Amnesty Hearings

CHAIRPERSON: Good morning everybody. We are continuing with the application of Mr Richardson. We concluded yesterday afternoon that this case has been closed, that the victims and implicated persons in this respect, Mrs Madikizela-Mandela, would also not tender evidence as well as the victims, but there is one outstanding aspect which is Ms Falati, who is also an implicated person in this hearing and Mr Mapoma was going to look after her interests. Mr Mapoma, what do you propose doing?

MR MAPOMA: Chairperson, Ms Falati, having been notified by the TRC in terms of Section 19(4) of the governing Act of the TRC has expressed her desire to give evidence relating to the assertions made by Mr Richardson of and concerning her and for that reason I'm going to call her to give evidence, Chairperson.

CHAIRPERSON: Is she going to give evidence under oath?

MR MAPOMA: Yes, Chairperson.

XOLISA FALATI: (sworn states)

CHAIRPERSON: You may proceed Mr Mapoma.

MR MAPOMA: Thank you Chairperson.

EXAMINATION BY MR MAPOMA: Ms Falati you have been notified as an implicated person in this application by Mr Jerry

Richardson and you have been here at these hearings throughout when Mr Richardson has given evidence, do you confirm that?

MS FALATI: Yes, I've been notified.

MR MAPOMA: Do you confirm that when Mr Richardson was giving evidence you were present?

MS FALATI: Yes, I was present.

MR MAPOMA: And you have heard him making some allegations of and concerning you, regarding the abduction of children from the manse to Mrs Mandela's house?

MS FALATI: Yes, Sir.

MR MAPOMA: What is your response to those allegations?

MS FALATI: Well I deny some of the allegations and ...

MR MAPOMA: Yes. Now is it correct that you were convicted and in fact served sentence for kidnapping and assault relating to those allegations?

MS FALATI: Yes, I was convicted.

MR MAPOMA: And you served sentence for that?

MS FALATI: Yes, I served sentence for that.

MR MAPOMA: And you still deny that you did participate there?

MS FALATI: Yes, I deny it, I didn't participate in assaulting the children, but I was - I went to the mission to fetch the children.

MR MAPOMA: Yes. So is it your evidence that in your view you were wrongly convicted by the Court?

MS FALATI: Yes, I was convicted by the Court for a crime I never committed.

MR MAPOMA: Yes. Now you did give evidence in the Human Rights Violations Committee and explained your role regarding that act, is it not so?

MS FALATI: Yes, Sir.

MR MAPOMA: Do you abide by what you said in the Human Rights Violations Committee relating to that?

MS FALATI: Yes, Sir.

MR MAPOMA: Thank you Ms Falati. Now is there anything that emanated from these hearings that has impacted on you negatively to which you want to respond?

MS FALATI: Yes, it's that I have assaulted the kids. I never assaulted the kids, the only thing - the orders that I carried from Winnie Mandela. Mrs Mandela ordered me to sing as to drown the voices of the children who were being massacred, brutally assaulted by her and the Mandela Football Club.

MR MAPOMA: Yes, no we are done with that. You have explained that. You did give evidence to the Human Rights Violations Committee and explained your position and that is well documented in the record and in fact that appears on bundle 3 of the bundle for this hearing, is it not correct?

MS FALATI: Yes, Sir.

MR MAPOMA: And you have clearly set out that you abide by what you have explained there.

MS FALATI: Yes, Sir.

MR MAPOMA: Yes, now apart from that now, is there anything that emanated from these hearings, from evidence from these hearings that you want to respond to which affects you?

MS FALATI: Yes, it's because I served a sentence, a criminal sentence for a crime I never committed, that was my concern, that I have a stigma today.

MR MAPOMA: So do I understand you to say that you want to clear your name in public?

MS FALATI: Yes, I just want to clear my name in public, that I never assaulted the children. The only thing, I went with Jerry Richardson and Slash and others on Winnie Mandela's instructions to go and fetch the children because the children were - the children were abused by the Reverend, that was what I heard there.

