Amnesty Hearings — East London — 1998-10-05

CHAIRPERSON: Good morning, for the record, I am Judge Pillay.   I am going ask my colleagues here to put their names on record, for purposes of typing of the record.

ADV DE JAGER: Adv Chris de Jager.

ADV SANDI: I am Ntsiki Sandi.

CHAIRPERSON: For similar reasons, will the representatives do the same?

MR SMUTS: Mr Chairman, Adv Izak Smuts on behalf of the victims.

MR ZILWA: Mr Chairman, Adv Phillip Zilwa on behalf of all the applicants, thank you.

MR MAPOMA: Mr Chairman, I am Zuko Mapoma, the Evidence Leader.

CHAIRPERSON: Mr Smuts, before we start hearing evidence, I assume that you are in possession of the applications?

MR SMUTS: I beg your pardon Mr Chairman?

CHAIRPERSON: The applications itself, and the contents, you have acquainted yourself with it?

MR SMUTS: We have been placed in possession of all the applications Mr Chairman.

CHAIRPERSON: In order to curtail the proceedings, the panel would like to hear on what basis, factual basis, you or the families, oppose the application.

MR SMUTS: Thank you Mr Chairman.  Possibly to commence with for the record, we act on behalf of the following victims, Ms Chloe O'Keeffe, the partner of the late Mr Alistair Weakley, Mr Thomas O'Keeffe, who is a survivor of the attack, Mr Keith Rumble and his son, Brett Rumble, who are also survivors of the attack and Ms Debbie Barber and Mr Trevor Weakley, the offspring of the late Mr Glen Weakley.
	Mr Chairman, the opposition to the application is not based on an opposition to the process in respect of which this Committee sits.   There is general and full support for the Truth and Reconciliation process from all those whom we represent.
	The opposition to this application, is advanced on the basis firstly that it is not evident from the applications which have been made available, that there has been a full disclosure of all the relevant facts and secondly, and perhaps more importantly, it is opposed on the basis that these applications do not relate to offences relating to an act associated with a political objective as envisaged by the Act.
	It is on that basis that this application is opposed.

CHAIRPERSON: Mr Smuts, when you say or refer to political objective, which is the wording of the Act, do you exclude motive?

MR SMUTS: Mr Chairman, no.  Again on the applications as presently based, the motive revealed is not a model of clarity.

CHAIRPERSON: Is there any concrete allegation or bits of evidence, that would amount to disputing anything that the applicants may disclose, as their fully disclosed version?

MR SMUTS: Mr Chairman, one would hope that the proceedings would not be delayed by the failure or refusal to make available the record of the criminal trial.
	We by force of circumstance, because of that failure or refusal, whichever it may be, have had to rely on the facts as are recorded in the judgement both in respect of conviction and sentence, and to a lesser extent the judgement in respect of the admissibility of the confessions of the applicants, well, three of the applicants in the criminal trial.
	So, there are suggestions in the judgement that some of the matter which is recorded in the applications, may not accord with what could have been led as evidence in the criminal trial.
	But at this stage, it is not possible because we don't know what the full version is, to be definitive about that.

CHAIRPERSON: Mr Zilwa, can you then proceed?

MR ZILWA: Thank you Mr Chairman.  Mr Chairman, I don't deem it essential to set out the, in summary form, the basis of the application, because ...

CHAIRPERSON: No.

MR SMUTS: Thank you, thank you Mr Chairman.  Mr Chairman, on that basis I would proceed to lead the applicant straight away.  It will be seen that in the affidavits, we started with Pumelele Hermans.  He is depicted as the first applicant, but upon further consultation with the applicants, since as it is clear from the affidavits, the planning, the plannery stage of the incident and everything else, first took place in Flagstaff, we have decided that in order to put the version in a chronological order, we should first commence with one of the applicants from Flagstaff, so I will commence with leading Mlulamisi Maxhayi.  So he is the one who will be testifying first.

ADV DE JAGER: Page number?

MR ZILWA: Page 24 sir.  Page 24.  He is depicted as the second applicant, it is headed Second applicant's affidavit.

CHAIRPERSON: His application starts on page 11?

MR ZILWA: Yes, in fact Mr Chairman, the application itself starts at page 17, and before I actually lead him, I just wanted to bring one thing to the attention of the Committee.
	It will be noticed that the application form, that is form 1 as it appears in the papers, at page 23, is actually, has actually not been attested.

CHAIRPERSON: What is the position about it?

MR ZILWA: The position about this Mr Chairman, it appears that the applicant actually filled more than one application.  Now apparently this one for some reason, was not commissioned, but I do know for a fact that there is one that has been commissioned, but in order to save time, seeing that this is the one that is before this Committee, we have arranged that it be commissioned and as it currently stands, it has been commissioned.
	I am informed that the matter has been taken up with the other side, that is the side of the defence and there has been no objection.  I would request this Committee to condone the fact that this particular application that was actually put with this papers, has not been commissioned.
	I would request such condemnation to state that in fact, it does comply with the requirements.

ADV DE JAGER: Where in the Act are we authorised to condone?

MR ZILWA: I must say, I haven't taken a look at the Act with particular relation to that, but as I have pointed out, there is in fact an application of this nature, which was duly attested.  It is just that I am not sure why it is not the one that was included in this papers, but I would submit that it is inherent within the powers of the Committee, to do that.

ADV DE JAGER: We have got no inherent powers, we are a creature of Statutes.

MR ZILWA: That is quite correct Mr Chairman, but I would submit that even though that is the position, there is nothing in the Act which says that you may not, if you, in appropriate circumstances, you may not decorum that.

ADV DE JAGER: I think, if there is a proper application, let's have the proper application and I think, as far as I am concerned, I am prepared to let us proceed with the evidence, try and find the proper application, if it is gone missing in the TRC's offices, that is another thing, then we will have to look at it again, but I am, I wouldn't like to off-hand condone it unless you could give me the, somewhere in the Act, the authority that we are entitled to condone.

MR ZILWA: I could do that, but I should also point out that these applications, the one that I am talking about that I am aware has been attested, they were done actually at the office of the Head of Prisons in Umtata and if it should so happen that maybe the one that was dispatched to the Commission, went astray somewhere, arrangements could be made to actually obtain a copy from the Head of Prison in Umtata.

CHAIRPERSON: Mr Zilwa, the affidavit headed Second applicant's affidavit, when was that signed?

MR ZILWA: Mr Chairman, the stamp unfortunately it is a bit on the, it is a bit not very clear, but there is a date stamp impression, 1 April 1997 actually.  It is just that the date stamp is not very clear, but you can see the 1 April, but again, if needs be, the original of this affidavit, will clearly reflect the correct date.

CHAIRPERSON: But was that affidavit submitted with the Annexure Form 1?

MR ZILWA: No Mr Chairman, in fact Annexure Form 1 was dispatched well before the affidavit.  The affidavit was submitted in preparation for the hearing itself.