JUDGE WILSON: The applicant in this matter is Mohanatse Stephen Motsamai, his application is numbered 4031/96. Now we have before us in this matter the application which appears to have been completed by the applicant. It is hand-written and it is dated the 8th of November 1996 at Bloemfontein. It was attested to on the 11th of March 1997. We understand that it was thereafter (indistinct - not speaking into microphone) to the investigative unit with the request that he forward it to Cape Town, and that that was done. Is this being interpreted for the benefit of Mr Motsamai?
MS THABETHA: That is correct, Mr Chairman.
JUDGE WILSON: Very well. We then have the next document, is a declaration signed by the applicant on the 24th of March 1997, at which he says he will accord to do so, he is prepared to appear at a public hearing. The next page is details of person making statement and there are details, as I understand it, of the applicant. Save for one, I don't know who filled in the form. Where the question is "home language", the answer is SAP Internal Security. I don't know if they have some private language, but he says at the bottom that he is going to tell - he is not going to tell the Commission about what happened to him, but he is going to tell the Commission about what happened to someone else, as I understand the circling. There is then a document described as a brief description of the violation of human rights. That is signed by him on the 24th of March, as I understand it, that was the statement he made to the TRC, with a view to his appearing at a public hearing.
Annexed thereto is a further document, headed Annexure B, the reasons for this application the following.
I have no idea where that Annexure B comes from or what the relevance of it is, and would be obliged if we could be told.
MS THABETHA: I did enquire from Mr Mthembu, who I hand over now to, to explain the relevance of it, if there is any.
MR MTHEMBU: Mr Chair, at some time in April or so I was phoned by Ms Thabetha, who said she would like to go and see a copy of Annexure B. In effect, Annexure B refers to an application made by Mr Motsamai to the SAPS head office in Pretoria for legal assistance. Annexure A thereof
would have been a declaration that Mr Motsamai has to sign that in the event that he doesn't get amnesty, that he must reimburse the SAPS for the moneys that they shall disburse as legal fees. The Annexure B was then a brief summary of the evidence that he would have led in the Committee.
JUDGE WILSON: So that Annexure B has nothing to do with us, it was prepared for submission to the SAPS?
MR MTHEMBU: Correct, Mr Chairman.
JUDGE WILSON: So the only application before us, is an application for amnesty in respect of the crime of murder, in Melck Street, Bloemfontein.
MS THABETHA: Mr Chair, as I understood it, Annexure B was prepared not for our purposes, but it is evident it was going to be led in front of the Committee members.
JUDGE WILSON: Maybe evidence, but he has not applied for amnesty in respect of those matters. There is an application for amnesty before us, which clearly says what he has applied amnesty for.
ADV MEMANI: Mr Chair, my instructions are that Annexure B as it stands, was Annexure B to an application for funding by the police. That Annexure B was also used for purposes of the application.
JUDGE WILSON: It is not referred to in the application. Have you got his application for amnesty before you?
ADV MEMANI: I have.
JUDGE WILSON: It is quite clear, isn't it, it does not relate to any other offences. Paragraph 9(a), he was asked to furnish sufficient particulars of acts, omissions, offences, in respect of which amnesty is sought. There is one act only: murder. Correct?
ADV MEMANI: That is correct, Mr Chairman. However, Mr Chair, I don't understand why the form was filled in that fashion. However, it is clear that he intended applying for these acts.
JUDGE WILSON: There is no such - it is by no means clear that he intended to apply at that stage for any other acts.
ADV MEMANI: Mr Chair, I am saying that as the papers stand before you at present, it is clear that the applicant intended, in terms of applying for this act.
JUDGE WILSON: Which act.
ADV MEMANI: If you look at Annexure B, it says ...
JUDGE WILSON: Annexure B was prepared for some other purpose.
ADV MEMANI: But have a look ...
JUDGE WILSON: There is nothing. There is no notification by the applicant or on his behalf that he intends to apply for amnesty in respect of those, nor is
(END OF TAPE 1 - DAY 4 - SIDE B) (TAPE 2 - DAY 4 - SIDE A)
JUDGE WILSON: ... to hear applications for amnesty, for people who suddenly get up and say well, I am going to apply for amnesty for all these acts now. There was a cut-off date which terminated.
ADV MEMANI: Mr Chair, this document was not with the TRC before the cut-off date and I was saying to Mr Chair, if you look at Annexure B, it says at the top the reasons for this application are the following. Now this application refers to the application for amnesty and then a lot of offences there or incidents are referred to, which are clearly not murder or limited to murder or anywhere has any relationship with the murder that is referred to at 9(a). If Mr Chairperson ... (intervention).
JUDGE WILSON: Have you read Annexure B? Is there a single word in Annexure B about any act having been committed for a political objective? As is required in an application for amnesty?
ADV MEMANI: Mr Chair, the basis of the application is that these things are committed by the applicant, whilst he was a policeman during the course and scope of his duties as a policeman.
JUDGE WILSON: He doesn't say that in Annexure B.
ADV MEMANI: Mr Chair, he does not say that, but if one has regard to the application in its entirety, one should be satisfied that ostensibly Mr Motsamai is applying for amnesty.
JUDGE WILSON: He is not saying that. The Act is quite clear, if you look at Section 18, that any person who wishes to apply for amnesty in respect of any act or omission, on the grounds that it is an act associated with a political objective, shall submit an application to the Commission in the prescribed form. You have - he has submitted an application in respect of murder in the prescribed form. From somewhere, I think Annexure A it appears, where he details a lot of offences he committed. As I read them he doesn't say any word that he was ordered to commit them, that they were committed for any political purpose. Was this accepted by the Committee, by the staff in Cape Town as being an application for amnesty?
MS THABETHA: Yes, it was, Chairperson.
JUDGE WILSON: On what possible basis?
MS THABETHA: Can the Chairperson give me an opportunity to explain what ...
JUDGE WILSON: Yes, I would like a full explanation as to why we are subjected to this.
MS THABETHA: On the 15th of April I wrote a letter to Mr Mthembu, I have got it in front of me here. I will make copies available to the Committee members. It reads as follows
"I understand you act on behalf of the above applicant."
The above applicant is Mr Motsamai.
"As you are aware Mr Motsamai was implicated in Mr Ngo's letter which was heard in Bloemfontein and which hearing would continue on Wednesday, 14th and 15th of May in Bloemfontein. We intend placing Mr Motsamai’s application on the roll together with Mr Nelson Ngo's matter, since the applications deal with similar incidents. Kindly, clearly outline for us the following
1. What was the nature of the murder committed by the applicant as reflected in the application form at 9(a)(i).
1.1. Kindly give us details of the murder committed, including the dates when, and the manner in which it was committed. Also furnish us with the names of all the victims involved in this act."
And then I say:
"Enclosed please find a copy of the above client's application, as the enclosed statement by applicant form part of his application."
That is my letter to Mr Mthembu.
JUDGE WILSON: And what is the enclosed statement?
