MR FALCONER IN ARGUMENT: ... application, I submit that his application falls squarely within the parameters as provided in Section 20(2)(b).
That Section, Mr Chairman, provides that -
"... unless the context otherwise indicates, an act associated with a political objective, means any act or omission which constitutes an offence or delict ..."
and then it sets out the criteria of subsection (b) -
"... an employee of the State or any former State or any member of the Security Forces for the State or any former State in the cause and scope of his or her duties, and within the scope of his or her expressed or implied authority against a publicly known political organisation or liberation movement, engaged in a political struggle against the State, or a former State or against any members or supporters of such organisation or movement, and which was committed bona fide with the object of countering or otherwise resisting the said struggle."
CHAIRPERSON: But he hasn't told us anybody, how can one possibly say it fits into that? He doesn't know who he assaulted, he doesn't know, he hasn't told us they were all members of an organisation?
MR FALCONER: Mr Chairman ...
CHAIRPERSON: We have heard numerous amnesty applications and people can explain what they did and why they did it. All he can say is "four or five times a week, I did things"?
MR FALCONER: Mr Chairman, I would submit that the victims themselves have to a large extent, assisted the applicant in making his application in this regard.
CHAIRPERSON: Except where he has denied it, in many of the instances?
MR FALCONER: Precisely Mr Chairman. It is not in those instances, where he has denied it, that he seeks amnesty.
Mr Chairman, if one has regard to the statements that have been furnished by the victims, they themselves are not in most cases in a position to furnish precise details as to dates, months of the year, in many instances, not even the year. They too, also have this difficulty of saying during such a period, these events used to take place. On a continual basis our homes were searched, we were taken away to the various Police Stations, we were taken to remote places, we were assaulted, we were traumatised. This is by and large much of what occurred.
CHAIRPERSON: They haven't said in most cases that it was justified on any basis, have they?
MR FALCONER: Not at all, Mr Chairman.
CHAIRPERSON: So? Nor has the applicant. Are we to presume justification?
MR FALCONER: Mr Chairman, I am not, regrettably not following the justification issue, Mr Chairman?
CHAIRPERSON: The applicant has said "I assaulted all sorts of people for various reasons." The victims have put up affidavits saying "we were assaulted by him, but not for any valid reason, he used to come to our house time and again, my son was away", that sort of thing.
They don't supply a reason for it.
MR FALCONER: Mr Chairman ...
CHAIRPERSON: The applicant hasn't supplied a reason because he hasn't identified the victims.
MR FALCONER: Mr Chairman, one wonders how there could possibly be a valid reason to unlawfully assault or arrest somebody?
CHAIRPERSON: They are members of a political organisation, as referred to in the Act. If they are not members of a political organisation or do not fall under the Act, then clearly he is not entitled to amnesty. He has to prove, doesn't he, that the victims are persons as referred to, as read by you?
MR FALCONER: Well Mr Chairman, it is apparent from some of the statements of the victims, that there were indeed members of their families who were politically involved in various of the liberation movements.
CHAIRPERSON: Which gives you no justification for assaulting the mother or the father?
MR FALCONER: Well, Mr Chairman, in the evidence of the applicant, he did so for the purposes of endeavouring to extract information pertaining to either the whereabouts of persons that were believed to have been part of that liberation movement, or who were believed to be involved in criminal activities in furtherance of the actions or perceived goals of those liberation movements, and it is upon that level, Mr Chairman, that I submit there is indeed a link between what he was doing, the unlawful acts that were carried out and the victims upon whom the unfortunate events were perpetrated.
MR MALAN: Who were those victims, Mr Falconer?
MR FALCONER: Well, Mr Chairman ...
MR MALAN: Let me perhaps put the question in a different way. Is the obligation to make a full disclosure not on the applicant? What we have before us, is it not a situation where we have a number of statements of victims implicating the applicant, with the applicant's response, talking about the first category, "I know none of them, I have no recollection, but it is consistent in the sense that it fits the pattern of my activities", he didn't even specifically acknowledge or take responsibility for any of the acts ascribed to him by any of the victims. Isn't that the situation that we are saddled with?
MR FALCONER: It is indeed Mr Chairman.
MR MALAN: In other words, to the extent that we may argue a disclosure of some kind relating to an act, as you read out in the beginning, constituting an offence or a delict, that no such disclosure whatsoever relating to any specific act emanated from the applicant? Isn't that a major problem that you have?
MR FALCONER: It most certainly is a major problem that the applicant is faced with in his application, Mr Chairman.
But what I submit is that the applicant has been extremely fortuitous in having the victims themselves assist him in his application. I am instructed that they do not intend to oppose his application for amnesty. They are indeed the victims who were the unfortunate people who had these atrocities carried out on. They themselves are satisfied with the identity of Bennetts, they themselves have come before the Committee on paper, with their legal representative, and have specified events which they suggest the applicant committed.
MR MALAN: No, surely Mr Falconer, a victim or an alleged victim supporting an application, does not entitle an applicant to amnesty? The applicant must satisfy the Committee that on the basis of the Act, he is entitled to amnesty?
My question to you is what disclosure relating to any act, or omission, constituting an offence or delict, any act or omission specific, emanated from the applicant? Is there anything that he disclosed?
MR FALCONER: Well, Mr Chairman ...
MR MALAN: Sorry, related to any specific act or omission?
MR FALCONER: Mr Chairman, the applicant took the initiative by stating this broad category of offences that were committed by him. He embraced this system as best as he could, to furnish as much information as he could and Mr Chairman, I submit that it is of relevance to go back to the origin of the applicant's application. He was subpoenaed to testify before the Committee on gross human rights violations and Mr Chairman, as you would note when reading that record, he was vigorously cross-examined there.
MR MALAN: Mr Falconer, he was subpoenaed on the basis of a number of victims' statements received by the Commission, the Human Rights Violations Committee, which formed the basis of the enquiry. He did not either in the investigation or in his amnesty application, assume responsibility for any specific act?
MR FALCONER: Mr Chairman, I stand to correction because I haven't traversed this with the applicant, but I haven't seen any of those statements, that that Committee was furnished with.
MR MALAN: Some of them are in the Bundle.
MR FALCONER: Mr Chairman, my understanding is that most of these statements that are in the Bundle here, were deposed to late last year and some of them ...
MR MALAN: Those were new statements. But the point is, the question remains and this is my only question, in order to be granted amnesty, and you have read that out to us, the contents of Section 20(2)(b) referring to an act which constitutes an offence or delict, not the "I have committed many crimes, I cannot specify them, I cannot tell you who the victims were, I cannot even tell you the nature of the specific assault or torture, I cannot give you any information. Yes, I committed many, but I cannot tell you the specifics of any one and I ask for amnesty", does that fall within the ambit of the Act?
MR FALCONER: Mr Chairman, I would argue that we have here instances of a number of witnesses who have said "yes, we have seen your amnesty application, Mr Bennetts, we see the nature of the offences that you describe and we confirm that indeed, you did X, Y and Z, you perpetrated X, Y and Z acts upon us". Bennetts' endeavouring to be as honest as he can, and I submit Mr Chairman, in all material regards, he had endeavoured his best to try and recall matters, there has been a significant passage of time, 10 to 15 years since these events took place, but he said "look, Mrs Mngadi says this happened to her son, Hector, indeed we carried out deeds like that and it could well have happened, and if she says I did it, and she puts me on the scene ..." ...