MR MAPOMA: Thank you Mr Falati. Is there anything else that you want to say?

MS FALATI: Yes, I just want to say, just after the hearings of the 1999, December 1999, Mrs Winnie Madikizela-Mandela has publicly in the news, television programmes, mentioned my name and deliberately assassinated my character telling blatant lies. She was interviewed by Snuki Zikalela just after the last TRC hearing in December 1999 in SABC television. She said I was Jerry Richardson's girlfriend. I feel she was assassinating my character, I feel my dignity was impaired, damage to my reputation and the reputation of my associates. I feel as a public figure representing an organisation and harming my ability to do the human rights work I'm doing, harming the relationship with the community which trusted me, it permanently damaged my personal relationship, it associates me with the violence which I do not approve of. That is in bundle 1 page 20 of the 29th November up to the 3rd December 1999 hearings, confirms that she was the one who was Jerry Richardson's girlfriend.

MS MAPOMA: Now Ms Falati, in a nutshell what you want to say is that it is not correct that you were ever a girlfriend to Jerry Richardson, is that what - do I understand you correctly?

MS FALATI: Yes, that is what I'm saying.

MS MAPOMA: Yes.

MS FALATI: And I have the document. My boyfriend was Wilson Sibilwane, he was at Maximum Prison.

MR MAPOMA: Yes. No, no, I just wanted to get it clear that all that what you want to make clear before this hearing is that you are not and never have been a girlfriend to Mr Richardson.

MS FALATI: Yes.

MR MAPOMA: That is all?

MS FALATI: That is all.

MR MAPOMA: Thank you Chairperson.

NO FURTHER QUESTIONS BY MR MAPOMA

CHAIRPERSON: Thank you Mr Mapoma. Mr Richard.

MR RICHARD: Thank you Chairperson. Very few questions.

CROSS-EXAMINATION BY MR RICHARD: So you confirm Mr Richardson's evidence that the assaults on the four young men after they had been removed from the Methodist Manse, were done on her orders?

MS FALATI: He carried the orders from Winnie Mandela, he was the one who was giving orders that the children should be assaulted.

MR RICHARD: Mrs Madikizela-Mandela instructed Mr Richardson and he then carried it out?

MS FALATI: Yes, Sir.

MR RICHARD: And that's what you saw happening?

MS FALATI: Yes.

MR RICHARD: Now at your trial, I am correct in saying that there were other people who gave evidence against you besides Mr Richardson?

MS FALATI: Yes.

MR RICHARD: The other three young men who were abducted and assaulted.

MS FALATI: Yes.

MR RICHARD: No further questions.

MS FALATI: What is the question?

MR RICHARD: My question was, amongst other people besides Mr Jerry Richardson, the three survivors of the assault, they gave evidence against you at your trial.

MS FALATI: Thank you. No further questions.

NO FURTHER QUESTIONS BY MR RICHARD

CHAIRPERSON: Thank you Mr Richard. Ms Mbuyiswa.

MS MBUYISWA: Chairperson, I have nothing for the witness.

NO QUESTIONS BY MS MBUYISWA

MS FALATI: I would like to respond on what Mr Richard is saying.

CHAIRPERSON: The question posed by Mr Richard?

MS FALATI: Yes.

CHAIRPERSON: Yes, okay.

MS FALATI: Yes. You know during the time of the assault, I was the one who was puzzled because I was even sitting on the box, I was sitting down, folding my arms, I was puzzled, I was afraid, I was stunned because I have never known the other side of Mrs Mandela, because I have never stayed with Mrs Mandela and everybody was just beating these children and then when he saw me sitting and the children were afraid, that is why they said I assaulted them, but I was afraid, I was stunned, I was puzzled and in fact when he looked at me and saw me sitting on that cardboard he said: "Xolisa go out, go and sing as to drown the voices of those children. Go and sing", then we sang with Nonshanshe and the others who were there, other females who were there, to drown the voices of those who were being brutally assaulted by her. She started with Kelly and Kelly had a blue eye and he actually blocked the fist from Mrs Mandela and then he was taken, both hands of Kelly were held by other comrades so that he couldn't block the fist from Mrs Mandela. Thank you.

