MR RICHARD: Thank you Chairperson. At this juncture it is appropriate for me to record that I persist with my objections to the second applicant being called. At the last hearing two weeks ago, I addressed a different Committee at length as to why I believe there is no amnesty application at all before this Committee.
Mr Dube's application, such as it is, makes no reference directly or indirectly or however vaguely to the instance that we've heard today. In other words, it is fatally defective if he intends to apply for amnesty for this incident.
The Act is clear and imperative. The applicant is obliged to, in terms of 20, disclose in his application an act which constitutes an offence or delict. No such act is disclosed at all.
Mr Dube's application refers to Ellis Park and Witbank Car Bombs and then makes an almost unintelligible illusion, which I will read:
"Also anything that might be brought against me which I might not remember".
General applications of this nature have been dealt with before and have been held to be incorrect and not to be in compliance with the Act.
Now in anticipation of what might be argued, I have thought and had put to me the situation where, in an application such as the one that we are dealing with, but after the cut-off date for amnesties, an Investigator goes and makes contact with a person and then whether by way of a request for further particulars to the application or by way of investigation or obtaining comments from an implicated person, then gets information about an event for which amnesty might have been applied for. In that situation my argument is the same, it is then too late and to allow particularity of an act to come into an application that way would be absurd, it would in fact be a method whereby applicants would be allowed to bring in applications for amnesty after the cut-off date.
It has also been often pointed out and I simply make mention again, that there is no provision in this Act for a Committee to condone non-compliance or excuse it and I believe it would be purposeless to hear Mr Dube and I persist in the objection as argued last time. I believe I don't really need to have to re-argue it further.
CHAIRPERSON: I think I can only ask you this question then. If somebody submits his application on the last day and further particularity is sought after the cut-off date, would such particularity which is given not form part of the application?
MR RICHARD: ...(indistinct) May I proceed? Thank you. My question is further particularity to what? I did not bring a similar objection to Mr Buhali's application. In that application, Mr Buhali, cursory and incomplete and superficial as it is, referred to three events, bombing of the Zolo Municipal Offices, attack on the SAP van and then again he gives dates. I'll refer the Committee to paragraph 9(a)(i), (ii) and (iii). Now clearly there if further particularity had been requested, there was something to ask about. However, in the second applicant's situation, that of Mr Dube, there is nothing to which further particulars can possibly be asked. There's no logical nexus between anything else I can, might not remember and what is a request for further particulars. Further particulars are further, not new particulars and in this case: "Sorry Sir, I must now remind you of something you forgot about, now give me particulars", it's too late, no more and that means there is no application at law before this Committee.
JUDGE DE JAGER: Suppose I were to ask for amnesty and I would only say let's ..., I'm asking for amnesty for anything that might be brought against me I might not remember. That was all that was stated in this application. Could that be considered to be an application?
MR RICHARD: If that was all, I would maintain that there is no application, that it should have been summarily sent back and advice would have said: "Failure to comply with the Act", which means that there is no application to consider.
JUDGE DE JAGER: Would it serve any purpose of asking particulars about something that clearly he stated: "I can't remember"?
MR RICHARD: It's an impossibility to ask particulars of a man who says: "I don't know what to say because I don't remember", to what you ask. Do you say: "Sorry I must remind you, now I want particulars", that's putting words in his mouth, that's creating an allegation to which you want particulars. I'm aware this is not a High Court pleading where the standards of tolerance may be very different, but there is a limit.
ADV BOSMAN: Are you suggesting we are more or less tolerant, Mr Richard?
MR RICHARD: I beg pardon, more or less?
ADV BOSMAN: Are you suggesting we are more tolerant than the High Court, or less tolerant?
MR RICHARD: I have the experience that the tolerance is much higher here than in the High Court and in fact, if this were a High Court, I don't believe I would have to argue what I have had to argue now. I think the applicants will have had great difficulty even beginning.
ADV BOSMAN: ...(indistinct - mike not on)
MR RICHARD: But as I said, in deference to the first applicant, there is at least something to hang something on. I can criticise it for non-disclosure, I can criticise the level of full and relevant particulars, I can launch many attacks, but at least there was something on which he could give evidence. On the second applicant's application, I don't believe it's permissible for him now to sit in front of the Committee and in fact start making an application. The fact that he's implicated is another matter that we should bear in mind. At law, I don't believe I would have any difficulty in establishing that the second applicant is not entitled to the protection afforded by the Act constituting the Truth and Reconciliation Commission. I believe that if he were allowed to proceed to give evidence, implicating himself in attempted murder at least, without the protection of the Act, it would be incorrect. I don't think there's any basis on which that evidence could be regarded as the evidence of an applicant in an application and to prejudice him, the prejudice to the second applicant by proceeding to give evidence, could be very severe. I leave it in the hands of the Committee.
CHAIRPERSON: Mr Koopedi.
MR KOOPEDI: Chairperson I have on a previous occasion argued why Mr Dube is an applicant. I was just on the verge of reiterating what I said earlier. However, Mr Dube has indicated to me that he urgently needs to give me further instructions on this matter. If it may please the Honourable Committee, I'll ask for a very short indulgence so that I can take these instructions before I respond to my Learned Colleague's argument and the application or "insistment".