MR MALAN: No, but he didn't say "I did it", he said "I cannot dispute it, but I have no recollection specifically, I don't know what she looks like, the name isn't ...", except the name Hector rang a bell, I think, and that is the only instance I think where he really, to an extent accepted if one could argue it that way, some responsibility following the disclosure by a victim, not a disclosure by him.
MR FALCONER: Mr Chairman, I submit that it would be unduly harsh upon the applicant if he is giving his evidence in the most truthful manner that he is able, and to his best recollection of the events, if he says "Mrs Mngadi, I take cognisance of what you say and if you say that that was me, and I was well known in the area, and you can positively identify me", as their legal representative recorded yesterday, all of these people are adamant that it is him, the same man, he says "yes, it could have been me and for those acts where you put me on the scene, I respectfully respect amnesty".
MR MALAN: In other words, he requests amnesty for acts disclosed not by himself, but by victims? You see, he doesn't approach us with any specifics. Had the victims not come forward, would he have been entitled to amnesty or are you arguing that he is entitled to amnesty on the basis of the victims having come forward?
MR FALCONER: Well, Mr Chairman, the manner in which this entire application has been approached, has been such that the applicant initially made what in my view was, a dismally thin application.
When I consulted with him, I endeavoured to add more flesh to his application, and I have done precisely as much as I can do, because I have not been furnished with any additional information.
The manner in which this application then proceeded was that there was an exchange of papers between the parties. It was hoped in that exchange, that the victims in submitting their affidavits would say "this is what you did, what do you say" and Bennetts as being as truthful as he can, has said "look, I concede, I might have done that", but in respect of the applicant Mr Chairman, he could have very easily after taking my advice, when I say to him "you've got this problem because you are not being specific and you are not going to get blanket amnesty", he could have actually said "yes, I remember that incident precisely, and in fact I can add X, Y and Z to it." He didn't do that, Mr Chairman. He has tried his very best to be honest.
MR MALAN: Are you saying that you advised your client that if he would not have, if he had not accepted specific responsibility, he wouldn't be entitled to amnesty?
MR FALCONER: Mr Chairman, what I said to my client was the difficulty that I have in forwarding his application, is that I do not have specific details pertaining to specific events and when faced with these statements of the victims, I said to him "what do you say to this, do you remember precisely this" and he said "look, paragraphs 2 - 5 here, sure, that is the nature of the offence that took place and I must concede, I cannot deny that, if they say I did it, I did it. There were so many of these things, but I cannot tell you in all honesty yes, precisely that was me, but in all probability it was", and in that regard, I respected it. I pointed out the pitfalls of not being more precise and he could not take the matter any further.
MR MALAN: To your client you were saying he is not likely to get amnesty, to the Committee you are saying we should grant him amnesty?
MR FALCONER: Mr Chairman, the approach that I have adopted is firstly the victims themselves have been of great assistance, I believe, to this Committee. They have said he committed these crimes. He is saying "in all probabilities, yes, I did" and the fact that the victims themselves are not opposing the amnesty application, speaks volumes. He has come here, he has exposed himself to the community, he is the only one from that entire Unit according to our information, who has actually done so.
Everyone else hasn't even bothered to try and expose anything. Mr Chairman, I think that for an applicant to be exposed to possible criminal prosecution in circumstances where the victims themselves are prepared to allow his amnesty to go through, and he has come here in his best endeavours to get amnesty, and he hasn't been untruthful to us, Mr Chairman, he could have very easily concocted information and said "yes, I remember that incident", which would have made my job a lot easier.
MR MALAN: You may proceed, thank you.
MR FALCONER: Thank you Mr Chairman. Mr Chairman, during the course of last night, I prepared lists in respect of each victim who has furnished information to this Committee, unfortunately only in my own handwriting, which also sets out what I can identify from those statements, the offences which are suggested, the applicant committed.
I am not sure if I am wasting your time if I read each of those victims and the events that they suggest were committed and for which I seek amnesty for the applicant.
MR MALAN: How long will it take you to read it out, or can you just hand it in to us?
MR FALCONER: Mr Chairman, I can undertake to have it typed out properly and hand it in to you, if that would be of more assistance.
MR MALAN: Very well. Fine, if you can just hand it in, I don't think you have to read it into the record.
MR FALCONER: Thank you Mr Chairman.
CHAIRPERSON: I have one difficulty there, do you also deal with this as to what offences the victims speak of and whether they are politically motivated?
MR FALCONER: Mr Chairman, the offences which I refer to in these lists, I submit all fall within the umbrella of what is contemplated in Section 20(2)(b). They were all carried out within the cause and scope of his employment, as a member ...
CHAIRPERSON: Like, just look for example, is Mrs Gertrude Mngadi one of these?
MR FALCONER: Yes, she is, Mr Chairman.
CHAIRPERSON
"... there were many occasions when we were harassed, and they would throw teargas at my house."
As far as I am concerned, that is not covered as an investigation of a political nature?
MR FALCONER: Mr Chairman, you will recall in the applicant's application, part of their task was to break the morale of the liberation movement and to do so ...
CHAIRPERSON: Of members of the liberation movement?
"... My son, Hector Mngadi, was constantly in and out of prison with all sorts of trumped up charges made."
Does that take you anywhere, or does that just show you that the Police were behaving grossly improperly?
MR FALCONER: Mr Chairman, I am not going to suggest for a second they were not acting grossly improperly, but what I am saying is and I think it is common cause, specifically when one has regard to the evidence before the Gross Human Rights Committee, there was a small parcel of an area in Chesterville which was occupied by the so-called A-Team.
The balance was perceived to be politically affiliated to the liberation movements.
CHAIRPERSON: The A, sorry? The A-Team?
MR FALCONER: I am not sure if you heard me correctly Mr Chairman, the A-Team occupied a small parcel of land.
CHAIRPERSON: Yes.
MR FALCONER: That was perceived to be an Inkatha affiliated area.
CHAIRPERSON: Yes.
MR FALCONER: The balance was perceived, wrongly or rightly, to be part of or supportive of the liberation movement.
CHAIRPERSON: Yes?
MR FALCONER: Mr Bennetts says that his job was, part of his job, was to break the morale of that community who were supportive of that movement. In doing so, he would drive down streets as we have heard from witnesses, shouting over a loudhailer, he would shoot teargas into houses. That I submit Mr Chairman, is part and parcel of the functions that were expressly given to him, he was ordered to do, or impliedly so, Mr Chairman.
CHAIRPERSON: Expressly given by who?
MR FALCONER: His immediate ...
CHAIRPERSON: Mr Fivaz lodged a complaint about his driving round the district at night, shouting at people?
MR FALCONER: Well, there is no mention made of any particular intervention by any of the applicant's superiors to have stopped it, pursuant to Mr Fivaz' report? It seems that they continued unabated with these activities.
Warrant Officer Kruger, his superior, would have most certainly had this brought to his attention, no doubt, the Captain who was above Kruger ...
