CHAIRPERSON: Are we ready to proceed?
MS COLERIDGE: Yes, thank you Chairperson. The first applicant on the roll today Chairperson, is Mr Mamphaga. I just want to inform the Commission that the following people are implicated people and that we've also been informed by the applicant that these persons, Mr Steve Kumba, his Commander, Satch Biyani Mabatha, were involved in this incident Chairperson, and they all are deceased, Chairperson.
In relation to the victims we have Mr Paulos Sithole, that is the brother of Mr Petrus Sithole, as well as his mother in the audience, Chairperson, Mrs Rachel Sithole.
CHAIRPERSON: Before we start we should, as I've been asked to do in the past by those recording, place ourselves on record. The Committee consists of myself, Judge Chris de Jager and Adv Sibongile Sigodi. Appearing for the applicant?
MR KOOPEDI: Chairperson, my name is Brian Koopedi, I am appearing for the applicant.
MR NYAWUZA: My name is OP Nyawuza, I'm appearing for the victims. Thank you, Chairperson.
MS COLERIDGE: My name is Lynn Coleridge and I appear on behalf of the Truth and Reconciliation Commission. Thank you, Chairperson.
CHAIRPERSON: Well the first matter to decide is what the application relates to. We have been served with an application in respect of recruiting for military activity, which was apparently received by the TRC Amnesty Committee in 1997, and was only signed, attested to on the 10th of February in the year 2000. That application relates only to recruiting for military activities.
MR KOOPEDI ADDRESSES: Thank you, Chairperson. I would request this opportunity to ask for an amendment on the application form. Chairperson, earlier on before we proceeded, I had a chat with both the Evidence Analyst and the attorney for the victims and discussed the fact that our application form seems to refer only to recruiting for military activities and says nothing about the murder. I then consulted with the applicant on this issue and I was told that prior to him completing this application form he was advised attorneys, and their names appear on the application form, which attorneys said to him he needs to put his application only in broad terms and should there be any further explanations sought from him, such will follow in due course. It is my submission, Chairperson, that this applicant intended specifically to apply for his involvement in this murder.
CHAIRPERSON: But there is no mention in broad terms of murder, of killing anybody.
MR KOOPEDI: I concede that is so, Chairperson, but what actually happened is this is the advice he was given. If we would also look at the dates that he has written, the dates refer from 1981 to 1989, and in his mind this would include everything that he did during this period. It is on those basis, Chairperson, that we would ask that there be an amendment and that this application should relate to the killing of the late Mr Sithole.
CHAIRPERSON: So you are suggesting that we should say that where a man writes down "Recruiting for Military Activities", this includes murders? I'm afraid, speaking for myself, I have grave difficulty in accepting that. I don't know - I'll ask the other members of the Committee to express their views.
JUDGE DE JAGER: If there was an amendment before the deadline of the 30th of September, I think we would have been entitled to grant it, but there's nothing in the Act empowering us to grant an amendment for a new offence not being mentioned before the deadline of filing your application. It's not amendment this because you're not amending something, you're introducing an application for amnesty for a new offence.
MR KOOPEDI: I concede that that might be a view that a person holds on this, but my submission Chairperson, Honourable Committee Members, is that when this applicant made his application, attorneys advised that by simply stating that he was recruiting for military activities and including all the dates, this would cover him. My submission is that his intention was at the time he completed the form, to apply for this murder.
CHAIRPERSON: Are you suggesting that an attorney, a qualified attorney, told him that by writing down "Recruiting for Military Activities", this would include murders? Because if so, I would like to hear that attorney give that evidence.
MR KOOPEDI: These are my instructions, Chairperson.
CHAIRPERSON: Your instructions were what your client says the attorneys told him, which was to set down in general terms what he was asking amnesty for.
MR KOOPEDI: That is indeed so.
CHAIRPERSON: And he hasn't done so.
MR KOOPEDI: Well his belief is that by firstly, stating that he was recruiting for military activities, the word "activities" would be broad enough to cover everything that he did. So ...(intervention)
CHAIRPERSON: And "recruiting" covers murder, does it? Please.