CHAIRPERSON: ... (indistinct) take a short adjournment.
MR KOOPEDI: A very short one.
CHAIRPERSON: We'll give you that.
MR KOOPEDI: Thank you very much Chairperson.
CHAIRPERSON: We suggest that we have gone well past teatime. Could we just take the tea adjournment as well.
COMMITTEE ADJOURNS
ON RESUMPTION
CHAIRPERSON: Yes Mr Koopedi, you said before you reply or answer to the objection you were going to take instructions from client, have you done so?
MR KOOPEDI: Thank you Chairperson. I have done so and Chairperson I believe Mr Richard will be pleased to hear that my client has instructed me to withdraw his application. He does not wish to proceed with the application anymore. Thank you.
CHAIRPERSON: I hope you are not disadvantaged because I saw you taking notes profusely, Mr Mapoma. It is not ...(indistinct)
MR MAPOMA: Yes, Chairperson, I had thought that I would have to apply my mind heavily, but I appreciate this.
JUDGE DE JAGER: Mr Koopedi, only to make it clear for the record, he's not withdrawing his whole application, he's withdrawing the application concerning these incidents?
MR KOOPEDI: That is indeed so, Chairperson and perhaps I should mention that on the application form, the application form before you he has referred to a number of incidents. I must say that the Witbank matter has proceeded, has been finalised. The Ellis Park matter I believe should be finalised, but there are certain hitches to it, so he's not withdrawing on any of those, only on these three incidents which would be, yes, the mentioned three incidents.
JUDGE DE JAGER: Ja, no I only want to - you know confusion could arise at the office, we must make it clear.
MR KOOPEDI: Ja.
CHAIRPERSON: Are you going to call any further evidence?
MR KOOPEDI: No, Chairperson, in the light of this development, that is the application before you and the only application that we're proceeding with and for which I'm ready to make submissions, would be the application of Mr Buhali.
ARGUMENT IN TSHEPO STANLEY BUHALI MATTER
CHAIRPERSON: Before you make submissions, I don't know what Mr Richard proposes to do. ...(indistinct)
MR RICHARD: No evidence.
CHAIRPERSON: Mr Mapoma.
MR MAPOMA: No evidence, Chairperson.
CHAIRPERSON: I suppose this is the appropriate time to make submissions.
JUDGE DE JAGER: Could we perhaps find out, Mr Richard, are you opposing the application or what's the position?
MR RICHARD: My clients' instructions are that they still are not content that there has been a full disclosure of all relevant facts and on that basis they persist in their opposition.
JUDGE DE JAGER: Because it seems as though your clients want to say something, I don't know whether they want to instruct you to tell us any ...
MR RICHARD: No, I have no problem in saying what the situation is. We have an interesting situation where one applicant has today implicated someone who wanted to be a co-applicant in respect of the particular incidents. I have letters here available to me to show that Mrs Kgwedi's husband is now a mental patient as a result of the injuries sustained and the instructions ...(intervention)
CHAIRPERSON: No, no, in respect of the full disclosure. In respect of the full disclosure not ...
JUDGE DE JAGER: We've only got one application before us at this stage. In connection with the application before us.
MR RICHARD: So the disputes about the particulars of the incident are that if my clients were to give evidence, which they, on my advice, have not, they would say that they saw the vehicle which attacked them, coming from the opposite direction not from behind, they would say that the vehicle was accompanied by a kombi and not alone, but it doesn't take us any further.
JUDGE DE JAGER: Ja, so that's not the evidence before us as far as this application is concerned.
CHAIRPERSON: Mr Koopedi, obviously we'll start with you.
MR KOOPEDI IN ARGUMENT: Thank you Chairperson, Honourable Committee Members. Before you is an application, a normal application by applicant Stanley Buhali. He's applying for the three incidents which are mentioned on page 1 of your bundle of documents. It is my submission Chairperson that for these incidents to have occurred, there are other crimes, so to speak, that were committed, which would be possession of illegal AK47s, the ammunition that would go with it, possession
of a limpet mine, although this has not been like specifically mentioned as incidents.
Chairperson, Honourable Committee Members, it is my submission that the applicant has complied with the requirement of full disclosure. Chairperson, this applicant told you that when he completed his application form, he wasn't sure basically what is it that he was doing. He wasn't even sure why and where would the process of the TRC go, but he eventually got to know what it means. On his free will, on his volition, when he was writing a letter unfortunately that has not been put before you, it's not in the bundle of documents, but however, an enquiry was sent to him, he responded to that inquiry fully, Chairperson. Later he was interviewed by the Investigator. He also responded fully. He also went out with the Investigator to point out the places where these incidents occurred. He also went and did a newspaper search, found certain newspaper clippings, unfortunately one of the newspaper clippings is not relevant for our purposes today. However, on that regard or on that score, Chairperson, my submission is that there has never been any better full disclosure, Chairperson. This applicant fully disclosed all the relevant facts in this matter.
