Amnesty Hearings — Bloemfontein — 2011-01-21

MR VISSER: Mr Chairman, you are, of course, quite correct, but you will remember that there was cross-examination by myself.  At that stage the Chairman pointed out to me that I cannot restrict it only to Fountain street, but I also had to include the possibility that reference could be made to Botshebelo which we accepted at the time.  It then later appeared, Mr Chairman, that when Mr Motsamai gave his evidence, and I can give you the references on the record, stated specifically that he did not apply for amnesty in regard to Botshebelo which brought us back to point one, square one, which was assaults on this group of 19 people at Fountain Street.
	I immediately concede that on the application on Annexure A it is not that specific.  What we are submitting to you, Mr Chairman, is it was always in the spirit of understanding that we are talking about incidents.  The one incident is the one that Mr Ngo refers to as the Botshebelo incident and the other as the Fountain Street, the Bloemfontein incident.  It certainly never encompassed any other assaults although they may have taken place, Mr Chairman, in the Fountain Street Building, but unrelated to this incident, because, as you have pointed out yourself, there is no general amnesty and the references on the record that Mr Stander refers you to is of no assistance to you at all, because all that was put is that Mr Molefe will say that he was assaulted on numerous occasions.  Well, fine, no problem with that, he can go and tell the Humans Rights Commission about that if he feels, as Mr, Judge Ngoepe has pointed, Justice Ngeope has pointed out to him, is his right.  
	We persist in the objection, Mr Chairman, we cannot 
just go on and have people implicated in, with, in regard to matters which are not before you.  What are before you?  Before you, for Mr Motsamai, are 14 groups or individual incidents and we submit, Mr Chairman, that the implicated persons have a right to see the Chairman say, Mr Stander, you are restricted to bring your application or your evidence within the confines of one of them.  If he chooses 13, that is fine, Mr Chairman, but then we will deal with that, because we have been prepared on that, we have been given notice about that and we will deal with that, but we cannot deal with incidents in 1993 or any other incident which does not fall within the purview of that incident.  That is my submission, with respect.

BERNARD MAKGABO NGOEPE: Sorry, in fact, you may, I may have to say this, because you may need to answer that, because not only does it affect, possibly, (...indistinct) implicated people, but the victims as well, because if 13 is going to be construed as something like a blanket amnesty in respect of everyone else other than the 19 or people who were arrested on the 19th, then it could very well mean that we are going to grant Mr Motsamai amnesty in respect of other victims.  We have not been notified, we might not have notified them on the basis that we assumed that under paragraph 13 he was applying for amnesty only in respect of people who were arrested at the border and those are the people that could have been, might have been notified.
	It is so wide 13 that it would, it almost amounts to granting Mr Motsamai amnesty in respect of every other victim who was assaulted at the offices in Bloemfontein.  It is very wide an is it not so, Mr Memani, that the understanding all along has been that that applies only to the people that Mr Visser is referring to or did you understand that he is applying for amnesty in respect of every other person on earth who was assaulted at the offices at Bloemfontein?

ADV MEMANI: Mr Chairman, the, quite frankly I am not sure under which category it fell, but I can see that at page 711, in chief, Mr Serame Molefe is referred to and the incident is described as that is Serame Molefe,
"He is a member of the Pan Africanist Congress, he had knowledge about the task force which was, which is a unit of Apla, he was problematic or troublesome.  We were not able to identify his movements, he use to walk on foot, he did not meet people even when he went to Lesotho, he was always alone.  It was in the morning when we were able to find him.  Jantjie was present and then they had information from Lesotho about him.  When I speak of Jantjie, I speak of a certain person in Ladybrand who is a Warrant Officer Jantjie.
		They found information from Lesotho that this person has knowledge about Apla in Lesotho.  We took him, it was in the morning, we assaulted and he was screaming.  When I opened the door, he was wrapped in a blanket, I did not want to see who were responsible for the assault, because he was quiet and he wrapped with a blanket and lying on the floor would explain very well that we were responsible for his assault."

BERNARD MAKGABO NGOEPE: Well, he might have said that, but ... (intervention).

ADV MEMANI: (...Indistinct) Motsamai.

BERNARD MAKGABO NGOEPE: That was, could have been his evidence, but can you try and just get outside the ambit of his application, specific application, at any time, as he wishes and go on adding incidents and incidents and incidents and then we go on listening, hearing to evidence simply because in his evidence in-chief he introduced to other offenses in respect of which, which cannot be accommodated within these papers.

ADV MEMANI: My understanding is that his name was included in the list of victims which was prepared at the pre-hearing conference.

BERNARD MAKGABO NGOEPE: But is he accommodated in the founding papers?  Now, it does not help to say that he was included in the pre-trial minutes.  The pre-trial minutes cannot amend his founding papers to increase the number of incidents or to include incidents which were not included in the founding papers.

ADV MEMANI: My understanding, my Lord was that the pre-trial conference was called specifically for the purpose of defining issues in respect of which amnesty was being applied for and ... (intervention).

BERNARD MAKGABO NGOEPE: The pre-trial ...

ADV MEMANI: ... it means, therefore, that if someones name was included in that list that he was being included as a victim in respect of which Mr Motsamai was applying for amnesty ... (intervention).

BERNARD MAKGABO NGOEPE: But the ...

ADV MEMANI: ... and that it was settled at the pre-trial conference.

BERNARD MAKGABO NGOEPE: Was the list settled at the pre-trial conference or was it submitted subsequently by Mr Stander, I am not sure?

ADV MEMANI: It was submitted before, before my Lord..

ADV DE JAGER: The list was prepared by the TRC in order to give notice to all implicated or interested or persons having, may, who may have an interest in the applications to give notice in terms of section 19.4.

MR VISSER: May I add, Mr Chairman, from our part, we did not ever concede the legality or the loco standi of any of these persons.  We simply took note that they were alleged victims, it goes no further than that.

MR STANDER: Is it possible that I can make a suggestion to you?  I mean that we are wasting time at this stage, that the witness complete his evidence, it will most probably take another half an hour after cross-examination, then it is finished and you can make a ruling later as to whether this witness was of any assistance or what the circumstances are.

MR VISSER: If I may just say, (...indistinct) now that some of my clients will be put up in the world, on the stage of the world as perpetrators of gross violations of human rights and then when you say the evidence was irrelevant, it is not going to help them one little bit, Mr Chairman.  There was a good reason why I made the objection at the time when I did.

CHAIRPERSON: You objected to the mention of Lieutenant Shaw, did you not?

MR VISSER: Yes.

CHAIRPERSON: Whose name appears in two places in the applicants application for amnesty. It was not just introduced here and now.