MR KOOPEDI: Chairperson, perhaps I should make it clear that I am merely explaining to this Committee what the applicant believed and it becomes difficult for me to explain as if I was the applicant at the time of completing the form.
CHAIRPERSON: But he has not mentioned murder in any application before the cut-off date.
MR KOOPEDI: I submit and I submitted when we began, Chairperson, that he has not referred or mentioned the word "murder" in his application, but I have however ...(intervention)
CHAIRPERSON: Not necessarily murder, it could be culpable homicide, some form of killing. He was engaged in the killing of a human being he has not mentioned.
MR KOOPEDI: He has not mentioned that. My submission was Chairperson, that when he was supposed to complete amnesty application forms, he had an opportunity to talk to very prominent lawyers I must say, Chairperson, their names appear on the application form, and their advice was that he should simply state in broad terms, just to make sure that he is included within the people who have applied. My submission is therefore that, Chairperson, this application did not intend to hide that he's applying for murder, that is why he in fact got advice.
ADV SIGODI: Is it your submission, was he in fact assisted by the attorneys in the completion of the form?
MR KOOPEDI: My instructions are that when the actual form was completed the attorneys were not with him. He had the opportunity to speak to these attorneys before he completed the form and what they said to him was that "you just need to state in broad terms, just to make sure that you're application goes through. If the TRC is going to require any further information, any details, they will be writing to you to get those details", because these attorneys were people who were actually assisting other amnesty applicants who had already received enquiries from the TRC in terms of saying "what are you applying for in particular?"
JUDGE DE JAGER: Mr Koopedi, I think we haven't got the power to grant such an amendment, unless you can point to some - any section of the Act, empowering us to do so. I believe there was a similar case and that in that instance, I'm not sure, but I think the ruling was that the applicant should apply to the Supreme Court and the Supreme Court having inherent jurisdiction, could make an order in that connection, but I don't think we've got the power to grant amnesty where on the papers before us, or grant an amendment for an offence that's not been mentioned at all after the date of the 30th of September, the deadline for asking for amnesty for particular offences, because then we'll be introducing new offences that's not been asked for and everybody could come later and say "well, I've been advised" or "I've believed this or that and we're asking now for you to add the following offences to our list".
MR KOOPEDI: I am not certain if I can take this argument any further, Chairperson, and what the Honourable Judge de Jager has referred to as a case where we have had similar circumstances, it is my submission - and perhaps if given time, I could find a case like that, I have been involved in applications where an applicant would have said that "I am applying for the murder of X and any other incident" and this any other incident has been acknowledged to be what would seem as a new incident. I believe Chairperson, if you may recall at IDASA, I think it was in February, no you were not present, we did a matter of the Witbank Bomb Blast and one of the applicants who has appeared before you Chairperson, on other matters, Mr Dube, in his application form he has said nothing about the Witbank Bomb, but he had said "and other things which I might not recall". We had a similar situation where it was said "is this a new act for which amnesty is being sought or not?" But be that as it may, this applicant proceeded and was heard. But the point I am making is that ...(intervention)
JUDGE DE JAGER: Mr Koopedi, wasn't he heard on the basis that we'll allow him to lead the evidence but we'll give a ruling later whether in fact it could be amended? And as far as I know, the decision hasn't been made yet, or hasn't been made known yet.
MR KOOPEDI: Well yes, indeed that is so. I think the other thing is that, like I said this applicant has appeared in other matters where he has not specifically referred to a particular point and this applicant has been allowed to proceed on those applications. But be that as it may, that is not what I'm trying to use in support of my application, my application at the moment is that this applicant intended to apply for this murder specifically, the advice he got was that "put it in broad terms". It is my submission Chairperson, that a person who could have used ...(intervention)
CHAIRPERSON: He did not comply with the advice, did he?
MR KOOPEDI: In his mind he did.
CHAIRPERSON: In general terms, he would have said ...(inaudible - no microphone)
INTERPRETER: The speaker's mike.
MR KOOPEDI: Chairperson, this ...(intervention)
CHAIRPERSON: He makes no mention of killing ...(intervention)
MR KOOPEDI: Your mike is not on, Chairperson. Your mike.