CHAIRPERSON: Thank you Ms Falati. Mr Mapoma, any re-examination emanating from questions asked by Mr Richard?

MR MAPOMA: No re-examination Chairperson thank you.

NO RE-EXAMINATION BY MR MAPOMA

CHAIRPERSON: Thank you. Adv Bosman.

ADV BOSMAN: I have no questions thank you.

JUDGE DE JAGER: No questions.

CHAIRPERSON: Thank you very much Ms Falati, that concludes your evidence.

MS FALATI: Thank you Sir.

WITNESS EXCUSED

CHAIRPERSON: Mr Mapoma are you calling any other witnesses?

MR MAPOMA: There's no other witness, Chairperson, thank you.

CHAIRPERSON: Thank you very much. Are we ready to make submissions?

MR RICHARD: I'm ready to proceed.

CHAIRPERSON: You may - let me ask the others. Ms Mbuyiswa?

MS MBUYISWA: I'm also ready Mr Chairman.

CHAIRPERSON: Mr Mapoma?

MR MAPOMA: Yes, Chairperson, we may proceed.

CHAIRPERSON: Thank you. The ball is in your court Mr Richard.

MR RICHARD: Thank you Chairperson.

MR RICHARD IN ARGUMENT: Mr Richardson persists with his application for amnesty. In order to obtain amnesty, it's common knowledge to us, we've all considered it on numerous occasions, that the applicant must satisfy the provision of Section 20 of the Act. We have before us an application. In form and procedure it complies with what has been regulated in terms of the Act.

Then we proceed to (1)(b). The act in this case is without a doubt one which - the acts, sorry, plural, are acts which without a doubt were acts committed with a political objective as read in terms of Section 20(2) and (3). That these things happened, I don't believe there's any doubt. We have a number of High Court decisions. We have the evidence at the Human Rights Violations Hearings and we're all familiar with that body of evidence and I don't think anything has seriously been put in dispute. From the same bundle of evidence we know what Mrs Mandela's attitude is. I only refer the Committee to Volume 5 Chapter 4, paragraph number 23 of the Truth and Reconciliation Commission’s report.

JUDGE DE JAGER: Can you repeat the reference?

INTERPRETER: The speaker's mike is not on.

MR RICHARD: Unfortunately as it comes off the CD I can only give the numbered paragraph, I can't give a page number. It's numbered paragraph 23. There in that passage, the Commission recorded Mrs Mandela's attitude to the proceedings that we considered today in the following words

"I knew nothing about these activities. I did not monitor them when they were in and out my house. I did not know who recruited who into the Mandela United. I knew nothing about who took what decision. I had nothing to do with the activities of the boys."

It mustn't be forgotten that while Mrs Madikizela-Mandela may have chosen not to give evidence during these proceedings, at the Human Rights Violation hearing and the Section 29 hearing, she had no option and in Volume 5 Chapter 6 paragraph 20, when considering the role of ANC leaders during the period, the Commission made this finding:

"One ANC member who did not experience a close encounter with the Commission and did not do so voluntarily, Mrs Madikizela-Mandela's contempt, not only for the Commission but for the notion of accountability was palpable to the millions who followed the hearings in which she appeared."

In the light of those findings and observations, it means that in support of the application for Mr Richardson's amnesty ...(intervention)

JUDGE DE JAGER: Mr Richard, that was a conclusion of a different Committee. I think I could have a look at the evidence before that Committee and come to a conclusion on the evidence that may be relevant here, but could I be bound by a decision of another Committee drawing their own conclusions in what they thought was the correct conclusion, I'm speaking legally only. So as far as those conclusions are concerned, I think I'm not bound by that, but I am entitled to look at the evidence given and come to my own conclusion, isn't that the correct position?

