CHAIRPERSON: Good afternoon. We want to start the proceedings. We have unfortunately experienced some delays in getting the proceedings off the ground but it has been inevitable and it has not really been within our control, but at least we are able to proceed at this point.
The Panel, just for the record, is chaired by myself Denzil Potgieter. I am assisted by Advs Bosman and Sandi. Today is Wednesday the 13th of October 1999 and we are sitting in amnesty hearings at JISS Centre Johannesburg. The first matter that we will attend to is the application of Thanjekwayo and three others. Yes, I think you must just put yourselves on record Gentlemen, first for the applicants.
MR HONNORAT: E, the initial and the surname is H-O-N-N-O-R-A-T.
CHAIRPERSON: Yes, Mr Honnorat, thank you.
MR ZULU: S J Zulu, for the applicant.
CHAIRPERSON: Yes, thank you, Gentlemen. Then for the next of kin?
MS VILAKAZI: Adv L E Vilakazi for the Manoto family.
CHAIRPERSON: Thank you, Ms Vilakazi. And for the implicated party?
MR CHELOPO: Mr Chelopo, C-H-E-L-O-P-O.
CHAIRPERSON: And on whose behalf are you appearing?
MR CHELOPO: For Ms Gumede, Anna Gumede.
CHAIRPERSON: Miss Gumede?
MR CHELOPO: Yes.
CHAIRPERSON: Mr Chelopo?
MR CHELOPO: Yes.
CHAIRPERSON: And then the Evidence Leader.
MS THABETHE: Thabile Thabethe, the Evidence Leader for the TRC.
CHAIRPERSON: Thank you. Yes, we've got all the parties on the record, I think. Ms Vilakazi, what is the position of your client?
MS VILAKAZI ADDRESSES: Thank you, Honourable Chairperson. The position of the client is that she received notice last week Friday about the hearing and her perception has always been that her input in the hearings is not going to make any difference because whether or not she attends the hearings,
amnesty will still be granted. I only had an opportunity to consult with her this morning and after I had outlined to her the impact that her evidence would make on the decision that the Committee has to take, it's only then that she came to appreciate the importance of her presence and decided that it would be necessary that she attend the hearings. Based on the fact that she has to consult with her in-laws in terms of tradition to discuss the issue with them and highlight the importance of the hearings to the family, she has asked that she be given that opportunity of consulting with them and then getting direction from them. She feels morally bound to have to consult with the in-laws, because of the fact that the deceased was their son, so that they could have an input as well. On the other hand Mr Manoto's children, who are also victims because they were assaulted, are busy writing examinations and they would not be in a position to attend the hearings at the present moment.
Based on that, the request from the Manoto family is that the hearings be postponed. I have two dates which I would put to the Committee, the earliest date being the 8th of November, being the date on which Mrs Manoto could appear, shortly after consulting with her in-laws. The reason why she cannot consult immediately with her in-laws is the fact that her in-laws are in KwaNdebele and she does not have telephone communication with them, so she would have to physically go to them and because of financial constraints, the earliest that she can go to see them is on the weekend of the 7th of November, so she would be in a position to be at the hearings on the 8th of November at the very earliest, but if she appears on the 8th, it would be without her children because they would still be writing examinations. The examinations would be finished on the 18th of November, so the 19th of November would be the latest date on which she could appear together with her children.
It would be up to the Committee to decide as to whether or not, if the postponement is granted, it is essential that the children should also be present in the hearings, but just for the record, given the fact that the children are also victims of the incident, the evidence that they could give to the Committee would be relevant in assisting the Committee in reaching a decision.
With regard to the question as to whether or not there would be any prejudice if the postponement is not granted, the task of the Committee is to reach a decision as to whether or not to grant amnesty or indemnity to the applicants and in order to reach a decision, the Committee has to have evidence of all the relevant parties. The evidence of the Manoto family, from the consultation that I had with Mr Manoto this morning, would be very, very crucial in assisting the Committee in deciding as to whether or not the incidents were politically motivated. As a legal representative I appreciate that fact that a postponement might be adversarial to the applicants seeing that they are in custody, but on the other hand, the Committee would be, to some extent, prejudiced in having to base it's decision on the version of the applicants only.
It is in that light that I move for an application for the postponement of the matter. Thank you Chairperson.
CHAIRPERSON: Thank you, Ms Vilakazi.
ADV BOSMAN: Ms Vilakazi may I just ask, are you in a position to give us an indication of the ages of the two children, are they old enough to appreciate the proceedings?
MS VILAKAZI: Thank you. I'll have to consult my papers.
ADV BOSMAN: Perhaps you can do it later.
MS VILAKAZI: Thank you.
CHAIRPERSON: I see Mrs Manoto is not present here.
MS VILAKAZI: I beg Your Worship's pardon?
CHAIRPERSON: I see that Mrs Manoto is not present here.
MS VILAKAZI: She is not present.
CHAIRPERSON: And you say that she must consult her in-laws to get directions from them, so there's no indication at this stage what the outcome of that consultation is going to be, whether it would result in the matter being opposed, in the sense of Mrs Manoto and members of the in-laws wanting to present evidence to the Committee, or not, that's not clear at this point. There must first be a consultation and then there will be clarity on how they intend to approach the matter?