CHAIRPERSON: He makes no mention of murders, of killings, of anything of that nature, how can you say he meant to deal with them?
MR KOOPEDI: Chairperson, I think it is also important to take cognisance of the fact that the applicant completed this form in English, the applicant is not an English-speaking person. This applicant assumed - and these are my instructions, that for him to state as he did and to put in the precise, the years of his activities and which include everything that he did, this would cover him. The attorneys told him that if the Truth Commission wanted to know anything further, they will make enquiries, they will ask to that respect, but don't just put everything in the form. And I want to reiterate that the basis of our application is that this applicant intended to include this murder in his application.
JUDGE DE JAGER: This man is serving as a policeman? He's a policeman at present?
JUDGE DE JAGER: Since when is he a policeman, when did he join the Force?
MR MAMPHAGA: We were integrated from the MK in 1995, on the 1st of April.
JUDGE DE JAGER: So at least you would know that if something is asked from you, that you should attest to, that you should take an oath, you realise that it should be an oath? You know what an oath is.
MR MAMPHAGA: Well at that time you must know and understand that we were from the liberation movement, there's still ongoing training, there were many things we didn't know at that point in time.
JUDGE DE JAGER: But at that time you were already serving as a policeman for two years.
MR MAMPHAGA: Well by then I didn't even have my basic training.
CHAIRPERSON: Do you wish to say anything further?
MR KOOPEDI: No thank you, Chairperson.
CHAIRPERSON: Do you wish to say anything?
MR NYAWUZA: No, Mr Chairperson.
MS COLERIDGE ADDRESSES: Yes, Chairperson, just in relation to the facts of the matter, that the applicant did submit his application in '97 and only once we had in June 1999, we had written asking for further particulars, did the applicant come forward. That was the 25th of October 1999, where he submitted that he's applying for the murder as well, Chairperson.
MS COLERIDGE: So the applicant also had an opportunity, Chairperson, since '97, to submit further particulars in this instance and it is clear that he only applies for the recruiting of MKs and so forth, Chairperson. And in relation to where he states that his attorneys had informed him to state in broad terms, I'm sure they would have thought that by "broad terms" he could just state murder for instance and not go into the details of that specific act, which would probably be an explanation as to why the attorney would state "state it in broad terms". So Chairperson, my submission is that this application is not before the Committee and that the applicant, if so wishes, must apply to the High Court in this instance.
CHAIRPERSON: One matter that hasn't been mentioned by anybody, which concerns me, but I think it is perhaps a matter that we cannot deal with here today and it should be dealt with in the High Court, and that is if you look at page 4 of the papers, the last page of his application, paragraph 13(a) and (b), paragraph 13(a) refers to civil proceedings and paragraph 13(b) says
"If so, state the identity and addresses of the parties and their legal advisers, if any. Priscilla Jana."
Now in the statement we were supplied with this morning, prepared on behalf of the Sithole family, towards the end of the first page they say -
"My father and I began to look for him throughout the Vaal and Soweto, police stations, hospitals and through the law firm, Priscilla Jana and Associates."
So there may be some connection there which should have been enquired into and wasn't, but I think we require a great deal more information before we can come to any assumption in that regard and it seems to me that on the basis of the - unless anyone wishes to say anything further, that on the basis of the argument we have heard so far, it appears clear that there was no application before the Committee before the cut-off date, in respect of murder or the unlawful killing of any person, which could subsequently be amended to reflect the killing of the deceased in this instance, the date, the time and the place and matters of that nature. What is being sought is not in my view, an amendment, what is being sought is to introduce an application in respect of a completely different event to that covered by the original application, which relates to recruitment, and that it is not within the powers of this Committee in terms of the Act, to permit a fresh application to be instituted after the cut-off date.
I would like the views of my colleagues on that.
ADV SIGODI: I also agree, Chairperson.
CHAIRPERSON: In that case there is no, in our view, application before us which we can hear.