CHAIRPERSON: (Microphone not on)
MR FALCONER: Yes, Mr Chairman.
CHAIRPERSON: (Microphone not on)
MR FALCONER: Mr Chairman, I am not following you on the aspect of proportionality?
CHAIRPERSON: (Microphone not on)
MR MALAN: You read out on 23, the relationship between the act and the objective to be achieved ...
MR FALCONER: Well, Mr Chairman, part of their job as he was instructed, was to harass this community and that is what they set out to do.
MR MALAN: Where was that evidence, was it not to do an investigation, to get to the guys, to follow up, to prosecute and to break the morale? Isn't that a way of interpreting the breaking of the morale of the community? Would it break the moral if is simply a harassment day and night, or would it boost the struggle?
MR FALCONER: Mr Chairman, in the applicant's application as well as in his evidence, he refers to harassing the residents, discharging teargas in the direction of them, and into their residences.
CHAIRPERSON: As my colleague has suggested, would this develop a sense of hatred amongst the persons living in that district towards the Police Force and the government of the country?
MR FALCONER: I am sure it most certainly did.
CHAIRPERSON: Well, that was certainly not what they were seeking to achieve? They were trying to bring about peace in our land, weren't they, our government?
MR FALCONER: Mr Chairman, sadly, it is a difficult task to try and interpret precisely what the intentions of our previous ...
CHAIRPERSON: Yes, so one wants to know what the Police did, why they did it? And to whom they did it?
MR FALCONER: Mr Chairman, that is precisely what the applicant is trying to tell you from his ...
CHAIRPERSON: He hasn't, he has just said blindly, "we threw teargas bombs at houses, we drove around, we did this", he hasn't identified people with acts done and what effect it was to have on them.
MR FALCONER: I cannot get away from the fact that he hasn't, because he cannot.
MR MALAN: Do I follow you correctly that you are arguing at the moment, these assaults, acts of terror of some kind, were mainly to break the general morale of the people of Chesterville?
MR FALCONER: The applicant also says that they did so to endeavour to recover firearms which were involved in the political struggles.
MR MALAN: To get information?
MR FALCONER: Correct.
MR MALAN: In other words if there was then an assault, an individual should have been targeted, specific information should have been the objective, shouldn't he have been able to tell us something about that?
MR FALCONER: Well, Mr Chairman, my understanding is that often it would be a hit and miss programme. They would go to certain houses, do raids, it seems that by and large, a lot of the activities that they carried out, were random on that community.
MR MALAN: Did he not also tell us at the beginning of his evidence-in-chief and questions by the Committee, that he was influenced to become racist in a sense, that the activity was against black people, kaffirs as he said it in his evidence?
MR FALCONER: He did say that Mr Chairman.
MR MALAN: In other words, this was now a campaign of terror, waged against blacks?
MR FALCONER: But at the same time, Mr Chairman, at all times, it was with these objectives in mind, that it was done and in his mind, from what I understood his evidence, this racist attitude superseded and went part and parcel with the activities that he had become conditioned to.
He was doing these activities, and it so happened that he happened to become a racist over and above that, through the influences of the people around.
MR MALAN: I think you said that in the training, that influence of becoming racist, was induced, not in his practice, not in his work?
MR FALCONER: Mr Chairman, he most certainly did say in his training.
MR MALAN: He talked about the man with the red shirt, becomes the kaffir in the red shirt, in training already.
MR FALCONER: But that was the start.
MR MALAN: And then in practice it is all just waged against the colour of the skin? You see, if indeed, and this is the difficulty that I have, if indeed this was an objective targeted at a liberation movement, then surely the targets should have been members of the liberation movement, or people influencing the struggle in some way or another, but not indiscriminate against black people in the township, on the basis of a perception that everybody living in the township, except in the (indistinct), the A-Team, are members of a liberation movement, where it would be legitimate to harass in your words, all of them in order to break the morale of the struggle?
MR FALCONER: But does not the fact that the A-Team were immune from this treatment, demonstrate precisely the fact that it was aimed towards a specific part of that community? They didn't attack the A-Team, they didn't do the same things to the A-Team, why? Because the A-Team was politically, its policies, were supportive or assisted the aims of the then government?
If it were a racist thing at that level, the A-Team would have been clobbered together with the rest of the community?
MR MALAN: You may proceed.
MR FALCONER: Thank you Mr Chairman. Mr Chairman, I now wish to turn to the second incident for which the applicant seeks amnesty and that pertains to the necklacing of a male in Chesterville in the vicinity of the High School.
If I could immediately address the difficulty that I see with portion of the application, I will then hopefully be able to get on to the positive aspects that support it.
The evidence of the applicant is that he is requested by his Commanding Officer, Warrant Officer Kruger, to attend upon a specific place, on the way there he is told the purpose of the visit. He then attends on the house where an envelope is handed over and there is further discussion on the matter, on the return trip. Some days later, there is a necklacing in the vicinity of the High School and Warrant Officer Kruger informs the applicant that the mission had been successful.
The evidence if one has regard to the statements of D.S. Gwala/Mkhize at B40 and T.E. Nkozi at A48, tend to create a link between the event described by the applicant and indeed the one that took place as described by those two witnesses.
If you would bear with me for a short while, Mr Chairman. The statement of Tandiwe Elizabeth Nkozi which appears at A48, she describes here the event that gave rise to the death of her son, Bongani Mkhize and she describes that he was necklaced and his car was burnt in the vicinity of Road 18.
The witness, D.S. Gwala, whose statement is at D40, also refers to death of a person known as Bongani Mkhize and he says in his statement in regard to the incident itself -
"... whilst I was waiting, I saw a big cloud of black smoke that looked like it was coming from Road 18."
Mr Chairman, as was the evidence of the applicant, the vicinity of this necklacing incident, accords with his recollection of the matter and so too, does the vicinity of the residence where the envelope was delivered accord with what is stated in these statements.
CHAIRPERSON: Did he visit the place of the necklacing?
MR FALCONER: Yes, he did.
CHAIRPERSON: And he said it was near the school?
MR FALCONER: Correct Mr Chairman.
CHAIRPERSON: Not near a church? The church was the car?
MR FALCONER: Correct.
CHAIRPERSON: Did he mention the car?
MR FALCONER: He did mention the car, Mr Chairman, if my memory serves me correctly.
In addition Mr Chairman, the vicinity or the location of where the house was, where the envelope was delivered to Road 24, accords with what is stated by these two witnesses. Immediately Mr Chairman, the difficulty that I referred to earlier is that the applicant says that he does not know precisely whether this person that is described by these two victims, the deceased being Bongani Mkhize, is one and the same person.
But having regard to this evidence and these statements that came in subsequent to his making the application, it seems to fall on all fours with his recollection of that matter. He did not know the identity of the deceased person in that instance. He is now appraised of the identity as Bongani Mkhize and in his application paper, he says that these affidavits which were furnished to him in all probability related to one and the same matter. It is upon that basis, Mr Chairman, that the applicant seeks amnesty for the offence of being an accomplice to murder and possibly an accessory after the fact in respect of the death of Bongani Mkhize.
