Amnesty Hearings — Phokeng — 1996-05-20

MOKOTEDI MPSHE: Other interested parties like the office of the Attorney-General, office of the Correctional Services were also informed.  Thank you, Mr Chair.

HASSAN MALL: You now call the case of Diali and Mokgatle.  Counsel appearing for these applicants please place themselves on record.

MR CURRIN: My name is Brian Currin, I am an associate with the firm of attorneys Bell Dewar and Hall, and I represent the two applicants in this matter.

MR KNOTT: My name is Greg Knott, I am a director of Bell Dewar and Hall, I am representing the two applicants along with Mr Currin.

HASSAN MALL: Are there any other people present here who wish to make representations or are there any of their legal representatives present?
	On behalf of the Amnesty Committee, the two counsel representing the Committee, will be Mr Mphse and Mr Robin Brink.  You may proceed.

MR CURRIN: Mr Chairperson, Mr Deputy Chairperson and members of the Committee, as already indicated, my colleague Greg Knott from the firm Bell Dewar and Hall, and I, as special associate of that firm, appear on behalf of the two
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applicants in this application, in terms of section 19 of the Promotion of National Unity and Reconciliation Act of 1995.  
	Sir, we have studied the Act carefully.  We have formulated interpretations of key sections of words and phrases which we believe are correct.  We of course, find ourselves in a difficult situation, to the extent that this Act has never before - these particular sections of the Act - have never before been applied and interpreted.  We know that law is not easy and we anticipate that you may well have formulated interpretations of sections of words and of phrases which differ from ours.  
	I am taking the unusual step therefore, as part of my opening address, just to share with you certain aspects of our understanding, so that when we launch into the application and lead our witnesses, at least we have some sense that we may or we are heading in the right direction.  We would request the Committee, if at any stage you believe that we are barking up the wrong tree or that you differ with our interpretation, to kindly give us the benefit of your views so that we can reconsider our approach.
	I intend, Sir, right from the outset now, to as part of an opening address, hand up a document and place that document on record by reading it.  That document provides what we believe to be critical background information into the political context within this particular region within Bophuthatswana, what was then Bophuthatswana and now the North West Province. 
	Mr Chairperson, would you like a copy of the document which is going to be read onto the record?  There are copies 
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available.

HASSAN MALL: It is on the strict understanding that what you are going to read onto the record at this stage is not regarded as part of the evidence.

MR CURRIN: We don't submit it as evidence.

HASSAN MALL: Very well.

MR CURRIN: Both the applicants in this matter are members of the Baphokeng tribe.  Boy Diali was born in 1961 and Christopher Mokgatle was born in 1943.  They came into this world as rightless citizens of South Africa and who from 1977 became rightless citizens of the independent homeland of Bophuthatswana.  Following the events of December 1990, those events which give rise to this application, they were arrested, they were detained, they were tried, convicted and sentenced as Bophuthatswana citizens and they were sent to Odie district prison to serve their sentences.
	On the 1st of January 1994 through the promulgation of the Restoration of Extension of Citizenship Act, all residents of Bophuthatswana, including the then President Lucas Mangope, Boy Diali and Christopher Mokgatle, the two applicants, attained South African citizenship.  It is therefore as South African citizens that the two applicants now apply to this Commission.
	In setting the context and the background to the events, leading up to December 1990, we would start in 1977 in Bophuthatswana.
	It was on December the 6th of that year that Bophuthatswana took independence from South Africa and from its birth to its gracious demise in April 1994 it was ruled by Chief Lucas Mangope and his Bophuthatswana National Party.
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	Bophuthatswana was governed by a legislative assembly
with 99 members.  48 of these members were designated by chiefs and headmen.  In addition to this weighing, the constitution of Bophuthatswana allowed for the retention of tribal customs and more importantly, for the full and unaltered retention of tribal authorities.  These tribal authorities held extensive powers, encompassing the management of tribal affairs and the giving of advice to the Bophuthatswana Government on local affairs.  Within this they held far-ranging powers, including powers of arrest, sentencing, the levying of taxes and the prohibition of unlawful gatherings. 
	Given the extent of these powers, it is not surprising that President Mangope embarked on a systematic replacement of legitimate chiefs with those who would support and maintain his peculiar system of governance.  The 18-year history of this fragmented make-believe nation is littered with names which have become synonymous with repression and oppression in our country.  Winterveld, Leeufontein, Braklaagte, Thahung and Phokeng - which is the subject of this application. It is a history of forced removals, of non-Tswana citizens, a history of corruption, banning of organisations, political imprisonment, deportations, police brutality, torture, hangings, impoverishment and degradation.  It is a history strangely enough, of a homeland with a bill of rights, albeit a bill of rights with a difference.  It contained within the preamble of the constitution, words which differ considerably from the present South African Constitution.  The final clause of the Bophuthatswana constitution read as follows:
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"The rights and freedoms defined in sections 9 to 17 ..."
nd those were the fundamental rights -
" ... may be restricted only by a law of Parliament and such law shall have general application."
The bill of rights therefore, was superseded with relative ease by the Internal Security Act and other pieces of repressive legislation and was in fact, unenforceable in the Bophuthatswana courts.  
	It is a history presided over, and determined by the self-proclaimed leader, Lucas Mangope and his partner, the National Party government.  The National Party bolstered his rule economically, through providing directly and indirectly, 74% of the annual budget.  Militarily, most apparent during the intervention to end the coup attempt in 1988, and also politically.  By 1994 Lucas Mangope retained power quite literally through force.  His electoral support among the people of the region stood at an all-time low of 2%.

ADV DE JAGER: Mr Currin, could I kindly interrupt.  Is it possible for you to refer to a government instead of a specific person?  It was the government that have done certain things and refer to that government and let's not implicate persons.  It may create further difficulties.

MR CURRIN: Okay.  As you please, I will refrain from mentioning persons.

JUDGE MGOEPE: Sorry, Mr Currin, you may want to remind yourself that we suggested at some stage in chambers that we were uncomfortable about - we might be uncomfortable about
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this document, without us seeing it first.

MR CURRIN: That is correct, but then you did not ask to see it first, if I remember correctly, and it was agreed that it would be presented.

JUDGE MGOEPE: I never understood seeing first, meaning  anything other than seeing it first, because now it is full of certain allegations against certain people.  Can you tell us what you are going to do about these allegations contained in this document?