MR RICHARD: Chairperson it's quite correct. This Committee is not bound as per stare decisis rule to the findings of the previous Tribunal, body, however this Committee, as we all well know, can have regard to and consider all the evidence that that other body considered. I don't believe the position is any different to the findings of one Court not binding another Court, it must consider the evidence. That is correct. However, the dictates of logic automatically require that if the second body wishes to make a finding different to the first body, it will have to have very cogent reasons as to why it's choosing to disregard ...(intervention)

JUDGE DE JAGER: We're not bound at all. There's no stare decisions rule with us, we're not bound by whatever the HRV found.

MR RICHARD: My argument is that the previous decision is persuasive and I leave it rest there.

I then continue to say that if on a similar set of facts and body of evidence, the second body will have to take into account what the first body found and if it's going to differ, the logic is apparent ...(intervention)

CHAIRPERSON: Shouldn't it be placed before us before we could even look at that, that it forms part of these proceedings?

MR RICHARD: In the bundles with which we were briefed the excerpts from all sorts of sources from the past, my question is, is it necessary for me to go through the exercise of formally proving all of what was heard by the Human Rights Violations Committee, whether in the open hearings or in Section 29, it's all available to the Committee and I don't believe the Committee cannot have full regard to it.

CHAIRPERSON: No, no, no, we say speaking legally, we have certain evidence which emanated from the Human Rights Violations Committee, which has been placed before us, but the evidence, the conclusions you are referring to, I say shouldn't that rather than just arguing it, shouldn't that kind of evidence and conclusions be placed before us so that we could take judicial cognisance of that kind of evidence but it cannot just be drawn into these proceedings and be argued with something that hasn't been before us.

MR RICHARD: As a matter of practice, I am aware that copies of both the evidence and transcripts of the proceedings and the reports themselves, including the Section 29 reports, are available to the individual Committee members, sitting considering amnesties. I've never yet been called upon to go through any procedural exercise of proving the matter. However, if the Committee would wish me to do that, I apologies for not having issued subpoenas and procure of the attendance of the right witnesses, but I didn't anticipate that I would in this instance have to go through that exercise.

CHAIRPERSON: You may proceed Mr Richard.

MR RICHARD: Thank you.

So the finding made appears in Volume 5, Chapter 6 and the heading of the section is:

"Findings in regard to Mrs Madikizela-Mandela and the Mandela Football Club.

The Commission finds that Mrs Madikizela-Mandela was central to the establishment and formation of the Mandela United Football Club which later developed into a private vigilante unit operating around Mrs Madikizela-Mandela and from her houses in both Orlando West and Diepkloof. The Committee finds that the community anger against Mrs Madikizela-Mandela and the Football Club, manifested itself with the burning of the Mandela home in Orlando West in 1988, which led to the central community and church leaders requesting that she disband the Football Club. The Commission more importantly further finds that the Mandela United Club was involved in a number of criminal activities including killing, torture, assaults and arson in the community. It is the Commission's view that Mrs Madikizela-Mandela was aware of the criminal activity and the disquiet it caused in the community but chose deliberately not to address the problems emanating from the Football Club. The Commission finds that those who opposed Mrs Madikizela-Mandela and the Mandela United Football Club or dissented from them were branded as informers and killed. The labelling by Mrs Madikizela-Mandela of opponents as informers, created the perception that they were legitimate targets. It is the finding of this Commission that Mrs Madikizela-Mandela had knowledge of and/or participated in the activities of club members and/or that they were authorised and/or sanctioned by her."

