CHAIRPERSON: Good morning everybody. Today is a continuation of the application of Jerry Richardson, he completed his evidence-in-chief yesterday and before we commence, I would like to thank Correctional Services for their co-operation with the Committee.
JERRY VUSUMSI RICHARDSON: (s.u.o.)
CHAIRPERSON: I would suggest that you put on the earphones, so that you don't miss out on anything, thank you. Adv Semenya, I think it is your turn.
MR SEMENYA: Chairperson, thank you.
CHAIRPERSON: Thank you, you may continue.
MR SEMENYA: Chairperson, with your permission, I have had occasion to ...
CHAIRPERSON: Just bear with me for a second, they changed my channel to Zulu, thank you, you may continue Mr Semenya.
MR SEMENYA: I have had this morning an opportunity to speak to Mr Alli and Ms Mbuyisa, who are representing the families of the victims and they advise in that in the order of things they will do, is they would put certain assertions which may implicate my client. For that reason, they were thinking that with your permission, it may be prudent that they start with their questions so that when I deal with mine, I am able to deal with those assertions which they make to the witness.
CHAIRPERSON: Oh, that you cover everything in cross-examination?
MR SEMENYA: Correct.
CHAIRPERSON: I think that would be prudent to approach it that way. Ms Mbuyisa?
MS MBUYISA: Sorry Chairperson, they have switched my channel as well to Zulu, can I have my microphones changed?
CHAIRPERSON: No, no, you simply change this gadget to 2 and then you would find the English.
MS MBUYISA: Oh, to 2. Chairperson, without ...
MR RICHARD: Excuse me Chair, we have a technical problem, neither mine, nor the applicant's ...
CHAIRPERSON: May we just take this opportunity that we correct some of, mine is okay, I just had the wrong channel. Are we, are you okay too, Mr Richardson? Thank you Ms Mbuyisa.
MS MBUYISA: Thank you.
CHAIRPERSON: Adv Semenya just told me of an arrangement you came to that in your probably cross-examination, certain assertions would be made which implicate his client further, and that it would be prudent that you cross-examine so that whatever you cover, he will have the opportunity to deal with everything rather than reverting to him?
MS MBUYISA: That is correct Chairperson.
CHAIRPERSON: So are you in a position to start?
MS MBUYISA: Yes, I am.
CHAIRPERSON: Thank you, you may proceed.
CROSS-EXAMINATION BY MS MBUYISA: Thank you. Good morning Mr Richardson.
MR RICHARDSON: Yes, good morning to you.
MS MBUYISA: My name is Zanyile Mbuyisa, I represent the victims and the families of the victims that you have applied amnesty for the acts. Mr Richardson, yesterday you gave testimony here under oath that when you were released on the 25th of November 1988 from prison, you went straight to Mrs Madikizela-Mandela's house, correct?
MR RICHARDSON: Yes, that is true.
MS MBUYISA: Which house was that?
MR RICHARDSON: I am referring to the house located in Diepkloof Extension.
MS MBUYISA: You further testified yesterday that when you reached Mrs Madikizela-Mandela's house, you found Lolo Sono and Sibuniso Tshabalala already there, correct?
JUDGE DE JAGER: Could you go a little bit slower, I am trying to write.
MS MBUYISA: I am sorry.
JUDGE DE JAGER: Thank you.
MS MBUYISA: I will repeat the question, you further testified that when you reached Mrs Madikizela-Mandela's house, you found Lolo Sono and Sibuniso Tshabalala already there, correct?
MR RICHARDSON: Yes, that is true.
MS MBUYISA: Mr Richardson, two years ago you gave testimony at the Human Rights Violation ...
INTERPRETER: May you please repeat your question again?
MS MBUYISA: Two years ago you gave testimony at the Human Rights Violation Committee hearings, correct?
MR RICHARDSON: Yes, that is true.
MS MBUYISA: And you were sworn in when you gave testimony at that time, correct?
MR RICHARDSON: Yes, that is true.
MS MBUYISA: Mr Richardson and the panel, I refer the panel to Bundle 1, page 34, from page 34.
CHAIRPERSON: The paginated pages?
MS MBUYISA: Yes.
CHAIRPERSON: Thank you. You may proceed Ms Mbuyisa?
MS MBUYISA: Thank you Chairperson, it is page 34, 35, 36, those are the pages I will be referring to.
CHAIRPERSON: Okay, thank you. You may proceed.
MS MBUYISA: Thank you. You indicated in your testimony at that hearing particularly in the pages that I have mentioned, that when you reached Mrs Mandela's home even though they were happy to see you, there was suspicion that you were a police informant, correct?
MR RICHARDSON: Yes, that is true.
MS MBUYISA: And you also testified that you were placed under house-arrest so that you being a police informant, could be investigated fully, correct?
MR RICHARDSON: Yes, that is true.
MS MBUYISA: You also testified further that you, after you were placed under house-arrest, suspicion was shifted from you to Lolo Sono and Sibuniso Tshabalala, correct?
MR RICHARDSON: Yes, that is true.
MS MBUYISA: You also testified at that hearing that then it was decided to go and bring Lolo Sono and Sibuniso Tshabalala, correct?
MR RICHARDSON: Yes.
MS MBUYISA: In your own words you say "and a decision", when Mr Richard asked you, you said
"... and a decision was made to find and produce the two young men, Lolo Sono and Sibuniso Tshabalala?"
You answered -
"... yes, that is correct."
JUDGE DE JAGER: You are referring to page?
MS MBUYISA: Sorry, page 36.
JUDGE DE JAGER: Line?
MS MBUYISA: This is line ...
JUDGE DE JAGER: Round about?
MS MBUYISA: Round about, about three paragraphs down. You further said that Guybon approached you and collected you to go and fetch the two young men, because they trusted you, correct?
MR RICHARDSON: Yes, that is true.
MS MBUYISA: And you organised some transport to go and fetch the boys, correct?
MR RICHARDSON: Yes, that is true.
MS MBUYISA: Now, Mr Richardson, if you could explain to this panel, which version is the truth, yesterday's version or the version that you gave two years ago?
CHAIRPERSON: Do you follow the question, Mr Richardson? Do you follow what Ms Mbuyisa is asking you?
MS MBUYISA: Maybe I can refresh his memory. Yesterday you testified that when you got out of jail, you went straight to Mrs Madikizela-Mandela's house and you found Lolo Sono and Sibuniso Tshabalala already there, two years ago you said your organised some transport to go and fetch them with Guybon, now which is the truth, were you telling the truth then or were you telling the truth yesterday?
MR RICHARDSON: Well, yesterday's version is the truth.
MS MBUYISA: So you lied two years ago?
MR RICHARDSON: Well, if you may listen quite closely to the first testimony I tendered to this Commission, I said I was taking chances to apply for amnesty. Well, today I am not here to take chances.
CHAIRPERSON: Was your application for amnesty not filed when you appeared before the Human Rights Violation Committee for amnesty, was it not lodged then?
MR RICHARDSON: Yes, it was lodged then.
CHAIRPERSON: And you realised that the Human Rights Violation Committee was merely a wing of the whole TRC, Truth and Reconciliation Committee which the Amnesty Committee is part of the whole Truth and Reconciliation Committee?
INTERPRETER: The applicant seems a bit lost.
CHAIRPERSON: Pardon? I didn't hear your answer? Should I repeat myself?
MR RICHARDSON: Yes, I will appreciate it.
CHAIRPERSON: I say then you had already lodged your amnesty application in Cape Town, haven't you by then, when you appeared two years ago?
MR RICHARDSON: Yes, I had already submitted my application then.
CHAIRPERSON: And were you aware how the Truth and Reconciliation Commission works, that the people who were asking you and you gave testimony before, were a wing of the Truth and Reconciliation Commission, and that is the Human Rights Violation Committee?
MR RICHARDSON: Well, I did not know.
CHAIRPERSON: Are you aware that we are also part of the Truth and Reconciliation Committee, but we are merely called the Amnesty Committee to hear these kind of applications where people could be exonerated of offences committed during the conflict of the past?
MR RICHARDSON: Well, I had no idea.
JUDGE DE JAGER: Perhaps, I have just been reading there and perhaps in all fairness, we should try and continue with, on the same page
"... and then the decision was made to find, to bring or to produce the two young persons, that is Lolo Sono and Tshabalala, is that not correct? Yes, that is correct, that is what happened through Guybon, because he is the one that told me that he is going to bring these two young men because they were the culprits."
Let's continue, I skip something -
"... and were they not found very near the house, indeed on the property? There is a very big problem, because there was a decision so I do not know whether these youths were at the garage or the back rooms, but Guybon came back with those two youths, I saw them with my own eyes."
MS MBUYISA: Chairperson, with all due respect, the transport issue is the one I am having problems with. If the two youths were already in the house, why is there a need to organise a transport, to go and fetch them?
JUDGE DE JAGER: Yes, okay, fine.
MS MBUYISA: If you could maybe answer that, Mr Richardson?
MR RICHARDSON: Well, please repeat your question once again.
MS MBUYISA: If Lolo Sono and Sibuniso Tshabalala were already in Mrs Madikizela-Mandela's house, why did you need to organise transport to go and fetch them?
MR RICHARDSON: Well, they were already within the premises.
MS MBUYISA: Then why the need for the transport?
MR RICHARDSON: Well, I don't quite remember as to why we needed the transport, because they were already in the house or in the premises.
MS MBUYISA: I ask you again, two years ago, when you gave testimony to the TRC at the Human Rights Violation Committee hearings, did you lie?
MR RICHARDSON: This is why I said what I said earlier on, that on that very day, I did make mention of the fact that I am taking chances.
MS MBUYISA: So you want this panel today to believe that what you said yesterday, was the truth?
MR RICHARDSON: Yes, they have to believe that or take that.
MS MBUYISA: Why?
MR RICHARDSON: Well, because I am telling the truth.
MS MBUYISA: How do we know you are telling the truth, because by your own testimony you were taking chances, how do we know you are not taking chances right now with us?
MR RICHARDSON: Well, if you look at my condition the first time I appeared here, the TRC, and look at me today, you will see the Richardson who is different.
MS MBUYISA: Mr Richardson, do you think this panel will ever know the truth considering the amount of lies that you have told?
MR RICHARD: Chairperson, I believe that is an over-statement, so far a lie hasn't yet been established.
MS MBUYISA: Chairperson, already since these proceedings started, we have had two inconsistent statements which he cannot answer why they are inconsistent.
CHAIRPERSON: Don't we know one at this moment?
MS MBUYISA: No Chairperson, I really don't know which one it is.
CHAIRPERSON: No, we have one that was said the inconsistencies you speak of, is that he said one thing to the HRV Committee, and to us another.
MS MBUYISA: Yes Chairperson.
CHAIRPERSON: So that we take as one.
MS MBUYISA: That we take as one?
CHAIRPERSON: Yes.
MS MBUYISA: As the Chairman pleases. Can we move on?
ADV BOSMAN: May I just interpose here for one minute, Ms Mbuyisa. Mr Richardson, what exactly do you mean when you say that you were taking chances?
MR RICHARDSON: Well, when I say I was taking chances, I was still labouring under the light that we were still protecting Mrs Mandela.
ADV BOSMAN: Mr Richardson, you used the words we were taking chances, I want to know for my own clarity, what did you mean by "I was taking chances"?
MR RICHARDSON: Well, I was still protecting Mrs Mandela by so saying.
ADV BOSMAN: Thank you.
CHAIRPERSON: And you uttered the same statement if you read the record of the Human Rights Violation Committee when you were asked I think by Adv Semenya, that hadn't you applied for amnesty and you said "I am taking my chances", as well? Do you remember the cross-examination, it could be probably page 131 if I am not mistaken, or 122, thereabouts. The same question was asked and you said I am taking chances. Yes, page 131 and you were "trying your luck"?
MR RICHARDSON: Well, that is true when you say so.
CHAIRPERSON: So what I want for my own clarity is that, are you taking your luck with us, or do you want to tell us what obtained during 1988, 1989?
MR RICHARDSON: Well, I have told you the truth and I am telling the truth still of the things, the way they happened, or the events, the way they unfolded.
CHAIRPERSON: Thank you. Sorry Ms Mbuyisa, you may proceed, I don't want to take it away from you.
MS MBUYISA: Thank you Chairperson. Mr Richardson, let's move on. You testified further yesterday that you were present when Guybon and Ninja slaughtered the two boys, correct?
MR RICHARDSON: Yes, that is true.
MS MBUYISA: May I now refer you to page 40 of the Human Rights Violation Committee hearings, the second last paragraph and the last paragraph? On the last paragraph you testified that, when you were asked by your Attorney, Mr Richard, you were there to witness both deaths and you answered
"... I talked about the slaughtering and he just had to hit him once on the neck and at that stage, I left so I did not really see as to how he slaughtered him."
Again Mr Richardson, which is the truth, did you or did you not see Ninja and Guybon kill Lolo Sono and Sibuniso Tshabalala?
MR RICHARDSON: Yes, I did see.
MS MBUYISA: And you have an explanation for your testimony two years ago? Were you also taking chances?
MR RICHARDSON: I just said that if you look at the Richardson two years ago and take a look at me today, you will obviously see the fast difference there is. There are no chances I am taking, or I am attempting to take today.
CHAIRPERSON: You know Mr Richardson, I suppose that could be true to Mr Richard and Adv Semenya, but reading the record, I did not see her name, so she wouldn't know what the Richardson looked like two years back, and today, nor would I either, because I was not involved in those proceedings. We want to assist you, don't tell us about the past which we do not know, nor are we privy to the incidents you have referred to, so I would very much appreciate that you don't tell us about a past that we do not know.
JUDGE DE JAGER: Mr Richardson, you realise that the only way you could get amnesty is by telling the truth, we should be satisfied that you have made a full disclosure about the truth. We realise these things happened 10 years, more than 10 years ago, and there are certain things you wouldn't remember, for instance dates or whatever it may be. But in the main, what happened and how it happened, must have made an impression on you and we want the truth about that. If you cannot remember anything, say I cannot remember it, but don't try and tell us something you cannot remember, tell us what you remember and tell us the truth about it, then we could assist you, otherwise we cannot assist you.
MR RICHARDSON: Well, that is certainly so. I am attempting here to tell the truth. I want to direct myself towards the truth.
CHAIRPERSON: So are you saying we should disregard the record of the Human Rights Violation Committee because there you were taking chances?
MR RICHARDSON: Well, I won't decide for you.
CHAIRPERSON: No, why I am asking you is because there you gave a version and you say the version you gave yesterday is the truth, which Ms Mbuyisa has just asked you which version should we take, you said no, no, yesterday you were telling the truth and two years back, you were taking chances. There is no truth at all in the record we have before us, we should concentrate on what you told us yesterday?
MR RICHARDSON: Well, I said so.
CHAIRPERSON: Then we should disregard this record? You see these big bundles we have here, it is the testimony of two years ago, should we now say to Ms Mbuyisa please concentrate on the version he gave yesterday and cross-examine him on that only?