MS VILAKAZI: Yes, there is no clarity as to what the viewpoint of the family would be, the in-laws would be, but based on the fact that she was persuaded, after our consultation, to appreciate the importance of attending, she would convey the same to the family, so there is, to be honest, no guarantee that it would be positive, but the possibility exists that the family would be inclined to take part in these proceedings.
CHAIRPERSON: Yes, but she has to consult before she has got any direction on that?
MS VILAKAZI: That is the position.
ADV SANDI: Sorry Chair, if I may just ask, are you able to give us any light as to the nature of the evidence that could be given by members of the in-laws, family?
MS VILAKAZI: I would be in a position to do so, although it would be hearsay. It would be better conveyed by the family itself, but from the consultation, what came to light is the fact that there have been personal problems, call it jealousy if you wish, between the deceased, his family and people in the immediate neighbourhood and the applicants in this matter are from the same neighbourhood. There is nothing whatsoever, as far as the family is concerned, which would substantiate the claim that the deceased was an informer and for that reason there is a lack of political motivation with regard to the incidents being applied for amnesty for.
ADV SANDI: Is it not correct that Mrs Manoto was staying with the deceased at the time of the occurrence of this incident?
MS VILAKAZI: Yes, she was.
ADV SANDI: Because one would have thought that perhaps she would have been the best person to give evidence concerning the problems, relationships with members of the immediate neighbourhood, applicants and so on.
MS VILAKAZI: Yes, that is correct.
CHAIRPERSON: On the face of it, is there any dispute about the incident itself?
MS VILAKAZI: Yes, there is a dispute.
CHAIRPERSON: Is there a dispute of fact on that? Because the applicant seems to admit the attack and the killing and the assaults.
MS VILAKAZI: The dispute that exists is a dispute of law, not a dispute of facts.
CHAIRPERSON: Alright. So the thrust of, should the Manoto family decide to come into this case, the thrust of their opposition would be directed at the political objective, in other words, they would be arguing that the deceased was not a police informer?
MS VILAKAZI: Exactly.
CHAIRPERSON: That's the ambit of the possible dispute.
MS VILAKAZI: Yes.
CHAIRPERSON: Yes. Mr Honnorat have you got any submissions on this application for a postponement?
MR HONNORAT ADDRESSES: Yes I've got, Mr Chairman. From what I've gathered, the deceased's widow has been notified timeously of these proceedings. She saw fit never to react to that. She had a consultation only this morning, but previously she'd already intimated that she particularly didn't care about the way these proceedings would have ended and it was her own impression that they would invariably end in an amnesty, which is lacking trust, I mean, in the Committee and basically attaching no importance whatsoever to have her presence there and eventual finding by this Committee.
Now this morning we are met with a sudden turn-around, that it is very important to attack the alleged political motivation of the killing, which is an afterthought, one day after the proceedings were supposed to be started. Definitely if her opposition was not to the question of fact, but to the political motivation for the killing, that would have surfaced a long time ago and the need to bring the in-laws to produce evidence on that score, although as Ms Vilakazi herself admitted, the deceased's widow is the best person to shed light on that aspect. That aspect would have already been raised by the time that she had been notified of the proceedings or very quickly afterwards. So it is my submission that clearly this is an afterthought on her part. Well I cannot speak on behalf of the TRC members who can say something about her generally unco-operative attitude towards these proceedings, but I believe that there is no real significance in the evidence of the in-laws, it was an afterthought on the part of the applicant, she didn't care about the proceedings including the finding or the political motivation of the killing, in the first place, so she's just playing hard to get, which is my own submission. There is no assurance whatsoever that the in-laws would in any event recommend that she or the kids come to testify at the proceedings. From the record of the Judgment, which was handed down by the late Justice Levison, it appears that the boy was 14 years old at the time, so he must be approximately 19 years old and certainly capable of understanding proceedings of this nature. As far as, I mean, the sister is concerned, Beverley, it appears from the Judgment that she was of close age, if not even older than Marvin himself and even, the question of deferring their participation, which is in any event suspended by the condition of the approval of the in-laws, till the end of examinations whilst they are almost young adults I submit it's totally unjustified.
On top of that, I would submit, the applicants are in prison. If there is good grounds for the granting of amnesty in their favour, they would suffer further, I mean their stay in prison without their application being heard. The matter was supposed to proceed already yesterday. Mr Zondo was informed timeously and he was here, in order to testify at the proceedings. In terms of the money that we have, I mean, to be spent by the applicants or the family, in support of this application for amnesty, every day that passes by is a loss for them. Today we have already entered into the second day. If we postpone then it will mean a third day and even financially wise, not talking in terms of their own personal suffering in prison, it is a strain on them which is caused by these unnecessary demands and ...(indistinct) and game playing on the part of the deceased's widow.
The applicants are ready to proceed. They have been summoned today especially from the prison, there was a problem yesterday in bringing the applicants, other than Zondo, here. There are some almost 10 applicants here ready to proceed today and I feel that they all will be unduly prejudiced by a postponement being granted in favour of the eccentric widow of the deceased.
