETER: The speaker's mike is not on.

ADV DE JAGER: (Speaker's mike not switched on - indistinct).

INTERPRETER: The speaker's mike is not on.

ADV DE JAGER: (Indistinct).  Sorry.  Your Committee recommended in 1995 that he should be released and you forwarded a list of ten persons and six of them were released and four not.

MR CURRIN: That's why I don't - I can't understand why of the ten that were forwarded, six were released and four were not.  But I do know that there had been a decision in 1995 that since the Truth Commission was being established and there was going to be an Amnesty Committee, that committee should deal with these difficult cases, as they were termed.  That is my information.
	With regard to all the documentation, the records, the agreements, the Record of Understanding, the history, the background to that, all of that documentation is available at the office of the Indemnity Board in Pretoria.  I know that it is there because I have seen it when I was involved as the chairperson of the Advisory Committee.  We worked from all that documentation.  So it is there and one could get it either from Mr Kleynhans or one of his assistants. 
	When you went to the house and you threw petrol in the house, how many of the comrades, the accused were in the house at the time?

PHINEAS NDLOVU: I can't be precise but almost all of us, but I think there was one co-accused who was left outside, that could be Sitoga.

MR CURRIN: Yes.

PHINEAS NDLOVU: Almost five of us were in the house.

MR CURRIN: And it is clear from the record that before the fire started the people in the house knew that you were in the house.  You say that you had dialogue with them.

PHINEAS NDLOVU: Yes.

MR CURRIN: Was it your intention that people should die in this fire?