MS THABETHA: And then the reply from Mr Mthembu
"Thanks for your fax of the 15th instant. Enclosed find the applicant's statement, setting out in detail the act or omission that he is applying for amnesty. We trust that you will find same in order."
On the basis of such communication I accepted that these statements form part of the application."
JUDGE WILSON: Do you think that you have the right to amend the Act? The Act says it must be done on prescribed form. Why didn't you tell his attorney to do so?
MS THABETHA: I did consult with Adv Mpshe, I showed him the application form and as far as I know ... (intervention).
JUDGE WILSON: Did you show him Annexure B? And that you now accepted that as part of the application?
MS THABETHA: Yes, I did.
JUDGE WILSON: How on earth could you have done so? Why did you not refer it to the Committee that was going to hear the matter?
MS THABETHA: Because I had ...
JUDGE WILSON: So you have misled this unfortunate gentleman in believing that he had made an application when he hadn't?
MS THABETHA: Because Adv Mpshe is my head, I consulted with him and he said there is no problem.
JUDGE WILSON: Well, we shall request a further explanation from him.
JUDGE NGOEPE: Excuse me. Ms Thabetha, the statement which was sent by Mr Mthembu in response to your letter, is that the document that you are talking about now?
MS THABETHA: Annexure B, yes, it is.
JUDGE NGOEPE: What document did you send to him, to Mr Mthembu? You referred to - because in your letter you mention a document that you did send to him.
MS THABETHA: It is the hand-written statement.
JUDGE NGOEPE: Which one?
JUDGE WILSON: Where is it?
JUDGE NGOEPE: Is this the one ...
JUDGE WILSON: The hand-written statement.
JUDGE NGOEPE: Is this the one which is on the ...
MS THABETHA: On the TRC, yes.
JUDGE NGOEPE: You sent that to Mr Mthembu?
MS THABETHA: Yes, I did.
JUDGE NGOEPE: And in return he then sent you Annexure B under the circumstances that you have explained.
MS THABETHA: Yes.
JUDGE NGOEPE: You see, I think the important thing is for us to understand what the intention of the applicant was when he sent Annexure B. It is of the utmost importance for us to understand that, and if his intention was that he was in fact making an application for amnesty, in respect of the acts or offences set out in Annexure B, the next question which is different from the first one, the next question would be whether or not in the manner and the form in which he is seeking also to be applying for amnesty in respect of those acts, that he complies with the requirements of the Act. It may very well be that the applicant in fact, when he submitted Annexure B, in fact he intended to apply for amnesty in respect of those particular acts. But then the next question would be, now how has he applied in a way that will comply with the prescribed requirements. And that is a different issue which can be approached differently. For example, we may hear argument as to whether the initial application form could be amended et cetera, et cetera. But we need to understand the exact basis or the exact understanding that existed as the basis on which this Annexure B was submitted. Because if the applicant was having in mind that he was in fact applying for amnesty in respect of the things set out in there, it would be grossly unfair to answer to him, particularly because the closing date has come and gone. To answer him on that technicality, while he was in fact under the impression that he has got an application before us.
JUDGE WILSON: You know fully well that one of the requirements is that they must state what the political objectives sought to be achieved. Don't you?
MS THABETHA: Yes, I do.
JUDGE WILSON: And Annexure B does not contain a single reference to a political objective, does it?
MS THABETHA: No, it doesn't.
JUDGE WILSON: So why didn't you draw this to the attention of his legal adviser? Why did you just - you say that Mr Mpshe told you, but you are the evidence leader in this case. It is your responsibility.
MS THABETHA: I said I discussed it with Adv Mpshe.
JUDGE WILSON: Why didn't you then say I note these things, they are not - because your letter was specifically relating to the application in respect of the murder. You now get a whole lot of different facts thrown at you. Why did you not point out to the lawyer that this does not comply with the provisions of the Act. It is not an application form, enclose a blank form, and say kindly submit fill in a form.
MS THABETHA: Well, maybe that was my mistake and I take full blame for it.
JUDGE WILSON: And how many other such mistakes have been made that we are going to find out?
MS THABETHA: Not any.
JUDGE NGOEPE: I don't think we should try to look too much into the future. I think we should restrict ourselves to this case and try to solve what we must do now, because I really don't think that it will be fair to an applicant, who thinks that he has applied for amnesty, and then after - to be told after the closing date that we can't hear your application for amnesty because of the fact of or perhaps oversight on the part of some other people.
ADV DE JAGER: Can somebody please explain to me; we have got a statement here headed "declaration". It may be that it is Annexure A to the application. That is a statement made by the applicant on the 24th of March for - and it contains a brief description of the violation of human rights. So this statement was made for the HRV Committee. How did it come that a statement that should be completed by a victim, was presented to the applicant and how it had come that he had completed this statement, because this statement has nothing to do with amnesty but has everything to do with reparation and rehabilitation.
MS THABETHA: As far as I understood it, when this statement was handed over to me, inasmuch as it was filled in on an application form for HRV, but we could use the statement, because it was a TRC statement, as a statement which forms part of an amnesty application form. That's why I say maybe I should take the blame for this, for overlooking such ... (intervention).
ADV DE JAGER: It can't form part of an amnesty application, but it could be used as evidence. If you put it in a bundle so for evidential value, it may be relevant, but as I say it is quite a form addressed to a different committee. It has got nothing to do with amnesty and the only thing that I wanted to know, is how it had come that the applicant, who is an applicant for amnesty, was requested to complete a form for the HRV Committee?
MS THABETHA: I don't know because I didn't assist Mr Motsamai in filling in this form, but I was given this form on our last hearing at (indistinct) to consider what the evidence that is on the form, for purposes of amnesty applications. So I wouldn't know the answer to that question unfortunately.
ADV DE JAGER: Could your client kindly try and assist us? I don't know whether you are in possession of this form. Would you kindly assist us as to how did your client, who requested him to complete this form and how did it come that he completed this form?
ADV MEMANI: Mr Chair, I will do that, but at the same time, I think I have the difficulty that at the end of the day we must consider whether we are going to now perhaps condone the irregularity in the filing of the application and whether or not we are going to allow, if we deem it to be the correct procedure, to amend these things. It does not seem to ... (intervention).
ADV DE JAGER: You are correct, we will decide that at the end of the day, but could you kindly give this information to me so that I could consider whether this should also be included in the amnesty form or not, if we allow it at the end of the day.
ADV MEMANI: Mr Chair, the applicant ... (intervention).
JUDGE WILSON: (Indistinct - microphone not switched on).
INTERPRETER: The speaker's mike is not on.
JUDGE WILSON: (Indistinct).
ADV MEMANI: As the Chair pleases.
COMMITTEE ADJOURNS
JUDGE WILSON: Right. Are you able to tell us how your client, who got your client to fill in that form?
ADV MEMANI: Mr Chairperson, my learned friends are not here and they are asking for amnesty in default.
JUDGE WILSON: I don't understand you. Amnesty is not granted in default. The applicant has to make out a case for amnesty.
ADV MEMANI: As the Chair pleases.
JUDGE WILSON: I took it that they were not here because they had abandoned it and they had left no papers here?