MR RICHARDSON: No, well that is not my desire or my wish.
CHAIRPERSON: Thank you Ms Mbuyisa.
MS MBUYISA: Thank you Mr Chairperson, Mr Alli has questions as well.
CHAIRPERSON: Have you finished with your cross-examination?
MS MBUYISA: Yes.
CHAIRPERSON: Thank you.
NO FURTHER QUESTIONS BY MS MBUYISA
CHAIRPERSON: Mr Alli, could you just move the microphone towards you?
CROSS-EXAMINATION BY MR ALLI: Thank you Chairperson. Mr Richardson, I want to ask you something and I want you to be honest and not take any chances, because the way I understand it, this is your final chance if you like, this is your only opportunity to speak the truth. Were you a police informer?
MR RICHARDSON: No.
MR ALLI: You were not a police informer?
MR RICHARDSON: Not at all, I never was.
MR ALLI: Once again we make reference to the previous hearings which you have just admitted you were taking a chance, and when the question was put to you by Adv Semenya whether Detective-Sgt Pretorius I think it is, or Sgt Pretorius, was your handler, you agreed and you said yes, that in fact he was.
JUDGE DE JAGER: You are referring to page?
MS MBUYISA: Page 105.
MR ALLI: It is 105 of the record. Page 105. Mr Richardson, I put it to you that in fact you were a police informer.
MR RICHARDSON: Well, I refute that.
MR ALLI: How do you explain what you said previously, where you accepted the fact that Sgt Pretorius was your handler?
MR RICHARDSON: Well, I will quite repudiate that, based on the following grounds - I was in prison in Leeukop. In 1995 I saw Mrs Mandela on the newspaper talking about Paul Erasmus. Paul Erasmus was now fabricating the version about the killing of Stompie, saying that Richardson killed Stompie because Stompie was found at the charge office. That was then that I discovered that there was no truth needed at all here. Paul Erasmus worked at the John Vorster, but was quite well informed about the happenings or things that were happening in Protea.
CHAIRPERSON: Wasn't that when you were at Leeukop, Pretorius was long dead? That is the man I thought in your evidence yesterday, you said died during the shoot-out at your house when you were arrested?
MR RICHARDSON: Yes, we are referring here to Paul Erasmus, a person.
CHAIRPERSON: Listen to the record, this is by Mr Semenya on page 105
"... Was Sgt Pretorius your handler?"
And your answer thereto is yes.
MR RICHARDSON: Well, that is true when you say that.
CHAIRPERSON: No, no, but Mr Alli has just asked you and you said that is not the truth because he was referring you to what Adv Semenya asked you two years back and said were you not an informer and you said no, and you said to a question asked by Adv Semenya, you said yes and then thereafter you gave a response and you said "I refute that", but now you are telling us about Paul Erasmus.
MR RICHARDSON: Well, if you don't know Paul Erasmus, that means truly I could advance any story to you, because then that way you won't be attempting to gather the truth. Paul Erasmus was present at that hearing and he did tender some ...
CHAIRPERSON: No, no, may I just interrupt you, Mr Richardson. I would implore you that if you don't follow a question, it is your right to say what is the question, you must understand it, respond to something you have understood. Is that okay with you, so that we want to follow because when you tell us about Paul Erasmus, it is not a question that is asked of you, I would implore you listen and if you don't follow, you can ask it several times, that it should be repeated to you. Do we understand each other?
MR RICHARDSON: Yes, I hear that, but I won't agree with that, because I think you are trying to get me to somewhere, you are trying to drive me some place, somewhere.
CHAIRPERSON: No, no the purpose we are here, is to hear your applications, satisfy ourselves that you have given us full disclosure. None of us, I even speak for my colleagues, we have not formulated any opinion of what you have said because we've got to wait until everybody has had an opportunity to ask you questions, and your Attorney will also re-examine you, that we get the true picture of the story you have related to us. Don't come with the notion that people have already made their mind up against you, and I don't think and you are under my protection. Whoever would say anything or insinuate anything, I can promise you that I would protect you. Be relaxed, listen to what you are asked and just answer what you are asked. Is that okay with you or do you follow what I have said to you?
MR RICHARDSON: Well yes, I hear you.
CHAIRPERSON: Well, I would like you to be free, because we are here to listen to you, we are not here for other things or things that we are thinking ourselves, but we are here to listen entirely to you. Am I crystal clear?
MR RICHARDSON: Yes, I do understand that, but I have feelings as a human being, you see, I don't like being here first of all, I came here to tell the truth.
CHAIRPERSON: Well, tell the truth yes, you are at liberty to tell that truth, because they want you to expatiate and explain on other things that they are not clear about. So the onus is with you, on you, to explain what you have been asked to explain.
MR RICHARDSON: Well, yes, but this gentleman, the way he has posed the question it is like he is informing, not asking me, or soliciting an answer from me, he is saying to me or putting it to me that I was a police informer. Now, am I supposed to agree with him or concur with that? Why did I go to prison if I was one indeed?
CHAIRPERSON: No, well, if he says that and you don't agree with him, put it to him as well that you don't agree with him. I am certain about the fact that as you are in prison, you have had some Advocates telling you facts, but then if you don't agree with the person, you don't necessarily have to keep quiet or withdraw. You are at liberty to oppose and put it back to him the way you believe so, are you with me?
MR RICHARDSON: Well, I am with you.
CHAIRPERSON: Thank you very much. Mr Alli, you may proceed.
MR ALLI: Thank you Chairperson. Mr Richardson, I will ask you again, this time I won't put it to you, I will ask you were you a police informer?
MR RICHARDSON: No.
MR ALLI: So why did you give evidence that Sgt Pretorius was your handler?
MR RICHARDSON: Who asked me that question by the way?
MR ALLI: Let me refresh your memory, when you gave evidence previously at the Human Rights Violation Committee Mr Semenya asked you
"... was Sgt Pretorius your handler?"
and you replied yes. That is a direct translation of what happened on that day, do you remember?
MR RICHARDSON: I said so.
MR ALLI: So what I find difficult to understand is that if Sgt Pretorius was your handler, that is what you said two years ago, and when I ask you today were you a police informer, you say no?
JUDGE DE JAGER: Mr Richardson, did Pretorius or any of the Security Police or policemen, offer you money if you would give them information?
MR RICHARDSON: Yes, when I was arrested they had promised that to me.
JUDGE DE JAGER: And did you in fact receive any money from them?
MR RICHARDSON: I am certain if you were to go to my private wallets in prison, you do realise that I have no money at all.
JUDGE DE JAGER: And did they before or after you went to prison, did they offer you any money? Not give you, but did they offer you any money?
MR RICHARDSON: They never promised me money when I was in prison, they only promised me money, it was when I was at the police cell, in the custody.
JUDGE DE JAGER: And before they arrested you?
MR RICHARDSON: No.
JUDGE DE JAGER: You met Pretorius or you have seen Pretorius for the first time at the High Court, is that correct?
MR RICHARDSON: Yes, that is correct.
JUDGE DE JAGER: And thereafter you met him again and he called you to his motor car, is that correct?
MR RICHARDSON: Yes.
JUDGE DE JAGER: What did he discuss with you there and what did he promise or what was the conversation at that stage?
MR RICHARDSON: Well he told me that my days are really numbered. I will be in prison because of him because all the time I put on the tracksuit of the Club and I am the coach of the Club. If I don't want to work with him hand in glove, I will find myself in prison. I completely disagreed with him.
JUDGE DE JAGER: But it must have been a difficult decision for you because you could, on the one hand you could go to prison, on the other hand, you could get some money?
MR RICHARDSON: Yes, it was quite difficult a decision to make, but I told myself that I would rather be in prison or in jail.
CHAIRPERSON: Is that what obtained in the ride, because in my reading of the record, correct me if I am mistaken, he took you to the soccer field, you were going to watch a match, a football match? Is that from Orlando to the stadium, just that you either make up your mind or your days are numbered?
MR RICHARDSON: Yes.
CHAIRPERSON: Did he fetch you after the game ended?
MR RICHARDSON: No, he did not.
CHAIRPERSON: Mr Alli, you may proceed.
MR ALLI: Thank you Chairperson. Mr Richardson, a lady, Ms Sooka had posed a question to you two years ago as well, as the same hearings, I am referring now to page 151 of the bundle. If I may just read for the record, Ms Sooka says
"... Mr Richardson, I would like to know after the incident in which these two MK people as well as Sgt Pretorius were killed in your home, were you arrested and charged for harbouring terrorists in your home and could you tell me how long you spent in detention or in jail please?"
Your response -
"... Yes, I was arrested on the very same day, that was the 9th, and I was released on the 25th. I was given a task that they would come and see me so that I would work with them and cooperage with them, and they said I must not disclose this information to anyone."
Do you remember saying that?
MR RICHARDSON: Well, yes, I do recall that.
MR ALLI: Is that in fact the truth, did that happen?
MR RICHARDSON: Well, that did happen because there is no one I gave that information to.
MR ALLI: Then Ms Sooka goes on further, she says
"... I have a diary here from the police where there is an entry on the 12th of May 1995 in which I think it is Col co-operate, where it says that you received R10 000 from them and that they received a receipt."
Now, did you or did you not receive the sum of R10 000?
MR RICHARDSON: Which year was that?
CHAIRPERSON: That was the first arrest when you were arrested on the 9th, after the shoot-out at your house.
MR RICHARDSON: Well, I don't know if that is the truth that is written there, whether it is a lie because I never received that sum of money, never took it.
CHAIRPERSON: No, no, let me correct myself, Mr Richardson, I apologise profusely, the entry was on the 12th of May 1995, the question that is being asked to you where Ms Sooka says she
"... has a diary, I have a police where there is an entry on the 12th of May 1995 in which I think it Col Co-operate, that you received R10 000",
that is now after he had been sentenced by the High Court.
MR RICHARDSON: I never received R10 000 in prison, or whilst I was in jail.
ADV BOSMAN: Did you at any other stage receive R10 000?
MR RICHARDSON: No, I never had R10 000 in my hands, since the first day I was in prison.
ADV BOSMAN: Thank you.
MR ALLI: Thank you Chairperson. Okay, let us move on. Yesterday you gave evidence that the Mandela United Football club was a social group, is that correct?
MR RICHARDSON: Yes.
MR ALLI: And furthermore you served the double task of being the bodyguard for Mrs Madikizela-Mandela, is that correct?
MR RICHARDSON: Yes, that is true.
MR ALLI: And you were the coach for this Football Club, is that correct?
MR RICHARDSON: Yes, that is true.
MR ALLI: Now being the coach of this Football Club, would that mean that you were in charge of certain activities, were you the leader?
MR RICHARDSON: Yes.
MR ALLI: Would you then be responsible for making certain decisions?
MR RICHARDSON: Yes, that is true.
MR ALLI: Can you tell us exactly what kind of decisions you had full power to make?
MR RICHARDSON: If we have a trip coming or we have to attend some funeral, there is a person who has to remain behind, I will tell him the particular person that is, comrade, you will be the one to remain behind.
MR ALLI: Is that as far as your authority went, that you could tell certain of the comrades that you would remain behind while the rest of us go ahead, is that all you could do?
MR RICHARDSON: Well, as well as taking care of the house chores and the security activities as well, or matters.
MR ALLI: So if I understand you correctly, your basic function was a bodyguard and in this instance, it just happened to be for Mrs Madikizela-Mandela? Is that correct?
MR RICHARDSON: Yes.
MR ALLI: Would you then be a security guard for anybody else?
MR RICHARDSON: No.
MR ALLI: So on the days that you were not a security guard, what duties did you fulfil?
MR RICHARDSON: Well, if Mrs Mandela is just relaxing at home, we will be chatting and playing some music, taking it easy.
MR ALLI: So you really got along very well with Mrs Madikizela-Mandela, is that correct?
MR RICHARDSON: Yes, we got along so well with Mrs Madikizela-Mandela.
MR ALLI: And in fact yesterday you said you had a great deal of respect for her?
MR RICHARDSON: Very true, I should say.
MR ALLI: And did you admire her?
MR RICHARDSON: I respected her so much.
MR ALLI: Right, I would like to make reference to page 19 and 20 of the transcript once again. Mr Richardson, I want you to try and remember this incident, if I understand correctly you said
"... I met Pretorius at Oupa Seheri's case at the High Court."
Do you remember that day?
MR RICHARDSON: Yes, that is true.
MR ALLI
"... I was with Mrs Mandela the first time I met him and Zinzi and Charles Zwane. We had to get inside the lift and it was my first time to put my foot in the High Court."
Do you remember that?
MR RICHARDSON: Yes, that is so.
MR ALLI: Then you go further on and you say
"... when we got inside the lift, they told me that these are the police and I wondered why we got inside the same lift."
Is that correct?
MR RICHARDSON: Yes, that is true.
MR ALLI: And the reason for that is you say
"... because I did not want anyone to touch Mommy as I was worried that they would touch Mommy. Only myself could touch Mommy, not anyone else."
Do you remember saying that?
MR RICHARDSON: Yes, I do recall that.
MR ALLI: For purposes of this record, could you explain to us who Mommy is?
MR RICHARDSON: Well Mommy is Mrs Mandela.
MR ALLI: Thank you. So why were you afraid or why did you not want anyone to touch Mrs Madikizela-Mandela?
MR RICHARDSON: Well, as a person that we highly respect.
MR ALLI: And why did you say that
"... only myself could touch Mommy, not anyone else"?
What did you mean by that?
MR RICHARDSON: Well, I had a reason why I said that, because it was my duty to look after her, so if anybody who lay their hands on her, I shall be responsible and accountable for that. So it was my sole duty to look after her.
MR ALLI: Okay. And you would of course do anything for Mrs Madikizela-Mandela?
MR RICHARDSON: This is why I was, I also received or was on the deathrow, because I felt I would rather die, I could go as far as dying.
MR ALLI: Let's just go one step back. I don't seem to understand what you have just said to me, you said - I asked you whether you would do anything for Mrs Madikizela-Mandela and you said yes, you would even go onto deathrow for her. What did you mean by that, why would you go onto deathrow for her?
MR RICHARDSON: Well, because I lied at the court, at the court of law, at the High Court. I said Mrs Mandela was not present when we were assaulting the kids.
MR ALLI: Which kids?
MR RICHARDSON: Stompie, Kenny, Bilu as well as Thabiso.
MR ALLI: And you are now saying that she was present, I think you said so yesterday as well, but I may be incorrect. Let me ask you again, was she present during these attacks?
MR RICHARDSON: Yes, she was there.
MR ALLI: What was her role?
MR RICHARDSON: Well, on that day she was supposed to positively ID'd these children, that they were the ones we fetched from the church and see them.
CHAIRPERSON: Did she know them before, before they were brought to the house, did she know them?
MR RICHARDSON: Well, she did not know them.
CHAIRPERSON: Because if I recall your evidence yesterday, you said Ms Xoliswa Falati was the one who came and made a report and upon that, you had to fetch the kids from the manse.
