ON RESUMPTION
CHAIRPERSON: Thank you. We will now commence with the hearing of Messrs T.S. Buhali and J.I. Dube.
I would like the legal representatives to please place themselves on record.
MR KOOPEDI: Thank you Chairperson, my name is Brian Koopedi, I appear before you on behalf of the two applicants, thank you.
CHAIRPERSON: Thank you Mr Koopedi.
MR RICHARD: As the Chair pleases, Tony Richard, I appear for the victims who are listed on page 1.
CHAIRPERSON: Thank you Mr Richard.
MR MAPOMA: Thank you Mr Chairperson, I am Zuko Mapoma, the Evidence Leader.
CHAIRPERSON: Thank you Mr Mapoma. Mr Koopedi?
MR RICHARD: Chairperson, as point in limine may I ...
CHAIRPERSON: Certainly.
MR RICHARD: When preparing for this matter, I had to consider page 8(b) of the Bundle and that relates to the second applicant's application, paragraph 9(a)(i) when describing the act for which he applies for amnesty, describes the bombing of Ellis Park Stadium and Witbank car bomb, also anything that might be brought against me which I might not remember.
Now, as I am involved for the victims of the Ellis Park matter, I can safely ensure the Committee that today the Ellis Park matter is not the one for which he is applying for amnesty. The Witbank, there is nothing in the Bundle which indicates anything to do with a car bomb in Witbank. Then I would refer the Committee to Section 20(2) which requires the applicant to disclose an act which constitutes an offence or a delict.
Since what is referred to in paragraph 9(a) is not before the Committee today, all that the applicant might be able to rely on, is his phrase "that might be brought against me which I might not remember". Now, in the matter of the African National Congress' general application, that point was clearly decided.
CHAIRPERSON: Yes, you've got to be specific?
MR RICHARD: He's got to be specific.
CHAIRPERSON: Yes. I have been involved in a number of hearings with this sort of situation, and there are various degrees of it, but certainly as it stands there, it is not sufficient, as it stands at page 8(b), it is far too wide.
MR RICHARD: There is nothing which even alludes to the other matter in the Bundle, whether it be the document appended to the ...
CHAIRPERSON: Well, perhaps if we can ask Mr Koopedi what is the applicant, and then I will revert back to you Mr Richard, I am not stopping you.
MR RICHARD: Thank you.
CHAIRPERSON: But it might be more meaningful if we hear first from Mr Koopedi as to precisely what Mr Dube is at this hearing applying for. We know that we are not dealing with the Ellis Park car bomb, because there has already been a long protracted hearing in respect of that matter, which I wasn't involved.
MR KOOPEDI: Thank you Chairperson. The second applicant, Mr Dube, is applying for the three, that is in this hearing, he is applying for the three incidents that are before you.
CHAIRPERSON: The bombing of Zola municipal offices, the ambush of the police at Meadowlands and the ambush of a police vehicle at Mdeni as summarised on page 1?
MR KOOPEDI: That is so Chairperson.
CHAIRPERSON: Now Mr Richard has made a point in limine about the, whether he has in fact applied for those and as you know, we, the Committee, you had a cut off date by which to apply for incidents. We can hear you on that.
Perhaps, let's hear Mr Richard finish his in limine objection, now that we know what the intention is. Mr Richard?
MR RICHARD: Thank you Chairperson. In the second applicant's, that is the application by Mr Dube, there is precisely no reference or allusion to the three acts described at page 1. It is impossible on any logical basis to import what is referred to on page 1, into pages 8(a), (b), (c), (d), (e) and (f) and (g), which is Mr Dube's application. There is simply nothing there which has the vaguest of reference.
I ...(indistinct) the first applicant's application, that vague as it might be ...
CHAIRPERSON: There is specific mention of it.
MR RICHARD: There is specific.
CHAIRPERSON: Yes, and that is not a problem, the vagueness because we also know that certain application forms are filled in better than others, and as long as it is mentioned, we also take in the evidence at a hearing.
MR RICHARD: For those reasons, I make no reference to the first applicant's application.
CHAIRPERSON: But also, Mr Richard, very often and I don't see it here, is that there is a request for further particulars that is sent after the receipt of the application, by the Commission, to an applicant saying "precisely tell us what it is about, and who and where and why and what, the orders, etc, etc". You have seen hundreds of them, I am sure?