MR WAGENAAR: We do apologise, Mr Chairman.
JUDGE WILSON: Are you appearing in this matter?
MR WAGENAAR: In the Motsamai matter?
JUDGE WILSON: Yes.
MR WAGENAAR: Yes, Mr Chairman.
JUDGE WILSON: None of your clients at the moment have been mentioned - yes, they have, two of them have been. All right, can you inform us how it came about that your client made this first statement, the declaration and the brief description of the violation of human rights.
ADV MEMANI: My instructions are that he approached an official of the TRC and informed the official that he was - he intends making an application for amnesty, and he was given the forms to complete. The name of the person is unknown to the applicant.
JUDGE WILSON: Your client does realise the importance of telling the truth, doesn't he?
ADV MEMANI: He does, I suppose, M'Lord.
JUDGE WILSON: Perhaps I should read the beginning of paragraph 2 that he wrote out. You say now he approached somebody at the TRC and said he wanted to apply for amnesty.
ADV MEMANI: That is correct.
JUDGE WILSON: Paragraph 2 says
"I knew the applicant, Nelson Ngo, from school time."
That is not an application from him for amnesty. That is informing somebody what he knew about another applicant. Is it not?
ADV MEMANI: That is correct.
JUDGE WILSON: So the version you have just given us of your client is not true.
ADV MEMANI: No. No, M'Lord.
JUDGE WILSON: If he was applying for amnesty, why on earth should he say "I knew the applicant, Nelson Ngo"?
ADV MEMANI: At the time he was aware that Ngo had made application, an application for amnesty and Ngo had implicated him and the official responsible was aware of this fact and apparently ...
JUDGE WILSON: Who told him that? That Ngo had applied for amnesty and had implicated him?
ADV MEMANI: He was served with notice, I am told, M'Lord.
JUDGE WILSON: And then as an interested party he went to make a statement?
ADV MEMANI: He was applying for amnesty.
JUDGE WILSON: He had already applied for amnesty and had filled in a form, which he had attested two weeks before, on the 11th of March he had sworn to the correctness of his form and then handed it in to the TRC. He could not have believed that this other form that he filled in was an application for amnesty, when he had seen the correct form two weeks earlier, less than two weeks, 11 days earlier.
ADV MEMANI: Mr Chair, my instructions are that he applied for amnesty. At the same time he was called upon to attend a consultation at Pretoria as an objector to Ngo's application. At some stage it was discovered by the legal representatives of the police that he had in fact had applied for amnesty and they then disassociated themselves with him and they left him in the hands of the TRC. The TRC then took the statement from him.
JUDGE WILSON: Yes.
ADV MEMANI: He was invited then to make a statement again. So at that stage he made a statement with the understanding that he was assisting in his application for amnesty.
JUDGE WILSON: But did the application ...
ADV MEMANI: And the prelude to the - the reference to Ngo was in response to questions put to him, about whether he knew Ngo and so on.
JUDGE WILSON: That is obvious, I said that (indistinct - microphone not switched on) and what Ngo had said he did. He was asked to make a statement about Ngo. It is quite clear.
ADV MEMANI: Mr Chair ...
JUDGE WILSON: And as you have just said he was asked by the TRC to make a statement, which he did.
ADV MEMANI: Yes, Mr Chair, but now I don't understand how you - why you would come to the conclusion that he was not applying for amnesty, because it then says things that are not related to Ngo at all.
JUDGE WILSON: Because he had filled in an application, an amnesty application form. He is an intelligent man. He had filled in a form. He knew what they looked like. He knew what was contained in them. He had sworn to that form 11 days before. He could not have believed that this was the same form. Could he? He knew what the form looked like.
ADV MEMANI: Now Mr Chairperson, he was applying for amnesty. If a person is applying for any other purpose, he doesn't say - he doesn't say that I know of violations of human rights by other people.
JUDGE WILSON: He is, he is being asked, if you look at the whole form he is being asked - he starts, the first declaration he makes, is - read it
"I solemnly declare that the information I am about to give the Truth and Reconciliation Commission is to the best of my knowledge true and correct.
If you are called to a public hearing, will you be prepared to appear."
And he puts a ring round "yes". No mention of amnesty there. He then fills in details of his own. He says he is going to tell the Commission about - he is not going to tell the Commission about what happened to him. He is going to tell the Commission about what happened to someone else, if you look at the bottom of the page, where he circled "no" and "yes". And then he makes a statement.
ADV MEMANI: Now Mr Chair, I am tempted to say that if you look, you have to determine whether this document was intended most probably for application for amnesty or was intended for anything else by the applicant, and I believe that we will find that intention by looking at the contents of his statement, which is headed "brief description of the violation of human rights". Now on that statement he describes not human rights violations that were committed by other people, but he describes human rights violations that were committed by himself. In a sense he is confessing to having committed human right violations and we have to ask ourselves why and we know that he has previously entered an application for amnesty. We know now, as I have told you, that the legal representatives of the police disassociated themselves with him, because he had applied for amnesty, and handed him - made him available to TRC officials, and the statement was made immediately thereafter or within that context.
JUDGE WILSON: Yes, but I don't think he could have - it relates only to the attack on Mrs Winnie Mandrel’s house, doesn't it?
ADV MEMANI: No, no, no, M'Lord. What I am saying to his Lordship is whether we are concerned with the question whether he was applying for amnesty or whether he was making a statement of information generally.
JUDGE WILSON: Yes.
ADV MEMANI: To the police.
JUDGE WILSON: And I think he was - he wasn't making a statement to the police, he was making a statement to the Human Rights Committee.
ADV MEMANI: Yes, but he does refer to incidents wherein he was not involved, as a person who is not applying for amnesty too. He refers only to incidents in which he himself was implicated and in my submission that is an indication that the person intended applying for amnesty, unless someone is going to come and tell the Committee that the applicant does not know of any human rights violations, except those that were committed by himself.
JUDGE WILSON: And the only ones he refers to in this thing, are the attack on Winnie Mandela's house and the burning of a car at Mr Jannie Mohapi's. Is that not so?
ADV MEMANI: M'Lord, I am - the document starts at paragraph 1, which is the declaration or introduction of the person making statements.
JUDGE WILSON: Yes.
ADV MEMANI: And then it runs up to paragraph 6.
JUDGE WILSON: Yes?
ADV MEMANI: And there he does not refer to Winnie Mandela only.
JUDGE WILSON: In paragraph 6 he refers to Jannie Mohapi.
ADV MEMANI: Yes.
JUDGE WILSON: All the rest is Winnie Mandela.
ADV MEMANI: That I accept, M'Lord.
JUDGE WILSON: Yes. Is it not more likely that he was asked by somebody to make a statement and that that's what he did and for some reason, which appears and we do not know, the statement was then taken and handed to the Amnesty Committee, because he gives - you have now got your Annexure B.
ADV MEMANI: Yes.
JUDGE WILSON: Numerous offences. If he was asking for amnesty why didn't he deal with them?
ADV MEMANI: Mr Chair ...
