Amnesty Hearings — Vanderbijlpark — 1999-05-04

MR LOWIES: Chair, with all due respect, I am not challenging the TRC Report.  It is there, it's a given - and with respect I have not had the chance to read the second paragraph at page 6 which answers your question and that is, the information is needed and now I quote
"Further, to consider whether to apply for the recusal of the Committee or any other member thereof"
In other words, with respect Chair, we are not asking you to judge the correctness of the TRC Report, you are the forum, with respect, where we apply for information.  Firstly, you are the forum, with respect, where we apply for a recusal if needs be.  You have to hear that and nobody else.  We say the application that we are bringing is the following, there is a prima facie report wherein damning findings were already made against my clients.  You are an extension of that body, brings in my argument of the reasonable suspicion of bias.  Now, in order to make a value decision on this, based on all the facts, we say on behalf of the applicants, please supply us with information whereafter we can make a value decision whether or not to ask for your recusal.  An important aspect would be the - the most important aspect - if yourself or any Member of the Committee formed part of those deliberations, with respect, it means that you were privy to a finding already on record, detrimental and prejudicial to my client's application and one of two things should then happen and I'm not asking you to rule on that yet because we're not there but the argument will go the relevance hereof is the following.  If this Committee or a Member thereof had prima facie prejudged a lay person in the position of my clients, the applicants, will form the opinion that the matter has been prejudged and I say this with the greatest of respect, to proceed would be a farce but it is not the allegations yet.

CHAIRPERSON: Have you approached the TRC for the information that you're seeking before making a subsistive application?

MR LOWIES: No, we're approaching this Committee.

CHAIRPERSON: Have you approached the TRC itself?

MR LOWIES: I said no, with respect Chairman.

CHAIRPERSON: Perhaps that's where you should start first, if that is refused you make a subsistive application here.
	Mr Berger, what's your attitude to this application?

MR BERGER: Chairperson, our attitude is that this application is ill-conceived, it's impertinent to this Committee, it's grossly insulting to the victims and above all, it's factually incorrect and when I say it's factually incorrect, I'm only dealing with that part of the application that relates to the application of Mr Nosenga.
	Chairperson, we're in the process of compiling affidavits to place the correct facts before the Committee, unfortunately we've only managed to make contact with one person, we will be meeting with him tonight, we hope to make contact with the other person tonight but there's no guarantee that he will be there.  We will draft the affidavits and we will place them before the Committee as soon as we reasonably can, I can't say that will be tomorrow or the next day but it will be this week.

CHAIRPERSON: Okay, well would you be in the position to have all the facts at least by Friday?

MR BERGER: We hope so yes.

CHAIRPERSON: Okay.

MR BERGER: And that there's one person, Mr Shongwene, who shuttles between Cape Town and Gauteng and so depending on where he is, will determine when we can get the affidavits for you.  But Chairperson, we hope to get it before Friday.
	Can I just add that having read the affidavit of Mr Riaan Malan, there are certain documents referred to in his affidavit which we will require before we can finally settle our affidavits and they are the following.  He says that he wrote four articles on the Boipatong Massacre, only two of those articles are annexed.

CHAIRPERSON: Okay.

MR BERGER: The second thing is, he said he had an interview with Mr Peens, he says that a copy of that interview is in the possession of the TRC, we need a copy of that interview and thirdly, he talks about certain Cell Registers which determine the whereabouts of Mr Kezwa.  We need copies of those Cell Registers and if needs be the original but obviously Mr Malan wouldn't have that.

CHAIRPERSON: Okay very well.

MR BERGER: Chair, in terms of the rules of the High Court relating to applications, we would be entitled to copies of those documents before we submitted our answering affidavits.

CHAIRPERSON: Yes, this is not the High Court.

MR BERGER: I know that, I'm well aware of that but I would ask in the interests of fairness so that we can place proper facts before you.

CHAIRPERSON: Yes.

MR BERGER: That those three documents are given to us before we submit our answering affidavits.

CHAIRPERSON: This application will be heard on Tuesday at 9 o'clock and I require heads of argument to be finished at least by Friday and the very latest by Monday to the extent that the applicants are making serious allegations against the African National Congress, they shall serve a copy of this application on that body.   And Mr Mapoma, would you make sure that the legal department of the TRC receives a copy of this application as soon as possible so that they can consider their response, if any, to this application and to the extent possible, would you provide Mr Berger with such information as he might desire in order to prepare a proper response and the applications will furnish to all the other representatives any other information in their possession which is referred to in the application which has not been included as annexures.  Okay?

MR LOWIES: As you please Mr Chairman?

CHAIRPERSON: Yes Mr Lowies?   Mr Nosenga, may I remind you that you are still under oath?

ANDRIES MATANZIMA NOSENGA: (s.u.o.)   That is correct.

MR LOWIES: Sorry Chair, may I proceed?

CHAIRPERSON: Yes.

MR LOWIES: Mr Nosenga, your version if I understand it correctly is that at a stage you went to the place called Ulundi and there you saw Chief Minister Buthelezi, you also heard him congratulating people regarding the Boipatong Massacre.  That is your version, am I correct?

ANDRIES MATANZIMA NOSENGA: Yes that is correct.

MR LOWIES: So if I understand you correctly then, on your version, it met with the approval of the leader of the Inkatha Freedom Party?

ANDRIES MATANZIMA NOSENGA: That is correct.

MR LOWIES: And if I understand you correctly so much so that he also in front of a crowd of people expressed his opinions in that regard?

ANDRIES MATANZIMA NOSENGA: That is correct.

MR LOWIES: On your version, precisely what did the Chief Minister say?

ANDRIES MATANZIMA NOSENGA: I heard him say his grateful, thanking the people for what they did at Boipatong.

MR LOWIES: How many people were at this meeting, you have to give us an estimate, only an estimate?

ANDRIES MATANZIMA NOSENGA: There were many of them, I'm not in a position to approximate.

MR LOWIES: And on your version, if I understand you correctly, anybody who wanted to have been at this meeting would have been welcome, correct?

ANDRIES MATANZIMA NOSENGA: I still maintain that it was the members of the IFP who had attended that meeting, not anybody who did not belong to the party.

MR LOWIES: The point is, any member who wanted to be there could have been there, do you agree?

ANDRIES MATANZIMA NOSENGA: I would not say I agree with you, I am saying to you there were so many people at the conference, there were many of them.  Yes, some of them did not go to the conference even though they were members of the IFP.

MR LOWIES: I'll make it simple, was it an open meeting where everybody who wanted to be there could be there?  Question is, who wanted to be there?

CHAIRPERSON: Mr Nosenga, do you know whether there were any restrictions in terms of who could attend that meeting?