MR RICHARD: Yes, no certainly, there is no such document here.
CHAIRPERSON: Yes. And those, because if you take a look at the Section in the Act, it does say that an application form, that has been supplemented in that fashion is fine, because one of the duties of the Commission is to receive the form and to ask for further information, etc, but there is nothing like that.
MR RICHARD: I would go so far as to say if the applicant had put in a phrase which said "amnesty for shooting at policeman during the 1980's in Soweto or its environments", that might possibly have been enough to bring him in, to supplement it through particulars and oral evidence. But this one doesn't have the vaguest of references to anything.
What it might be is that the first applicant will in due course implicate the second applicant.
CHAIRPERSON: But that is as it stands in the document ...
MR RICHARD: It doesn't even do that.
CHAIRPERSON: Yes, but even if one applicant implicates another, that then is an implicated person in terms of the Act.
MR RICHARD: Yes, so ...
CHAIRPERSON: That doesn't make him an applicant.
MR RICHARD: That means at best he might be an implicated person, but this application for the incidents under discussion, just doesn't disclose even the vaguest foundation of an application?
CHAIRPERSON: Yes. Mr Koopedi?
MR KOOPEDI: Chairperson, I have heard what Mr Richard says and perhaps one needs to point out that this is not the first matter where there is an applicant who was very brief or vague in his application.
My submission is that if it pleases the Honourable Committee to allow Mr Dube to proceed, it will be clear from his evidence as to whether this Committee should consider him as having applied for these three incidents.
I would further ask that at the appropriate time, when we present submissions, this will be the time perhaps where I should argue as to whether he was, he is a proper applicant or not.
CHAIRPERSON: Yes, because you know, as you know, our powers or jurisdiction if you prefer to use that word, are limited to the extent that they are conferred upon us in the Act, we are a creature of statute, we don't have any inherent jurisdiction.
There is nothing in the Act, I am just saying that if it is found that he hasn't applied, for us to condone, we don't have that type of power, even if we had want to, and sometimes I can assure you, we sometimes get extremely compelling cases which I am sure in most other forums could quite easily be condoned, but we cannot because of our limited powers in that regard.
So in other words we would have to be satisfied, certainly before we can make any decision relating to any amnesty application, that we have an application before us. You know, we might, it might be convenient to take a practical approach and hear the evidence just, and then make a decision later, but that is another matter, but we won't be able to condone something that ought to have been done by a certain ...
MR KOOPEDI: I concede that that is the case Chairperson, and ...
CHAIRPERSON: We can condone certain, small matter, a non-material non-compliance with the Act.
MR KOOPEDI: That is indeed so and in fact Chairperson, I will not, that is at the appropriate time, ask the Committee to condone an application that was not before and in fact, I can say now that my argument will be that he had in fact applied for these incidents. It may well be that he was very vague like in many other instances where there has been vague applications, but yes, if it pleases the Honourable Committee, I would ask that we proceed with the hearing and only at the appropriate time should we argue that the second applicant should be granted amnesty for this or not.
The other reason is that for purposes of completing and making a very coherent hearing in this matter, my submission is that the applicant should be given an opportunity to be heard as an applicant.
CHAIRPERSON: Mr Mapoma, do you have any submissions you would like to make?
MR MAPOMA: Yes Chairperson.
CHAIRPERSON: Have you got any inside knowledge, is this Bundle complete, are there any other documents that might be around?
MR MAPOMA: Chairperson, let me start off by answering that one, I am not certain at this point whether there are some other documents other than these here, now, until I can find out from Cape Town.
I would propose to go on Chairperson, again and say that it is apparent, it is clear almost that the applicant, the application as it is now, on paragraph 9(a) of the applicant in question, is vague, but I will go on Chairperson to say that in cases of this nature, it does happen that we as the TRC would ask further particulars from the applicant and upon amplification of his application by the applicant, by furnishing those particulars requested, incidents like these would come up. Unfortunately that has not happened in this particular case.
CHAIRPERSON: It is quite surprising that it hasn't, because it looks like one that one would expect there to have been such a request.
MR MAPOMA: Yes.
