Amnesty Hearings — Durban — 1998-12-01

MR HEWITT: What happened Mr Chairman, and this is where you are with respect, you could fall very easily into the trap of pre-judging this issue because Mr Chairman, you have not heard any cross-examination that I have directed, and obviously I won't do so in the light of what has developed now, but the cross-examination will be directed to the events involving Mr Khumalo and Mrs Mchunu and it will show that these, all these events, one of which he claims amnesty for, the shooting incident at the meeting, is so inextricably tied up with the shooting, attempted murder of Ms Mchunu and the attempted murder of Mr Khumalo, that it would be completely artificial to separate them as totally different events.
	They are with respect Mr Chairman, and members of the Committee, this will be our submission, but obviously you haven't heard evidence now and you cannot pre-judge it with respect, or fall into the trap of thinking that they are two separate incidents, when you haven't heard evidence on this.
	If he has not been granted indemnity for those two offences, we will continue our cross-examination and we will show that in fact the incidents are inextricably tied up with each other, flowing from the same incident, and all for the same motives.
	You can't deal with it with respect, in a piece meal basis, because he hasn't spelt out in this application Ms Mchunu and Mr Khumalo, that this hearing can continue.  If you are satisfied, if it is established that he hasn't been given indemnity and you are satisfied that I can then continue cross-examining on it, what happens if the Committee is then satisfied that the shooting, the attempt on Mr Khumalo and Ms Mchunu is so inextricably tied up with this amnesty application, that Mr Sithole should have disclosed it, must have known he should have disclosed it and because he did not disclose it, he has not made a full disclosure and therefore he is not entitled to an amnesty?
	Those are the factors which the Committee has to consider at the end of his application, and it cannot with respect, do so by simply treating these incidents as piece meal without knowing that they are inextricably involved, or they may be piece meal.  At least affording us an opportunity if we are so advised to do so, to canvass that issue.
	But obviously we don't want to canvass it now.  If the man has been granted indemnity for that, we are not going to waste your time, but you have to with respect, consider it if he hasn't been granted an indemnity.

CHAIRPERSON: Thank you.  Mr Wills?

MR WILLS: Thank you Mr Chairperson.  Mr Chairperson, I oppose the reservation, the application made by Mr Hewitt to reserve his cross-examination.
	Clearly my understanding of the requirement of full disclosure in the context of amnesty applications, is that you have a obligation in terms of the Act, to fully disclose in respect of the incidents for which you are applying for amnesty and not in respect of anything else.
	It is clear from Mr Hewitt's evidence that he is intimating a certain amount of mala fides on behalf of the applicant, in the sense that it is only because Mr Hewitt has raised this matter, that it has become an issue and that he has fabricated his story to the extent that he is saying no the reason why he hasn't mentioned this in his application, is simply because he's got amnesty for it.
	In response to that, the evidence is quite simple.  We have a copy of a government gazette before us.  It is clear that whilst the details of the exact application are not clear, the applicant's name is indicated on this government gazette and this government gazette is dated in march 1991.
	Surely that must indicate that the applicant has been given amnesty for something that predated the period of 1990, which in essence supports the fact that he has applied for indemnity for something specific prior to that period.
	His evidence has in other words been corroborated to the effect that he didn't disclose this because he's already got indemnity for these facts.
	But more so, Mr Chairman, it seems to me that the incidents must be looked at separately, otherwise one can cross-examine on such a broad range in relation to the lack of full disclosure that we could be bogged down for years.
	I submit that the approach of the Amnesty Committees have been clear in that regard, that you fully disclose in relation to the specific incidents.
	If my learned friend wants to cross-examine on the basis of incidents for which amnesty is not sought, it is my submission that such cross-examination would simply be irrelevant and should not be heard by the Committee, thank you.

CHAIRPERSON: Any reply Mr Hewitt?

MR HEWITT: Yes, just very briefly.  My learned friend talks about a wide range that could make these proceedings interminable.  We are not talking about a wide range, we are talking and this is common cause now, we are talking about two shooting incidents that followed the same night, and immediately after a shooting incident with the same firearm presumably, which he is claiming amnesty for here.  We are not talking about a wide range, where we are on a fishing expedition.
	The issue is very narrow and very circumstride and relates to the same night, by the same person, involving the same firearm and discharging the same firearm.

MR LAX: Mr Hewitt, can you think of any reason and perhaps you could just address us on this, really, this amnesty application is dated May 1997.  If the applicant wanted to apply for amnesty in respect of the two attempted murders, he could well have done so at that stage.
	He has come about matters that he has never been prosecuted for, the only logical conclusion one can come to is that he assumed that he had indemnity for the previous acts, that your clients have an interest in.
	Secondly, if I could just finish, perhaps you can just think about this before you reply, we are not seized of those two incidents at all.  They don't appear before us to the extent that your client has an interest in this matter, apart from your generic client as possibly an IFP, the specific client, Ms Mchunu, what is her interest in this application as it is presently before us?  Just those two issues please?

MR HEWITT: Firstly Ms Mchunu certainly has an interest in the truth and full disclosure being told or given about a shooting incident on this particular night in September 1984 and the reasons why shooting incidents occurred on that particular night.
	She contends that is all inextricably tied up.  You have one version only before you as to why the shooting incident occurred, and that stops as far as Ms Mchunu is concerned, conveniently short of the whole truth by not going a little bit further, which will explain the behaviour of the applicant in its entirety.
	Clearly she has a direct interest in the full disclosure there.
	I think that may well have been your second question to me.  If you could possibly repeat the first one.

MR LAX: Just in terms of that, if it is your client's assertion that Mr Sithole hasn't revealed to us his real motive, starting with the shooting incident at the school, which is what is before us, then you are at liberty to cross-examine him in relation to that incident and his failure to disclose his proper motive.
	But if we are going to then canvass the second two incidents, which are not before us, on the strength of this application form, how does your client have an interest other than - the question was how does your client have an interest in the matter if we are not looking at the incident where she was shot?
	Let's forget about Mr Khumalo for the time being, because he is not before us.