ADV SIGODI: On that point, as I recall the evidence, he did not say that he had, when he went or accompanied Warrant Officer Kruger, that he had foresight that the person would be killed?
MR FALCONER: Ma'am ...
ADV SIGODI: The intention was to frame the person?
MR FALCONER: Correct. Ma'am, I would submit that if one applies the doctrine of dolus eventualis, one could reasonably foresee the possibility that particularly within the prevailing circumstances and environment in that township at that time, if one were to frame a person as being an informer, very good possibility that he could face the members of the community and ultimately incur harm in some way or another, possibly resulting in death.
ADV SIGODI: But he did not say he had any foresight how the community would get to know that he was an informer?
From his own evidence, the envelope was not given to just anybody, it was given to his sister?
MR FALCONER: That is correct.
ADV SIGODI: So how could his sister have informed the community that her brother was an informer, he did not know who it was meant or intended for.
MR FALCONER: Precisely Ma'am, but the fact that he knew that there was an envelope being delivered in the township on that evening, with the intention of framing somebody as an informer, in the applicant's mind, suggests that he has been party to a crime.
ADV SIGODI: What crime, shouldn't it only end ...
MR FALCONER: I beg your pardon, Ma'am?
ADV SIGODI: The offence that he is applying for, shouldn't it be only conspiring to frame the person, and that is all, and would that really be an offence, but the murder, he had no foresight as to how the person was going to be killed, who was going to kill the person, how the information was going to get round to the community, whatsoever?
MR FALCONER: I accept your point, Ma'am, the applicant's application should possibly be for amnesty in respect of conspiring to murder, or alternatively to frame somebody in such a way that he or she would reasonably expect to incur harm which could result in death or bodily injury.
MR MALAN: Mr Falconer, the argument is exactly that the evidence of the applicant was that he did not foresee the death of that individual and for dolus eventualis to be applied, at least the applicant should have foreseen the possibility and carried on regardless but his evidence was "I did not foresee it, I was only told that this person was to be framed", in other words that he be estranged, that there would be some rift in the movement, or whatever reason, but he never gave any evidence that he foresaw the possibility of the person's death.
That is what my colleague is putting to you? At best, he participated or became an accomplice in the framing of an individual for some purpose, but not having in mind the death of the individual, on his own evidence?
MR FALCONER: Mr Chairman, would you bear with me for a moment, just to obtain an instruction? Mr Chairman, I must apologise, the applicant has confirmed that indeed his evidence was not that he foresaw the possibility of the death of the individual.
I think the fault lies with me that I would assume, if you frame someone the chances, from the limited knowledge I had, the chances were fairly good that there would be severe repercussions.
MR MALAN: Did he give us any evidence as to what he expected to ensue from the framing exercise?
MR FALCONER: Mr Chairman, the difficulty he has and what he said in his evidence was that he was really accompanying Warrant Officer Kruger to make sure Warrant Officer Kruger was safe, going in and out.
In doing so, he was then informed by the by, this is what we are doing, we are delivering this envelope and then afterwards he was told by Warrant Officer Kruger, the whole thing was successful, and it is on that strength that he initially made application, in respect of this matter, for amnesty.
ADV SIGODI: But he himself, had no intention to frame that particular individual whom he did not even know?
MR FALCONER: No, he did not, but he perceives that he most certainly became an accessory after the fact, once he knew about it.
MR MALAN: Now in order to find that he was indeed an accessory after the fact, we need to pursue the link again between the person identified in the two statements and the person approached at the house.
If you again look at Bundle B, page 40, the statement of Gwala and you look at the second last paragraph, there is the very specific statement that there is no knowledge whatsoever about any envelope having been delivered or any money having passed over to that house, where the mother was always present, now deceased, nobody ever mentioned any money.
MR FALCONER: Mr Chairman, if one looks at the sequence of events on this, the applicant made application for amnesty in respect of a matter where an envelope was delivered and resulted in his mind any way, in the death of a person. In January this year, pursuant to him making that application, there is this affidavit of Doctor Sandile Gwala Mkhize that is filed and in addition, in October last year, there is the affidavit of Mrs Nkosi that is filed, and if one looks at the indexes, the people who put together the papers for this application, the index of Table A, refers to incident number 2 and places, and puts up the statement.
I know that that is, why I am saying Mr Chairman, that this must be the same thing, I don't know why those victims filed statements in response to that particular act for which he sought amnesty, but again Mr Chairman, one is faced with the same difficulty I had in the first category, and that is he is seeking amnesty in respect of the death of a person whom he does not know.
He does not give us a date for when the incident took place, but he is again assuming that because of the proximity of the house where the envelope was delivered and the close proximity where the death took place, that this is one and the same act and it is upon that that he is seeking amnesty.
If however, Mr Chairman, you are to find that what he is seeking amnesty for, and what is described by these victims here, the applicant hasn't shown a close enough link between the two, then clearly he cannot receive amnesty for it and presumably he cannot be prejudiced by it?
But I still submit Mr Chairman, there is a close enough link to showing the events described in the affidavits and the evidence of the applicant, Mr Chairman.
In addition, obviously Mr Chairman, both of these statements that I have referred to of Mr Gwala and Mrs Nkosi, refer to the fact that their son, Bongani, was framed by the Police and I submit that that is as far as the applicant can take it, to link those two affidavits and the event described therein, to what the applicant seeks amnesty for.
Mr Chairman, if I might now deal with the third matter, that pertaining to the murder of a PAC member in Inanda. Mr Chairman ...
MR MALAN: Sorry, just before you proceed, where do you say in the Gwala statement, you say both refer to the fact that their, that the victim was framed, I am just looking at page 40, Bundle B, that is a response to the further information that you provided after consulting with Mr Bennetts, the R500-00. He says
"... we cannot think of any reason why the Police felt it necessary to frame him".
MR FALCONER: Mr Chairman ...
MR MALAN: That is a response to the framing allegation in the application?
MR FALCONER: Certainly.
MR MALAN: It is not a statement that he was indeed framed?
MR FALCONER: The basis upon which I say that, Mr Chairman, if one has regard to paragraph 3, I will read the paragraph
"... they asked me to get out of the car because they were taking Bongani to Road 17 to ask him more questions. They said they heard he was an impimpi and they wanted to question him further."
MR MALAN: Yes, but not that the Police was involved? Your statement was that both these statements alleged that the Police were responsible for his framing, that is not true?
MR FALCONER: I take your point, and I apologise, Mr Chairman.
In regard to the third incident, Mr Chairman, I submit once again we've got to look at the history of the manner in which this application came before this Committee.
The applicant testified at length before the Committee on Gross Human Rights Violations in September and November 1996 on this matter. Pursuant to his testimony there, he was advised by the Chairman of that Committee, to make application for amnesty, which he duly did.
Now, one is faced with the evidence of Mr Fernandez who testified yesterday afternoon. Mr Fernandez deposed to this affidavit in the inquest docket, within a very short period of time of that incident having taken place. He was effectively committed to a version of events shortly after the incident. He then gets called before that same Committee on Gross Human Rights Violations at about the same time, how he has already made a statement under oath and he has testified at an inquest and he hasn't applied for amnesty in respect of any matters, and then again he testifies to the same version if I can put it that way, of events that transpired with the death of the person in Inanda.