MR RICHARDSON: Yes, I said that yesterday.
CHAIRPERSON: And when you say she had to positively identify them, what do you mean?
MR RICHARDSON: Well, I am referring here to the fact that when we brought them to the back rooms, Mrs Mandela was supposed to be called in to see exactly and be satisfied about the fact that they were there, I am trying to explain that more than anything.
CHAIRPERSON: Sorry Mr Alli, you may continue.
MR ALLI: Thank you Chairperson. Now yesterday you said that you didn't want to be involved in the actual killing as you had been involved in many killings before.
CHAIRPERSON: Are you referring to Lolo Sono and Sibuniso Tshabalala?
MR ALLI: Yes Chairperson.
CHAIRPERSON: Make it clear because he said he had a lot of killings, so we must be very clear about the killings.
MR ALLI: Sorry Chairperson. You said that you didn't want to be involved in the killing of Mr Lolo Sono and Mr Tshabalala because you were involved in many killings before, do you remember that?
MR RICHARDSON: Well, I don't remember that.
MR ALLI: In fact this evidence was led by yourself just yesterday, not even two years ago, just yesterday, are you unable to remember that?
MR RICHARDSON: Well, I don't remember quite honestly.
JUDGE DE JAGER: Perhaps I could refresh your memory, when you gave your evidence, I asked you questions and I said I don't want to have the details, but were the previous killings also politically motivated, can you remember me asking you that?
MR RICHARDSON: Well, you asked me so many questions, you were throwing them left, right and centre.
JUDGE DE JAGER: Okay, I will try to ask you fewer questions, Mr Richardson. And then you answered that, I also asked you why then didn't you apply for amnesty for those other things, the other killings, if they were politically motivated, can you perhaps remember that?
MR RICHARDSON: Well, as I said you were bombarding me with questions, I don't quite remember that.
JUDGE DE JAGER: Yes, thank you.
CHAIRPERSON: I know it was a long day, Mr Richardson, but this was the very first incident we dealt with. Are you also now tired, or do you want to have some break to recollect your mind, or are you comfortable that we should continue?
MR RICHARDSON: Well, there is no decision I could make for you, I would like for you to go on.
MR RICHARD: I believe it would be appropriate to take a five minute break.
CHAIRPERSON: Let's afford you time just to recollect your mind, Mr Richardson, in all fairness to you. We will adjourn for five minutes.
COMMITTEE ADJOURNS
JERRY VUSUMSI RICHARDSON: (s.u.o.)
MR RICHARD: We are ready to proceed.
CHAIRPERSON: Thank you Mr Richard. Mr Alli?
CROSS-EXAMINATION BY MR ALLI: (Cont) Thank you Chairperson. Mr Richardson, where we left off, if I remember correctly, you were talking about the many killings that you had participated in?
CHAIRPERSON: No, you were asking that question.
MR ALLI: Thank you Chairperson. Exactly what were you referring to when you said to your colleagues "I don't want to be involved in the killing of Lolo Sono or Mr Tshabalala as I have been involved in many killings before", what did you mean by that?
MR RICHARDSON: I was talking about Quqi, Stompie and the attempted murder on Ikaneng.
MR ALLI: But were these killings then not undertaken after the killing of Mr Sono and Mr Tshabalala?
MR RICHARDSON: Except those people that I have mentioned, I have never killed anyone.
MR ALLI: Why did you then say to your colleagues that "I don't want to participate because I have been involved in many killings before", what did you mean by that?
MR RICHARDSON: As I have already explained, I never killed anyone.
CHAIRPERSON: Couldn't we put it in perspective, he thought to himself, he never said that to his colleagues, that he had already participated in so many killings, he did not want to lay his hands on Lolo Sono and Sibuniso Tshabalala.
MR ALLI: Thank you Chairperson. Let us move to the question of Ms Quqi Zwane. You said that she regularly visited the home of Mrs Madikizela-Mandela, is that correct?
MR RICHARDSON: Yes, that is correct.
MR ALLI: And you further stated that you were given an order that she should no longer come to the house to visit, is that correct?
MR RICHARDSON: Yes, that is correct.
MR ALLI: And then you further stated that despite this warning, she still came to the house, is that correct?
MR RICHARDSON: Yes, that is correct.
ADV BOSMAN: Mr Alli, may I just interpose here, who gave her the warning, was it you personally or someone else?
MR RICHARDSON: It was myself.
ADV BOSMAN: Thank you.
MR ALLI: Thank you Chair. So you gave her the warning not to come to the house, but she didn't listen to you, did she?
MR RICHARDSON: Yes, she kept on coming to visit.
MR ALLI: And what did you then decide to do?
MR RICHARDSON: We told Mrs Mandela that Quqi kept on coming.
CHAIRPERSON: He did not use the plural, he said I. I was just correcting the interpretation.
MR ALLI: Thank you Chairperson. What did Mrs Madikizela-Mandela say to you?
MR RICHARDSON: She told me that Quqi was an informer.
MR ALLI: And what else did she say?
MR RICHARDSON: It is obvious that the informer should be killed.
MR ALLI: Is that what she said to you, she said to you it is obvious that an informer must be killed?
MR RICHARDSON: Yes, that is correct.
MR ALLI: What else happened, what else did you say or what else did she say to you?
MR RICHARDSON: She told me that Quqi should be killed because she didn't want her in her premises.
MR ALLI: Why didn't she want her in the premises?
CHAIRPERSON: She was an informer, an impimpi.
MR ALLI: So what did you do then, how did you decide because, okay, who made the decision then to do something about this matter?
MR RICHARDSON: I took that decision.
MR ALLI: What decision was that?
MR RICHARDSON: I took Killa Mbatha, I told him that he was to go with me.
MR ALLI: Yesterday you gave evidence that yourself and Killa Mbatha took Quqi and you killed her, do you remember?
MR RICHARDSON: Yes, that is correct.
MR ALLI: You also said that you did not believe that she was an informer?
MR RICHARDSON: Yes, I said so.
JUDGE DE JAGER: Mr Alli, could I just intervene. Mr Zuka, Killa Mbatha, did you manage to get hold of him to notify him that he is an implicated person or what is the position, have you any knowledge of his whereabouts or what happened to him?
MR SEMENYA: Chairperson, on my side, I don't know where he is, perhaps my colleague can assist in that regard.
CHAIRPERSON: No, no, he is asking Mr Mapoma.
MR MAPOMA: Chairperson, I will verify that I am not sure at this point, but all I know is that all the implicated persons that could be located, have been given notices. But as I say, I will have to look into my papers and verify what the position is.
JUDGE DE JAGER: Thank you.
MR RICHARD: Chair, in that regard, the last information in my efforts to make sure that notices were given, was that it appeared that particulars were given to the TRC by one of its Researchers, which landed in a Reparations and Restitution file, not in an amnesty file. I gave the information over to the Commission, but what happened thereafter, I don't know.
CHAIRPERSON: But is he alive?
MR RICHARD: I don't know beyond finding out that information was obtained and handed over. What was done with the information afterwards, I do not know.
CHAIRPERSON: Mr Richardson, do you perhaps know if Killa Mbatha is still around, I know you are in prison?
MR RICHARDSON: Yes, he is still alive sir.
CHAIRPERSON: Thank you.
MR ALLI: Thank you Chairperson. Now, you said that you didn't believe that Ms Zwane was an informer, is that correct?
MR RICHARDSON: Yes, that is correct.
MR ALLI: So if she is not an informer, then why the need to kill her?
MR RICHARDSON: The instruction was issued and she was labelled as an impimpi and I couldn't dispute that.
MR ALLI: Why couldn't you dispute that?
MR RICHARDSON: What would I say?
MR ALLI: Quite simply that you don't believe that she is an informer?
MR RICHARDSON: It is easy for you to say that, but if you are the person in that situation, that wouldn't be easy.
MR ALLI: Why won't it be easy, what were you afraid of, if you were afraid of anything?
MR RICHARDSON: If one does not perform his duties the right way, that particular person can be killed or eliminated.
MR ALLI: Was this the norm at that stage? I am referring specifically to the activities of the Football Club?
MR RICHARDSON: Yes, that is correct.
MR ALLI: So, if any member or any person associated with the Football Club had a problem with what others in the Football Club were thinking, that person should be killed? Is that correct?
ADV BOSMAN: Mr Alli, perhaps that is not quite fair, it is not what he was thinking, but what he would be saying.
MR ALLI: Correct Chairperson. You then said that you went into a veld with Quqi Zwane, is that correct?
MR RICHARDSON: Yes, that is correct.
MR ALLI: Chairperson, I would like to refer the Committee to page 50 and 52 of the second bundle, being the autopsy report, or the medical legal examination.
CHAIRPERSON: Thank you.
MR ALLI: Where it refers to there being a whitish fluid in the vagina. Now, we are not sure exactly what it could be, however I put it to you Mr Richardson ...
CHAIRPERSON: You rather ask him, he doesn't like things put to him.
MR ALLI: Thank you Chairperson. What were your feelings towards Ms Zwane?
MR RICHARDSON: I liked her because she was a girlfriend of Buthile who was also a soccer player in my team.
MR ALLI: So did you at any stage try and break up their relationship perhaps?
MR RICHARDSON: No.
MR ALLI: Did you at any stage have a relationship with Ms Zwane?
MR RICHARDSON: No.
MR ALLI: You see the injuries that she suffered when the body was found, says that there are 10 superficial abraded lacerations over the left breast as well as a few other abrasions, measuring between 0.5 and 3 centimetres. Can you explain how she would get those injuries?
MR RICHARDSON: Yes, I can explain. We never stabbed Quqi Zwane about 10 times, we just stabbed her with the garden shear, with scissors and she fell and Killa finished her off.
MR ALLI: Did you at any stage request sexual favours from her?
MR RICHARDSON: No.
MR ALLI: Did you threaten her that if she refused ...
CHAIRPERSON: What is your basis to suggest probably some sexual favours were asked from her?
MR ALLI: Chairperson, as a result of the injuries being sustained, there is a reflection of the white fluid in the vagina.
CHAIRPERSON: I think that is where you should start.
MR ALLI: Correct Chairperson. Can you explain to us why it was found that she had a white fluid in her vagina?
MR RICHARDSON: That is not true.
MR ALLI: Is it not possible that there was a struggle between you or Mr, I forget his name now, is it Mr Killa?
CHAIRPERSON: Killa, Killa Mbatha.
MR ALLI: Killa Mbatha that accompanied you, that perhaps one or both of you tried to rape Ms Zwane?
MR RICHARDSON: No.
MR ALLI: And as a result of her trying to defend herself, she experienced the various injuries to her breast and in order to cover your tracks, you then killed her?
CHAIRPERSON: Wouldn't you ask one question at a time?
MR ALLI: Certainly Chairperson. I would go back a few steps.
CHAIRPERSON: Thank you.
MR ALLI: I want to know is it not possible that either yourself of your colleague, tried to rape Ms Zwane?
MR RICHARDSON: That never occurred to us, we never talked about rape. Even if you can go and check in my previous records, I was never convicted for rape and that will never ever happen.
MR ALLI: I am suggesting that perhaps it did happen and that is why she was killed?
MR RICHARDSON: Mr Alli, I apologise, there is nothing like that. That is not true.
JUDGE DE JAGER: Mr Alli, isn't the position that if you were asking a question of speculation and you receive an answer, and you haven't got any evidence to contradict that, you should abide with the answer?
MR ALLI: Correct Your Worship, Chairperson, I would leave that point there. Let's go back to, you are in prison at the moment, aren't you?
MR RICHARDSON: Yes, I am in Leeukop Maximum.
MR ALLI: Are there any police officers visiting you in prison?
MR RICHARDSON: No.
CHAIRPERSON: I think the question is vague, when?
MR ALLI: At any time that you have been in prison, had there been any police officers to visit you?
MR RICHARDSON: I was arrested in 1990, up until this day, 1999, I did not get any visit from the police.
MR ALLI: Has there not been a Mr, and I don't know what his title is, it could be Sgt Co-operate, visits you from time to time?
MR RICHARDSON: It would be better if you would talk about somebody who is here, now it looks like people are fabricating stories about Richardson. Just check on the records, because each and every visit of mine is recorded.
CHAIRPERSON: Paul Erasmus, you spoke about him earlier when you were asked about Pretorius, when you were asked by Ms Mbuyisa, you spoke of Paul Erasmus, did he visit you?
MR RICHARDSON: No, he never paid me a visit. I read on the newspaper, Sowetan, where he was talking about me.
MR ALLI: Mr Richardson, I want to suggest to you once again that you were in fact a police informer and that you carried out the various acts, if indeed you carried them out, purely to protect your own identity as a police informer, what is your response thereto?
MR RICHARDSON: I disagree with that and I would like to request you to bring the proof and then you will try and stop me from getting amnesty.
MR ALLI: Thank you Chairperson, at this point, I would like to hand over, back to my colleague, who has further questions, is that is okay with the Committee.
NO FURTHER QUESTIONS BY MR ALLI
FURTHER CROSS-EXAMINATION BY MS MBUYISA: Thank you Chairperson. Chairperson, I just want to clarify some further, I will go back, in my questioning I will go back to the abduction and the murder of Lolo Sono and Sibuniso Tshabalala and also deal with a few questions regarding Quqi Zwane, so that there is no confusion.
CHAIRPERSON: Thank you.
MS MBUYISA: Thank you. Mr Richardson, you testified yesterday that, and also two years ago that when you came back from prison and suspicions were raised about you being a police informer, you were scared, correct?
MR RICHARDSON: Yes, that is correct.
MS MBUYISA: So when the suspicion was shifted from you and to Lolo Sono and Sibuniso Tshabalala, you were relieved, weren't you?
MR RICHARDSON: Yes, I was happy because I was no longer a suspect.
MS MBUYISA: So you willingly went along with the plan to murder them because you were afraid that if you don't, they were going to label you an informer, correct?
CHAIRPERSON: Were they not identified as the informers, and not him?
MS MBUYISA: Initially Chairperson, he was suspected of being an informer.
CHAIRPERSON: No, no, I know that, by Sonwabo.
MS MBUYISA: Yes, so my question basically is, when the suspicions shifted from him, he was relieved that it was shifted, so he went along with the - the suspicion could never come back to him again.
CHAIRPERSON: I follow now.
MS MBUYISA: Thank you Chairperson. Mr Richardson, do you want me to repeat the question?
CHAIRPERSON: I think you should, I think you should.
MS MBUYISA: Okay, my question is, when the suspicion of you being a police informer shifted from you, to Lolo Sono and Sibuniso Tshabalala, you were relieved, and you answered yes, and then I went further and I said to you so you willingly went ahead with the planning of their murder and their abduction, because you didn't want the suspicion to come back to you that you were a police informant, correct?
MR RICHARDSON: Yes, that is true.
MS MBUYISA: Mr Richardson, did you really think that Lolo Sono and Sibuniso Tshabalala were police informants?
MR RICHARDSON: Yes, I thought so, I think so.