On the basis of all those facts, I don't know if my instructing attorney would like to add some more, I submit that the applicants are quite entitled to vigorously oppose the grant of any postponement and to proceed with the matter today, they are ready to do so.
CHAIRPERSON: It appears from the judgment of the trial court that apparently this question of the deceased having been perceived to be a police informer, has featured in the trial as well. We haven't had access to the actual record. I don't know whether you have any instructions on that, but was that point ever opposed at the trial, because the judge seemed to have accepted.
MR HONNORAT: Yes, it doesn't seem to have been opposed. It particularly featured here in the evidence of accused no 2, Sipho Victor Tshabalala in his cross-examination, that accusation was levelled against the deceased. It doesn't seem to have been opposed by the deceased's widow and she never found fit to call any of the relatives, in-laws, to disprove the particular point, which adds further emphasis to my submission that it's an afterthought which has been concocted basically this morning when she saw Ms Vilakazi.
CHAIRPERSON: And the other point is, Ms Vilakazi has indicated that the basis of the opposition is limited to this question of the status of the deceased. On the face of it, would the children, would testimony on the part of the children serve any useful purpose on that score because the merits of the attack are not in dispute really?
MR HONNORAT: Probably not. The only thing which appears from the record, the judgment is that the boy, Marvin, did hear part of the conversation which took place between the deceased and the accused number 2 of the trial, again Sipho Victor Tshabalala and Sipho Victor is going to testify about why he believes that he was harassed by the deceased, as being a police informer, so it doesn't appear clearly from the record that the boy Marvin was aware of the kind of implications concerning the deceased being a police informer, being there during the discussion outside the house of the deceased by Mr Tshabalala. He seems to have picked up a possibility of threats against his father and acrimonious exchange of words between the two of them, so all the things he said, I wouldn't be able to give a positive answer on whether it is really necessary for the two of them to be vehement ...(indistinct), certainly the best person is the deceased's widow.
CHAIRPERSON: Thank you. Have you got any other submissions?
MR HONNORAT: No further submissions.
CHAIRPERSON: Thank you. Mr Zulu, have you got anything you want to add.
MR ZULU: As the house pleases. Mr Chairman ...(intervention)
INTERPRETER: May the current speaker switch on the microphone please.
MR ZULU ADDRESSES: Sorry. As the house pleases, Mr Chairman. Just to add on the submissions that have been submitted by counsel on brief. In fact it seems as if the reasons for the widow Mrs Manoto not to be present today, Mr Chairman, they keep on varying from one day to the next, the strongest reason for her not appearing yesterday was the fact that the children were presently writing examinations and when the applicant's attorney objected to their exam having commenced and only commencing on the 2nd of November, now all of a sudden we've got another reason, that the in-laws of Mrs Manoto have got to be consulted, the reason being the tradition as such and you know, from the TRC staff members, I think they can confirm it as well, that they have not been receiving co-operation on the part of Mrs Manoto, since the investigation of this matter or since, at the time the applications were lodged, in the sense that although Mr Madlala(?), who's been the investigating officer in this matter is not present and I'm informed that he's actually on leave, he has never received co-operation from her, in fact he would even come and consult with me on the basis of how to get Mrs Manoto to attend the proceedings and further Mr Pumzo Tofile, the legal officer at the TRC office in Cape Town informed me recently that he has been in communication with Mrs Manoto who says that no, this is pure, this is a criminal act other than a political act and then therefore she sees no reason why she should attend to these proceedings. Although maybe these persons I'm talking about now are not present and my submission might amount to hearsay, but I would like to stress it to this house that now in fact it means Mrs Manoto has got more than one reason for not appearing at this hearing and as such, the applicants, Mr Chairman, are being prejudiced by the fact that, since they have made written submissions to this house as to their participation in the whole act and are prepared to co-operate with this house as such, then if they are to be again postponed and taking into account the fact that the date on which this Commission was constituted, they have the strongest feeling that they're not entitled to be in prison now and they are on their own accord prepared to co-operate with the Commission in this regard.
CHAIRPERSON: When did they submit their applications, on what date?
MR ZULU: If I might just...(intervention)
CHAIRPERSON: Yes, yes please refer to it.
MR ZULU: That was in May 1997, Mr Chairman.
CHAIRPERSON: Thank you, Mr Zulu. Then one other thing, you referred to date of examinations. I'm just trying to ascertain whether I understood what you were saying. Are you saying that the excuse for Mrs Manoto's absence yesterday was given as the fact that her children are engaged in writing examinations, but the date of the exam turned out to be a different date?
MR ZULU: That's correct, Mr Chairman.
CHAIRPERSON: What are the details? Can you just repeat it? I just want to make a note of that.
MR ZULU: In fact on our arrival yesterday here at this house, we were informed by the TRC staff members that the reason for Mrs Manoto's absence today is that her children are writing exams and I personally objected to that, to say no, the exams only commence on the 2nd of November 1999.
CHAIRPERSON: Is that a fact? Is that common cause?
MR ZULU: In fact, the fact of the matter is the exams commence on the 1st of November and not the 2nd of November.
ADV BOSMAN: Which exams are these?
MR ZULU: Both primary and secondary level exams.