CHAIRPERSON: Because it does not contain much information at all on the form, does it?
MR MAPOMA: Yes, I must concede Chairperson, that from our side, that has not been done, but the point I am making then is that had that been done, and that would have been after the cut off date already, the Committee would in all probabilities be persuaded into hearing the application.
The point I am saying Chairperson is that applications are made vaguely sometimes, before the cut off date, and amplified later on, after the cut off date, where the incidents specifically do appear.
CHAIRPERSON: ... (microphone not on) ... taking a look at the papers before us, on what basis was it that Mr Dube was included in this hearing? I mean if people are sitting in Cape Town now, and they are setting down the hearings, how would it, how would they in Cape Town have linked Mr Dube's application to that of Mr Buhali's?
MR MAPOMA: Yes, I appreciate that Chairperson. Perhaps I may have to find out that one, but I just had the impression that he might have been implicated by the co-applicant, but ...
CHAIRPERSON: It doesn't seem to be, you see?
MR MAPOMA: Or the investigation report, perhaps brought a reference to that. I may have to find out from Cape Town.
CHAIRPERSON: Yes, because ...
MR MAPOMA: Unfortunately this issue was not raised beforehand by Mr Richard, that he is going to make an issue of it, so that I could have, well beforehand, prepared this by getting to know that this issue is going to be raised.
CHAIRPERSON: Yes, because it just seems strange how it got included here on this, unless somebody had some other knowledge that is not contained, which must have been the case, because it couldn't have just been by coincidence that a mistake was made, and it turned out like this?
MR MAPOMA: Yes, I may round up Chairperson, by saying that in the event of amplification of the application, it is not necessarily that it must be in writing, that the application may be amplified. The oral evidence as we may hear now, perhaps may shed some light in amplifying the application and specifying that which is vague here, and then that vagueness would be cured by this evidence in the circumstances.
Then, yes, so my argument is Chairperson, perhaps if the committee would hear the application, I mean the evidence of the applicant in question, then that may cure the vagueness of this paragraph.
CHAIRPERSON: Well, that we would have to consider, whether it is possible that it could be cured in that way. Have you got any reply at this stage, Mr Richard?
MR RICHARD: Yes, Chairperson. In reply, the point of further particulars, I do not see what particulars could have been requested of 9(a)(i) other than one which says "were you involved in these two 1987 incidents"?
Now if that request were made and an answer be given, after the cut off date, the application would still be fatally flawed, as the Chairperson has pointed out the Commission has no power to condone or accept a materially incorrect application, and I have been at pains to look through the co-applicant's application, there is simply no reference, that means when the matter was put on the roll today, whoever did, must have had some knowledge which does not appear before us, in which case, that knowledge is completely irrelevant, and is not admissible to this Commission.
I believe that it would be grossly irregular and I object to the application of the second applicant proceeding, I don't believe it is competent for him ex post facto to bring an application for amnesty, when there has been complete and absolute, in the absolute sense of the word, non-compliance with the formalities of the Act.
He is asking literally to bring an application for amnesty at this stage, which is clearly impossible, and that means to hear the evidence itself, would be irregular. T hank you Chairperson.
CHAIRPERSON: Mr Koopedi, your client Mr Dube, maybe Mr Richard will also be able to answer, was an applicant in the Ellis Park bombing matter?
MR KOOPEDI: Indeed he was, Chairperson.
CHAIRPERSON: What is this Witbank car bomb, has there been a hearing about that one?
MR KOOPEDI: Yes, there has been Chairperson.
MR MAPOMA: Chairperson, sorry Chairperson, I may also as well point out that he has applied as well for the murder of Sicello Dhlomo and he was heard by the Committee on that, and a decision was granted on that application of the murder of Sicello Dhlomo and it does not appear here.
CHAIRPERSON: Stello who?
MR MAPOMA: Sicello Dhlomo.
CHAIRPERSON: Dhlomo?
MR MAPOMA: Yes Chairperson. Incidentally Mr Richard was appearing for the victims in that matter.
CHAIRPERSON: Was it the same form, do you know, can you recall Mr Richard?