MS MBUYISA: No, I don't - do you really believe at the time, that they were police informants?
MR RICHARDSON: I believed.
MS MBUYISA: I am sorry, I didn't get the answer.
MR RICHARDSON: I believed, yes.
MS MBUYISA: Okay. I would like to direct you, Mr Richardson to page 115 of the bundle as well as the panel, that is Bundle 1. I think it is the third paragraph. Mr Richardson, at the time, two years ago and the Human Rights Violation hearings, Mr Semenya read from a police document and he read on page 14, to the panel, I would like to read the passage for the record.
CHAIRPERSON: Before you do, could you Mr Richard show him if you have the Bundle, show him what is being read. I think in all fairness to him.
MR RICHARD: Which paragraph?
CHAIRPERSON: 114.
MS MBUYISA: 115, 115 Chairperson.
MR RICHARD: 115, Bundle 1?
CHAIRPERSON: Because there are two ...
MS MBUYISA: Oh, sorry, I refer to the one in 115, the passage in 115.
CHAIRPERSON: Okay.
MS MBUYISA: Mr Richardson, according to the record, I will read to you what Mr Semenya read to you.
"... According to Mr Richardson, he had been an informant for the former Security Police. At a certain stage, he provided information to the Security Branch which indicated that two trained MK soldiers were hiding away at his home, a promise of R10 000 was then made to him, should his information prove true."
Now, after having read that, can you honestly say that you truly believed that Lolo Sono and Sibuniso Tshabalala were police informants?
MR RICHARDSON: After reading this passage that you are reading, it is very difficult for me to respond.
CHAIRPERSON: Do you agree with that passage or don't you agree with it, the one just read to you?
MR RICHARDSON: I disagree with it.
MS MBUYISA: Then why is it difficult for you to answer?
MR RICHARDSON: It is because I might not respond the right way or the way it is expected from me to respond.
MS MBUYISA: Mr Richardson, we just want the truth. You know if the truth is what you perceive as being wrong, it be right, just respond to the question. We just want the truth, that is all.
CHAIRPERSON: You say you do not agree with this passage, how?
MR RICHARDSON: I said I cannot explain, I still maintain that I cannot explain.
CHAIRPERSON: Who cannot explain? You see, these were notes made by a police officer and during the Human Rights Violation Committee hearing, Mr Semenya read this to you, which was in Afrikaans, but for the purposes of this hearing, it translated. Would I be correct, Mr Semenya? Because it started on page 114 if you can look at that. Mr Semenya said I want to read a section appearing in the notes by the police officers on page 16, there is a paragraph which is in Afrikaans and something is inaudible, it says
"... Richardson is willing to indicate the place where Lolo was buried, according to him, he was murdered in a similar manner to that of Stompie Sepei and Cebekhulu had also been there."
Then there was a further questioning and then you read further on page 14 of the same document, which he had translated, which says -
"... According to Richardson, Mr Richardson, he had been an informant for the former Security Police. At a certain stage he provided information to the Security Branch which indicated that two trained MK soldiers were hiding away at his home. A promise of R10 000 was then made to him should his information prove to be true."
Were there two trained MK's at your house?
MR RICHARDSON: Yes, that is true.
CHAIRPERSON: Would that be Lolo Sono and Sibuniso Tshabalala?
MR RICHARDSON: Yes, it was Lolo Sono and Tshabalala.
CHAIRPERSON: Now, we know two MK cadres were killed when there was a shoot-out, that is on the day of your arrest, who are those?
MR RICHARDSON: It was Lolo, it was Sonwabo, I beg your pardon. It was Sipho and Debogo.
INTERPRETER: Chairperson, could it be established which channel is Mr Richardson listening to, I suspect that he is listening to channel 4 which is Sesotho.
MR RICHARD: He is back on channel 3 now.
JUDGE DE JAGER: Could you just for our information, this document that you refer to, was that a document compiled at the stage when he was tried or was it the previous document?
MR SEMENYA: I have no distant recollection, but it was a document given to him, to the Investigators, the South African Police Investigators, not the TRC Investigators.
JUDGE DE JAGER: At the time when they were investigating the case for which he was convicted, or don't you know?
MR SEMENYA: Correct.
JUDGE DE JAGER: Yes.
CHAIRPERSON: Now, Lolo Sono and Sibuniso Tshabalala were also trained MK cadres?
MR RICHARDSON: No.
CHAIRPERSON: I will leave it to Ms Mbuyisa.
MS MBUYISA: Thank you Chairperson. You have no way of answering or responding to the statement which has just been read, correct?
MR RICHARDSON: As it was being read by Mr Motata, I am beginning to understand what is happening, then I am in a position to respond. Those policemen, there is nothing that they said about Richardson, except for the fact that they said I was an informant, and they never appeared in court to confirm that I was working with them, and even those documents, I disagree with the statement.
MS MBUYISA: Mr Richardson, even though I don't have the transcript, two years ago, I remember at the Human Rights Violation hearings, Commissioner Fivaz did testify and he did confirm your informer status, didn't he?
CHAIRPERSON: Do we have such records? Are those records with us?
MS MBUYISA: No.
CHAIRPERSON: Oh, okay.
MS MBUYISA: They were never forwarded to us, Chairperson. Can you answer please?
MR RICHARDSON: I know Judge Fivaz by seeing him on TV, I just saw him for the first time that day. He would make press releases and say my evidence should not be trusted, I have nothing to do with Fivaz. He is just a Police Commissioner.
MS MBUYISA: You heard him when he said you were an informer?
MR RICHARDSON: Yes, I heard him. He got the opportunity to talk and he talk about something that he knew and the things that he knew nothing about.
MS MBUYISA: Was he lying?
MR RICHARDSON: If I had powers, I was going to sue him, but unfortunately I was in prison, I cannot sue him, and that person is a Commissioner.
MS MBUYISA: So he was lying?
MR RICHARDSON: Yes, Judge Fivaz was telling a lie.
MS MBUYISA: Why? Why would he lie, why would he tell a lie against you?
MR RICHARDSON: That question, I was going to ask him that question, because even on that particular day when he was uttering those words, I ended up not understanding the Truth Commission, because on the other side there was Paul Erasmus and he was on the other side. Even today some of the children had since disappeared because the parents of those children reported to them, but they failed to go and arrest Richardson. If the message from Mr Sono was taken seriously that his child was in Mrs Mandela's kombi, if that was taken seriously, there wouldn't be this, here today. Judge Fivaz and Paul Erasmus, why today I am here and being told about Fivaz in stead of being questioned about Steve Tswete?
MS MBUYISA: So Commissioner Fivaz, everybody else that has pointed you as being an informer, is lying?
MR RICHARDSON: The person who is talking about rape and he must go back from the day I was born in 1947, and check those records about the victims, people that I raped. If someone can bring up the file with information that I raped someone, but if there is nothing like that in the file, it means I am not that person. Judge Fivaz' evidence was a lie and even the documents that are compiled, if Mr Fivaz' name is there, it means he is not fit to be a Commissioner, because he is still very corrupt. That is why there is no information, there is no truth, that explains how did Pretorius die in Richardson's premises.
MS MBUYISA: Okay, so you are telling this panel that everybody that said you were a police informant, they were lying and they made you angry, now can you explain to this panel, why would all these people want to lie against you? What is it that they have against you?
MR RICHARDSON: The person who is going to talk about Stompie and Quqi Zwane, Lolo and myself, that person is not telling a lie, but a person who is going to say I got something from Mrs Mandela or a person who will say I got some money from the Security Branch, that person is lying. I am going to refer back to the records, and I want them to go back to Pretoria and check the tapes that were recorded during the time when I was sentenced, and try and detect whatever is a lie in those documents.
MS MBUYISA: Mr Richardson, you are not really answering my question, I just want to know why would all these people be lying against you, that is all.
MR RICHARDSON: I think you can pose that question to Fivaz, he is in a better position to respond to that question, I do not hate them. That is why I made a contribution for them to be Commissioners.
MS MBUYISA: Let's move on. I refer you to page 3 of the Bundle, your amnesty application. You state there that Lolo Sono and Tshabalala they were
"... abducted by myself and a person called Shakes and Jabulani Kubheka, Guybon, and they were assaulted at Mrs Mandela's house for about a week."
Now, you testified here yesterday that you found them at Mrs Mandela's house, correct, when you were from prison?
MR RICHARDSON: Yes, I found them in Mrs Mandela's house, in the garage.
MS MBUYISA: Why did you in your amnesty say "abduction", you didn't abduct them, you didn't even murder them, you watched them being murdered according to your testimony, so why write abduction and murder?
JUDGE DE JAGER: But clearly he was an accomplice to the murder, he had been found guilty of the murder?
MS MBUYISA: With all due respect Chairperson, he was not found guilty of the murder of Lolo Sono.
JUDGE DE JAGER: Oh yes.
MS MBUYISA: Yes, and as well when he submitted his application, he submitted it with an Attorney present. I mean ...
MR RICHARD: No, that is incorrect, he did not submit the application with an Attorney present.
MS MBUYISA: Okay, even if I am correct Chairperson, if his version is that he found them there and he watched, then it should be stated so, just like in any other allegations.
JUDGE DE JAGER: Yes, I understand your argument.
CHAIRPERSON: You may proceed, you are correct.
MS MBUYISA: Thank you. Do you want me to repeat the question?
CHAIRPERSON: Yes, after this exchange, I think it would be better for Mr Richardson, if you do.
MS MBUYISA: Thank you. So why then Mr Richardson, did you in your amnesty application write "abduction and murder of Lolo Sono and Sibuniso Tshabalala" if you didn't abduct them and you didn't murder them, you only watched?
MR RICHARDSON: I mentioned that because I did not want to be selective or disassociate myself from the Club, Mandela United, and I want to be, I am taking the responsibility of the things that were done by the Mandela Football Club association, I am taking responsibility for that.
CHAIRPERSON: Were they assaulted for a week before they were killed, that is Lolo Sono and Sibuniso Tshabalala?
MR RICHARDSON: On the day I saw them, I saw them with blue eyes.
CHAIRPERSON: Were you ever told that they were assaulted for a week?
MR RICHARDSON: No, Guybon never mentioned that to me.
CHAIRPERSON: And you say too here Shakes, they were taken to the veld and Kubheka and Shakes slit their throats and I thought your evidence yesterday was that Shakes remained in the car as he was the driver?
MR RICHARDSON: Yes, that is correct.
CHAIRPERSON: So, what is contained on page 3, cannot be correct then, that is in your application, cannot be correct if you say what you said yesterday is correct?
MR RICHARDSON: What is in my application, is true, because those are the basis of my amnesty application.
CHAIRPERSON: Let's take you back and say
"... Sono, Tshabalala, they were abducted by myself and a person called Shakes and Jabulani Kubheka Guybon."
Where did you abduct them from?
MR RICHARDSON: I found them there in Mrs Mandela's house.
CHAIRPERSON: why I am asking you is just because I suppose we spoke passed each other, that what is written here cannot be correct if we listen to your evidence-in-chief yesterday, and besides what appears on the record of the Human Rights Violation Committee when you spoke of a car was arranged and they came back with them, probably from the back rooms or something like that, just from your evidence and your application? Because it gives me the distinct impression that prior to them being killed, they were abducted from somewhere and they stayed at Mrs Madikizela-Mandela's place, house, for a week where they underwent assault and thereafter they were taken to the veld to be slaughtered.
MR RICHARDSON: I cannot remember now.
CHAIRPERSON: You do not remember how they were killed, or the events that led to their killing? I know it is 10, 11 years back, what don't you remember, how the killing started or what happened?
MR RICHARDSON: I remember when they were killed as to how were they killed, but I cannot remember about these statements of mine, no.
ADV BOSMAN: Is this your handwriting, Mr Richardson, did you fill this in yourself?
MR RICHARDSON: No.
CHAIRPERSON: Who filled this in for you, that is the application, we are speaking of your application for amnesty? Who filled in the application?
MR RICHARDSON: No, I am mistaken, I am the one who filled in the application form.
CHAIRPERSON: And you wrote in the application form as far as you could remember, about the incidents you are applying for amnesty for? As far as you could recall?
MR RICHARDSON: Yes, that is correct.
CHAIRPERSON: Let me interrupt Ms Mbuyisa further and say, let's recall now because it would appear we've got two versions, the one you gave us yesterday in-chief, and the one that appears on page 3 of your application, what happened to Lolo Sono and Sibuniso Tshabalala?
MR RICHARDSON: These two gentlemen were killed next to Mzimhlope, they were killed by Ninja and Guybon. I refused to partake in the killing, but I assisted in digging the hole, the grave and we buried them in those graves, that is what I can say, that is what I said.
CHAIRPERSON: Now, prior to them being taken to the veld next to Mzimhlope, where did you find these two young men?
MR RICHARDSON: As I am saying, I found them after my released from jail, I found them in Mrs Mandela's premises and I didn't even know where were they taken from and when.
CHAIRPERSON: Now, you recall in your evidence-in-chief, you said they wanted to go to Lusaka, do you recall that?
MR RICHARDSON: Yes, I remember that.
CHAIRPERSON: And you gave them R20-00 to go to Park Station?
MR RICHARDSON: Yes, I still remember that.
CHAIRPERSON: Do you know how they, did they leave your place to go to Park Station?
MR RICHARDSON: I am the one who accompanied them, they boarded a taxi to town because Debogo had said that they were supposed to go to town, because he would later found them there in town.
CHAIRPERSON: And when you returned from jail or Protea cells, you found them at Mrs Madikizela-Mandela's place, you don't know how they returned?
MR RICHARDSON: Yes, that is correct.
CHAIRPERSON: The same day when they left, you saw them to a taxi to town, is that the same day when there was a shoot-out at your place and Sipho and Debogo were killed?
MR RICHARDSON: Yes, that is correct.
CHAIRPERSON: Thank you Ms Mbuyisa, you may proceed.
MS MBUYISA: Thank you Chairperson. Mr Richardson, let's work on that a little bit. You say that you are the one that took Lolo Sono, Sibuniso Tshabalala to the taxi, is that correct on the day your house was attacked, or there was a shoot-out?
MR RICHARDSON: Yes, that is correct.
MS MBUYISA: Now, Mr Sono testified previously that on the day, that is the 9th of November, there was a shoot-out at your house, his son, Lolo Sono and Sibuniso Tshabalala saw the entire attack and then they came back to him and they told him about the entire attack. Mr Richardson, how do you explain him knowing about the attack when he wasn't there and the boys weren't there?
MR RICHARDSON: I cannot explain, I will be very brief and say it is possible that they were there watching, and they informed their father, that is one possibility, I cannot dispute that.
MS MBUYISA: Are you saying it is possible now that they were there?
MR RICHARDSON: Yes, as you are telling me that they notified the parent.
CHAIRPERSON: How long after you had seen them to the taxi that took them to Park Station, did the shoot-out occur at your place?
MR RICHARDSON: It was just a short while, I can say 15 to 20 minutes.