CHAIRPERSON: In Gauteng province?
MR ZULU: In Gauteng province.
CHAIRPERSON: Thank you, Mr Zulu. Are those your submissions?
MR ZULU: That's correct, Mr Chairman.
CHAIRPERSON: Yes, Mr Chelopo, have you got anything that you want to say?
MR CHELOPO: Thank you, Mr Chairman. From the consultation that I had with Ms Gumede, she is neither objecting nor saying we may start. Anything that the house can come with, is suitable to her.
CHAIRPERSON: Thank you. Ms Thabethe.
MS THABETHE ADDRESSES: Thank you, Mr Chairman. Maybe I should, for the record, clarify a few issues before I get to the issue of postponement. I was advised by Mr Tofile, our analyst, when this matter was still being investigated they had problems locating Mrs Manoto because after this incident, she changed the address or rather she changed the place of residence and she was not known where she was. Finally, she was traced at a late hour and her notice, as a result, was served late, that was on Friday.
ADV BOSMAN: I take it Ms Thabethe, you do not agree with the submission that was made that she was notified timeously? Do you regard this notification as timeous?
MS THABETHE: Yes, I would say the notice was not timeous, because it was 6 days notice. However, if I can elaborate on this, considering the fact that the Committee has got a short time-span and considering the fact that we've had situations or cases where victims have agreed and co-operated with us when we explained the pressure we are under to finish the work that is upon the Committee, I would say that if the victim was more co-operative with us and if she was willing to listen to what we had to explain, notwithstanding the late notification, the hearing would still have proceeded.
ADV SANDI: Should we deduce from what you've just said that she has not been co-operative to you?
MS THABETHE: Yes, I would say she had not been too co-operative and just to elaborate on that, my impression when I spoke to Mrs Manoto is that, as a victim in this matter, she was really traumatised by what happened and as a result, she was very - she doubted the whole process, she did not understand what the process was about and when I say she was not co-operative, it's because, when we tried to explain to her on Monday and when Mr Pumzo Tofile tried to explain to her on Monday, her response was that the whole process you know, encourages criminals to come out of prison and she didn't see what her role was going to be in that whole process. As a result, that is why we did not want to get involved any further and we asked an independent legal representative, that is Adv Vilakazi, to go and speak to her.
Coming to the question of the relatives, my submission would be that Mrs Manoto stayed with the deceased and she would be in a better position to give the kind of evidence that would throw some light, or would give the kind of evidence that would assist the Committee to reach a decision. I don't see how the consultation of the in-laws will take the matter any further.
ADV SANDI: By the way, this is a question I thought I would ask earlier on, these in-laws, who are we talking about? Is it the mother, the father?
MS THABETHE: We're talking about the mother, who also happens to have brought up some of the applicants.
ADV SANDI: Thank you.
CHAIRPERSON: Ms Thabethe.
MS THABETHE: Thank you, Mr Chair. I was still explaining that from Monday we tried to explain to Mrs Manoto the importance of her coming to the hearings and I have explained that she is really a bitter person and she communicated her lack of interest in the whole process until we sent Adv Vilakazi and even this morning Adv Vilakazi was on her way back to Pretoria because she had told her that she doesn't see what her role is going to be in the hearing, it's only after she had spoken to Miss Fiza Brown that her attitude appeared to have changed. I'm actually not sure as well exactly when her attitude changed because when we spoke to Adv Vilakazi, she was going back to Pretoria and I'm not sure, maybe she can explain. I don't know whether she had given up or she had experienced problems with her co-operativeness as well because she didn't even want to sign the legal aid forms for her payment, so I'm actually not sure when she started having a positive attitude towards the process, but as I have outlined, she's a victim, she's been traumatised and she is very, very bitter.
ADV BOSMAN: Ms Thabethe, submissions have been made that there's game-playing, that there's reticence and she's an eccentric widow of the deceased. Do you have any information to substantiate these claims that she's playing games, that she's making unnecessary demands, she's unnecessarily reticent and that she's eccentric?
MS THABETHE: Madam Chair, to be fair on the victim and I think in the interests of justice, considering the fact that she was traumatised and considering the fact that between Friday and today she has had to think about this, you know, make decisions about this ...(intervention)
ADV BOSMAN: On her own.
MS THABETHE: On her own, and of course she had to make this decision under pressure, I wouldn't say she was playing games with us, but I would say she did not understand the process more than saying she played games with us and like I say, because of what she's experienced and because of the fear of what her kids are going to go through, especially during exam time, she did come out as being bitter and unco-operative with us.
CHAIRPERSON: Was the reason for her non-attendance yesterday initially given as that her children were engaged in writing exams?
MS THABETHE: Yes, that's what she communicated to Pumzo Tofile and after various discussions with Pumzo Tofile she said she was not interested and then she changed again. It appears that she was very much unstable. She couldn't decide whether she wanted to come or not to come, but yes, she did give the reason that her children are writing exams.
CHAIRPERSON: Did that turn out to be incorrect, that there are no exams being written at this point, but only from the beginning of next month.