JUDGE NGOEPE: Mr Memani, isn't it perhaps good argument for you, when you look at paragraph 3 "brief description of the violation of human rights", you see that, the heading there?
ADV MEMANI: Yes.
JUDGE NGOEPE: In big and bold letters. While the heading speaks of "brief description of the violation of human rights", the whole of that page in fact says nothing about violation of human rights. It has, now the contents thereof have nothing - they are not telling us anything about the violation of human rights. They talk about burning a house, damaging property, which in fact it is not a violation of human rights. Wouldn't that indicate that he was in fact, he was not making it his business to tell us about the violation of human rights, but rather he was trying to say something else, which could we have been that he was maybe, as you say, talking about himself, and setting out the offences which he committed, possibly for which he might be seeking amnesty, because it seems to me although the heading asked for violation of human rights, what he is saying here is really ...
JUDGE WILSON: Somebody from the TRC took this statement from him, and sent it to the Amnesty Committee. As a result of which on the 15th of March, is it, a letter was written to your attorneys, in which they were asked whether this statement formed part of his application for amnesty. They replied on the 17th with a fax in which they set out - they annexed Annexure B and said this sets out in full our client's application or words to that effect, and the final sentence of that letter reads we trust this will be in accordance, will meet with your requirements, or something of that nature. I haven't got the letter in front of me. There was such a final sentence. Have you got the letter there?
ADV MEMANI: Yes, Mr Chairman.
JUDGE WILSON: What is the final sentence written by you?
ADV MEMANI: It says that
"We trust that you will find same in order."
JUDGE WILSON: Yes, that is what you wrote to the Amnesty Committee and it was apparently accepted as being in order. And are we not then stopped from saying that this was an amendment to your application, from holding this was an application in the light of the fact that you were misled. You were first told in the first letter, you were asked whether the statement form part of your application and then when you replied and set out Annexure B which does not comply with the requirements of the Act, but does set out in detail various offences that he was - had committed, this was apparently accepted.
ADV MEMANI: That is correct, M'Lord.
JUDGE NGOEPE: Judge Wilson perhaps asked a question how really this document came into your possession. I think maybe you should explain to us how, if you know, could it be because one is just really trying to think how it came into the hands of the Amnesty Committee. It may very well be that it was received by the Human Rights Violations Committee and when they looked at it, and as I said earlier on, they looked for example at page 3 and they realised that no, this has nothing to do with the violation of human rights. They passed it over to the Amnesty Committee. How did this come into the hands of the Amnesty Committee?
MS THABETHA: To tell you the truth, Judge, I don't remember how it came into my hands, but what I remember is that there was a discussion that transpired between Mr Motsamai and one of our TRC members, where Mr Motsamai explained that he had applied for amnesty or he intended applying for amnesty and he was referred to the offices at the TRC. This occurred when we were here in Bloemfontein the last time. He was referred to the offices of the TRC where he explained that he had applied for amnesty and wants to make a further statement to that. And then Mr Bosman took the statement. So I really cannot remember off-hand how the statement got to - how it came to me. I really cannot.
JUDGE NGOEPE: And then after you received it, for some reason - well, I know that you have accepted blame, perhaps correctly so, and that was gracious of you to have done so. After receiving this document then, you wrote a letter to Mr Mthembu and then you asked him whether this document is part of the application or something like that.
MS THABETHA: Actually before writing a letter to Mr Mthembu, I went to Adv Mpshe's office because it was also, I think on the news that Mr Motsamai had applied for amnesty. I think it was on the radio or something, and I went to Adv Mpshe to discuss it with him and to discuss the fact of actually putting in the application form. That is when I opened it up. It is just that I can't remember how the statement got into me.
JUDGE WILSON: One further problem with the letter which I haven't got before me, unfortunately, I am quoting from memory now, that you say you had at that stage an application from Mr Motsamai, relating to a killing in Melck Street, and that was all.
MS THABETHA: Yes, and of course the hand-written statement.
JUDGE WILSON: The only application you had at that stage was the killing in Melck Street, the murder in Melck Street.
MS THABETHA: In the application form, yes.
JUDGE WILSON: In the application form. You also had a document that had been taken by the Human Rights Commission apparently, and a declaration, you had those, that paper.
MS THABETHA: Yes, M'Lord.
JUDGE WILSON: You wrote in your letter that you were going to set it down as the same time as Ngo's application, because the applications related to the same incident.
MS THABETHA: Yes, I said I intended ...
JUDGE WILSON: Yes.
MS THABETHA: to set them down, yes.
JUDGE WILSON: But the only valid application you had from Mr Motsamai related to an incident that had nothing to do with Mr Ngo.
MS THABETHA: Like I explained, I also had a statement with me, but ...
JUDGE WILSON: But you are accepting it already as forming part of the application. That is the point I am trying to make. You accepted it at the time you got it, as forming part of the application, didn't you?
MS THABETHA: I wouldn't say I accepted it as forming part of the application, but to me it appeared as if it was a statement, you know, relating to Motsamai's application. That's why I wanted a confirmation from Mr Mthembu.
JUDGE WILSON: Well, why didn't you ask him to amend his application, to extend it to this? You had an application in front of you, which I presume you looked at. This is what worries me. We refuse applications because they are not shown to be politically inspired, don't we?
MS THABETHA: Yes, we do.
JUDGE WILSON: These applications, you wanted a lot more information if they were applications, but you rather wrote and said this is - I am supporting what my Brother here says - your letter indicated that you accepted this, that this could be part of his application, didn't it?
MS THABETHA: Yes, it did.
JUDGE WILSON: And when you got Exhibit B you accepted that as forming part of his application, and you didn't write back and say we cannot accept this, or will you file a proper application, or anything of that nature. Despite the request at the end of his letter where he says does it meet with the requirements, you accepted it.
MS THABETHA: As I have explained to Mr Chair, I did go and consult with my head about it.
JUDGE WILSON: Well, it doesn't matter, you ...
MS THABETHA: And yes, I accepted it.
JUDGE WILSON: The management of the Amnesty Committee accepted it and did not communicate with the applicant's attorney.
MS THABETHA: Yes, we did accept it.
ADV DE JAGER: I have finally got one further problem, that I haven't raised yet and which only occurred to me now. This application was signed under oath on the 23rd of March 1997, no, on the 11th of March 1997. I don't know when it was received by the Amnesty Committee, but we have the position as far as I know, that the cut-off date and the date to file applications was not extended legally yet.
MS THABETHA: The application form was signed on the 8th of November 1996.
JUDGE WILSON: Contested, is what you were asked.
MS THABETHA: Okay. Yes.
ADV DE JAGER: Do you know whether the Act has been amended in the recent week, yet to extend the cut-off date and to extend the date in which applications should be filed?
MS THABETHA: As far as I know it hasn't been amended.
MR MTHEMBU: But Mr Chairman, the date is the 11th of March not the 11th of May, if that is what you are thinking of.
ADV DE JAGER: Yes, the 11th of March. I am happy with the 11th of March. That is after the time that applications could have been filed, in terms of the existing Act, which hasn't been amended up to today as far as I know.