CHAIRPERSON: You definitely saw them into a taxi, you have satisfied that they had left for the appointed rendezvous, place of meeting, with Themba and Debogo later, that they have left the township for instance?
MR RICHARDSON: Yes, I saw them with my own eyes, I am the one that accompanied them, I am the one who gave them R20-00 when the taxi stopped for them. I told them to take the R20-00 and leave.
CHAIRPERSON: You may continue Ms Mbuyisa.
MS MBUYISA: I am just going to ask you this, if you put them in a taxi and you gave them the R20-00 and you saw that they left, how is it possible, how can it be a possibility that they could have witnessed the attack on your house, as you have just said?
MR RICHARDSON: I don't know how to respond to that question because it is possible that after they taxi had taken the corner, they would decide to take a taxi back to Meadowlands.
MS MBUYISA: Okay, let's move on Mr Richardson. Mr Richardson, did you really witness the murder of Lolo Sono and Sibuniso Tshabalala?
MR RICHARDSON: Yes, I was watching.
MS MBUYISA: Okay, you testified yesterday that you would be willing to take this panel to where you buried the bodies of Lolo Sono and Sibuniso Tshabalala, correct?
MR RICHARDSON: Yes, that is correct.
MS MBUYISA: And you still remember the exact place where you buried them?
MR RICHARDSON: Yes, I still remember the place.
MS MBUYISA: Let's move on. Let's go now to Quqi Zwane, there is some few points there that I would like to discuss with you. Now, I would like to refer the panel to page 40 and also I would like to mark the following pages, 40 and page 50 and page 51. Those are the pages that I would be referring to, thank you. Mr Richardson, you testified that Quqi had been labelled an informant, right?
MR RICHARDSON: Yes, that is correct.
MS MBUYISA: Okay, and you also testified that, on page 50 to the panel, page 50, on page 50 you testified two years ago, that is paragraphs two and three, you testified that, I will read this to you
"... I think Quqi was labelled an informer at some stage because she was not acting in accordance with Mommy's instructions."
Your attorney asked you -
... "what were those instructions that she disobeyed and you answered
"... that she must terminate her relationship with Buthile",
right, is that correct?
MR RICHARDSON: Yes, that is correct.
MS MBUYISA: Okay, and you testified here today that you harboured no ill-feelings against Quqi, you liked her because she was going out with a friend of yours, Buthile, right?
MR RICHARDSON: Yes, that is correct.
MS MBUYISA: Then sir, I would like to refer the panel to page 49 as well, the last paragraph, Mr Richardson's answer, why in your answer you state that you admonished Buthile and said he must finish off his relationship with Quqi and join the Mandela Football Club? If this was your friend and he was going out with a woman you liked, and you liked this woman because she was going out with him, why would you want them to break up? Can you answer me please?
MR RICHARDSON: Yes, I can answer in this way. I never proposed love for Quqi, and this statement, I cannot remember, I wanted this statement of mine to make sense, but I cannot remember the other things, it was supposed to make sense to Buthile and Quqi and myself, and I knew that Quqi was going to be in trouble.
JUDGE DE JAGER: But you told her not to come and visit Buthile at the house of Mrs Mandela?
MR RICHARDSON: Yes, I told her.
JUDGE DE JAGER: She should stay away?
MR RICHARDSON: Yes, I told her so.
JUDGE DE JAGER: And in telling her that, didn't you say she should end this relationship with Buthile because it was causing trouble?
MR RICHARDSON: I cannot remember telling her that.
JUDGE DE JAGER: Thank you.
MS MBUYISA: Thank you, let's move on Mr Richardson. You - was an order ever issued that Quqi should be killed?
MR RICHARDSON: Yes.
MS MBUYISA: Okay, I would like to, was the order "kill Quqi" or "dump Quqi", how was it issued?
MR RICHARDSON: The order was that Quqi should be killed because she was an informer.
MS MBUYISA: It was never said that Quqi should be assaulted?
MR RICHARDSON: Not at all.
MS MBUYISA: I refer you to page 51, Mr Richardson, the second paragraph, or the first paragraph rather and I will read it to you, where you say, first I will read the question from your Attorney, Mr Richard
"... and the decision was made, what was that decision?"
And your answer -
"... I was approached to assault Quqi and she had once appeared before the Disciplinary Committee and a decision was taken that Quqi should be assaulted and that was our task, all of us."
Now, are you telling the truth now or were you telling the truth then?
MR RICHARDSON: Both versions are true, but at the same time, they are contradicting each other. Both versions are true, because at the end, Quqi died.
MS MBUYISA: You are right, at the end she did die, so why didn't you just assault her? Why did you have to kill her and why did you have to kill her so brutally?
MR RICHARDSON: It is because she was an informant and therefore she had to die.
MS MBUYISA: Mr Richardson, yesterday you testified - sorry, if the panel would allow me, I would like to refer to my notes.
CHAIRPERSON: Yes, whilst you are referring to your notes, but wasn't it the decision of the Disciplinary Committee that she should be assaulted? Was there a decision of that nature, firstly by the Disciplinary Committee, that Quqi should be assaulted?
MR RICHARDSON: I cannot remember.
CHAIRPERSON: Did you hold Disciplinary Committee meetings?
MR RICHARDSON: Yes.
CHAIRPERSON: But you do not recall in respect of Quqi if one was held?
MR RICHARDSON: No, I cannot remember.
CHAIRPERSON: Now, the previous page which was read by Ms Mbuyisa, I noticed that Buthile and Quqi were once fetched from Brandfort, did you go to Brandfort to fetch the two there?
MR RICHARDSON: Yes.
CHAIRPERSON: Was it not sufficient for your purposes that she no longer frequented Mrs Madikizela-Mandela's place and that they were far away in the Free State and they no longer posed a threat by being around the premises?
MR RICHARDSON: They posed a threat, but in Brandfort, the only person that was needed, was Buthile.
CHAIRPERSON: Thank you.
MS MBUYISA: Thank you Chairperson. Yesterday Mr Richardson, you were asked a question I think by one of the members of the Committee, the question was are you aware of any informers who did infiltrate the team and you said no. Now, you just testified and even yesterday, that everyone of the killings was because they were informers, police informers? Mr Richardson, I put it to you that all the killings were not politically motivated. You went on a killing spree on your own, am I wrong?
JUDGE DE JAGER: Sorry, you put it to him that some of them might have been political, others not or are you saying all of them were not political?
MS MBUYISA: I am saying all of them based on his answer yesterday.
JUDGE DE JAGER: She is putting to you that these killings have nothing to do with politics?
MR RICHARDSON: No, I cannot comment about that.
MS MBUYISA: Then can you answer me this, why did all the killings have to be so brutal, couldn't you have found any other way to kill them?
CHAIRPERSON: Wouldn't they in the end be dead, in any event?
MS MBUYISA: Exactly.
MR RICHARDSON: No, we did not think about the other manner to kill them, that was the only way that we had to take.
MS MBUYISA: So it had to be brutal?
MR RICHARDSON: Yes, that is correct.
MS MBUYISA: Chairperson, at this point, I would like five minutes to confer with my colleague, with regards to our further cross-examination.
CHAIRPERSON: I think we will wet our throats with tea.
MS MBUYISA: Thank you Chairperson.
CHAIRPERSON: We will take a tea adjournment.
MS MBUYISA: Thank you.
CHAIRPERSON: Thank you, for 15 minutes, sorry.
COMMITTEE ADJOURNS
ON RESUMPTION
JERRY VUSUMSI RICHARDSON: (s.u.o.)
CHAIRPERSON: Ms Mbuyisa, have you consulted with your colleague?
MS MBUYISA: Yes, Chairperson, thank you.
MR RICHARD: Chairperson, with permission, during the adjournment, a matter that has been repeated been raised in this saga, over many years, was again raised with me, and that was the question of the applicant's mental competence and intelligence and ability to know and understand proceedings.
CHAIRPERSON: Firstly was it raised amongst all legal representatives?
MR RICHARD: Not, not formally amongst all. However, because it is a matter that has concerned various parties and various persons since the trial, I thought I should address the Committee on that matter, so as to make sure that it is in the record and a matter that has not been over-looked.
CHAIRPERSON: Can it be raised at this stage, after he has finished his evidence-in-chief?
MR RICHARD: My opinion, to cut it short, is that the best option is to let the proceedings run and to let the process work its way through, even though it may be a question that may be raised at any stage.
CHAIRPERSON: I don't know if it could assist that probably if it is raised with all legal representatives and get their opinion, it might just curtail the proceedings.
MR RICHARD: That is why I have made the choice ...
CHAIRPERSON: But if we take the other option that let it run, it may not just be assisting.
MR RICHARD: I believed when I thought about it over the adjournment, that it was an appropriate matter to raise now, because it is clearly a concern.
CHAIRPERSON: You know why I am saying this, I can see the victims, but I am just thinking of Mr Semenya whose client is heavily implicated, that probably if some understanding could be reached with Mr Semenya, it could curtail the proceedings, but otherwise ...
MR RICHARD: From the victims' point of view, I believe the best interest would be to let the proceedings run, however if the Chair would prefer, may I suggest that a meeting be held between all the legal representatives and the matter be discussed again?
JUDGE DE JAGER: Mr Richard, suppose, I am not saying anything, it is so, but suppose as a result of what happened in the past, the applicant is mentally affected, if he is not capable of quite appreciating and understanding the proceedings and of answering questions, and giving a true version because of a mental disability, is it fair to proceed?
MR RICHARD: It may not be entirely fair to the applicant, however, for the sake of the record and what happened in the past and the atrocities of the past, to hear what is to be said, might be the best option.
JUDGE DE JAGER: Suppose because of that, he would implicate persons that shouldn't be implicated or he, because he cannot appreciate actually what really happened or cannot remember what happened, and he is telling us things that isn't strictly correct, why should that be sent into the whole world if we cannot vouch that there is some basis for that?
MR RICHARD: The question as to what the value of the evidence is, is to be decided by the Committee. The value to be attached to it, the veracity of it.
CHAIRPERSON: No, no, how can you when a person is mentally disabled, to clearly recollect what obtained and say we should say we should place a value on that, how can we?
MR RICHARD: That is why I decided at this point in the proceedings, to make the decision to address that issue.
CHAIRPERSON: Mr Semenya?
MR SEMENYA: Chairperson, with your permission, I think it is important that we tidy up the legal processes in respect of matters which Mr Richard is alluding to. Firstly, the protection which is offered people who are mentally disabled and who for that reason, would not have appreciated either the consequence of their conduct at the time of the commission of the offence, or that they are unable to appreciate the proceedings, the reason we have that law is so that there are no criminal consequences to that person. It is not to address the question whether they are truthful or not truthful. These hearings are not intended to bring a criminal consequence to Richardson, so the question does not arise, but two, as a matter of procedure, if Mr Richard has the suspicion which he has, he is very lay to can put it before you. What normally happens is, he would obtain statements of two Clinicians who will say that there is an indication of mental instability, I don't want us to withhold a hearing after damning evidence purely because Mr Richard and possibly others, are of the view that the witness is not compos mentis. I think the application, if it is sought to be that, is misplaced.
MR RICHARD: May I correct the record, I am not making any application. I am merely putting into the record that these matters have been considered and if anyone is in disagreement with me, the correct procedure is to let the process run, however if the Committee believes that the evidence or the process is incorrect, it is a matter that should be addressed, I may be wrong, and I am more than happy to be wrong in the circumstances.
CHAIRPERSON: Addressed by whom, but would we now entertain that at this late juncture?
MR RICHARD: The issue of competence in proceedings, whether it be in relation to the act or offence in question, or into the proceedings itself, can be raised at any stage, the Criminal Procedure Act is plain. My belief and my submission remains as I started off by saying, that the correct procedure is to let the matter run. It would probably be in the interest of all concerned for that to happen, unless ...
JUDGE DE JAGER: The correct procedure, if there is any doubt, would have been to raise it in the beginning, so that we could ascertain whether this man is capable of standing a hearing, not a trial in this event, a hearing. If he is not capable of, it is an injustice to proceed with the proceedings, we cannot proceed. Suppose in fact he is incapable of understanding and following and all the consequences, then we cannot have a hearing, because it is quite clear, a disabled person cannot be subjected to this kind of procedure. Isn't that so?
MR RICHARD: That is correct, and I would refer the Committee to page 41 of Bundle 2, about two thirds of the way down the page, starting with the word "according"
"... according to psychological evidence presented to the Trial Court, the appellant, it is a somewhat unintelligent person who is readily susceptible to the influence of others ..."
that was what was found then on trial. The question now before us is whether ...
CHAIRPERSON: Yes, but that does not suggest that he would not be able to appreciate proceedings, it is just that he is a weak man.
MR RICHARD: And I believe that in the circumstances, now that I have addressed it and raised it, it would appear that there be agreement and consensus that the best proceeding would be to proceed? But subject to the discretion of the Committee, I leave it in your hands.
JUDGE DE JAGER: Mr Richard, I am a little bit worried that we would act if there is problems, a man's position four, five years ago might have altered in the mean time, he might have been quite compos mentis at that stage, and it may not be the position today. We have seen him only sitting there, giving evidence, answering questions, it is very difficult for us to judge, or for me to judge. I haven't had a consultation with him or whatever. People working more closer to him, might be in a better position to say whether at least there should be an examination or not.
MR RICHARD: I have been associated with the applicant since two years ago, and spent considerable amount of time with him in consultation. What we experienced today, is indeed different to what might have been anticipated two weeks ago or a week ago, ten years is indeed a long time. At this stage a decision need be made, and that is whether to utilise the provisions of the Criminal Procedure Code to refer him to a mental institution for proper observation or not. My submission is that there is evidence before us over the last day and a half ...
CHAIRPERSON: But you said you are not making any application, how can you make submissions of that nature?
MR RICHARD: I stand by what I said Chairperson, however, having said what I have said, I still take the attitude, subject to being overruled, that the best interests would be served by allowing the process to proceed.
CHAIRPERSON: But is it not contradictory in terms, because the impression that would be gained from what you are saying, by raising that, to say that you members of the Committee, despite what he is saying, know that he is not mentally okay? There might be these problems there, and we don't know, because what would happen is that we have heard so far that questions were asked and said but this is contradictory, what should we make about that? Can we say from those contradictions that he does not appreciate the proceedings because that should have been in your own domain to have brought that to us prior to these proceedings starting. Now, I hear you speaking in a forked-tongue that these proceedings may proceed, but he should also realise that he may not appreciate it and he may be referred further to an institution that they look at him. We don't know exactly what you are saying, hence I said you cannot make submissions when you have not made an application. To me this is merely a discussion. If we entertain it further, I think it is going to spoil our record.
MR RICHARD: I will leave the point.
CHAIRPERSON: I would suggest however in the interest of the process, that we all speak about this in Chambers and when we come out, we should know exactly what we are saying.
MR RICHARD: Thank you Chair.
CHAIRPERSON: The matter will adjourn for a few minutes, and we will see all legal representatives in Chambers.