MS THABETHE: Well unfortunately I didn't inquire because she communicated this to Pumzo Tofile and Pumzo Tofile communicated this to me. I didn't inquire what kind of exams the children were writing, whether they are at tertiary level or whether they are writing matric, but that's what she said, yes, that her children are busy writing exams. I think at this stage it's not clear whether they are writing exams or not. It may be that that point would need to be pursued with her and I can make arrangements to that effect.
CHAIRPERSON: Yes. Have you got any other submissions?
MS THABETHE: No, Mr Chair.
CHAIRPERSON: Thank you. Ms Vilakazi, do you have anything else?
MS VILAKAZI: Thank you, Honourable Chair, I think I should correct some misconceptions, a few misconceptions that have been created. Firstly with regard to your question of the examinations, Mrs Manoto impressed it upon me that the kids are busy, they had started with the examinations, so they are busy with the examinations. What I have not established is what type of examinations are they writing, but the type of examinations that they are writing would not really be relevant to the question, what is relevant is whether they have started with the examinations or not, because examinations are examinations.
CHAIRPERSON: It's just that either they are writing or they're not writing. Either it's true or it's false and if it's false, then it raises question marks on whether or not there is full co-operation or not, so that's the only relevance of that point.
MS VILAKAZI: Thank you, Honourable Chair. With regard to the question of lack of co-operation on behalf of Mrs Manoto, I think the Committee should at this point in time, try to pause and put itself in the shoes of Mrs Manoto. The Evidence Leader has already outlined the picture of the type of bitterness that is on her part and it is understandable that she did not only lose a husband, she was also assaulted and from what she told me, she was left for dead, so she was personally traumatised, she was physically injured, she still has to recover from that and the fact that the communication with her has been throughout, from the office of the TRC, which she has perceived to be a system which is intended at freeing her husband's killer and her own assailants, so the lack of co-operation should not be seen as a lack of co-operation of a normal person who just sits and decides I'm not going to co-operate with these people. It should be understood in the context of the fact that she's a bitter person and she was ill-informed with regard to the nature of the proceedings, because her perception has been, and that I think the Committee could take judicial notice of, the perception of the victims in amnesty applications is that the hearings are pro-applicants and anti-victims, so ...(intervention)
CHAIRPERSON: Are you suggesting we must take notice of that, judicial notice of that fact?
MS VILAKAZI: That is my request, Honourable Chair.
CHAIRPERSON: Well, on what basis are we supposed to take judicial notice of that? Are we not only able to take judicial notice of something that is generally known, that is general knowledge? It might be the view of Mrs Manoto, but to submit that that is a general situation without any other grounds backing it up, isn't that pushing it a bit too far? We understood that she holds that view about the Commission, we accept it on that basis.
MS VILAKAZI: Perhaps I could put it as Mrs Manoto's view, but it has happened even in other hearings, the perception being put in the media, let me say, that the victims feel that this process is really too soft on the criminals.
CHAIRPERSON: Yes.
MS VILAKAZI: If the Committee has a problem of accepting that as a general perception, perhaps then it should be put as the perception of Mrs Manoto in this particular case.
CHAIRPERSON: Yes, I don't know how that submission assists the issue that we have to decide, whether this matter should be postponed or not. You have, and Ms Thabethe have indicated apparently Mrs Manoto's attitude towards the process and we've taken note of that. Is it necessary to take it any further than that?
MS VILAKAZI: No, it was just in response to what has been said, that she's generally unco-operative, but I do not really wish to take the matter further. But I don't think the question of whether or not Mrs Manoto has been co-operating is not the primary consideration that the Committee has to take, the primary consideration is whether the Committee is willing to decide on the matter, based on only one version, when it could have the other version as well, the version of the victims.
CHAIRPERSON: Yes, that is obviously a very relevant consideration which we have to take into account, as we have to take into account very many other factors that weigh in this regard, not least of which is the fact that the amnesty applications have been submitted in May of 1997 and we're only hearing it in, we have it on the roll in 1999. So those are all factors that are very relevant, but what is the position, Ms Thabethe has apparently now ...(end of side A of tape) ...situation this morning. Would you like to clarify what was the position this morning? You were apparently on your way back to Pretoria?
MS VILAKAZI: Okay. With regard to what transpired this morning, after I had persuaded Mrs Manoto with regard to the importance of her giving testimony in the hearings, the problem that she had was to have to disclose her financial position. Her own perception was that she did not bring the application. She was informed that an application has been made and therefore she does not understand why she has to pay to be legally represented in the hearing that she's invited to take part in, or at the least to prove that she is not in a financial to pay for her legal representative. So it was on that basis. Her reason is not connected with the importance of her attending the proceedings, it's related to the question of legal representation, that she is invited to attend the proceedings but then she's expected to either pay for legal representation or to give a financial position that would indicate that she is not in a position to afford legal representation herself.
CHAIRPERSON: She didn't understand that she's under no obligation to attend, that it is a matter of choice? It's her choice if she wants to attend and if she wants to attend and she also wants legal representation and she is unable to financially afford that legal representation, then of course she could be assisted financially in that regard, but she's got the right to bring her own attorney if she wants to, but of course she must pay for it then.
MS VILAKAZI: Yes, she understands that she has a right to legal representation.