MS THABETHA: As far as I know, Member of the Committee, when we get an application form, that has not been attested, we usually send it back to the person to attest it - you can correct me. We take it that the application form is just that not all the information is there, such that if it was ... (intervention).
JUDGE WILSON: The point is, what is the legal cut-off date at present.
MS THABETHA: The 10th of May.
JUDGE WILSON: May?
ADV DE JAGER: The Act was never amended.
JUDGE WILSON: The Act was never amended, was it? It was notified that it was going to be, but has it been amended?
MR WAGENAAR: If you are asking me, Mr Chairman, I was under the impression that it was done by proclamation.
ADV DE JAGER: You are under the wrong impression, because it is the Constitution, the old Constitution had had to be amended and I know they have been busy doing it, but I don't want to belabour it now, because if I am correct, we decided in another matter that we can't hear matters before the Act has in fact been amended. So I am inclined to - seeing all the problems we have in this case that I shouldn't burden you with another problem, but at least I want to draw your attention to it, because I think perhaps that's another problem, but let's leave it at the moment, because we could perhaps deal with it later.
MS THABETHA: Can I ask a question, Adv De Jager. Are you saying that if an application form was signed before December and it was not attested to, let's say it was attested to after December, in essence what it means is that the date of the application form is after December?
ADV DE JAGER: No, in essence it would mean that you should ask us to condone it, because it is a mistake, it is not a real application in terms of the prescribed Act. It can't be amended without being condoned. It is a mistake, and it should be condoned because the prescribed form requires an attested form. And if something is not - if it is not sworn to, it is not a good application, but it could be made good by signing it and if it is condoned this over - the fact that it wasn't signed before, could I think, be condoned by the Committee if the Committee is asked for, or if the Committee is prepared to condone it without being asked. But it is not legally correct, and all you people should know that.
ADV MEMANI: Isn't the legal position that where a party is required to comply with certain formalities, in making an application, if he makes the application before the prescribed date, but it is defective, there is an application but the application is defective, and if the defect is corrected before the actual hearing, there is - when the hearing takes places, a valid application before the tribunal.
ADV DE JAGER: But shouldn't you be asked to condone your own mistake? Can you correct your own mistake without being asked to condone it? By the people sitting about it. But let's leave it. I don't want to burden you with further arguments, because I see you are not prepared on this, and you can't argue at the moment, so let's leave it there, and we will consider it and I think, at the moment, perhaps we should allow you to lead evidence and we should reserve judgement and see what we should do. Whether we can solve the problem for you.
JUDGE WILSON: One of the problems for you, is the last question you put to Mr De Jager, is that the application may have been dated the 8th of November. It was not handed in to be sent to the TRC, it was not lodged till after it had been signed on the 11th of March, when it was handed over to an officer of the TRC here in Bloemfontein.
ADV MEMANI: M'Lord, I don't think that is the situation. He applied for amnesty before it came to the TRC, and then what occurred in March is that there was a kind of complication, amplification of the ... (intervention).
JUDGE WILSON: That is a different transaction which took place on the 24th of March.
ADV MEMANI: That is correct, M'Lord.
JUDGE WILSON: The application form was handed in after shortly after it was attested on the 11th of March. It was not handed in with that other form and that ... (intervention).
ADV MEMANI: There is some implication that the Truth and Reconciliation Commission received it on the 20th of December 1996.
JUDGE WILSON: There is a stamp there, but then it was returned to him apparently, but if you will look at the Act, the definition of the Act in the Act its cut-off date means the latest date allowed is the cut-off date in terms of the Constitution, and that is what has to be amended. But I hardly support my colleague's suggestion that we should get on with the evidence. Do you have anything to say in that regard?
MR WAGENAAR: Mr Chairman, insofar as we do have an interest, may we be allowed to perhaps clarify certain points. May I however, preface what we are going to say now by saying that it certainly isn't our objective to stand in the way of anybody who wants to ask for amnesty, where he is obviously entitled to it, but what has occurred here, Mr Chairman, is that at the last hearing, which was, I think the 23rd, 24th of March, when we were in Bloemfontein, we were presented with the hand-written statement which became handed in as Exhibit P28, the one that you have been referring to now as the statement to the TRC. At the time we requested Mr Mpshe to explain to us what the status of the document was, which at the time he was apparently not able to do. He, however, wanted to hand it in, and we had no objection to him doing so, and Mr Chairman, unfortunately again, we haven't got a transcript of the record, but there was something placed on record by Mr Mpshe in regard to Exhibit P28. Unfortunately, I cannot remember what was said about it, but what I do remember, Mr Chairman, is that we stated our position to be that we don't object to it being handed in, but we question its status in an application for amnesty.
Now Mr Chairman, may I take you to last week. On Wednesday I was confronted by 13 people in my chambers, who came to consult with me on what was stated in the further document which was referred to as Annexure B. Apparently that had been forwarded by Mr Mpshe to some of the implicated persons as part of Section 19(4) notifications. When we - that is my attorney and myself, were confronted with Annexure B, my attorney acting on my instructions, telephoned Mr Mpshe and he asked him what the status of Annexure B was. First of all, I am sorry, Mr Chairman, may I repeat. First of all, we asked Mr Mpshe to please forward us the complete application, so that we could see what was intended to be the application. We then received the original application form signed on the 8th of November. We received Exhibit P28 and we had received Annexure B. My attorney thereupon telephoned Mr Mpshe again. And he said -he asked him what the status is of Annexure B and what the status is of - I'm sorry, Exhibit P28 and Annexure B. Mr Mpshe then tells my attorney that he wasn't dealing with the matter, Ms Thabetha was. Ms Thabetha then spoke to my attorney. In the course of which my attorney told her that we have serious doubts as to the legality of both Exhibit P28 as well as Annexure B. We intimated that we believed that it was our duty to bring this, draw this to the attention of the Committee at this stage.
Now today Mr Chairman, Justice Ngoepe has stated the position exactly as we attempted to state it to the Commission's officials. Maybe the first point of departure is whether Mr Motsamai intended this to be an application for amnesty. If we assume that it was, the next question is whether ... (TAPE FADES - INDISTINCT).
... and then over the page at Section 18, which you have already read today, Mr Chairman, makes it plain that an application for the granting of amnesty must be completed in the prescribed form. That is the one promulgated by regulation and that is the typical form 1 which we have here before us in all these applications. Then, Mr Chairman, we read on and we came to Section 20, which is quite explicit, in our submission, Section 20, where it says -
"Granting of amnesty and effect thereof, the Committee, after considering an application for amnesty is satisfied that;
(a) the application complies with the requirements of the Act."
We read through the Act, Mr Chairman, in order to attempt to find any jurisdiction on the part of the Committee to condone any non-compliance with the Act, and we could find none. Again, Mr Chairman, we are not here to stand in the way of Mr Motsamai, but these are the considerations which prompted us to inform Ms Thabetha at the time. We will inform the Committee that there is only application for amnesty before you and that is the murder in Melck Street. Having said that, Mr Chairman, we have prepared on all the other incidents and we leave it in your discretion, Mr Chairman, as to what you are going to do about it.