Where this is most relevant to this hearing, we know that the person who was the object of these findings, Mrs Madikizela-Mandela was present throughout. She had every opportunity to give evidence had she chosen at this hearing as well. Instead she chose to say nothing. While this inquiry is not dominated and controlled by the strict rules of evidence, the logic of evidence is compelling. The fact that she chose neither at the Human Rights Violations hearing nor here to give any evidence rebutting those findings, means that only one possible inference may be drawn, that there is no such evidence available to her, that she could credibly tender. So those findings, in my opinion, stand uncontested and uncontroverted. Taking those proceedings, those findings into account, I have no difficulty in making the submission that all the requirements of Sections 20(1)(a) and (b) and (2) as read with (3) are fully complied with.

There's no evidence needed as to whether the acts were acts associated with a political objective or that the various tests listed in (3) were complied with. The only issue that remains to be considered is whether the applicant has made a full disclosure of all relevant facts. In this regard I refer the Committee to the evidence heard yesterday from Dr Stevenson and Mr Garwood.

It is important to start by noting that despite the apparent contradiction on the written reports submitted by the two individuals, they corroborate each other in all material respects. Neither say the applicant was not fit to participate in the proceedings and both say and confirm what is said in Mr Garwood's 1990 report. So taking that report into account and the performance Mr Richardson put on in the witness box, leads me to make this submission. In essence Mr Richardson has made a full disclosure of all relevant facts. His statements confirm and corroborate his conviction in the High Court, Mrs Madikizela-Mandela's conviction. At no stage does he make an effort to deny that he committed the act and in the main what he says about how the act came to be committed, as we heard this morning, is yet again confirmed by Ms Falati. There is no relevant or material doubt, in my submission, that Mr Richardson has disclosed that he was party to and associated himself with the kidnapping and the abduction, the assault of the four men and the ultimate killing of the late Stompie Sepei. No evidence has been led which casts any doubt on his admissions and concessions in those regards.

Certainly when it comes to matters other than that, whether the Committee may accept his versions of the ...(indistinct) and Tshabalala killings and that of Kuki Zwane, there he stands uncorroborated. However in his favour there I can argue, if he had not made mention of these matters to either the Human Rights Violations hearing or this Tribunal, would it have prejudiced him? He could have kept his secrets and within the limited ability that he has available to him, as is so well described by Mr Garwood, it is my submission that he has made a disclosure of the relevant facts. Mention may be made in argument of his concession that he was a police informer. That was made by him. It wasn't something that was extracted out of him by clever cross-examination, he placed it in the record himself. However, for that aspect ...(intervention)

CHAIRPERSON: Would that be entirely true, Mr Richard, that he placed himself ...(sound faded) that he is an informer? Was that not extracted from him?

MR RICHARD: ...(indistinct - mike not on)

CHAIRPERSON: Was that not extracted from him and when I switched mine off, yours went off, I'm sorry. What I'm saying is that would we say he voluntarily came out with the fact that he was an informer? Was that not extracted from him?

MR RICHARD: The informer story originates in the Human Rights Violations Hearings. There I have a very clear recollection of leading the evidence. Mr Richardson firstly denied it, when it was my instruction to lead him on it and then after further consultation again admitted it. So the placing of the information before the Committee was done by Mr Richardson and I that December 1997. Certainly much was made of it after the lead was given to the cross-examiners, but nonetheless I am able to make the submission that he brought that aspect into the record and revealed it.

CHAIRPERSON: No, no, but what we look at, what was said before us despite that kind of evidence which was led before the Human Rights Violation, he stood steadfast that it is a blue lie that he was an informer. He stood steadfast.

MR RICHARD: Other than ...(intervention)

CHAIRPERSON: Before you do that, I'm sorry - and we've got to look at that when you spoke of full disclosure of all material facts, we should look at that aspect as well and through your invitation, that we should look at what obtained at the Human Rights Violation Hearing, that when we look at full disclosure, we should look at that aspect as well, because it impacts greatly that would we say looking at the evidence before us, whether he acted politically motivated by his association with the Mandela Football Club, or was he serving the purposes of the mandates of his superiors as an informer? I think that is very important and if you could address us on that.