He's got every reason Mr Chairman, to keep to his guns as to what transpired. What is important is, he himself in his affidavit for the inquest, puts Bennetts on the scene. Now why on earth is Bennetts going to implicate himself in a matter of this nature. I don't buy the story of "braaivleis" stories. Mr Fernandez could not furnish us with a plausible reason as to why Bennetts would want to do such a thing. To suggest that he is a sensationalist and that is the reason that he wants to implicate himself in a matter which is effectively a capital crime, is absurd.
He has every reason now to give a full disclosure to this Committee on what transpired. I submit that there is no plausible motive or reason given to this Committee as to why he would concoct a story of that nature. I would submit however, that there is every reason for Mr Fernandez to stick to his guns. Shortly after the incident, he deposes to an affidavit, he confirms that in his evidence before the inquest, he testifies before this Committee, the Committee on Gross Human Rights Violations and he is brought here. He can't change his version now, and he hasn't brought an application for amnesty. The only guy that has, in respect of this whole incident, is Bennetts.
But furthermore Bennetts' evidence is borne out by the fact that yes, Fernandez recalls Bennetts having had a handgrenade or handgrenades. Bennetts on his version, gave a handgrenade over to Fernandez on the scene and on his version, he also gave an identical handgrenade to an Investigator of the Truth and Reconciliation Commission, who unfortunately this is not on record, but Bennetts has confirmed, that the Investigator has got the handgrenade with him.
This is all in support of Bennetts' version. Why, if Fernandez is this law abiding Police Officer, did he not immediately particularly given his vital role as an Explosives Expert, take those dud grenades away from the applicant? Why does he leave them in his possession?
MR MALAN: Did he not tell us that everybody had that in the office, on their desks and that it was a debatable point whether it was an offence or not, that they are now looking at drafting regulations to sort of deal with that situation?
MR FALCONER: Mr Chairman, he did say it was debatable, but ultimately, I think he conceded yes, it technically it is an offence.
MR MALAN: That was certainly not my impression, we can check the record on that, but are you arguing that it indeed is an offence to have a part in your possession of a non-functional part of a handgrenade as a memento?
MR FALCONER: So I am instructed, yes Mr Chairman.
MR MALAN: You are saying it is?
MR FALCONER: I am instructed that, I haven't checked it out myself.
MR MALAN: Instructed by whom?
MR FALCONER: The applicant. Obviously he is not seeking amnesty for that.
MR MALAN: Okay.
CHAIRPERSON: You are blaming Bennetts now, but as I understand it, the applicant, and it was put to Bennetts, agreed that he had them on his desk?
MR FALCONER: Yes.
CHAIRPERSON: So he was breaking the law deliberately in the presence of senior Officers?
MR FALCONER: Yes.
CHAIRPERSON: Where were these handgrenades?
MR FALCONER: Could I take an instruction on this, Chairperson?
CHAIRPERSON: No, on the evidence that we have had?
MR FALCONER: Well, my understanding is that he had them on his desk, and that was the question that I put to Fernandez.
CHAIRPERSON: But he told us he went home and fetched them from home? Is that another version?
MR FALCONER: I don't know. Mr Chairman, and there hasn't been evidence on this, whether in fact he removed the handgrenades to his home at any stage.
CHAIRPERSON: He said he fetched them from his home?
MR FALCONER: The point I am making Mr Chairman is that there is no evidence on record to state from the time the grenades were in his office, that he hadn't removed them to his home at some stage prior to that.
CHAIRPERSON: It was never suggested to Fernandez, was it?
MR FALCONER: No Mr Chairman.
CHAIRPERSON: But is there any reason, on all the evidence that we have heard, why they should want these dud grenade from the applicant? Before the Duty Officer came, they substituted a genuine grenade, it was photographed?
MR FALCONER: Correct.
CHAIRPERSON: The applicant agrees. The photograph had a live fuse, it wasn't his?
MR FALCONER: Mr Chairman, the bottom line in this portion of the application is as follows: if you discard the evidence of the applicant and you say we don't believe what you say about this offence and if you are going to say, we actually believe Fernandez, well, then you are saying that the applicant on his own version is not guilty of an offence and therefore he shouldn't have amnesty.
He is here saying "I am actually guilty of an offence and I want amnesty and if you don't believe me, well, I cannot do any more to persuade you", but these are all other obviously related issues on the evidence, Mr Chairman, and sadly it seems that a lot of the, that the inquest was deficient. I would submit there should have been a proper report, compiled by an Expert on Explosives on the handgrenades. There is no evidence that ...
CHAIRPERSON: Why, when the handgrenade played no part in the killing? I admit that yesterday I thought there ought to have been more, but the handgrenade was merely an exhibit referred to as the cause of the killing, it played no part in it?
There will be no necessity in a case like that, for any expert evidence about it. Suffice that the Police saw what they believed to be a handgrenade in his hand, and shot him?
MR FALCONER: Mr Chairman, I submit that, and I am not suggesting this is the fault of the Judicial Officer who presided over that inquest, but most certainly had the Police Officers involved in testifying before that inquest, disclosed the fact that this deceased person was involved with the PAC and that the Security Branch would have dearly loved to have spoken to him, it might have placed a whole lot more relevance on a handgrenade, conveniently laying next to the deceased's body.
We don't know whether that photograph setting out all of those exhibits, were taken on the scene, Mr Chairman. It actually looks like it could have been taken at a different venue. I am not suggesting that we can accept that the exhibits that were recovered on the scene are one and the same as those in the photograph, particularly given the fact that the Duty Officer makes mention of one handgrenade, Fernandez in his affidavit makes mention of one handgrenade.
Now we have a photograph which seems to have a very neat background to it, fortunately we do not have the benefit of cross-examining the photographer here, which doesn't indicate that photograph of those exhibits were taken on the scene.
MR MALAN: But you see if you look at Fernandez' evidence, Fernandez testified that if that handgrenade was to be switched, why ask for the dud in the first instance, and if the argument is that for the purposes of the photograph, it indeed was exchanged, then what was the role of the dud handgrenade?
But if we can come right to the crux as far as I look at this third incident, I want you to address me on that please, we tend as an Amnesty Committee, to lean over backwards to assist applicants. Were we in a position where we had no response from Fernandez or Fivaz, or maybe even an affidavit, but had they elected not to give evidence, we would have been here with a denial under oath and the evidence of the applicant.
Then we might have said to ourselves, and I think this is a just conclusion or a fair conclusion, "well, on the evidence before us, the applicant having been subjected to cross-examination and those who denied the incident, not, that on a balance of probabilities, in terms of the rules of evidence, we find for the applicant, we are satisfied and we grant him amnesty", but it now so happens that both of these gentlemen came and gave evidence. Gave evidence under oath, were subjected to cross-examination denying it. Their evidence stood up as far as Fivaz is concerned, you haven't argued it, fairly well, as far as Fernandez is concerned, some problems with his reason as to why Bennetts would have done this, implicated them falsely.
But if we should now grant amnesty to the applicant, are we then not making a finding that indeed there was such an offence of conspiracy to kill and indeed a killing, an assassination, as a result of it, in which those two people did take part, and on the evidence before us, would you have made such a finding?
