CHAIRPERSON: Are you ready to proceed?
MR MAPOMA: We are ready to proceed Chairperson. I think it was at a stage where we were to hear submissions from the applicant first.
MR KOOPEDI: Thank you Chairperson. If I may proceed, a very brief submission Chairperson and perhaps for the record's sake Chairperson this is the argument for the matter where our applicant is Mr Edmund Moruti Noosi.
MR KOOPEDI IN ARGUMENT: Chairperson my submission is that the applicant has complied with the requirements of the Act for him to be granted amnesty. He has applied for amnesty for two incidents, one that involves Mwezi Twala who you were told was a mutineer. Mutiny is a serious offence, Chairperson and I am told it's punishable by death in terms of war. He was part of a group that was with the leadership to secure an arrest on the leaders of the mutiny.
CHAIRPERSON: This was an emergency situation and he reacted, wasn't it?
MR KOOPEDI: That is indeed so, Chairperson, thank you Chairperson and in the last instance, the one that involves Mr Mashele which is his real name, it is my submission Chairperson that the applicant applies for amnesty for one incident which he remembers vividly, that is where he slapped the applicant. It's my submission Chairperson that although there are contradictions in the evidence that the applicant gave and evidence that was given by the victim, my submission is that the applicant was a very truthful person, Chairperson. He conceded that he might have assaulted the victim at another stage and it's my submission Chairperson that he has fully disclosed all the relevant facts and further that he gained nothing materially out of the whole thing and ...(intervention)
CHAIRPERSON: Well he has confined himself as I understand it to one act. He's only asking for amnesty for the one act.
MR KOOPEDI: That is indeed so, I've said so Chairperson, but in line with compliance with full disclosure and without hiding anything, he conceded that he might have assaulted the victim at another stage. I see no reason why he would try to minimise the victims. It's my submission that his evidence should be accepted as it is. Thank you Chairperson.
JUDGE DE JAGER: What about the scars and how he seems to have no knowledge as to how this was caused.
MR KOOPEDI: Yes, Chairperson.
JUDGE DE JAGER: ...(indistinct - mike not on)
MR KOOPEDI: That is indeed so, Chairperson. We were not in any position to determine perhaps the age of Skies. My submission is that at some stage the applicant had left Camp 32. This person, the victim, remained a victim at Camp 32 and it's my further submission Chairperson that it would be very strange and very odd that he would be, that is the applicant, the only one person who would cause all those injuries on the victim. The applicant has stated that it may have occurred that he would have assaulted the victim at another stage, but he also stated that he knew he would not use - assault a person with a weapon.
My submission is that the victim might have scars, but that does not necessarily mean that those scars were occasioned by the applicant. On his own admission, that is the victim, he has been assaulted by a number of people, but all the people that assaulted him over the years, caused only minimal damages. It is my submission that that is not probable Chairperson.
JUDGE DE JAGER: ...(indistinct - mike not on)
MR KOOPEDI: No Chairperson he was a senior administrative officer but not the head of the prison. He would, from time to time, partake in interrogations. Numerous people would interrogate the inmates. There were guards that lived with the inmates. He told us that the guards also assaulted them, but the evidence that was given, an impression was created that the applicant had a particular grudge to deal with and would consistently be torturing or bettering this victim. It is my submission that this is not so. This applicant ...(intervention)
JUDGE DE JAGER: Wasn't this sort of carried through by the fact that he wouldn't even apologise now?
MR KOOPEDI: No, Chairperson, that is not the situation Chairperson. The evidence that was given to you is that and perhaps one needs to try and give an explanation, this applicant is a person who, to a very large extent, is discredited amongst his peers. He's a person who, in exile, was locked up in Camp 32 for being an enemy agent or an infiltrator and that having occurred, he does not enjoy equal status with his peers.
CHAIRPERSON: The applicant?
MR KOOPEDI: I'm sorry, the victim Chairperson. Now what happened is, he met up with the applicant at the ANC Head Office where most of these people are found and said to him that: "You assaulted me and I demand an apology from you". Chairperson, my submission is that for that type of an approach, to receive that type of an approach from a person whom you consider to be an infiltrator, an enemy agent, this - you would not react the same like if you were approached by someone else and you were told here that what was said was that: "I will not apologise to you on my own, or personally, the ANC has issued an apology for what happened there", but the moral of it, Chairperson, is that you cannot demand an apology when in fact you are seen as somebody who was fighting against them.
JUDGE DE JAGER: The other thing is, I read in the TRC report that from 1981/82 onwards, the leadership announced that they should, all the inmates should be brought before a tribunal and they created tribunals to hear all the allegations against inmates that were suspected of doing this or that, or the evidence, there's no evidence that this person was ever brought before a tribunal.
MR KOOPEDI: Yes, that is the situation and perhaps one needs to give some background and I will first start by saying when - the applicant was not responsible for setting up tribunals, but be that as it may Chairperson, at some stage tribunals were set up and these tribunals had I think three members. They were headed by James Steward, I'm right and what happened is at that stage an evaluation of cases occurred. Some people were never charged. Some people were found - it was found that they should be released because there was no real evidence against these people. Some people were charged and found guilty. Certain punishments were meted out to them. But my submission is that at some stage there was a decision that there have to be tribunals, but I might need to add that, Chairperson, remember that this was at a time of war. These tribunals were to be carried out in Angola, a country which was in constant conflict. It was very difficult, we were told, for any one person to move around the camps, conduct tribunals and if you look at the fact that there would be no facilities, it would need somebody to move from Lusaka to go to Angola, look at certain things, go back to Lusaka, get somebody who is in London. Of course, this would take a lot of time and a lot of delays were caused.
JUDGE DE JAGER: I understand this, but the crux of the matter is that the applicant acted against the policy of the ANC.