COMMITTEE ADJOURNS
JERRY VUSUMSI RICHARDSON: (s.u.o.)
MR RICHARD: Chairperson, may I proceed?
CHAIRPERSON: I suppose, we've got to correct the record. We had a short postponement because of certain submissions and information that was brought to our attention by Mr Richard for Mr Richardson. We deliberated in Chambers and the legal representatives had to take instructions and see how this could be resolved. The report back was that there would be a formal application by Mr Richard for Mr Richardson, and there is some opposition to it and I think it suffices if I just leave it at that and hear Mr Richard, what sort of application is he bringing before us.
MR RICHARD: Thank you Chairperson. Different to what I said earlier, I now make a formal application that these proceedings be stayed, pending the receipt of reports on the applicant's ability to know and understand the exigency and nature of these proceedings and his mental competence overall in general, in relation to the proceedings and the Act. It appears to me and while I qualify everything I say by saying that I am not a psychiatrist or a psychologist, that there is reason to believe that the applicant does not fully know and understand the nature and exigency.
I do not believe it is incumbent on me to outline a factual basis for my opinions, other than to say we have seen the proceedings before us over the last day and a half, and we have read the record of the previous hearings. My opinions certainly do not have the value of expert opinions, it would be wrong for me to ever intimate that I am in a position to form that sort of opinion.
CHAIRPERSON: But from the proceedings of the day and a half, have you formulated any opinion?
MR RICHARD: I have stated what my opinion is. I believe that it appears that the applicant is not understanding the proceedings, the nature or their exigency and there is reason to believe that an evaluation and proper report is required. I proceed then to point out that in the nature of the process, we have a situation where to a large degree, we have the applicant's ipse dixit upon which to rely. His evidence casts aspersions, implicates, compromises various persons other than himself. Now, if those implications and aspersions are the product of a person suffering under a mental disability, it needs to be known, it needs to be known by the victims, it needs to be known by the Committee. The case of AZAPO v The President of the Republic of South Africa is plain. There can be no full disclosure until such time as the victims are satisfied as to what happened, and how what happened to their loved ones, their family members and if I take the case of Lerothodi Ikaneng, to him.
A person suffering under mental disability, if that be the case, the value of his evidence clearly, does not take this Committee anywhere, we need to formally address whether this is the case, and to get the appropriate expert opinions as to whether it is or isn't. However, from my point of view, I believe from my perception that there is good reason for it to be said that it appears that this may well be the case. I am repeating myself, for me to lay a factual foundation, would be inappropriate, I would be speculating as an amateur outside my field of expertise. And for those reasons, I ask that these proceedings be stayed and I would make the appropriate arrangements for the appropriate reports to be got from the necessary professionals in their areas of expertise.
CHAIRPERSON: What professionals do you have in mind?
MR RICHARD: What I propose doing is utilising the professions of the Criminal Procedure Act, Section 74 onwards. There is a Section there which provides that if at any stage before or after conviction it is found that a person suffers from what I have outlined already, the person may be referred for evaluation by as is the practice, firstly the District Surgeon and thereafter by the appropriate specialists at an institution such as Sterkfontein Mental Hospital. The applicant, because he is not an accused at this moment, he is an applicant and a convict, is still serving his sentence, so therefore that procedure is wide open to be utilised.
CHAIRPERSON: Are you not probably thinking along the lines of directly a psychiatrist and a psychologist maybe?
MR RICHARD: The Act which constitutes the Truth Commission, does not make any provisions at all.
CHAIRPERSON: No, because you said you would make those arrangements. I say, are those not the better lines if we grant you such stay of proceedings?
MR RICHARD: I can approach and I did attempt to approach the structures of the Commission to find out if they would fund that expense during the adjournment, but I have not yet got an answer. I can only come up with a practical suggestion as to how I can compel the necessary reports at the State's expense, and that is by utilising the provisions of the Criminal Procedure Act.
In other words, I don't have a budget or resources to obtain and pay for the appropriate specialist, sitting as I do now.
CHAIRPERSON: Invoking the prison regulations as an inmate, wouldn't that assist?
MR RICHARD: It is an option which I have not yet explored, however from past, and I am talking about non-Commission matters, that is where you start, you start with the Prison Doctor and you say "please examine this man and make a report as to whether it should be taken on further." That is a practical process, it is not a legal process. However ...
CHAIRPERSON: I am asking that because this process has now a very limited lifespan, we are supposed to complete the amnesty applications by the end of March.
MR RICHARD: I am aware of that Chair.
CHAIRPERSON: And again to reconstitute this panel, it is not very easy, as we are shifted around a lot, that if we know of probably something certain that could obtain within a reasonable time, we could probably consider in our deliberations whether to accede to your application or not, but we need flesh as well.
MR RICHARD: Chairperson, what I have proposed is a certain method of getting the reports that we require. There may well be alternative methods, it may well be that the Truth Commission through its own process, may be in a position to instruct the appropriate experts to give reports. But I am unaware of any legislative basis for making that request. However, through the prisons and through the Criminal Procedure structures, yes, of course the reports can and will be got.
To give an indication of time period, we sit on the 30th of November, I would anticipate that the reports would be available by early January. Taking into account the season ahead of us, I believe it would be dangerous to represent that they may be to hand before the beginning of January.
CHAIRPERSON: Is that all?
MR RICHARD: I believe that is the most I can say, Chairperson.
CHAIRPERSON: Thank you. Mr Semenya?
MR SEMENYA: Chairperson, thank you. The instructions I have are to oppose this application and Chairperson, might I do that in two ways. The first I will ask my client to make the representations on why the application ought not to be granted, and secondly I will then proceed to deal with the legal difficulties which I believe the applicant must have in an application as proposed.
If I have your permission Chairperson, I would request my client to make the representations?
CHAIRPERSON: Thank you. Could I firstly ask you this for the record, would you give me your full names?
MS MADIKIZELA-MANDELA: Thank you Chairperson, my names are Nomzamu Winnifred Madikizela-Mandela.
MR RICHARD: Chairperson, at this stage I would like to know whether the witness intends giving unsworn evidence or is prepared to take the oath?
CHAIRPERSON: No, that is what I am doing presently, hence I asked for her full names.
JUDGE DE JAGER: I am not so sure that she is giving evidence, she ...
CHAIRPERSON: No, no, it is an application.
JUDGE DE JAGER: The request was that she should conduct a part of the case in person. I think what is being advanced, wouldn't be evidence as such, and we are for sure not going to as far as I could see, allow this to be a sort of hearing in which we would have all the parties examining each other and cross-examining. It is a discretion we've got to exercise, whether we should grant a postponement or not, and we would like to keep it as plain and simple as we can.
CHAIRPERSON: She is laying the basis and Mr Semenya would do legal argument, that is how I understood it.
MR SEMENYA: Correct Chairperson, there is not going to be evidence, there will be representations.
CHAIRPERSON: Thank you. Mrs Madikizela-Mandela?
MS MADIKIZELA-MANDELA: Thank you Chairperson. I must state most vehemently that I am opposed to the so-called application.
I can assure you from my own personal knowledge of Jerry Richardson, the Jerry Richardson you see here today is the Jerry Richardson I met years ago, from his own testimony, the man is no different from what he has always been. I am not convinced that this application is really in good faith. If it was so, Mr Richard ought to have made that observation yesterday, when he cross-examined, or when he led his client, to lead his major evidence here.
He took the whole day up to half past four, exhorting the lunatic information he extracted from this man. Now, when it, when we are to cross-examine him, he is suddenly not in the right state of mind. To me this appears very suspicious, the media has been fed sufficiently with what Mr Richard wanted to feed the media with. Before me here the Citizen's headline is "Winnie told me to kill", and television has even been more vicious than that. They even went so far as to state that as a matter of fact, Mr Bulelani Ngcuka is investigating the allegations that I are brought forward by the so-called lunatic, who is suddenly a lunatic when we are to put our own case across. I am opposed to this, I consider that a violation, a gross violation of my own rights.
I find it quite intolerable that this forum is going to be used for such agenda's. I believe there was a specific agenda to bring this application now as was the case two years ago. We were a month before the African National Congress' meeting, conference, to elect the new leadership of the ANC, and Jerry Richardson was brought to this forum to give the same testimony which he now contradicts, because it was a fabrication then, it will be a fabrication even if he stays for a year in Sterkfontein, he will come back and make this lunatic assertions.
I am totally opposed to that application Chairperson, thank you.
CHAIRPERSON: Thank you. Mr Semenya?
MR SEMENYA: Chairperson, what must offer itself as a basis of opposing this application, should be the following: I think on behalf of the applicant, we are being advised that the reason for the application is that Mr Richardson does not understand the exigencies of these proceedings.
Now, that is an attempt at euphemism, what Mr Richard must be brave to say is that he believes his client is mad. He must be saying "I believe that my client is insane and these are the reasons why I hold that view". Now, in stead of him giving us, and furnishing the Committee with the reasons that support his conclusion that his client is insane, I am not saying he is making a medical clinical examination of the client, but he has at least come to the conclusion that he is not mentally stable. In stead of him furnishing reasons why he believes so, Mr Richard goes on to say "I will not disclose why I come to the conclusion, I will not give the, no factual foundation would be given by me, because I am not an expert."
Mr Richard in support of this application must do two things - either he must be able to convince us and importantly the Committee that from what the Committee has heard, there is a semblance and display of mental instability already in display by his client, he is not saying that. He must be able to say to us "in consultation with my client, I have formed this view and I am able to demonstrate these various issues" as indicative of the mental instability which his client is suffering.
Now, we are not given why he holds this view, but most importantly we are not even told why this view was not formed prior to the commencement of the proceedings. If Mr Richard is saying to us that from ten o'clock yesterday when the evidence was led and whilst he was leading that evidence, he was satisfied that his client was compos mentis, that he could fully appreciate the proceedings, that at every turn when he was asked what was the political motive that informed his conduct, he was able to say it was informed by the instructions received from my client, and even up to half past four, he was satisfied in his mind that his client was competent to testify to the things he did, at least Chairperson, he must owe the Committee a duty to disclose why now on the following day, he holds a different view and it does us no favour to say "I am not going to disclose reasons for it", but then he goes on Chairperson, to say to us "I don't even know what I want to do once these proceedings are stayed", because he says I am satisfied that the provisions of Section 74 of the Criminal Procedure Act do not offer him an answer and notwithstanding indications to him that he would not be offered an opportunity in terms of the Criminal Procedure Act, he still alludes to this.
But then he goes on, he says "if the proceedings are stayed, I can possibly approach the TRC and find out whether or not there is a way in which this can be done". When confronted with another possibility of obtaining certain expert testimony through the offices of the Correctional Services, then Mr Richard says "you know, I haven't explored that possibility". Then other alternative methods he tells us, are existing somewhere there, but surely if this application is sound, the applicant must be able to persuade us, and persuade the Committee that once the matter is postponed, the following things are going to happen, so that the Committee does not stay the proceedings pending a report that may not arise because the process by which that report is to be accumulated, is hardly even clear in the mind of the legal representative of Richardson.
I think Chairperson, the application is misplaced and it ought to be rejected. Those are the submissions I am making, Chairperson.
CHAIRPERSON: Thank you Mr Semenya. Ms Mbuyisa?
MS MBUYISA: Chairperson, Mr Alli would be making submissions in this matter.
CHAIRPERSON: Thank you. Mr Alli?
MR ALLI: Thank you Chairperson. Chairperson, as we have perhaps previously indicated, we didn't initially intend and at this point, still do not intend to oppose the application, however I would just like to add for the sake of the record, the reason being we feel that it would not be to the benefit of our clients or for the greater goodwill of this process, if we are unsure that the evidence that has been given to this Committee and to the previous Committees, etc, were given by a man who appreciated the process and accordingly, we are of the opinion that in order to clarify and to put everyone's mind at rest, and for the sake of the integrity of this Commission as well, that perhaps it is a good idea for the applicant to undergo evaluation so that whatever evidence is subsequently given, whether it be found that he is fit to stand proceedings, the record stands and will be dealt with and dispensed with at that stage. I do understand the difficulty that Mrs Madikizela-Mandela is faced and various other people that have been implicated by Mr Richardson's testimony, however I am of the opinion that it is better suited if we come back with sufficient medical evidence to indicate that in fact the man is unable to appreciate the proceedings and accordingly the allegations are incorrect.
If we allow these proceedings to continue today, that will never occur, we will never know whether in fact his testimony today or two years ago, or this afternoon for that matter, is in fact the truth or not. Therefore I would suggest, I would agree with Mr Richard, that the applicant be sent for an evaluation. The procedure that he wishes to follow, I believe lies with him, provided that within a reasonable amount of time, this Commission is furnished with a report. We have no objection, thank you.
CHAIRPERSON: The difficulties you mentioned of Mrs Madikizela-Mandela, how do you appreciate them?
MR ALLI: Mrs Madikizela-Mandela has indicated the press reports that have already been outlined against her. I do not wish to make a finding whether they are correct or not, I have not seen them. We have a version from our clients which we wish to put forward.
All I am merely saying is that if the reports are in fact, if the medical report is in fact, shows that Mr Richardson is perfectly fit and can understand the proceedings, well then we continue with the proceedings, if it is found that in fact he cannot appreciate these proceedings, then of course the press, I can go further and say, have a duty then to rectify the reports that have been given out so far, thank you.
CHAIRPERSON: The argument of Semenya that we haven't been furnished with submissions which would persuade us and shortly the mental state of Mr Richardson, that we haven't been furnished with that, it is merely a suspicion at this stage if I may put it this way, despite that, you say, we should still consider that?
MR ALLI: I am of the opinion that the slightest suspicion will result in us never knowing the truth and my understanding of the process is that we are here to find out the truth. If this truth is tainted in the slightest manner, it is no longer the truth Chairperson and accordingly in order for that not to be the case, I would suggest that in fact, yes, by all means possible, we want to find out the truth and the only way we can do it, is if we know that we are dealing with a man who appreciates the proceedings.
If there is the slightest doubt that he is unable to appreciate the proceedings, whether the doubt is founded on facts or not, there is a doubt, that being the case, yes, the application should be granted, that is my submission, thank you Chairperson.
CHAIRPERSON: Thank you.
JUDGE DE JAGER: Do I understand you correctly to say we shouldn't, it is not necessary to come to a conclusion that on a balance of probabilities or whatever criteria you may use, we find there is something wrong with him? At this stage only a postponement is asked and if there is the slightest doubt, it could be a ground for postponement, although not a ground for referral to an institution for instance?
MR ALLI: Chairperson, I am indicating that as Mr Richard has indicated, that there is the slight suspicion, he would therefore be asking for a postponement in order for him to carry out the necessary activity, namely to obtain the reports. I am suggesting that he should be granted that opportunity even though it may frustrate the process in the sense that we are putting great pressure on the Commission, however I feel that we rather put pressure on the Commission in the sense that there is no time, but at the end we know for sure that we are dealing with someone who is able to appreciate the proceedings, and that the evidence that is being led, can be relied upon. Therefore the answers that come out under cross-examination as well, are coming from an individual who understands the proceedings.