MR FALCONER: Ultimately Mr Chairman, the applicant has come here and he has said he is guilty of an offence.
MR MALAN: Of an offence in which he played a minor role, where the two people who did give evidence, played a major role?
MR FALCONER: Correct Mr Chairman.
MR MALAN: And the one commissioning it?
MR FALCONER: Effectively Mr Chairman, I would argue that on a balance, the applicant has shown that indeed he was involved in the commission of an offence. There is all the reason for Fernandez to stick to his guns, as I have said.
He cannot put up a motive as to why someone would ventilate an offence of this nature, upon himself, unnecessarily.
MR MALAN: Can Fivaz?
MR FALCONER: Mr Chairman, I would submit that Fivaz was a good witness. Fivaz' role in so far as the applicant is concerned, is a very limited one in the sense that at the meeting he informed on the side, after the meeting had broken up, the applicant of what was to transpire. But thereafter, it would seem Fivaz falls out of the picture.
MR MALAN: Isn't the whole essence, this conspiracy, directed by Fivaz to kill a man? Isn't that the essence of the crime?
MR FALCONER: It is indeed.
MR MALAN: Of which Fivaz was the leader, you say he was a good witness and he denies ever having been involved in such an incident?
MR FALCONER: Mr Chairman, again, Fivaz has got a difficulty that Fernandez has. He also did not apply for amnesty. If anyone's got a motive to exculpate themselves from a crime, both of those witnesses do.
MR MALAN: Is it not equally reasonable to assume that if a person does not apply for amnesty, that he has no reason to apply for amnesty? Why must one assume that because a person hasn't applied for amnesty, such a person is guilty?
MR FALCONER: Then the converse immediately applies to the applicant, if he is not guilty of an offence, why on earth is he applying for amnesty?
MR MALAN: Exactly.
MR FALCONER: It is an absurd situation.
MR MALAN: Exactly.
MR FALCONER: But we submit he, on his evidence, says "yes, I am guilty of an offence and you've got to give me the benefit of the doubt".
MR MALAN: The only point I am making is that we cannot argue on the basis of people applying or not having applied, to decide whether there was indeed an offence or not an offence.
MR FALCONER: Mr Chairman, I used that just to demonstrate motive and that is all, motive on the part of the applicant to bring his application versus the motive to cover up.
CHAIRPERSON: One problem as you have just said, Fivaz was a good witness and then when my colleague asked you some questions, you by implication say well, Fivaz was lying, because he found himself in difficulties? Which is it, was he a good witness?
MR FALCONER: I would say that the evidence he gave, was good, yes, but that doesn't mean to say that he is not involved in a cover up.
CHAIRPERSON: So it was good lying, is that what you are saying? Because the evidence he gave was he was not involved in the planning of the killing?
MR FALCONER: And ...
CHAIRPERSON: And had no knowledge of it, it wasn't intended?
MR FALCONER: Mr Chairman, I submit that a witness like Fivaz, the very most one can do is again reiterate your client's version and leave it at that, because he was not going to budge.
What I am saying is he's got all the reason in the world to disassociate himself of an act of this nature, and Bennetts has no reason in the world to associate himself with an act that he did not commit.
MR MALAN: I am putting it to you again, if indeed we want to grant amnesty, do we not have to reject Fivaz' evidence, can we accept Fivaz' evidence and grant amnesty, that is the essence of the question?
MR FALCONER: I would submit, yes, Mr Chairman because on a balance of probabilities, the applicant I would submit, has discharged the obligation upon him, to show that he was involved in an offence.
MR MALAN: Yes, and Fivaz says there was no such offence?
MR FALCONER: Mr Chairman, I would submit that it is the evidence of the applicant that is pivotal on that and everyone else has a reason to disassociate themselves of it.
MR MALAN: Are you saying we should reject Fivaz' evidence, that is my question, as false?
MR FALCONER: I am saying to you that you should bear in mind that Fivaz has a motive for not implicating himself in a crime and I would say that that by far, outweighs, it would be an act of lunacy for someone to say he is guilty of an offence like this, for no reason.
Why would he be doing that and I would say that the motive of the applicant versus the evidence of Fivaz, is pivotal.
MR MALAN: Let me just put this problem to you, because that is also a possible way of approaching it. This is a very, very difficult situation for me at least, to try and find out firstly what the applicant is applying for and you seem to have the same problem and secondly, if we should reject his evidence and to come to some understanding as to why we then believe he did apply if we don't believe his evidence. If you look at the first incident, it concerns a series of assaults, a campaign of terror broadly speaking over a period of some six years or so, where no act is identified, no specific incident which brings any evidence on which the applicant could be prosecuted, on evidence supplied by himself.
If you look at the second incident, he alleges a major crime, killing of a person, framing of an individual, but his role is negligible, you come to a situation where eventually you say that maybe the only crime that the applicant should be applying for is an accomplice after the fact.
On the third incident, you look at the role that he alleges that he had played in this, and he applies for amnesty basically for having had some knowledge of a conspiracy and supplying a dud handgrenade.
In other words again, virtually no role whatsoever. So he doesn't really face any major problem if this information would have been available to anyone, because he wouldn't have been prosecuted, certainly not independently.
So why does he, assuming then for the moment that his evidence is not true, what could be the reason for him bringing this evidence, limiting his own participation and implicating people that he worked with? Now it is the same thing as you say, the others had to be consistent because they came up with an initial statement.
Counter argument is, they are not simply consistent, they are being truthful, they are being good witnesses, the same story, all through, deny. The applicant doesn't give any information and then he comes with a little and he applies, after having been subjected to an inquiry in terms of Section 29, was pressurised and then told to apply for amnesty and come clean, telling everything that he knows. And now telling everything he knows, is not implicating himself but implicating others. Couldn't that be an argument? How do we explain it if it is the other way around? It is a very difficult situation?
MR FALCONER: It is indeed, Mr Chairman. Regrettably this is not on record as evidence, but the applicant, when subpoenaed to appear before the Committee, felt very vulnerable and alone, he actually contacted his previous Commanding Officer, Taylor, who said "ignore them, deny it, phone Head Office, they can sort it out". He then contacted a Captain at C.R. Swart Square, who says, basically told him to, words I am told "get stuffed" and he now ...
MR MALAN: Sorry, sorry for interrupting you, but I don't think we can really ...
MR FALCONER: No, I don't want to introduce evidence, Mr Chairman.
MR MALAN: It is not of any value, but I just want to say to you that Taylor himself applied for amnesty on a huge number of incidents.
MR FALCONER: Effectively now, Mr Chairman, the applicant, I don't think can be blamed for pursuing amnesty, whether they might be minor roles in respect of these acts or not, they certainly play on his mind, and he certainly would like to have amnesty in respect of them.
MR MALAN: You may proceed.
MR FALCONER: Would you bear with me for a short while, Mr Chairman?
Mr Chairman, in the circumstances, I move for the application for amnesty to be granted in respect of the first category of offences in accordance with the list of victims and specific offences which I shall furnish to the Committee at a later stage and the second offence, in respect of the necklacing of a person in Chesterville, the details of which I have given and thirdly, in respect of the matter pertaining to the death of a PAC person in Inanda.