MR KOOPEDI: Chairperson, if I may be of assistance, the Sicello Dhlomo matter was on a separate form and perhaps to answer the question which was asked as to how did anyone then decide to put Mr Dube's application in this Bundle, it is indeed correct Chairperson, that there is no letter that goes to any of the applicants for amplification, there is also not even a letter that you would see a memorandum, that you would see going to investigators to go and investigate, but it was known, that is within the Amnesty Committee circles, I think as early as 1998 or 1997 that Mr Dube is an applicant in this matter, from the investigations in that when the matter was investigated, the Investigator was in touch with the two applicants that are before you, and at that very time, it is the two applicants that also supplied the last two pages of the Bundle of documents which is the Bundle, the newspaper cuttings which are on the Bundle.
What I am actually saying is that they may not have been, that is in the Bundle, there is not a letter that indicates that "asked Dube this or this is Dube's response", but what I am saying is at a very early age, it was very clear and very obvious that Mr Dube is an applicant in the matter.
Perhaps just to add, he has not only applied for this incident or the Sicello Dhlomo matter, but he has applied for quite a number of incidents, and I would go back to my submission that it will perhaps be clear when he gives evidence, otherwise I am going to end up giving evidence for him, but it will perhaps be clear when he gives evidence, whether or not he had applied for this matter or whether or not he had an intention of applying for this matter.
CHAIRPERSON: Yes, we will take a short five minute adjournment, I would just like to discuss it with the Panel Members and we will let you know as soon as we are ready, it won't be long.
COMMITTEE ADJOURNS
ON RESUMPTION
CHAIRPERSON: Thank you. During the time that we have been adjourned, we as a Panel have discussed the matter amongst ourselves, we have also discussed it with the legal representatives and also in fact, we have been communicating with our offices in Cape Town.
The difficulty that we have at this stage, is that the, it is our belief that the papers before us, in this matter, are nowhere near complete or sufficient. All we have is the couple of vaguely worded applications and statements from some of the victims and there is a couple of newspaper cuttings and a post-mortem report.
It is apparent from the little that is before us, that there must have been investigations to establish even that the attack on the one police van took place in Meadowlands because that is not even mentioned in the papers before us, where the attack took place, but it was established, so that must have come through some investigation, there must be other documents before us and we are of the view, particularly taking into account the fact that Mr Richard has made, raised a point in limine that we would only be in a position to deal with that point properly, once we have seen all the papers in this matter. We were also told by Cape Town that there is some sort of correspondence file which, none of which is before us and in order to handle this matter properly, we are of the view that those must be looked into.
If we proceed now, as we are, we do not think that the matter would be properly addressed and also in making a ruling on the objection raised by Mr Richard will in our view, be better addressed also having access to the full set of papers in this matter.
In the circumstances and I have mentioned this to the legal representatives, we have decided that this matter should be postponed, apparently the date the 10th of July is available because the Committee will be here for that week, the 10th to the 14th of July, which is not too far in the distance. It won't be exactly the same Panel, I am not sure what the Panel is on that day, save that I know that Judge Motata will be on it, but I don't know who the other people will be.
In the circumstances, we would adjourn the matter to the 10th of July which would be at this venue as well, the JISS Centre, and I must in so doing apologise profusely to the applicants, I know that the applicants from what Mr Koopedi has told us, have been here before even and I want to assure you that it is not a case of the Amnesty Committee trying to mess you around or not wanting to hear you, it is nothing like that at all. It is just an unfortunate set of circumstances and I would also like to apologise to the victims who have come here today, no doubt with expectations which are now not being fulfilled.
Please accept our apologies, but hopefully this matter will be able to be concluded when it is next set down. Is there anything you want to say Mr Koopedi or Mr Richard?
MR KOOPEDI: Nothing thank you Chairperson, thank you.
MR RICHARD: Nothing, thank you.
CHAIRPERSON: We will accordingly postpone the matter then to the 10th of July 2000 at the JISS Centre.
Mr Mapoma, are there any other matters for today or are we going to deal with the other two tomorrow?
MR MAPOMA: Yes Chairperson, that is the roll for today.
CHAIRPERSON: We will do them tomorrow?
MR MAPOMA: Yes.
CHAIRPERSON: So that is the roll for today?
MR MAPOMA: Yes.
CHAIRPERSON: Thank you very much.
MR RICHARD: As the Chair pleases.
COMMITTEE ADJOURNS