CHAIRPERSON: Yes, now I don't follow how this featured with - what was her attitude after that? Was her attitude that this matter must proceed, or why did you have to then leave? Was there a breakdown of communication between the two of you, or what?
MS VILAKAZI: Yes, when we parted, she was willing still to attend the matter and she felt it was important for her to attend. What she could not understand is the fact that - she understands also that she's entitled to legal representation but then what she did not understand is the fact that she has to either pay or to show that she cannot afford to pay for that legal representation.
CHAIRPERSON: Yes, I don't know if I misheard Ms Thabethe, but Ms Thabethe seemed to have submitted that you were not coming here, you were not coming to the proceedings this morning, you were going to Pretoria as if Mrs Manoto is no longer participating in the proceedings and that you don't ...
MS VILAKAZI: No, our parting note was that, because she had a problem of completing the means test, the legal aid form, I cannot come and ask for a postponement on her behalf, because I would be representing her
CHAIRPERSON: Alright, you wouldn't be covered, okay, I understand that.
ADV BOSMAN: Ms Vilakazi, is my understanding correct that she didn't want to put herself in jeopardy for possibly being liable to pay you your fees?
MS VILAKAZI: That is the position.
ADV BOSMAN: Thank you.
CHAIRPERSON: Have you got any - oh, are those your submissions?
MS VILAKAZI: Those were my submissions thank you.
CHAIRPERSON: Yes. Can I ...(intervention)
ADV BOSMAN: Mr Chairperson, may I just ask one question of Ms Vilakazi?
CHAIRPERSON: Yes.
ADV BOSMAN: Ms Vilakazi, I'm just curious to know, is your applicant the sort of woman who can make decisions on her own? Did she appear to be a woman who is unable to make up her own mind? Is she an independent thinker? Is she a sophisticated woman? Could you just perhaps give an indication of your impressions as far as that goes?
MS VILAKAZI: My impression of the applicant is that she is traumatised, she still has a resentment and that is what clouds her thinking, but it did not appear to me that she is not able to take decisions on her own, it's only that her thinking has been clouded by the resentment that she has as a result of the incident.
ADV BOSMAN: Thank you.
ADV SANDI: ...(indistinct).
CHAIRPERSON: Yes, go ahead.
ADV SANDI: Did she in the end fill in this legal aid application form?
MS VILAKAZI: She has indicated that, she spoke to ...(indistinct) and she said she'll complete it and fax it to Head Office.
CHAIRPERSON: What I wanted to ask you, I've already indicated that we've got to weigh up all the various interests that come into play in a matter like this and at the same time we've got to try and do justice to all of the interested parties as far as that is practically possible in the circumstances. Is there any evidence that your client did suffer, should this application proceed at this time, however reserving her right to submit evidence in opposing the matter at some stage, particularly bearing in mind the fact that it appears as if her consultation with her in-laws would be quite a determining factor in that whole process? It's not clear which way that consultation would go and if they were to determine that she is not going to participate in these proceedings, we would have obviously even further prejudiced the applicants who have submitted their application in May of 1997, so would there be any prejudice to your client if she, if her right is reserved to present any evidence to this Panel and in the meantime the application is heard?
MS VILAKAZI: Can I first understand what the Honourable Chair is trying is trying to convey? Is the question related to whether the applicants can give their testimony and then she could submit later on?
CHAIRPERSON: Yes, remember we're not a court of law, we're an administrative tribunal, we're not necessarily compelled to hear viva voce, verbal, oral evidence, we are authorised to determine our own procedure. We can take evidence on affidavit for example or if it's necessary we can reconvene and hear people if it appears that their submissions are material and relevant and it has to be heard at a public sitting.
MS VILAKAZI: I think for purposes of being able to cross-examine the witnesses with regard to the whole question of political motivation, it would be of prejudice to her not to be able to inform her legal representative adequately for purposes of cross-examination.
CHAIRPERSON: Yes, so it might be, you're saying it might be that if she and her in-laws in fact decide that they should participate in the proceedings, that it might be necessary to cross-examined the applicants?
MS VILAKAZI: That is the position.
CHAIRPERSON: So it might be that your client might be able to persuade the Panel that the applicant should be recalled for cross-examination for example?
MS VILAKAZI: That is a possibility.
CHAIRPERSON: But what I'm interested in is here and now. If the application had to proceed at this point and all those rights are reserved for your client, is there any prejudice that she suffers? Irreparable prejudice that she suffers?
MS VILAKAZI: Well, if the right to recall the witness for cross-examination purposes, if it's warranted, if those rights are reserved then I would submit that there would be no prejudice, no serious prejudice on her part.
CHAIRPERSON: Yes. Have you got any other submissions? Is that all?
MS VILAKAZI: That will be all.
MS THABETHE: Mr Chair, may I interpose please? May I please interpose?
CHAIRPERSON: Yes.
MS THABETHE: I just wanted to give some information. I asked Ms Fiza Brown to inquire from Mrs Manoto with regard to the children, their ages and whether they are at high school or not and if I can be permitted to give that information? She's got 2 daughters and 2 sons. The eldest daughter is 26 years old and it would appear that she's the one who was also assaulted. The son is 19 years old and it would appear that he's the one who was assaulted as well. The other daughter is 14 years old and the other son is 9 years old. The daughter and the son who would have come to give evidence, are still in high school and she says they are busy writing exams until the 18th of November.