CHAIRPERSON: Mr Semenya says even that suspicion, we are not told what it is, on what basis those suspicions arise, that would allow us to come with a postponement at this juncture. At least if we could know those suspicions, I know that is the tenure of his argument or crux of his argument, if I understood him well.
MR ALLI: Correct Chairperson, perhaps Mr Richard will be in a position to assist us.
CHAIRPERSON: No, I am asking you because you are saying that we should consider granting the postponement, I say let's rather deal with it holistically, that I pose that question which has been asked by Mr Semenya, how could we be persuaded if nothing has been said before us, what made Mr Richard, I will come back to him, he has to reply, what made him to suspect that the man is mentally disabled.
MR ALLI: Chairperson, I find myself in a situation where I am unable to provide sufficient clarity as to why Mr Richard felt this way, all I am saying is that if he has felt this way, he is the best person to have felt this way as he knows his client better than anyone of us sitting here today, he has dealt with him longer than anyone of us have dealt with him, perhaps in fact, with the exception of Mrs Madikizela-Mandela. However from a legal point of view, Mr Richard is the legal representative, he owes a duty to his client and I am saying that if he feels that there is slight doubt, and I take your point that perhaps he hasn't indicated what that doubt is and perhaps he will do so shortly, but if there is the slightest doubt, our feeling is that we don't want to continue with the process if we are unsure that the evidence to be given, can be relied upon.
CHAIRPERSON: Thank you Mr Alli. Mr Mapoma, do you want to put in a word or two for us to come with a decision, rather a ruling on this application?
MR MAPOMA: Yes Chairperson. Chairperson, initially I, at the face, on the face of it, before the application was made, was holding a view that I would not be opposed to the application as such, but Chairperson I can mention now that I am concerned about the application itself, particularly when it does not seem that a case is made by the applicant, through his legal representative, in particular to specify where the reason to believe, is that the applicant does not understand the proceedings.
I think it was incumbent upon the applicant to convince the Committee.
CHAIRPERSON: No, no, persuade us. He must persuade me, not convince me.
MR MAPOMA: Oh, yes, yes, Chairperson, persuade the Committee, yes. That has not been done unfortunately at this point. That is my submission. I think it is important as well Chairperson, for the applicant in order to, in all fairness, afford the Committee to make a decision, to make practical undertakings to the Committee really as to what is it that is going to be done in the meantime. And that unfortunately as well, has not been done.
JUDGE DE JAGER: Yes, obviously we cannot leave the matter in the air and await a report sometime, whenever it would suit somebody to bring a report.
MR MAPOMA: Yes.
JUDGE DE JAGER: Is there a method of putting sort of a return date, that a report should be filed before such and such a date or otherwise the matter would proceed on a stated date because I wouldn't in any event, whatever we may decide, wouldn't like the matter to be left in the air, and it may take six months or three months or whatever, and we don't know what has been done in the meantime and whether there was in fact a follow up of an investigation about his mental capacity.
MR MAPOMA: Yes Chairperson, I have thought of that, but I am looking at the practicalities now of a return date, as to how practical is that going to be given the fact that the proceedings are going to, I mean the Amnesty Committee is going to be in recess for quite a long period now before that return date, which may be next year. I think Chairperson, it need not be under-estimated, the gravity of the evidence of the applicant, vis-a-vis the implicated persons.
If it can be allowed to remain until next year, that damage would not be repairable, that is my submission. Therefore the return date which I think may be next year, will not be fair really to the implicated persons.
JUDGE DE JAGER: Well then why wasn't this matter brought up earlier, they have been implicated for two years now?
MR MAPOMA: No, no Chairperson, they were implicated then and they were afforded an opportunity to cross-examine the witness then.
JUDGE DE JAGER: Yes, but for two years this application is pending?
MR MAPOMA: No, the application for referral to mental ...
JUDGE DE JAGER: No, I am talking about the implications, the implicated persons have been implicated by the previous hearing of the HRV two years earlier now.
MR MAPOMA: Yes.
JUDGE DE JAGER: And would a further month make any difference?
MR MAPOMA: I think it would.
JUDGE DE JAGER: Say for instance, this matter would continue on the 17th of January, the first matter to be heard next year, whenever we are re-starting?
MR MAPOMA: Chairperson, it would, because we are here at this point remaining with the evidence-in-chief, which has not been controverted by those implicated. They have a right to challenge the evidence that is here.
JUDGE DE JAGER: That is so.
MR MAPOMA: If that instant rebuttal has not been afforded to the implicated persons, up until next year, I am saying this damage will be irreparable.
JUDGE DE JAGER: And if it would turn out that this man is mentally ill, and we have allowed him to be cross-examined, what would the result then be, who would then be, who would then have caused irreparable harm?
MR MAPOMA: That is a different scenario Chairperson, altogether, because at that time, this harm would have been circumvented, because the implicated person would have received an opportunity to rebut the allegations that have been made against them, and if it turns out ultimately that a decision which is about to be made by the Committee, or which has been made by the Committee, was defective, given the mental incapacity of the applicant, would be a different scenario altogether.
What I am saying Chairperson ...
CHAIRPERSON: I agree with you there, I think my colleague, Judge de Jager, should put that to Semenya, he is the best abled person to answer that, and before I come back to you Mr Richardson, unless you have finished, I will allow you to continue, but the next will be Semenya.
MR SEMENYA: Chairperson, I am satisfied in my mind, the connotation was not intended by Committee member, Judge de Jager, to say if there had been implications of criminal conduct on my client for two years, what difference would an additional month do? I think with respect the constitution cannot even allow a conscious perpetration of human rights violation even for an hour.
JUDGE DE JAGER: Yes, no, I agree with that.
MR SEMENYA: So it would be wrong if my client says to us that "I feel violated that there is media statements uttered all over about my criminal conduct which I know is misplaced and I know it is misplaced because I know this character which we are now told is not mentally stable", that it should lie that way even for a day. And too, it is a question of the return day, I fail to see how Chairperson, a Committee would stay the matter pending a return day when it is unclear to it what is going to happen on the return day, because we are still ...
JUDGE DE JAGER: What I had in mind is if we would grant a postponement, that we should postpone it, not sine die, but to a definite date so that we would proceed on that date, unless something is put before us that prohibit us from proceeding.
MR SEMENYA: Except Chairperson, that we would rather we didn't come back on that day to find out that Mr Richard did not do anything about it, so the nature of the ruling must be specific, it must be able to say we have heard you, we know that on day X, Y, Z you will see or go to institution P, Q, R, S, you will be examined and a report of this type would be given to us, so that on the return day, you have the basis of believing that the Committee's ruling has been implemented.
But if the application is being made that I am wishy-washy about what will happen if you give me ...
CHAIRPERSON: The postponement ...
MR SEMENYA: I say there is a difficulty there, but thirdly, surely if there is anything at all which the applicant must make, and it is not even the applicant here, we are talking about the applicant's representative, and I have heard what Mr Alli is saying, he is saying if there is, if there is a suspicion, now we don't support an application that way, on a hypothesis of a suspicion.
It makes compound difficulty, one it is hypothetical, two it is even a suspicion which in itself must be hypothetical, so one would have thought that what Mr Richard would do is at least for the courtesy of the hearing and the country, say, "I have come to this suspicion based on A, B, C, D", because Chairperson if we came to the conclusion that a suspicion is founded on, and I am going to be ridiculous just to make the point, that he felt his temperature, we would be able to know that this application is ill-founded.
But if the suspicion is premised on something that demonstrates mental incapacity, then we are able to react to that suspicion, but you don't' just make an application and say "I am not going to disclose whether I felt his temperature or whether I felt his tongue or whether he didn't eat supper and made the suspicion that he is not mentally stable", he must disclose what grounded that suspicion, so that we can consider it. Thank you.
CHAIRPERSON: Were you finished, Mr Mapoma?
MR MAPOMA: Yes, Mr Chairperson, I am finished.
CHAIRPERSON: Thank you. Mr Richard?
MR RICHARD: Thank you Chairperson. My first point in reply is that many of the arguments raised, turn on the concept of prejudice.
We can then divide prejudice into various categories of who might be prejudiced. First of all, as I said, the victims have to be taken into account. If the examination and reports I am calling for, were not prepared, the victims would be the first group and category to be prejudiced, for the very reasons that Mr Alli outlined. In other words, they would not know what the facts of the matter are.
The second and I do specifically say that this is in a ranking of priority, is the applicant. To subject an ill man to cross-examination, would be a gross injustice. I don't need to take the point further. Then to implicated persons ...
JUDGE DE JAGER: But Mr Richard, on that count, shouldn't you then show that the applicant is a sick man and subjected to a ...
MR RICHARD: Chairperson, I am dealing with point by point what has been raised, the concept of prejudice has been raised.
What I am asking for, may prove to be a final end to the enquiries being held by this Committee, it may not. But it is fundamental and when it comes to a question of prejudice, it is the major premise, the process itself would be fundamentally prejudiced were the stay not permitted.
The second point ...
CHAIRPERSON: wouldn't that be the third on prejudice?
MR RICHARD: No, that is on the point of prejudice, that is the first point.
CHAIRPERSON: Oh.
MR RICHARD: The second point is summed up by the word "unclarity", it seems to be intimated that there is a lack of clarity as to what would be done next. I submit that no basis whatsoever has been advanced as to why there should be any lack of clarity, it is merely a word that has been thrown around in vacuo.
The Criminal Procedure Act is clear, specific and practical, there is an immediate procedure to be adopted, which will be adopted. If I were not to adopt it, I would then be ...
CHAIRPERSON: Are we clothed with that?
MR RICHARD: I beg your pardon?
CHAIRPERSON: If we do accede to your application, does the Criminal Procedure Act clothe us with such powers?
MR RICHARD: It clothes the High Court with that power, to call for that report, and in addition to that ...
CHAIRPERSON: And to do what with it, the Supreme Court, the High Court?
MR RICHARD: To make the referral, to make the referral for observation.
CHAIRPERSON: No, no, what I am saying is we are seized with the matter and we go to another forum and say "hi" ...
MR RICHARD: The application to the High Court is quite straight forward and simple, the issues contemplated by Section 74 are before the Truth and Reconciliation Commission, the man has been convicted, proceedings are not asked to be stayed in the High Court, in fact, we open them. For these reasons, which I shall be coming to, that is the argument as for the basis, we believe that the correct next step is to have the applicant referred.
Now, the question ...
JUDGE DE JAGER: The proceedings envisaged there, proceedings that would pertain to a criminal trial?
MR RICHARD: The proceedings don't only contemplate the situation before trial, the Act is express and clear, a man or a woman might be convicted without those avenues being explored, and maybe wrongly convicted, and therefore the Act was amended so as to provide specifically for the eventuality that after conviction and sentence, the reports might still be got.
Prior to the amendment, there was an appeal case in the Transvaal Provincial Provision authorising such a procedure, even though the Act did not provide for it, so that means the next point which our learned colleague, Mr Semenya has raised, what need established. Now, the test before a Court or before this hearing, is not substantially different. Firstly, I have to take my position as the legal representative of the applicant and the person who sits, serving a criminal sentence. What happens between him and I, is a matter of privilege. For me to be asked to put out what might be my reservations and opinions and make them matters of public record, would be a complete invasion of the right of privilege.
CHAIRPERSON: No, I don't think so, I think we differ here. If you had at the beginning said the applicant is before you, but I have reservations after consultations, that the man is fit to give evidence before this Committee, this panel, it would have been a different matter.
MR RICHARD: Yes.
CHAIRPERSON: But what Semenya is saying, he is saying you allow the man and even the client says so too, that he comes with certain exhortations and thereafter, after one and a half days, say the man would appear is not fit to testify before us, on what basis?
MR RICHARD: Chair, it is as well to place formally on record that prior to the commencement of these hearings, and long before it was due to commence, I with prejudice and openly invited Mr Maponya, directly and the victims' representatives, to consult ...
CHAIRPERSON: Mapoma?
MR RICHARD: Formally, I put it ...
CHAIRPERSON: No, I mean Mapoma, not Maponya?
MR RICHARD: Maponya, sorry.
CHAIRPERSON: No, no, Mapoma.
MR RICHARD: I beg your pardon.
CHAIRPERSON: You probably know him with his first name Zuko, but he is not Maponya, he is Mapoma.
MR RICHARD: Mapoma, Mr Mapoma, I beg your pardon.
CHAIRPERSON: But whatever obtained, I want you to answer fully, what obtained outside us sitting here and not be ventilated before us, how do we take judicial cognisance of that?
MR RICHARD: The point that I am leading to, the argument, goes I said "here is the applicant, talk to him and these are the questions that I have asked." At that stage, I was of the opinion that the proceedings should commence and run, and I don't regret that decision. However, today after the proceedings had started, I add on and here I will take the Committee into my confidence, matters that were discussed completely unexpected and unrelated and unconnected matters, then happened. Questions that I asked and responses I get, for no apparent reason and no contextual bias or factor to be taken into account therein.
CHAIRPERSON: Assist me, I want to follow, when were you asking those questions, was it before or during the hearing?
MR RICHARD: Subject to the right of privilege, there is a dynamic between a representative and a client, in this case, the applicant. Why I feel that there is to use the language of the Act, it appears that, that is the Criminal Procedural Act, that there is reason to raise this application, is that the inconsistencies and variations and unpredictable nature of what happens, have led me to the opinion, which I hold, and it is not the first applicant or the first accused person that I have dealt with, that somebody better qualified than I, should investigate and assess the situation.
CHAIRPERSON: Let me ask you pertinently, and this is the problems which Semenya says he encounters that from the testimony of one and a half days, what made you, or to use the language, what appears that the applicant does not appreciate the exigencies of the proceedings?
MR RICHARD: There are two aspects to that question Chair, with respect. First of all, it would be wrong for me to ever record or intimate that there is behaviour inconsistent with instructions and statements, that would be in fact unprofessional of me to make that statement, even if it were so in this particular situation.
What I say then leads to the next, if those factors ...
CHAIRPERSON: What would make it unethical?
MR RICHARD: If I say ...
CHAIRPERSON: No, no, I say for instance if you lead your client, you have consulted his acts, he testifies, he says why, what would make you unethical to say "hi, hold the proceedings, there is something wrong here", what would make it unethical?
MR RICHARD: I can do one of three things. I can withdraw, which I am not doing.
CHAIRPERSON: Not necessarily.
MR RICHARD: I said it is not the only option, I can do as suggested, stay and consult further or on the basis of the inconsistencies and the irrationalities that I am dealing with, say - sorry I nearly said My Lord, I believe on the basis of what I am experiencing at the moment, that it appears to me that it is necessary to evaluate the accused, in this case the applicant, before us, to ascertain whether my suspicions which I believe are formed on a proper and professional basis, are either correct or incorrect.