JUDGE WILSON: The suggestion was, not that we should give a ruling at this stage, but that we should get on with the evidence and we can then apply our minds to the question which has been raised by you, which I think it must be fairly obvious to you, is exactly the same, we have had the same problems ourselves, and have raised them with the applicant and the leader of evidence, as to what is the thing. The question is, and it is perhaps a complicated legal argument, are we condoning or are we estopped from accepting in the light of the action taken, that that's a matter which will have to be decided, but in the meantime we felt that we could get on with the evidence and finish the evidence in this matter. People have been here for some time and will be able to finish the evidence this afternoon now?
MR WAGENAAR: Mr Chairman, speaking for myself in reply to your question, I heard your sentiments that you expressed
that you are not at all certain that one should continue with the evidence. But from a practical point of view, whether we do not or not hear the evidence today, is going to make no difference to whatever your ruling might be at a later stage. So that with great respect, we would suggest if we have time, let us rather use the time constructively. I know that is against the sentiment that you have expressed, but we would like to get on with it.
JUDGE WILSON: I said my sentiment is that we should hear the evidence.
MR WAGENAAR: Yes.
JUDGE WILSON: So I presume, but the evidence will not affect the ruling on the question of law. So there is no prejudice to anyone, we can consider that at a later stage, but we are here, let us, if we can, finish it today.
MR WAGENAAR: We would certainly not object to that, Mr Chairman.
MR MOTSAMAI: Am I allowed to ask something, Sir? I want to explain to the Committee the issue that has been discussed now, if I am given an opportunity. I filled in the amnesty form and I wrote on clean pages all the acts that I committed. On the 8th I gave Mr Phule all the documents to post. He is a member of the TRC. he took those forms to post them and after a while I think, it was on the 11th, I received a letter. The top part of this application was sent back. I was told that this was not done under oath. I was asking myself questions why didn't they bring back all the forms. I was asking myself the reason why only one page was sent back. I went to be under oath and I sent it back. I think I was filling in these forms and space was not provided at some of the questions.
JUDGE WILSON: I'm afraid I don't understand what your client said. Perhaps you would like to clarify it.
MR MEMANI: I don't have instructions on the issue, M'Lord.
JUDGE WILSON: Well, you said you didn't have space for some of the questions. Have you got the application form in front of you?
MR MOTSAMAI: I didn't have enough pages to add all the acts I committed. That is why I used other additional pages to elaborate on the acts that I committed.
JUDGE WILSON: Sorry, are you saying that when you filled in the application form, the original form, which you filled in on the 8th of November, you also had other pages attached to it?
MR MOTSAMAI: Yes, three pages, Sir.
JUDGE WILSON: What would they have looked like?
MR MOTSAMAI: This is a lined page, three of them in number. I wrote the houses and the names of the people we attacked.
JUDGE WILSON: Are those here?
MR MOTSAMAI: No, this one I filled in when we were here in Bloemfontein the last time.
JUDGE WILSON: So you say you filled in, when, in December, was it, when you first filled in the forms? November?
MR MOTSAMAI: Yes, it was in November, when I filled the application form. I am now surprised as I am told that it is only this one that I am having in my hand that you received, and that the three pages where I indicated the names of the people and the actions that are committed, is not - they are not included today.
JUDGE WILSON: And that you handed to who, Mr Phule, you say?
MR MOTSAMAI: I gave them to Mr Phule, he is the member of the TRC.
JUDGE WILSON: That was in November, was it?
MR MOTSAMAI: Yes, it was in November. That is why I told my legal representative that I have submitted an original form and three additional pages.
JUDGE WILSON: So that is what you meant, now this makes far more sense when you said you filled in other application forms. That was the three pages that you sent in November. You weren't talking about these ones I have just shown you. It was in November, you say?
MR MOTSAMAI: I wasn't referring to the one you are having now.
JUDGE WILSON: You are referring to three other pages, you say you handed in to the TRC representative in Bloemfontein, is that?
MR MOTSAMAI: That's correct.
JUDGE WILSON: And later you received back just this one page, which you later took to somebody and got it stamped and sworn to? Have you got the page there?
MR MOTSAMAI: Yes, I went to Rocklands police station to be under the oath.
JUDGE WILSON: It is page 7 of the papers before you.
MR MOTSAMAI: Yes, I went to the police station in Rocklands and the warrant-officer there went through the form and I told him that I have committed these acts, and I was requesting him to stamp the form.
JUDGE WILSON: What form did he go through if you just had one page? Did you just have that one page or did you have the whole form?
MR MOTSAMAI: I didn't have the top pages, I only had pages from this one I am showing you.
JUDGE WILSON: That is the front page, and you must have had the last page because he stamped it.
MR MOTSAMAI: Yes.
JUDGE WILSON: Did you have the whole application?
MR MOTSAMAI: Yes, the whole application was with me.
JUDGE WILSON: But not the three pages?
MR MOTSAMAI: No.
JUDGE WILSON: Is there anything else you wish to tell us?
MR MOTSAMAI: Nothing, Sir, I wanted to clarify this issue.
JUDGE NGOEPE: The pages on which you wrote, the blank pages, that is how I understand you, on which you wrote certain things, are they there, just page through your application and tell us whether they are there?
MR MOTSAMAI: Can you please explain, Sir, which pages are you referring to?
JUDGE NGOEPE: I thought, I might have misunderstood you, but I thought you said that because the application form did not have enough space, you wrote certain things on blank pages, which were provided to you.
MR MOTSAMAI: Yes, that is correct. I don't see them here, they are not here. Those three pages, these are the blank pages, I took them from an exercise book. I didn't have anything to write on, I decided to use them, and I gave them all to Mr Phule, together with this application form.
JUDGE NGOEPE: You say those pages are not here?
MR MOTSAMAI: No, they are not here.
JUDGE NGOEPE: When did you give them to Mr Phule?
MR MOTSAMAI: It was in November.
JUDGE NGOEPE: Was it the same time when you gave him this application form?
MR MOTSAMAI: That's correct.
JUDGE NGOEPE: All right, thank you.
JUDGE WILSON: I notice though, if you look at paragraph 9, you see paragraph 9?
MR MOTSAMAI: On which page?
JUDGE WILSON: Page 3.
MR MOTSAMAI: Yes.
JUDGE WILSON: You are asked what acts or omissions you committed and you have written murder. Do you see that?
MR MOTSAMAI: Yes.
JUDGE WILSON: It is quite a lot of room there for you to have written other things as well.
MR MOTSAMAI: No, this is not enough. This is too little, because I had a lot of things to say.
JUDGE WILSON: You could have put some of them there.
MR MOTSAMAI: I would not be in a position to fit them all in.
JUDGE WILSON: Any questions?
MR WAGENAAR: Mr Chairman, if I may. Mr Ngo, perhaps it is important for - Mr Motsamai, perhaps it is important for you to tell us what you actually stated, as you can remember, in those three pages, what did you refer to in those three pages?