MS COLERIDGE: Chairperson, just on clarification's sake, I just want you to turn to page 4 of the bundle. I just want to place on record that you will note this has been attested - there is a Commissioner's stamp which is dated the 10th of February 2000. I just want to clarify that the application wasn't commissioned to, so therefore on the 8th of February, Chairperson, we - on page 7 you can see 8th of February 2000 we instructed our Investigation Unit to have this attested to by a Commissioner of Oaths, and therefore that date is stipulated as 10th of February 2000, because it was done later, Chairperson.
CHAIRPERSON: It appears it was attested to by a Captain of some sort.
MS COLERIDGE: That's right, Chairperson. I just wanted to clarify that, just for if at any later stage it will be queried. Thank you, Chairperson.
CHAIRPERSON: Isn't it the same Captain? The same person. So I may have when I said it was attested earlier, I may have made a mistake, he may have attested it once and then decided to put his rubber stamp on it and it may have been done on the same date, that is the 10th of February 2000.
MS COLERIDGE: That is correct, Chairperson, it's a possibility.
MR KOOPEDI: Well Chairperson, in the light of the ruling, we are therefore unable, or we will not be proceeding with any other application because basically the applicant before you was here to apply for the murder of the deceased, Mr Sithole.
JUDGE DE JAGER: Mr Koopedi, I've referred to in argument, a similar instance where it was advised that the applicant approach the High Court in order to get an order or to make a ruling, a declaratory order whether such an application could be made, a fresh application in connection with the murder if he intended to do so at the time before the cut-off date.
MR KOOPEDI: I am not sure as to what instructions will I get after this and what direction matters will take, but Chairperson, Committee Members if you may, the applicant has indicated that if it pleases the Committee he wishes to say something and I would request that he be granted an opportunity of saying something, Chairperson.
MR MAMPHAGA ADDRESSES: Well initially - well I understand the whole argument which is going on. When we applied for amnesty there are many things we were involved in and mostly what I used to do, mostly I used to do the recruiting a lot and there's so many things which I did also, which really if - because when you do the application they just said you know we do the application on what we were doing, we were specialising in, and as time goes on I felt, because we were told that we were all going to appear and there's still more information which will be dated, which we must come up with.
So at a certain stage we continued and I felt that it is important that during the process of recruiting somebody lost his life and I felt you know, it is important that now that thing remained in me for many years and I felt it is important to meet the family and because what we did in the past, we were in a war situation and I felt it is important that because I've done - when we were called in to do this - because many people didn't even come forward, but I felt that it is important in 1997 to come forward and you know I felt it would be better if I talk with the family because of what I did because in the past it was not myself. And during the process after I really became a Christian, I felt that it is important that I really need to meet the family because I've committed sin. Because even though we were in a group and some of those people are dead, that sin remained with me and I felt that it is important for me to confess it because judgement day is coming and I need to confess. There's no need for me to become a Christian and at the same time not to confess what I've done. So today, given this opportunity, even though there was arguments, I feel a little bit better because this things remained in me.
And maybe if I could also be given an opportunity to meet the family as well, because in the past there are many things I've done, I've recruited so many people, some of them I can't even remember their names. So if I could just be given an opportunity. I know what we did in the past I was not myself, I was not in my senses by then, but I felt that it is important that this day. Because the application was in general terms, I didn't state because if I can state exactly what I did in the past, it's a lot of things I did in the past.
CHAIRPERSON: Thank you for that. I think that the best suggestion I can make is that your legal adviser speaks to Mr Nyawuza. We'll adjourn the matter now, we'll adjourn the hearing now for a short while and you can perhaps discuss that question.
Could you also please explain to the victims what the position is, that on a technical basis the application is not being heard, it is open to the applicant if he so desires, to apply to the High Court for leave to have the matter heard on the different basis and if that happens the victims will be notified afresh and they will be given ample opportunity to prepare and lead any evidence they wish to. I notice in the submission they handed in this morning, they referred to the fact that had they been given notice, they would have wanted to lead evidence. Well if there is to be a further hearing they can do so. But could you talk to them now about the question of meetings?
MR NYAWUZA: Yes, I will explain that, Mr Chairperson, thank you.