CHAIRPERSON: No, no, let's put it pertinently that my recollection is that these intimations of his mental incapacity arose after an adjournment, when he was under cross-examination?
MR RICHARD: I will then put it quite squarely into the record, that the responses and behaviour elicited by questions put to the applicant, made me review my decision that the proceedings should run, and to take the Committee into my confidence by raising the issue.
I have now raised the issue and I believe that my concerns are sufficiently serious to justify making this formal application which is now before the Committee. I don't believe ...
CHAIRPERSON: Did you have beforehand how his response would be to questions, because I don't think you knew what questions would be asked?
MR RICHARD: I had a fair idea of what the general topics of questions might be. I take the example which is public, many killings. Chronologically and historically we know that unless there were other killings before the one in question, the answer makes no sense. The applicant makes the statement then that there were no other killings.
MR SEMENYA: Chairperson, might I interject, surely this evidence that we heard yesterday morning about prior killings, it cannot be used as an ...
CHAIRPERSON: When we dealt with the first incident?
MR SEMENYA: The very first incident, hardly 20 minutes into the evidence.
CHAIRPERSON: Yes.
MR SEMENYA: It cannot be offered as an explanation for the application which is made the following day, as a response and behaviour which is inconsistent with his instructions.
MR RICHARD: I am not offering it as the only and I used it by way of a mere example.
ADV BOSMAN: Mr Richard, may I just ask you this, I am not quite clear on this, when you said you invited the Leader of Evidence and the representatives for the victims and you sort of offered your client and said "here, speak to him", did you tell them that you had certain reservations about his mental state?
MR RICHARD: Yes, I did. I did, I told them up front and directly, and I believe that can, may be confirmed.
CHAIRPERSON: But ethically then, shouldn't all the legal representatives be invited to observe your client's situation?
MR RICHARD: I had no knowledge as to who was going to represent implicated persons until yesterday morning, or over the weekend.
MS MBUYISA: Chairperson, if I might just interject and set the record straight, the whole issue of Mr Richardson being referred to psychiatric evaluation, was suggested. It wasn't a formal investigation, he led it as "I am thinking of doing this, what is your suggestion", that is it, Chairperson.
ADV BOSMAN: That was prior to the hearing?
MS MBUYISA: That was three weeks ago, if I am not mistaken.
MR RICHARD: And ...
MR MAPOMA: Chairperson, I think I may have to explain as well, this issue was raised not beforehand ...
CHAIRPERSON: Let's put the proceedings in its perspective, here I am seized with an application, everybody has made his submissions or her submissions, and Mr Richard is replying and I think pertinently to the opposition raised by yourself and Mr Semenya and now, if we are going to enter into a discussion what is our record, going to look like?
ADV BOSMAN: Chairperson, may I just put this straight. It was raised by Mr Semenya that why raise it at this very late stage? I think it is relevant that we have it on record that even though Mr Semenya was not party to it, that it had been raised earlier on. This is all, with my question, which I wanted to get on record.
CHAIRPERSON: Yes.
MR RICHARD: It had been raised previously, I don't think ...
CHAIRPERSON: But is he not prejudiced, Mr Semenya, because with all honesty, why I called every legal representative to Chambers, we were discussing freely and I said nothing is on record. I made the suggestion that, "go back and get instructions", had he had this information, probably he would have come with a different position, but why should that come up during argument? That is my problem, unless I can be assisted in that regard, I have a bit problem about that.
MR RICHARD: If Mr Semenya is not on record and cannot be found to be on record, how could he be included?
CHAIRPERSON: No, no, he is on record.
MR RICHARD: At the stage that we are talking about, but my submission in this respect Chairperson, is that as the Committee has indicated, it was raised before the hearing, beyond that, we go to the next stage, a decision was made and I take responsibility for making that decision, that it would be in the best interests of the applicant, the victims, the implicated persons and the integrity of the process itself, to allow the process to proceed, which is the decision I made.
I may have reason to regret that decision in the future, I may not, but that is the decision I have come to today. I apologise if I might have made a different decision, but that is how it has played out.
Now, we come back to the basis of the application, which I think Mr Alli has already pointed out and argued, I do not believe I am alone in having an opinion about what appears before us, I think it is apparent to both the Committee and to my colleagues, they may not wish it or like it, but there is a reason for the matter to be investigated by the appropriate experts.
CHAIRPERSON: Their reason is known to yourself only, because that is what Semenya put forward.
MR RICHARD: Yes, but I don't agree with Mr Semenya's submission, that is not a matter of fact, it may be a matter of argument.
The fact that we had to adjourn this morning so as to get an answer, is also apparent to all of us. I believe that just as in a criminal matter where one doesn't have to prove the so-called madness or disability or impairment before one has an investigation or an enquiry into that, that is why the procedure is laid out, the same procedure should be adopted here, the investigation should be continued, because if it is not continued, these proceedings would be fatally flawed, and I have no apology for making the decision to confront the issue, a joint decision between myself and the Committee, thank you.
CHAIRPERSON: The question that we have no certainty when we should come back, and what is going to be done with Mr Richardson, either to go to the High Court or approach the TRC and see what happens in the process?
MR RICHARD: In other matters, a report was obtained utilising the procedures of the Criminal Procedure Act. I don't believe that there is any reason to doubt that that will happen in this matter.
CHAIRPERSON: Then you approach, let's say you utilise Section 74 of the Criminal Procedure Act, you approach the High Court and you say "I want this man referred for observation because I've got the suspicion or it would appear that he does not appreciate the exigency of the proceedings before the Amnesty Committee", how would a Judge be able to come with a decision and say "you are right", because he does not know what obtains here?
MR RICHARD: I did at one stage, (indistinct), suggest that a request and that is the most that the Committee can make, would facilitate the speed and process, however, I do not make an application for a request from the Committee, I believe that by dealing with the matter, I will have the reports available and the suggestion that they won't be available and that it is only a ploy, is merely a speculative argument, and I could take offence at it, I don't.
CHAIRPERSON: No, no, what we are saying is that I have, when you came with the application, actually asked you that we've got a limited lifespan, end of March next year, we are finished, and Mapoma came with the suggestion that the Committee is going into recess well into January, which leaves us with approximately 10 weeks complete these proceedings.
Then they are saying "please, since we are seized with the matter, assist us to know that if we do postpone and that it is not easy for this panel to be re-constituted, that if we schedule matters for next year, at least this panel would be told "you are seized with this part-heard matter", and we should know again precisely where you are going to, because I said to you, I asked you a question "wouldn't it be easier to refer him to a psychiatrist or psychologist utilising the Correctional Services' department" and you said "no, no, I am still exploring the High Court and the TRC".
MR RICHARD: It is an option which might be available, if I had personal knowledge of what the results of that option might be if utilised, I would say so. I believe that they should be exercised and explored, but since I have no knowledge of what would happen on the Correctional Services avenue, I don't make an assertion.
CHAIRPERSON: Wouldn't it be persuasive if you said to us "I intend bringing this application, but I am exploring what I should do that when I come before you, I give you X, Y, Z, rather than quite correctly us saying "okay, we postpone to the 17th of January", what are we expecting on the 17th of January?
MR RICHARD: Chairperson, if I had a lack of competence that I would have the reports, and I still might be disappointed, but I believe ...
CHAIRPERSON: No, no, we do operate in legal sectors on the basis of trust, that we know that a legal representative will not come before a Committee or a Court, and mislead the Court, but here we've got peculiar circumstances.
MR RICHARD: But Chairperson, with the greatest of respect, I don't believe that they are that peculiar. I don't believe that there is any doubt for uncertainty in the situation, that subject to ordinary risks and nothing extraordinary, the question is whether those reports will be available within five weeks of today, the 15th of January.
JUDGE DE JAGER: Mr Richard, we have ruled previously that we would proceed with this matter on Thursday. Would you on Thursday morning be in a position to give us the exact envisaged procedure and make enquiries as to how long it would take, so that we could ascertain whether, at least weigh up the prejudice for the different parties?
MR RICHARD: Chairperson, I have no problem with that suggestion.
JUDGE DE JAGER: Do you think you would be able to do so?
MR RICHARD: Yes, I have a day between now and Thursday to do everything that is necessary to make a report back on what I am requested to report on.
JUDGE DE JAGER: I think perhaps you should go on with your submissions and let's see ...
CHAIRPERSON: I don't know if you are finished with your submissions in reply?
MR RICHARD: A point unnoted from what the applicant's representative submitted, it is conceded that it is common cause that on their version, there is a slight suggestion and reason to make the enquiry, which is the concession of fact that I would like to point out.
Then, the next point was Mrs Madikizela-Mandela's argument, that is mere argument. There is no evidential value to it, and what she asserts as fact, cannot be taken into account or be treated as any information of any evidential value.
CHAIRPERSON: What of the two, she first stated that when there were ANC elections, Mr Richardson appeared before the Human Rights Violation Committee and that raised lots of reports in the papers, secondly, just from yesterday, the newspapers are having a field day and further that Ngcuka, Mr Bulelani Ngcuka of the Director of Public Prosecutions, has said "I am investigating her".
MR RICHARD: I don't understand ...
CHAIRPERSON: She says that is on television, I avoid looking at television when I am seized with these matters.
MR RICHARD: Yes, whether it was or wasn't, I also had no knowledge, I didn't watch television last night.
CHAIRPERSON: But at least she has read the Citizen to us today?
MR RICHARD: Yes, but even if it were so, what is the relevance? The relevance is that I am asking for a stay, not a final result, so that ...
JUDGE DE JAGER: I think it is relevant in this sense, her right to confront you with what they say is not the truth, is sort of put on the background and postponed for another month.
MR RICHARD: And what prejudice can that cause?
JUDGE DE JAGER: That can cause prejudice as pointed out, if there is articles in the newspapers and it could be sort of contradicted the very next day, it carries weight in public, while contradicting it two years later, or two months later, wouldn't have the same impact.
MR RICHARD: And tomorrow the newspapers will bear the report that the evidence that was published last night, might be tainted by mental disability?
JUDGE DE JAGER: Well, if that is so ...
CHAIRPERSON: Is that not speculative? We know at least that there were reports yesterday, we don't know what is happening tomorrow?
MR RICHARD: My point is that the integrity of the procedures before this Committee, have to be the major consideration.
The second one is the rights of the victims, and the third one, is the rights of the applicant. There is what I have placed before the Committee, my argument which I have already outlined. If I am correct and be proven to be correct at a later point in time, the integrity of these proceedings is compromised, and I believe that that prejudice must be the first to be protected against. Then there is what Mr Alli argued.
CHAIRPERSON: What about the prejudices you spoke of, that wouldn't you say Mrs Madikizela-Mandela comes first because she is a heavily implicated person here, that whatever obtained or happened to the victims, it was through her instigation?
MR RICHARD: In that sense, with that sense, the importance from her aspect is whether there is any substance in it. There may or may not be, that is not for me to judge, however, I believe that by doing what I did before the tea adjournment, and that was intimating a decision and a question that I needed to raise, I did the correct thing and what was required of me to do.
CHAIRPERSON: You are repeating yourself, we heard that.
MR RICHARD: And I believe that ...
CHAIRPERSON: But shouldn't she approach the millennium satisfied that at least I have vindicated myself before the Amnesty Committee?
MR RICHARD: Does it matter when? Whether it is this month or January, the balance has to be taken into account?
MR SEMENYA: I must record an objection Chairperson, I think we should approach people with courtesy, to really say about somebody against whom such vicious statements had been said, that "does it really matter", cannot be a fair statement from an Officer of the Court, it cannot be.
MR RICHARD: I don't see anything to apologise or to retract, however my argument is complete and I leave it in the hands of the Committee, subject to further questions.
CHAIRPERSON: I raised it, it should matter if I raised it, shouldn't she approach the millennium with some vindication because Mr Semenya argued vehemently that once we look at this process, we shall also bear in mind the human rights as enshrined in the constitution, that even a day that somebody should vindicate himself or herself, matters most. That is the argument I think, unless I didn't follow what he was saying?
MR RICHARD: Chairperson, my first argument is what right is being invaded? All the procedural rights are there to protect herself, there is nothing taken away?
CHAIRPERSON: No, no, the argument is, if I may just interject, the argument is two years ago, these vicious statements were made and we sit, come back two years thereafter, and repeat them and say "now the man in mentally incapacitated", why couldn't we do something in the interim?
MR RICHARD: I am not sure Chairperson, is the question addressed to me or ...
CHAIRPERSON: To you.
MR RICHARD: Sorry, Mr Chairperson, what was incumbent upon the applicant to do in the interim, except what has been already laid before the Committee? A decision was made this morning and I believe it was a proper decision, I don't want to repeat myself.
CHAIRPERSON: You read something to us, I think on page 14 or 15 and said "look, the man was found to be unintelligent two years ago, and that suggested that he is mentally incapacitated". My question is, since the July if I am not mistaken or thereabouts, up to now, what has been done to the patient other than three weeks ago, if he is a patient?
MR RICHARD: Chairperson, that judgement which I quoted from, was given on the 8th of September 1992 and it was a judgement by a Judge of Appeal, Hefer. Now, once the Human Rights Violation Committee concluded its activities in relation to this matter, a decision needed to be made, at that stage, I take responsibility for making the decision that there was nothing to do. The next time a decision needed to be made, was about three or four weeks ago when the bundle of papers before us, arrived and I then started the process of preparation and asking for pre-hearing meetings with my learned colleagues and so on.
I then made a decision, so in that respect I don't see that I owed any responsibility or duty to anyone, except my client, but to make a proper professional decision, which is what I have now made.
CHAIRPERSON: What about the suggestions, if I may ask Adv Semenya, the suggestion made by my colleague, Judge de Jager, that we reserve our decision pending what Mr Richard comes with on Thursday that if we rule that there should be a postponement, if we rule that there should be a postponement, these are the steps he is going to take, so that we have some definite arrangements in this respect?
MR SEMENYA: I cannot resist the cogency of that thinking.
CHAIRPERSON: Thank you.
MR RICHARD: Thank you. Nothing further to say.
CHAIRPERSON: We, I haven't made up my mind about it, because I would have conferred with my colleagues, that we afford you an opportunity that you should be persuasive, you tell us Thursday morning, this matter would be adjourned until Thursday morning, what precise steps are you going to take and what medical experts are you going to approach for us to be able to come with a ruling, or persuade probably Mr Mapoma and - let me start with seniority, Adv Semenya and Mr Mapoma, they might change their minds, but we would still have that, does that gel with you?
MR SEMENYA: That is acceptable Mr Chairperson.
CHAIRPERSON: Mr Mapoma?
MR MAPOMA: As the Chairperson pleases.
CHAIRPERSON: Thank you.
MR RICHARD: As the Committee pleases, thank you.
CHAIRPERSON: This matter is adjourned until Thursday morning, at nine o'clock once more in the morning, because we lost lots of ground today and we do not want to attract a part-heard matter otherwise we shall have to sit until late. Thank you. The hearing is adjourned for the day.
COMMITTEE ADJOURNS