In as far as the attack on the police vehicle in Meadowlands, it is clear from the documents that are in the bundle that a police vehicle was attacked. It is also clear from the papers that are before you that this police vehicle had SAP registration number on it, that's what the statements say on the bundle and my submission is there that this applicant attacked a police vehicle, Chairperson, even if my learned friend sought to dispute, that this was an unmarked vehicle.
It is also clear, Chairperson, that there was no material benefit for this applicant, for him to have participated in these actions and finally I submit, Chairperson, that the incidents and the attacks, were purely politically motivated, there was no other reason that the applicant could have involved himself in this incident. It was unfortunate that the victims served the Police Force which were seen as the security or the power behind the Government of the day and the applicant's political organisation or the organisation to which he told he belonged to, had labelled people such as the victims as targets and it is purely on that basis that he acted. Thank you Chairperson.
CHAIRPERSON: Thank you Mr Koopedi. Mr Richard.
MR RICHARD IN ARGUMENT: On the question of full disclosure, I refer the Committee to Section 20(1)(c). The application as originally filed is significant by its noon disclosure of anything. To argue that that application at that stage made full disclosure of all relevant facts, is impossible. However, as has often been argued, Section 20(1)(i) doesn't
define at what point the applicant should have made full disclosure. However, the point is made that on a different construction of the Act, it is argued that it was incumbent on the applicant to make a disclosure properly in his original application.
With regard to the question of the political motive and objective, as contemplated in (ii), I don't believe any point will be served by going into the background of all the other hearings. At that stage in 1988 members of the South African Police were seen by the liberation movements as legitimate targets and vice versa. I leave it in the hands of the Committee.
CHAIRPERSON: Mr Mapoma.
MR MAPOMA IN ARGUMENT: Chairperson, on this point of full disclosure, I agree with Mr Richard when he says that the Act does not specify at what point full disclosure must be made. I submit Chairperson it would be illogical if the applicant would be expected to make that full disclosure in the application, it would be unnecessary then to go for public hearing, because everything would have been disclosed in the application form.
It is my submission therefore Chairperson that the balance of convenience is that the full disclosure test must be made at the time when the application is heard by the Committee. Thank you Chairperson.
CHAIRPERSON: Thank you Mr Mapoma. Any reply Mr Koopedi?
MR KOOPEDI: No reply Chairperson, because I seem to hear that everybody's agreeing with me that there was full disclosure in this matter, which was my problem. Thank you Chairperson.
NO REPLY BY MR KOOPEDI
JUDGE DE JAGER: ...(indistinct - mike not on) late.
MR KOOPEDI: I don't know if you can say late, Chairperson, because the Act doesn't say what is late, what is early, Chairperson.
CHAIRPERSON: This bring us to the conclusion of this application of Mr T S Buhali. Firstly I wish to thank the legal representatives who participated in the hearing of this application namely Messrs Koopedi, Richard and Mapoma. We thank you for the valuable assistance you have rendered to us. As we are required to give a written decision, our decision would therefore be reserved and hope to be given in the near future in writing. Mr Buhali you would be advised by Mr Koopedi, because we'll send the decision directly to him.
I wish to thank, because this not only concludes the hearing of the application of Mr Buhali, but it brings us to the conclusion of the hearings we had at this centre. We often thank the Interpreters last, but I want today to start with them. Thank you for your valuable assistance. Sound technician, thank you very much. The people of JISS, thank you very much for all you have done for us and like during tea I was disorientated, I thought it's lunch, in anticipation of the nice food we are served with, I thought it was lunch time.
Thank you to all and our archives have got good cassettes. He's unfailingly doing it with all his passion. We thank you very much, that whoever would speak about the Truth and Reconciliation Commission, you would be better exposed to that, because it was not only the Amnesty Committee but also the HRV, so he knows more than even this Committee, other than Judge de Jager.
Thank you to everybody. And now lastly, because I wanted to concentrate on them, that is the victims Rametsi, Mangoane and Ms Kgwedi, we are indebted to you to come to this hearing. We know this happened approximately twelve years ago. You wanted to forget about that incident where your loved ones were injured and more particularly, Raymond, who is brain damaged, we say you now know fully why that happened. We had this conflict in the past that somewhat people think that the conflict was between black and white, but those employed by the State came across the firing line. We say, but it has made us a better society today, or hopefully make us a better society. We say you go back and now put this incident behind you because you have faced the people or the person who says why he did it and now you can rub your wounds or some ointment and put it to rest, but we must say this to you, we are very grateful that you had the courage to face the person who fired at you. Thank you very much for that.
We adjourn. Finally we adjourn for this week and we give everybody, Mapoma, my Interpreters, my Sound Technician, our archives man a long weekend. They can resume duties on Monday. Joe, unfortunately I can't give you shorter days, but thank you very much, you know we must be honest and this is what we say amongst ourselves, that is the Committee Members, that where Joe is your Logistic Officer, things run smoothly and you have proved that once more and I'm looking forward to the 17th to come back to you. I hope you are still the Logistics Officer. We should buy you a present. We're thanking you too much I think, you've become somewhat bored, don't you?
Thank you everybody.
HEARING ADJOURNS