MR MOTSAMAI: Can I please be given an indication, is it now part of my evidence that I have to start with, what is happening? Because I will be repeating the information or the actions I committed before the proceedings.
JUDGE WILSON: So far this has been in the nature of an explanation volunteered by the applicant, not evidence, because he hasn't been sworn in as yet as a witness.
MR WAGENAAR: Yes, Mr Chairman, I am just concerned that there are other documents floating around which we don't have before us and what I would have hoped to have heard from the witness now, if he didn't refuse to answer the question, was to tell you what I had on those three pages are exactly the as you have got on Annexure B, for example.
JUDGE WILSON: That's what I think he may have misunderstood and thought that you wanted him to go into the details of the various offences.
MR WAGENAAR: Yes.
JUDGE WILSON: We don't want you to give evidence now and tell us details. We just want to know, you said there were many other offences that you were asking for amnesty for, and you filled them in on these other three pages. Now we don't want details of them, we don't want to know who the victims were, things of that nature, at this time. You are just being asked what sort of other offences were you asking amnesty for.
MR MOTSAMAI: Some of the acts that I am asking amnesty for are indicated on Annexure B. I sent that form because my legal representative wanted to know the acts I committed. They appear on the three pages I have mentioned earlier on, but in an elaborated way.
MR MEMANI: Mr Chair, may I suggest that we start with the evidence now.
JUDGE WILSON: (Indistinct) short adjournment now.
JUDGE NGOEPE: I don't know what stands in those papers which apparently are missing, and I don't know whether they will ever be found or not, but if you say so we will do so. If you say you want us to proceed and your client to start testifying, even before you see those documents and we see what stands in those documents, if you are not worried that the contents thereof may later embarrass you, and the nature of that evidence that you are going to lead, we are in your hands. If you can tell us to do so.
JUDGE WILSON: I suggest that we should perhaps - I understand you have not consulted with your client on this aspect, that we should perhaps take a short adjournment, and I mean short, for you to ascertain from your client what was contained on those three pages, so you can then answer the question my Brother has asked you.
MR MEMANI: As the Chair pleases.
COMMITTEE ADJOURNS
ON RESUMPTION
JUDGE WILSON: As result of enquiries made by my Brother, Judge Ngoepe, we have been informed that there are three pages relating to this applicant's application at the office in Cape Town. We understand that they are at the present time being faxed up here and that the first page or two have arrived. In these circumstances it seems impossible to proceed with the matter at the present time. These pages must be made available to the parties and an investigation made as to when they were received, because if that is - if they were sent, as we were told they were, we can stop talking about the Annexure B and everything else. It appears that a proper application was launched at the proper time, with the necessary annexures, because our attitude has been that we do not insist that everything must be written on the principal page, as long as it is attached to the application in terms of the Act. And if that was done here, well, then the question we have spent a great deal of time on today debating goes out by the window. We continue and the parties must obviously be given an opportunity to investigate the incidents which he in fact applied for amnesty originally. And it appears that having regard to the time now, it would be impossible to conclude the matter today and it would be unfair to commence the evidence of a witness when one is going to have to adjourn halfway through his evidence in chief, which means that his legal advisers can't talk to him and months later he has got to remember what he said.
That appears to us, subject to anything that may be said, that the only answer at the present time is to adjourn to a date to be determined and the matter can then be disposed of. We say this, because there is a matter set down for hearing tomorrow, this has already been crowded out once, and we feel that this matter certainly not be ready to proceed tomorrow. It also appears to us, having regard to the new incidents which the applicant now, I think is going to introduce, if they are similar to those in Exhibit B, that the argument in favour of hearing the two applications together, becomes very untenable.
There are at the most, I think, two incidents in common and numerous other incidents that were not committed by the same people at the same time and it would be far preferable in those circumstances to hear the applications separately. We propose accordingly, to adjourn this matter to a date to be arranged.
It may well be that when we - communication is kept up between the parties that it would be desirable to set it down for hearing before or after the other matter that we have already adjourned, because they are the same legal advisers engaged in both matters, that we could do one and the other one immediately thereafter. But I do not think it possible to continue, certainly, it is impossible to finish it today and I regret very much that it seems that the delay, the wasted day has been caused by the fact that these three pages were not made available. They are the pages that should have annexed to the letter written to the applicant's legal advisers. They are obviously the pages which one says are these part of your application, if they were lodged with the application it is clearly that is a very proper question to ask. For some reason there has been some misfiling or something of that nature, I cannot say what, but the papers must be made available to all parties. This is the application form which you are all entitled to have access to.
MR WAGENAAR: Mr Chairman, yes, we do agree with your suggestion that the two matters really should or ought to be if possible, placed in close proximity to each other for another reason, and that it that quite clearly, on a question of credibility, there will be cross-examination of both these applicants individually, referring to the other applicant, as it must be of necessity and it might be a good thing to have them available.
JUDGE WILSON: It may be that they wish to call one another in support of the other application.
MR WAGENAAR: Precisely, yes, Mr Chairman.
MR MEMANI: Do I understand it as being the position that when we adjourn this matter, we come here and hear Ngo first and then when we hear Ngo we will then call the policemen who will come and refute his version, and then once we have finished that we can start with Motsamai and the police again will be called, further they have to be called for the second time or not?
JUDGE WILSON: Or the other way around.
MR MEMANI: As the Chair pleases. Now I hope this is now, this concludes this matter and the Chair is adjourning this matter now.
JUDGE WILSON: Yes.
MR MEMANI: Now may I then mention the matter of Mengha again.
MR WAGENAAR: Mr Chairman, just before he does this. May I, reverting to Mr Motsamai and Mr Ngo, may we just enquire, with respect, whether it is a firm ruling that police witnesses who are implicated, will have to come and testify twice or is it just a possibility presently thought about, because Mr Chairman, there are a number of considerations apart from the considerations of convenience, not least of all the time limit under which you labour, which we submit, would make it necessary, if at all possible for them, just to come and give evidence once.
JUDGE WILSON: As a matter of practicality I would assume that that is the position. If they are destroyed once you will not be calling them the second time. If they are not, if they are capable and in the one, then it will not be necessary to call them in the second. We are certainly not here just to go through that exercise of repetition. So this matter is now adjourned.
One of the other factors, why we think it should be adjourned now, is that the applicant in this matter are not in custody, is he?
MR MEMANI: No, he is out, Mr Chair.
JUDGE WILSON: So we will adjourn this matter to a date to be arranged. I would also recommend in this matter, as in the Ngo matter, that discussions be held between the legal advisers of the parties and that if a pre-trial conference is held for the one, it be held for the other, that we sort out as much as possible beforehand and discover if there are any more missing documents or things of that nature before we come to trial, a hearing. The matter is now adjourned to a date ... (intervention).
MS THABETHA: Mr Chair, before you adjourn the matter, I just want to explain one point here, on the issue of the three pages. As you are aware of the system, the administration system in Cape Town, apparently these were in a box, that's where they were found. So I just want to say that for the record.
MR MEMANI: Now Mr Chair, before the Committee adjourns ... (intervention).