MR RICHARD: In the first instance, I would say there is not one iota of credible evidence before this or any other Hearing, that he served the dictates of any master other than Mrs Madikizela-Mandela. There simply is no evidence at all to that effect. That is mere hypothetical speculation of no evidential or persuasive value. I then have to deal with the fact that when it comes to the informer story, like in a number of other material aspects, for me to argue that Mr Richardson's evidence was satisfactory and uncontradictory and clear, is an impossibility. What were blatant contradictions, appears from the record and speaks for itself.

Now there I go back into the psychological and psychiatric evidence. If Stevenson and Garwood had come before the Committee and said: "He is a competent, capable personality with no abnormalities of an ordinary and averagely high IQ and a person who ...(intervention)

CHAIRPERSON: Start with Mr Stevenson. What was his mandate when we adjourned in November last year? We should also bear in mind that the proceedings were not as we would place them in a court of law, that we as Committee felt that with your request, after extensive cross-examination by Ms Mbuyiswa and Mr Ali, that it was our feeling that he should be referred to see whether he is able to appreciate the proceedings of his hearing in this application. That was the mandate given, unless I do not recall precisely, but that is the mandate and we got to look at that mandate, not put the two together, that is Garwood and Stevenson in the same port, because my reading of Exhibit A was to refer Mr Richardson to psychologists and psychiatrists to see if there were any extenuating circumstances before sentence was passed, but he was at that stage found guilty of murder and other related offences, so I do not think we would be doing justice to put the two in the same port, that is Dr Stevenson and Mr Garwood.

MR RICHARD: The first question is, what was Dr Stevenson's mandate? To put it loosely, his instruction was to ascertain whether the applicant was fit to participate in these proceedings and of sound enough mind to bring the application. He answered that question. However, in answering that question, what did he have available to him?

JUDGE DE JAGER: Isn't it at the end of the day, they all agreed that he's fit to stand the hearing. Mr Stevenson didn't investigate his intellectual capability because that was not part of his mandate, he sort of expressed an opinion, but he said himself that wasn't part of his mandate, he really didn't investigate it, so that as far as his evidence goes, that was not part of my mandate, I'm not going to express a legal opinion or an expert opinion on that. Mr Garwood said: "Well I think extenuating circumstance and the intellectual capability of handling questions that amounts to the same sort of thing and I'm in a position to express opinion on that.

CHAIRPERSON: And further Mr Garwood said he conceded, and that question was asked by me, that if the mandate is to see if a person is able to follow proceedings at this Tribunal and you do an examination for extenuating circumstances, that would differ and he considered that Mr Garwood was right in that respect.

MR RICHARD: Chairperson, it was put to Dr Stevenson and I'm perhaps over-summarising, did you have the Garwood report, Exhibit A? The answer was yes and at the end of his evidence I put it to him: "Do you confirm or dispute what that report says?" and he said "No", so that means if one takes the totality of Mr Garwood's evidence and Dr Stevenson's evidence, the full content of Exhibit A is before the Committee and stands uncontradicted and the evidence regarding that report is that it is as valid today as it was 10 years ago. Now the context in which I argue that report, Exhibit A, is in relation to Mr Richardson's performance on the witness stand.

If one ...(intervention)

JUDGE DE JAGER: ...(indistinct) with you about that, we only say that Stevenson didn't really express an opinion on the second leg that you're standing on and we're agreeing with you, so it's no, we're not arguing with you about that. I think it's unfair to use Stevenson's evidence to lend more support to Garwood's evidence. Leave him apart and argue on Garwood's, it's uncontradicted, we'll accept what you say.