Thank you Mr Chairman.
MR MALAN: May I ask that you just hand us that original, you may retain a copy. You don't have to have it typed.
MR FALCONER: Thank you Mr Chairman. Mr Chairman, should I arrange for copies to be made to be furnished to you? I don't know if Ms Thabethe can do that?
MR MALAN: You can hand it to Ms Thabethe, she will see to copies being made for us.
MR NEL IN ARGUMENT: Thank you Mr Chairman, I don't know if you would like to hear me.
CHAIRPERSON: Is this being recorded? Yes?
MR NEL: Mr Chairman, I am going to be very brief. As you know, I am acting for the implicated persons who elected to testify. There was no obligation upon them to testify, or at least two of them elected to testify and on my advice, I said it was a good idea, because they wanted to somehow assist the Committee in finding clarification.
You will recall that I ended off my questioning with Mr Bennetts in asking him or telling him that I to this day do not know why he applied for amnesty on the third incident, which my clients are implicated on.
I still have difficulty with the reason why he applied for amnesty. Now, this Committee is not burdened with making a finding as to whether my clients should get amnesty because they are not applicants, they are implicated persons, trying to assist and trying to clarify matters.
I submit with respect, this Committee has heard the evidence of Mr Fivaz whom I believe is not only a good witness, but I would say he is an excellent witness. Mr Fernandez had a problem in explaining that Mr Bennetts was a liar or not, which might be a personal problem, but that does not make him a bad witness.
I would argue that the only reason why Fernandez as my colleague puts it, sticks to his guns, is because he's got no option to stick to his guns, because his guns are the truth.
He was questioned about this incident at length, he testified about this incident at the inquest, he was cross-examined here after giving evidence, this is Fernandez and the truth prevails, it is my respectful submission.
Now, Mr Malan has pointed out which I agree with, that if Mr Bennetts should be granted amnesty and I am not here to oppose his amnesty application, but if he is to be granted amnesty, I with respect submit, then this Committee must make a finding that Mr Fivaz, who we know was a good witness, is not telling the truth. If Mr Fivaz' evidence is rejected, then Mr Bennetts can get amnesty.
But if Mr Fivaz' evidence and Mr Fernandez' evidence are accepted, then it will be very difficult for me to understand that the applicant could get amnesty, but at the end of the day, I believe as you have pointed out, it is a difficult situation and should this Committee refuse Mr Bennetts amnesty, then nothing is going to come of the matter, because I don't believe Mr Bennetts will be prosecuted for this alleged handgrenade incident, because the State witnesses who will be called to testify against him, in such a criminal trial, will be Fivaz and Fernandez, etc.
The difficulty lies whether he should get amnesty or not, but in the event of him not getting amnesty, nothing is going to come about the matter. To make a finding whether Mr Bennetts should get amnesty or not, I can simply say I will abide by this Committee's decision and I will leave it at that, Mr Chairman.
If there is anything else you would like to hear me on ...
MR MAJELE IN ARGUMENT: ... just a little bit, Mr Chairperson. I am not having a very long address, but basically what I would like to state is that even though one came at a later stage, but my observations are that that does not, it is not clear from the applicant's application what he is applying for specifically.
The political motive as the Chairperson has stated, you know, because of random activities, there was no clear target, it does not appear that there was a clear target, except to say that there seems to have been some racist motives behind his activities. The main aspect in so far as our client is concerned, Mr Siphiwe Kenneth Hlozi, is the question of full disclosure. From the onset he has stated that he did not have a problem with Mr Bennetts being granted amnesty, provided he gives full disclosure.
That is where we actually have a problem. The problem arises especially from where he just agrees to everything generally, he is not specific about any aspect. For example, I don't know, I don't even think that he would admit that he remembers dealing with Mr Hlozi per se. Even from evidence-in-chief, his evidence-in-chief, even though I was not here, it would appear also that he was not clear about the prison visits which they used to do to get the activists and to go and take them to some farms or wherever to punish them or anything, or to interrogate them, and that is exactly what happened to my client.
According to his evidence, it appears that those are few activities which took place, and that brings one to the conclusion that he should at least be recalling that, but it does not appear that he has a recollection whatsoever of any of such incidents which brings one also to the conclusion that he seems to be covering up some information, which may be very important to this Commission, especially about authorities in Westville Prison, the then authorities who obviously would be implicated in this matter because there are rules in prison as to the detainees, if people are in custody, at two o'clock they are locking up and nothing else, no one has a right to come and take prisoners, so obviously the fact that they had access there in, simply implies that there are more people involved which he is obviously trying to protect.
Also there seems to be a clear contradiction also in so far as his allegations of following instructions, that he was following instructions as he was, the instructions of for example Mr Fivaz in committing the human rights violations, he was committing.
Yet through cross-examination and even as he was asked by the panel, he admitted being in charge of the activities, being a role leader, and even at South Coast, where he
alleged that at some stage they had to go and go down there, to assist. So Your Worship, this is clear that there is no clear full disclosure and one really goes to the question as to why is Mr Bennetts making an application for amnesty.
One can rather probably speculate and say he possibly have a lot of other offences, which he probably has fears that they may surface at a later stage and he may encounter problems. It is preferable to say that generally I was involved in such offences, the pattern in as such and I would not say I recall or I don't recall the people specifically.
Your Worship, it is clear, my apologies Sir, it is clear that he is not disclosing exactly what happened or the specific people, less, except to say that "I recall that lady with the bag" and so and so. That is all.
Based on the fact that there is no full disclosure and following the instructions of my client, I would say that the application for amnesty should not be granted, thank you.
MS MOHAMED IN ARGUMENT: Thank you Mr Chairman and honourable members of the Committee. Mr Chairman, I plan to be quite brief, because I believe that the difficulties in the applicant's application has in fact been canvassed at great length since the commencement of this hearing.
However, at the outset I wish to state quite correctly that it is my instructions from each of the victims that I represent, not to oppose this amnesty application. However, that doesn't mean to say that that automatically follows that we, fully, wholeheartedly support the application. The applicant still bears the onus of discharging the requirements as set out in the Act.
Great score has been placed on the fact by Mr Falconer, in support of his client's application that none of these victims actually oppose this application. I wish to state that I have appraised each of these victims of their choice, to come before the Committee and address the Committee and speak to them and present their side of the story as it were, but each of these victims declined that opportunity, not on the basis that they are scared to say things which may later prove to be untrue, but purely on the basis that they do not want to go back into that state of mind and go back into that situation where they are expected to recall in minute detail the atrocities which were committed.
During the course of my exhaustive consultations with these victims, I wish to state that it was in fact quite difficult for me to extract these statements which are before you as part of the record. Whilst the applicant was at pains to point out that he cannot recall any of these victims individually, and that these incidents mentioned in their statements, broadly fit the categories of activities which he was involved in, it is quite amazing as to the graphic detail in which each of these victims recall the incidents as they transpired.
The applicant has stated that he was in charge of a part of this Unit, albeit a Constable at a very low level within the Unit. However as far as the victims are concerned, he was the person who came in there, he carried out these activities and he was in the forefront, he was actually the leader of these attacks.
