Amnesty Hearings — Cape Town — UNKNOWN

ADV J MOSES: These were referred to by way of example, my Lords and members of the Committee.  The gist of my submission, with respect, would be that certainly there was already an indication by myself on behalf of Mr Mbane that there would be, by virtue of my instruction, there would be an objection should answers be elicited which might be on an incriminating nature, and if that is the case, would that then fall under the provisions of Section 31.

CHAIRPERSON: Thirty one appears to say that he can be compelled to answer any question put to him with regard to the subject matter of the hearing, that is the application for amnesty that is before us.  That is all he can be compelled to answer.  Is that not so?

ADV J MOSES: That is so, that is so my Lord.

CHAIRPERSON: And who has subpoenaed him to give evidence?

ADV J MOSES: My Lord, I have requested the original subpoena and I was given only a pro-forma example thereof, so I am not in a position to hand the original subpoena to the Committee, but it would seem that he was subpoenaed by members of the investigating unit, or members gathering information for the purpose of the amnesty Committee and their work.  Perhaps the Counsel for the Committee could be of assistance there, my Lord.  I apologise - inform you fully as to that aspect, but I have requested a copy of the subpoena.  I wasn't given one.

UNKNOWN: If I may clarify the position, Honourable Chairperson.  The witness was definitely subpoenaed by us.  He was subpoenaed by us.

CHAIRPERSON: And on what is it proposed to lead his evidence?  In regard to what evidence are you going to lead him?

UNKNOWN: The purpose of the subpoena was to elicit not only the information that was gathered from the statement that was included in the bundle, but also whatever other information he may have had that was relevant to the present enquiry.

CHAIRPERSON: But I understand you to say that he was subpoenaed merely to give evidence as to what took place at the scene of the so-called Guguletu 7 incident.

UNKNOWN: That is correct, Honourable Chairperson.

CHAIRPERSON: And is he also expected to give evidence about the infiltration of this group?

UNKNOWN: That is correct.  Not just the scene but the entire operation leading up to the killing of the deceased in this matter.

SISI KHAMPEPE: Ms Patel, on what basis was the statement contained in volume 2 included in the bundle that was given to us and the legal representatives of the applicants?

UNKNOWN: Just a bit of background.  At the time that the statement was included in the bundle, Mr Mbane was untraceable from my information.  And at the pre-trial hearing, it was included in the bundle for what it was worth.  The Committee could have taken whatever cognisance they felt - they felt was, I beg your pardon.  They could have taken whatever cognisance they wanted of it at that stage, and also there was no indication then they we would ever have traced Mr Mbane.

JUDGE MILLER: My recollection is that the last time this Committee sat and it was indicated that Mr Mbane - that the intention was to call Mr Mbane as a witness in this matter, it was the view of the Committee that the whole hearing should be postponed in order to allow him to obtain legal representation which he has now obtained for the very purpose, for the very reason that there was incriminating statements relating to this incident contained in his so-called affidavit, particularly just for example, paragraph 28 and 30.
	So I now ask, has the Attorney General been consulted in this matter, as envisaged by 31(2)(a)?  Section 31(2)(a) says that a person referred to in sub-section 1, that is - 
a witness who may be required to answer incriminating questions, shall only be compelled to answer a question if
(a)	the Commission has consulted the Attorney General who has jurisdiction.
That's one of three requirements.  Has that occurred or not?

UNKNOWN: If I may.  Firstly that point was never raised prior to today, and secondly my understanding of the said section is that it falls within the scope of the Commission and not the Committee or the evidence leader as such.

JUDGE MILLER: I am just asking are you aware of whether they has been complied with?

UNKNOWN: Not it hasn't.

JUDGE MILLER: By the Commission?

UNKNOWN: To the best of my knowledge, not.

ADV J MOSES: Perhaps for the benefit of my colleague, with your permission my Lords, members of the Committee, a Committee is also defined in Section 1 as reference and including or the Commission in chapter 6 refers to a Committee or the Commission as well.  So the reference to Commission in Section 31 would include a Committee such as yourself, with respect.

SISI KHAMPEPE: I think that Ms Patel is aware of that.  It's just that there are certain departments dealing with various issues and we do have a legal advisor who deals specifically with such issues in the Commission, not necessarily in the Amnesty Committee.

CHAIRPERSON: Anybody else wish to say anything on this?

MR BOOYENS: Just one aspect Mr Chairperson.  It seems that if one looks at page 395 and 396 of the second volume and Mr Justice Miller referred thereto specifically, it's apparent that this affidavit that we have been given going to paragraph 59 is not a complete one because there is a paragraph - 60 to 65 is missing from it and perhaps the evidence leader could just inform us what is going on here.  I don't know whether it's relevant because I haven't got it.  Sixty four seems to refer to something to do with trains, or something like that, now that obviously wouldn't be relevant but then there is a part of paragraph 63 which also refers to something else.
	I don't know whether there are perhaps some paragraphs missing from that affidavit. That is one thing that seems to be the cause of some concern here.  Otherwise, I've got nothing further to add.

UNKNOWN: I would imagine, Mr Chairperson, that the best person to answer that would be my investigating officer.  If I can call him.
	He seems to have stepped out - the logistics officer has just gone to look for him.  Thanks.

UNKNOWN: Mr Chairperson, members of the Committee.  On behalf of the families, we would just like to say that we would consider Mr Mbane's evidence to be of vital importance in elucidating the circumstances surrounding the killing of the Guguletu 7 and the planning and infiltration which occurred.  However, we do believe and it appears as though my colleague on behalf of Mr Mbane has indicated that Mr Mbane will be invoking his right against self  incrimination.
	It is almost self evident that if he were to testify about the incident itself, he exposes himself to possible criminal prosecution.  It looks therefore to us that the Committee really has no option but to actually fulfil those jurisdictional requirements before we actually proceed with Mr Mbane's evidence.

CHAIRPERSON: Anyone else wish to say anything?

SISI KHAMPEPE: Ms Patel?  It would appear that there has been communication between yourselves and Mr Vally's office in connection with this matter.  Can we take it as a fact?

UNKNOWN: That is correct.  I would suggest then that...or request that the matter stand down for a short while in order for me to make those arrangements and call the office.  Apparently it won't take too long.