MR KOOPEDI: It is my submission, Chairperson, that the policy was to treat all inmates humanely. Those were strict orders, that inmates should be treated humanely. But now, this applicant, in as far as the incident for which he applies for amnesty is concerned, says that he had to maintain order in the prison and the only way he could maintain order, because the guards had complained to him that the victim is not obeying orders, the only way he could maintain orders was to discipline this person and the discipline was slapping this person. He did not ...(intervention)
CHAIRPERSON: Is that disciplining, just setting upon the man in public? He didn't have him brought before him, he didn't question to him as to whether he agreed with the allegations made by the guards. The guards told him something and he saw this man and set upon him. Do you call that discipline?
MR KOOPEDI: Well, Chairperson, he did not say he just saw him and set upon him, the evidence was that he might have said to him - he might have said something to him before slapping him, Chairperson. He might have said to him that: "You are still disobeying the guards, which is wrong" and this is what he said. Thank you, Chairperson.
MS MAKHUBELE IN ARGUMENT: Thank you Chairperson. As I indicated yesterday and as the victim indicated, he does not oppose amnesty but then as we have heard, according to the victim, there are two incidents which, at the end of the day, I will submit that the applicant has not made a full disclosure. My problem, Honourable Committee, is a person, an applicant who says: "I may have". We are dealing with "may haves" and at the end of the day, can we say a person has made a full disclosure if, when confronted with a situation, he says: "I may have"? For example, on the question of how he assaulted him on that one incident, which according to him is the only incident, he says: "I hit him once or twice. I cannot remember how I assaulted him", but then if someone says: "This is how you assaulted me with a butt of a pistol" and he says: "No, that's not how I did it", but on the same breath he cannot remember how he did it. He testified that he had - I can also refer to his legal rep's argument now that he was not head of the prison section, but then how does he then get himself involved in that section's activities, because we have heard evidence that the guards are the ones who meted out discipline and if then that was the case, why did he not take him to the guards and say: "This is the person you complained about, can you deal with him?" and which would support the victim's argument that it was a personal grudge and nothing political.
Honourable Panel, I just want to say that we cannot at the end of the day say that this person has made a fully disclosure because he doesn't remember what he has done. It is said that he might have said something to him before he hit him, but what is it that he said and at the end of the day we are sitting with a situation where we have not heard the truth. Yes, I concede that the victim on his part too, there are - there has been - he has created an impression on which I put certain versions to the applicant for instance that he had lost sight of - his left eye cannot see, but then as we went on, he conceded that no he can see, it's just that his vision has been affected.
JUDGE DE JAGER: Did he concede? He was never pressed about it, he said: "Well, I'm not blind in the eye, but I can't see properly". He never said in evidence or while giving evidence himself, that he was blind in the eye. It seems as though there might have been a misunderstanding between you and your client.
MS MAKHUBELE: Yes, that's why I'm saying that in the beginning I proceeded from that premise because my instructions were strongly to the effect that he has completely lost sight on his left eye and which, as we went along, it was, the hearing had proceeded considerably when that was finally cleared up, but anyway, what I want to say is that yes, as Judge de Jager pointed out to the victim at some stage that he too is required to make a full disclosure, at the same time it's not - if it was maybe a criminal trial, one would say yes, since the victim too has said he has been assaulted by other people, let's give the applicant the benefit of the doubt, but that's not the case. The applicant must make a full disclosure on his own, irrespective of the doubts which have been created from the victim's evidence, Honourable Panel and that's my submission.
MR MAPOMA IN ARGUMENT: Chairperson regarding the assault on Mr Ben Maseko, it would appear, Chairperson, that we are dealing here with two sets of assault. The applicant seeks amnesty for assault which is assault common from his version and the victim on the other hand claims that he has been assaulted with intent to do grievous bodily harm, in fact he has suffered grievous bodily harm from several assaults which, from
his version, that is the victim's version, the applicant might have been involved, which the applicant himself does not deny that he might have been involved in those incidents.
It is my submission therefore, Chairperson, that if at all the Committee has to consider granting amnesty to the applicant, the Committee must concentrate on the incident of assault common which the applicant is emphatic on applying for amnesty for and then it appears that for other incidents where the victim seems to have suffered grievous bodily harm, then the applicant does not apply for amnesty in respect of that one and Chairperson, once again, that being the case I submit Chairperson that the Committee in assessing full disclosure, must concentrate on the application for which amnesty is sought, that of an incident which is clearly identifiable by the applicant, an incident which, where he does not apply for the injuries that the victim has suffered. Thank you Chairperson.
JUDGE DE JAGER: ...(indistinct - mike not on) it's different acts, different assaults, so he's only applying for one and if it be that he's guilty of the others, he could be charged for the others, he's not applying for amnesty. We should concentrate on this one he's applying for and it's connected with a complaint by the guards and it had nothing to do with the epileptic episode, so we could differentiate between different charges, I would say.
MR MAPOMA: Yes, that is my submission, Chairperson.
CHAIRPERSON: And it appears on the applicant's evidence, that no injury was caused on the assault he's talking about, so if it is proved that injury had been caused to the victim by the applicant, he will be responsible for that injury because we will not be granting amnesty in respect of such assaults, that is what you're submitting.
MR KOOPEDI: That's what I'm submitting Chairperson. No, Mr Mapoma has summed it up Chairperson.
CHAIRPERSON: We'll take time to deliver our decision.
MR KOOPEDI: We are ready to move to the next matter which is matter number D on your role.
CHAIRPERSON: C?
MR KOOPEDI: D, for T J Sphambo.
CHAIRPERSON: Sphambo?
MR KOOPEDI: He's here and ready to be sworn in.