CHAIRPERSON: Yes.
MS THABETHE: And I just wanted to add that to further assist my colleague Adv Vilakazi, I would also undertake to make the transport available for the victims. The transport of these hearings should the Committee reach a decision that we should proceed with this matter.
CHAIRPERSON: Yes. Thank you Ms Thabethe. Yes we will adjourn at this stage, consider the application and we will reconvene at quarter to two. We're adjourned
COMMITTEE ADJOURNS
ON RESUMPTION
DECISION
CHAIRPERSON: This is an application for a postponement of the amnesty applications in respect of the killing of Jacob Manoto on the 21st of April 1993 at Diepkloof township in Soweto. The applications for amnesty were submitted to the Amnesty Committee during May 1997 and the applicants are in custody. The applications were scheduled to be heard yesterday, the 12th of October 1999 and the applicants have been ready to proceed with the matter and they have been legally represented throughout by Adv Honnorat and Mr Zulu, who have been present throughout at the hearing venue.
Adv Vilakazi, who appears on behalf of the next of kin of the deceased, in particular the widow of the deceased, Mrs Manoto, has argued the application for a postponement on their behalf. She indicated that at first her client was not inclined to participate in these proceedings due to a negative view that she holds in respect of the process of which this Committee forms part. Her client however, subsequently changed her mind about her possible participation but would now have to consult with her in-laws, that is the family of her late husband who will have to give further directions in regard to the approach that ought to be adopted with regard to the applications.
It is not clear at this stage what the outcome of this consultation would be. Adv Vilakazi also indicated that there is no dispute on the merits of the incident itself. We should add that in the course of this incident, the widow as well as some of her children were also attacked and assaulted. She has indicated that the possible basis of opposition appears to be that it is disputed that the deceased was a police informer as alleged by the applicants.
A further issue that was raised in regard to the postponement is the involvement of the children in writing examinations which make it impossible for them to be able to attend the proceedings at this stage.
The application for postponement is opposed by the applicants. They stress the prejudice that they are suffering, both in respect of the delay in finalising the matter as well as the financial prejudice resulting from the legal costs that they are liable for in this regard. Submissions were also made in regard to the conduct of the widow of the deceased and the thrust of the submissions in this regard was that the widow is deliberately delaying the matter and her conduct in general in regard to this matter, leaves a lot to be desired.
In deciding this application we have to weigh up all of the different interests and factors that are relevant and eventually we are called upon to do justice and to act fairly in all the circumstances of the matter. We agree that there is obvious prejudice that the applicants will suffer should the matter be further delayed, but we are also of the view that the next of kin of the deceased are entitled, if they are so-minded, to participate and to oppose the application on any ground that they regard as material. We are not persuaded that the attitude of the widow of the deceased can be ascribed to a deliberate delay tactic, or some other undesirable motive on her part. In our view it is quite understandable in the circumstances that a person in the position of the widow would have difficulty in deciding how to deal with a matter of this nature, given her personal circumstances. In our view, however, having considered all of these factors, the prejudice which applicants will suffer, should this matter not proceed, would outweigh any prejudice which the next of kin might suffer if the proceedings were to proceed. We are however mindful of the fact that should the next of kin, that is the widow of the deceased and her in-laws, decide to participate, their evidence could be material and necessary in order to enable us to properly decide the matter.
Having therefore carefully considered the matter and all of the submissions addressed to us the application for a postponement is refused, the right is however reserved in favour of the next of kin to submit any evidence which they regard as material for a decision of this matter. Within a period of seven days from today, the possible further conduct of the matter will be then decided in view of any evidence which might have been submitted by the next of kin. We wish to point out expressly in this regard that the possibility is not excluded. That the applicants might have to be recalled for the purposes of further cross-examination on any of the issues which might be raised by the next of kin of the deceased. Adv Vilakazi is called upon in the meantime to represent the interests of the next of kin at these proceedings today. Under those circumstances, we intend to proceed to hear the applicants at this point.
Mr Honnorat in which sequence have you intended to call the applicants?
MR HONNORAT: Mr Chairman, it will be applicant number 3, Mr Zondo, followed by applicant number four, Mr Shabangu, then applicant number one Mr Thanjekwayo, then applicant number two, Mr Nyaluka, will be the last one. Mr Chairman, there is question of whether, on the basis of a statement made by Mr Sipho Victor Tshabalala, it could be regarded as an application in terms of the Act and afford the person who made the statement under oath, be allowed to be involved as a fifth applicant in these proceedings?
CHAIRPERSON: No, just direct our attention, you say that ...(intervention)
MR HONNORAT: In that bundle of documents, it will be page 41 to 42, the statement of Victor Tshabalala, he is present today and my instructions are that he regards it as being an application, although perhaps not formerly so, in terms of the Act. He regards it as being an application to be heard by the Truth and Reconciliation Commission in terms of the relevant Act.
CHAIRPERSON: When was this - what is the date of this statement?