In his reply, the applicant actually stated he was never the leader, he was merely part of the Unit. I think it is worthy to note at this stage that when these attacks or raids were carried out at these victims' homes, it is conceded that the Police came there in a Unit. Mr Bennetts was never alone, but it is quite surprising that the victims point Mr Bennetts out specifically as the perpetrator of these offences.
I wish to state that it is our respectful submission that whilst Mr Bennetts was a part of this Riot Unit, it is very possible that the bounds of Police duties was overstepped here. There is certainly this political overtones in his investigations and his purpose for being in the area, however, he has stated that he was a young, impressionable officer. He was indoctrinated during his training, in fact during his course of his testimony, he did mention that there were times, derogatory terms used to refer to members of the Chesterville community and in fact, Mr Chairman and honourable members of the Committee, there is an extract in the Section 29 proceedings, particularly page 46 where Mr Bennetts was questioned and he said -
"... I came out (towards the bottom of that page, he says, I came out) of that lot, hating everything that is black, no matter what side they were on."
Mr Chairman, during his testimony, Mr Bennetts in seeking to reconcile or to show his remorse said that it was his marriage and it was his wife that has made him realise the error of his ways. Each of the victims have noted that, however they wish me to point out that these attacks clearly had this, what they said was clearly racist attack on them personally, because whilst he came there looking for other people, there was certainly other stuff which, other behaviour which he engaged in, which clearly showed his beliefs as stated in this extract.
Mr Chairman, honourable members of the Committee, the victims have asked me to thank you for giving the applicant the
opportunity for going on at length about his involvement in the area and they wish me to place that on record.
Thank you, I have nothing further to add.
MS THABETHE IN ARGUMENT: Thank you Chair. My submissions to you with regard to the first incident is ...
CHAIRPERSON: Could you speak up please.
MS THABETHE: Okay.
CHAIRPERSON: (Microphone not on)
MS THABETHE: My submissions to you honourable members of the Committee, with regard to this first incident is that I have realised that in all the victims, maybe with the exception of Mngadi, there is one common element and that is they all claim to either have been UDF members or UDF supporters.
This goes very much hand in hand with Mr Bennetts' statement on page 8, Bundle A, where he states that he was involved in numerous incidents where he both shocked and tubed persons who were residents in Chesterville locations and who were all supporters of the UDF and who were opposed to the A-Team and a group of Inkatha supporters.
Mr Chair, I would submit that even though this initially was a very broad and general application, there are victims who came forward with specific incidents and all of them, have highlighted the fact that they were either UDF members or supporters. I've got the references if the members of the Committee want me to go through it, otherwise it is all there in the Bundles.
Secondly, I have also realised that they refer to Mr Bennetts quite a number of times as a Security member who attacked most of the time, against UDF members. So seemingly there was this view in Chesterville about Mr Bennetts that he was a Security Force member who targeted specifically UDF members. They all seem to suggest that in their statements.
I would say that that accords very well with the evidence that he has outlined in his Bundle and viva voce.
Therefore members of the Committee, I have no objections in as far as the offences that he has admitted to having committed, that amnesty be granted. Even though I did have difficulty when I was reading the statements, especially by Mr Bennetts, where he has to respond to the statements from the victims. I had a difficulty with the terminology he uses, for example he would say "I am not in a position to dispute", you know, I am not in a position to dispute what the victims are saying. I am not sure whether that should be interpreted as "I admit that I committed these acts" or it should be interpreted as "I am not in a position to admit or deny", these are the problems I had.
I don't know whether they have been addressed by my learned colleague, Mr Falconer. Also with terms like "I do not have an independent recollection of events", such statements, it is not clear whether he admits to having done these acts or he denies having done these acts. Those are the problems that I encountered when reading his statement.
Also another term, "this accords with the nature of the events that transpired in Chesterville at that time", it is also not clear whether he admits or denies these allegations.
With regard to the second incident, I would submit Mr Chair and honourable members of the Committee that it appears that Mr Bennetts, the applicant, omitted to report information about framing a member of the UDF and that is as far as I can take it. To me it appears like an omission, at the most maybe obstructing the ends of justice. I cannot submit or argue any further with regard to that.
With regard to the third incident, I would support my learned colleague, Mr Christo Nel, that either way, whether the Committee members accept Mr Fivaz' and Fernandez' version or they accept Mr Bennetts' version, either way, it doesn't pose any threat to Mr Bennetts, because if Fivaz' and Fernandez' version is accepted, he won't be prosecuted because there is no offence or omission that has been committed.
At this stage, I am not even sure, because I haven't checked the Act as to whether the Committee is in a position to grant or refuse an incident or an act where it has been found that there was actually no offence that was committed or the Committee can just reject the application based on the fact that there was no offence committed.
I am not in a position to argue but these are the two options that the Committee has, either to reject the application because there is no offence that was committed and that way, not refuse or grant amnesty with regard to the third incident, and I would argue that the Committee just rejects the application on the basis that there was no offence that was committed. Thank you.
MR FALCONER IN REPLY: Two points, and I promise to be brief, Mr Chairman. In response to the last point that my learned colleague, Ms Thabethe referred to, namely and also following what Mr Nel has said, that there is no possibility of a criminal prosecution ensuing in that matter, Mr Chairman, one cannot rule out the fact that on the applicant's version, there were a number of other people involved, and there is nothing to suggest that those other people might not decide to come clean or through further investigation, might decide to become State 204 witnesses in due course.
The applicant has seized the opportunity to request amnesty for that matter, he has given a version of events which puts him in the middle of a crime, and I believe he is entitled to his amnesty in respect of that, because one cannot rule out the possibility of a prosecution ensuing.
MR MALAN: Mr Falconer, you can rest assured that we will not make a decision on the basis of the threats of prosecution, we will make it on the evidence before us and the provisions of the Act.
MR FALCONER: Thank you Mr Chairman. Secondly Mr Chairman, in regard to what Mr Majele said, it was not my intention to have misled this honourable Committee, when his predecessor in this matter, the person before him, Mr Kuboni, was representing the client, Mr Hlozi, when he departed, he told me that at that stage, they were not intending to oppose the application, and it was upon the strength of that, that I said the victims, as far as we know, are not opposing. Thank you Mr Chairman.
CHAIRPERSON: The Committee will take time to consider its decision, and I think that completes what has been set down for hearing today. We have another matter set down tomorrow, what time will that be beginning, what time will people expect to be in?
MS THABETHE: Mr Chair, I am not the Evidence Leader in that hearing, but I assume half past nine.
CHAIRPERSON: I think we can adjourn safely till half past nine.
MR NEL: Mr Chair, I am also involved in that matter tomorrow, and I do know that there are certain Attorneys coming from Pretoria and I don't want to use Mr Malan's plan as an example, but it might be that we won't be able to start ...
CHAIRPERSON: Half past nine should be all right.
MR NEL: That should be fine. Thank you Mr Chairman.
CHAIRPERSON: If you could let them know if you get in touch with them.
MR NEL: I will phone my office right away to let them know.
CHAIRPERSON: Thank you.
MR NEL: Thank you Mr Chairman.
COMMITTEE ADJOURNS