JUDGE WILSON: All that is clear is that they were not where they ought to be and that is the file relating to this applicant.
MR MEMANI: Mr Chair, before the Committee adjourns, may I mention the matter of Menera again.
MR WAGENAAR: May we excused, Mr Chairman? We have no interest in that matter.
LEGAL TEAM ON BEHALF OF POLICE EXCUSED
MR MEMANI: Mr Chair, the matter of Menera. During the lunch adjournment a member of Correctional Services has conducted myself and Ms Thabetha and he has indicated that there is - he has made a summary of an extract of the prison records.
JUDGE WILSON: He also made them available to us and the prison records. Do you accept the correctness of that summary?
MR MEMANI: I do, I do.
JUDGE WILSON: Do you accept that?
MR MEMANI: I do, Mr Chair. Mr Chair, I beg leave to hand them in. May I then perhaps read them through for the record, we are on Menegha now.
JUDGE WILSON: Yes, it will be filed with that. Have you got other copies?
MR MEMANI: We don't have copies at this stage.
JUDGE WILSON: Well, I have one faxed transmission. Can I see what you have got? Have you got a copy of the book itself, a hand-written, I have a typed copy. We will keep all three. That shows that they were there for three months, Menera and that Phelane was there for about two months.
MR MEMANI: That is correct, M'Lord.
JUDGE WILSON: That will be filed with them.
MR MEMANI: Now, M'Lord, before we adjourn again, regarding the application of Ngo. We have been told at the beginning of this hearing that there are three files on Mr Ngo. Only one has been made available to my learned friends for the State, whether they had it or not. And M'Lord, we would like to say that as representatives of Ngo, we would request that the offices of the TRC investigate the matter regarding the remainder of the two files for as we understand it, we are told that on the file that the State has at the moment, they are - there is no indication of why Mr Ngo was suspended and that he was - and that it only says that he was suspended, and that the reason be contained in another file. We would wish then that this fact be verified.
JUDGE WILSON: You said the file that the State has?
MR MEMANI: That is correct.
JUDGE WILSON: Who do you mean?
MR MEMANI: I mean my two learned friends here.
JUDGE WILSON: He is appearing for certain police officers not for the State. This is not a prosecution. I understand what you mean though and I think if there are documents available they should be made available.
MR MEMANI: There is a close association, M'Lord, between them and the State. That's why I say so. M'Lord, may I say that, also add that they are in possession of a file relating to Mr Ngo. Apparently their attitude is that the file has been made available to them and we do not have access to the file as such, (indistinct) and that presents a difficulty for us because we would like to have insight into the contents of the file. I would like to get a direction from you, I am making submissions, Mr Chair, I would like a directive from you, Mr Chair ... (intervention).
ADV DE JAGER: I would like you to apply to the Amnesty Committee in writing and state exactly what files do you want and we will issue a subpoena in order to get those files, if you can't get it otherwise.
MR MEMANI: Mr Chairman ...
ADV DE JAGER: But we are taking about an hour to negotiate an adjournment here, even an adjournment today. I don't know whether we will ever finish cases going on like this.
MR MEMANI: Mr Chairman, may I say that there has already been a directive emanating from the Chairperson on the last hearing, that files relating to Mr Ngo must be made available to us. Now only one file has come to hand and my learned friends for the Police are keeping them as if it were their property, and I am asking for a directive now from the Chair.
JUDGE NGOEPE: Let's just find out. Mr Visser, is it correct that you are in possession of a certain file and is it correct that you deny the applicant's legal representatives access to that file?
MR VISSER: Mr Chairman, it is more than incorrect, it is a falsehood.
JUDGE NGOEPE: So they can access the file if they want to?
MR VISSER: Mr Chairman, the position is simply this. We have no access to official files, we don't appear for the State. I don't know which State reference is made to, the present or the past, but the fact is we appear for no state, we appear for individuals. We have applied through the normal channels to headquarters in Pretoria. My attorney has. He has been presented with one file, which we have got here, which we made available to my learned friend. He had it in his possession. He looked through it. It doesn't take more than half-an-hour to look through that file. He had it. That is the only file we have got. That file was given to us on the basis of Mr Wagenaar retaining custody of that file. In fact, my first question was, can we make the file available to the Committee, and there is some sort of a problem even with that. We haven't got access to these files, Mr Chairman, we have no right to the access to these files. We would prefer it if you would make enquiries as to whether there are other files of Mr Ngo, because we would dearly like to say the contents of those files ourselves. We have not been retaining anything or keeping it away from my learned friend. It is a falsehood to make such an allegation.
JUDGE NGOEPE: So at any rate then, it takes us back to what Adv De Jager has said, Mr Memani. Any file that you would like to have access to, would you formulate your request in writing because we wouldn't like to go and try to think exactly what you wanted to have, and only to find out we misrepresented you. I think you should formulate your request in writing and then submit that to us and then we will take it further from there, and see how we could assist you.
JUDGE WILSON: I would suggest in this regard that you consult with your client, who would be in a better position than we are, to give you details of what type of files are kept by the police force. The problem is, if we merely say a certain type of file. We may give it the wrong name and it will not be provided. So if you will get the names or descriptions from your client and then make a written application. We can accordingly make an order, calling on someone to produce that.
ADV DE JAGER: May we in addition to that, Mr Chairman, we will undertake again, to make enquiries and if any fruit is - if that is with fruitfulness, then of course, we will provide you with those files, if we - we were told there were three files. We were only given one.
JUDGE WILSON: Where would these files be?
MR VISSER: Probably at headquarters, but it may be that some of them may be here, but we will make further enquiries, Mr Chairman.
JUDGE WILSON: If you would notice the office as soon as you have received any further information and notify the applicant's attorneys.
MR VISSER: If we receive anything we will notify the office of the Commission immediately, Mr Chairman.
MR MEMANI: Mr Chair, I have nothing to add on Ngo. Mr Chairperson, then this means as far as Menera is concerned, that Menera has been concluded and that we may now all make submissions within the time specified.
JUDGE WILSON: Yes.
MR MEMANI: As the Chair pleases.
JUDGE WILSON: There is no other information that the evidence-leader intends to present here?
MS THABETHA: No.
MR MEMANI: Mr Chair, I beg your pardon. As far as Ngo is concerned, there was also a directive that the investigating section of the TRC should try and locate the medical file relating to the time when Mr Ngo escaped from custody and nothing was done about his escape.
JUDGE WILSON: (Indistinct).
MS THABETHA: Not that I know of, no.
JUDGE WILSON: If such a directive was given, will you refer the evidence leader to where it is to be found, and will you then please ensure that our investigators carry out the instructions given.
Does the applicant want to say something now?
MR MOTSAMAI: Yes. I do not know which date are we going to be called in. I am requesting the Committee to ask from the Minister to be transferred, not to work where I am presently working. I can be transferred to any other place.
JUDGE WILSON: I am afraid that is not part of our function. You can ask your legal adviser to make representations to the Minister on your behalf, but it is certainly not part of our function.
COMMITTEE ADJOURNS