MR HONNORAT: Unfortunately we have got a typed copy, the statement was made approximately the same time that all the other applications were submitted and the client had been informed by the TRC member that request has been made for the originals of all the statements and not only the typed copies, they will have to be supplied from Cape Town.
CHAIRPERSON: Yes, so we don't have the original of this document?
MR HONNORAT: Not at the moment, in order to verify the date, it's just the information from the client that it was done in 1997 at the time that all the other applications were made, that's why it was put together as a bundle.
CHAIRPERSON: Ms Thabethe, what is the position in regard to this? The original document, what was it, was it a letter, or what was it?
MS THABETHE: Mr Chair unfortunately I have had no sight of the original hand-written statement, but I phone Pumzo and asked him to fax it to us, so it should be here anytime and that can be clarified.
CHAIRPERSON: Is there any indication whether there was a formal application by Mr Victor Tshabalala?
MS THABETHE: No, we have no record of his formal application, just a record of his statement.
CHAIRPERSON: And is it possible ...(intervention)
MS THABETHE: And unfortunately there's no record on our side of having maybe requested you know further particulars for him to clarify whether it's his intention to apply or not.
CHAIRPERSON: Yes, so there's no indication as to how we treated this document that arrived at the office, whether we treated it as just a statement or submission, or whether we treated it as a possible application? There's no indication at this stage?
MS THABETHE: At this stage, no Mr Chairman.
CHAIRPERSON: Does the applicant, does Mr Tshabalala indicate here, I can't recall, does he indicate that he wishes to apply for amnesty in this document, Mr Honnorat?
MR HONNORAT: He doesn't indicate it specifically in the document, he took it as an explanation of what happened and making a formal statement on the matter. It's not specifically stated that it is so, I will submit it is implied from paragraph 1 when he said I am serving 15 years term of prison, in other words he would like to have that aspect reviewed by this Committee.
CHAIRPERSON: Yes, although he doesn't seem to have been involved in this incident at all, from what he says. He says he was at a meeting apparently, but from that meeting he went home and then he took his sister to the hospital, because the sister had fallen ill, so it doesn't look as if he was involved in the actual incident.
MR ZULU: If I may interpose Mr Chairperson, in fact maybe at the time of drafting the statement, Mr Chairperson, he was guided through, or perhaps the possibility is that he might have been ill advised at the time, however, from the instructions that he's just furnished to us, there is more to tell than what is actually shown here and at the same time he's been actively involved and he participated according to my instructions, Mr Chairperson.
CHAIRPERSON: Yes, if he - I think the question is, did he intend to apply for amnesty? What was the intention behind this document?
MR ZULU: According to my instructions Mr Chairperson, his intention was to apply for amnesty and at the time of drafting the document, Mr Chairperson, I don't think he was guided through, hence we prefer to see the original document that he signed, which will actually assist this house to determine as to when exactly, what date did he apply, if he intended to apply.
CHAIRPERSON: Yes. I think that we will have to let this issue stand down until we have got the documentation. We will have to proceed with the other applicants in the meantime, who have submitted regular applications and then we'll have to come back to this issue.
MR ZULU: As the house pleases. And can I interject further, Mr Chairperson? There has been a special request by my colleague. I am made to understand that his matter was supposed to commence this morning and the applicant wasn't here at the time and I'm told he's arrived and there has been a request that at least if we could adjourn for the moment, so that he proceeds with his application, which won't take much time.
CHAIRPERSON: Yes. Ms Thabethe, what is the position with that? Is it the Gumede matter?
MS THABETHE: I beg your pardon, Mr Chair?
CHAIRPERSON: Is that the Gumede matter that Mr Zulu is talking about?
MS THABETHE: Yes, Mr Chair.
CHAIRPERSON: What is the position with that, because it seems as if in any case, this document that we are talking about now is not available immediately, so what is the position with Gumede's ...
MS THABETHE: The position, Mr Chair, would be that I would support and request that we start with that matter because it's going to be quite a short matter and we've got victims that have been here for the whole day.
CHAIRPERSON: Okay.
MS THABETHE: We can complete this matter today.
CHAIRPERSON: Yes, no I think, under those circumstances it would be fair you know to deal with the Gumede matter and then we are awaiting this document in any event and then to recall your matter as soon as you are done with the Gumede matter. Would that be in order?
MR HONNORAT: No problem with that Mr Chairman.
MR ZULU: Could I just find out something Mr Chairperson? Would it be possible, as it is now 25 past two, Mr Chairperson, that we can start with applicant number 1 once this matter has been finalised or else maybe we can have this one adjourned until tomorrow morning? I want to know from the house.
CHAIRPERSON: Well the Gumede matter, by all indications, won't take very long. We are anxious to start off with your matter. We have quite a bit of other matters on the roll that we must still hear before the end of this week.
MR ZULU: Thank you, Mr Chairperson.
CHAIRPERSON: So we'll take Gumede and then we'll come back immediately to your matter.
MR ZULU: Thank you.
CHAIRPERSON: We don't normally adjourn. We find that as soon as you adjourn, it's very hard to reconvene, so we're not going to adjourn, we're simply going to ask you to make some space for Mr Koopedi and then we can deal with the other matter.
MR ZULU: Thank you.