MR RICHARD: I then proceed from the point that Mr Garwood's report is before the Committee. His evidence was heard yesterday, so I don't believe it's necessary to go through it paragraph by paragraph. The essence of that report is that Mr Richardson suffers from, in 1990 vocabulary, a personality disorder which is characterised by contradictory statements, explosive outbursts. The report carries on to say he is a man of low intelligence, which in ordinary language may be used to describe a stupid man and again there I can say, taking into account what Mr Garwood documents in his report, the report and Mr Richardson's behaviour corroborate each other. Now where does that take the Committee? It means that there is an explanation before the Committee which explains the contradictions, the outbursts, the difficulties that this Tribunal and a significant number of other Courts and Hearings have experienced with Mr Richardson. As was said by Mr Garwood in his evidence and his report, Mr Richardson lies and contradicts himself, it's in his nature, it's a consequence of his condition, his personality.

The next question is where there is scientific evidence which explains the unreliability of a particular witness and his evidence, should both the unreliability of the evidence and the explanation for the unreliability be taken to discredit the totality of the evidence?

CHAIRPERSON: But doesn't that go to the heart of full disclosure?

MR RICHARD: Taking the report into account, I can make the submission that within his limited intellectual capability and with his impaired personality, he has made a full disclosure of all relevant facts in so far as he can.

NO SOUND

MR RICHARD: ... can. Now obviously if he were not the individual described by Mr Garwood and were a competent, intelligent man, there's only one obvious inference that could be drawn and that is to discredit him, but with the reports which explain the performance that we have had to experience, I believe that it is, as I've submitted, appropriate to look at it within ... (no sound)

ADV BOSMAN: Mr Richard, is the question not whether these contradictions and lies relate to material aspects of the offences and the full disclosure which is required? I mean, may one not well argue that there are certain contradictions and certain lies that are not material, but where they relate to material aspects, surely there's no way that one can really get round the requirements of the Act?

MR RICHARD: Having left that point of the ability of the particular applicant to make a full disclosure and having made the submission that I make that he has done the best he can taking into account his characteristics, I then proceed to say, are the contradictions relevant to any, to use the words of the section "a full disclosure of all relevant facts". There I would relate it firstly to the abduction, assault and death of Stompie Sepei and his colleagues. I don't believe that there is any material contradiction that was dealt with yesterday. The cross-examination was directed at other contradictions which did not go to those events.

CHAIRPERSON: What about the subsequent events that for instance the Crisis Committee, when it came to Mrs Madikizela-Mandela to inquire about the whereabouts of the boys and Mr Richardson saying no after those inquiries, it was now imminent that evidence of their stay at Mrs Madikizela-Mandela had to be wiped and that they had to be killed, whereas that happened after they were long killed. Would that be full disclosure, because I want you to address this question in this fashion.

MR RICHARD: ...(no sound)

CHAIRPERSON: Sorry about that Mr Richard. Because I want you to address this question by looking at the totality of the Act that puts us here today, that it is not only a question of giving evidence and saying well, he has somewhat complied but the Act requires that everybody should know, because in that respect we seek to reconcile the community or persons who were in conflict with each other, that at least they know fully what obtained during that conflict. Now, if we just gloss over things and say at least we know that he killed Stompie, does that assuage the families of the victims? They were cross-examined extensively, that to date we don't know the graves of Lolo Sono and Siboniso Tshabalala, it's very material, because I would in this instance as you this question and referring to myself as a black person, the bones of our dead are very important. We want to do the rituals thereafter and if somebody could come and say: "Here are the bones", we're not looking at South Africa, when we say we want to make it democratic today, that we look at only certain values and forget about other values, because my belief is that values, if you are in one country, one person, one people, there must be a fusion of values, no values are more important that the others, that's why I say to you, you look at the spirit of the Act and look at even the preamble of that Act and look at the Constitution which gave birth to this Act, that to reconcile the conflict everything must be put before the table, that even if the families or the victims say: "We don't accept it", if we are satisfied, we are enjoined by the Act to grant amnesty.

MR RICHARD: Thank you Chairperson. From the Dr Garwood report, Mr Garwood report, we have to ask the question, taking into account the characteristics of the applicant over which he had no control ever in his life, it is simply the lot he inherited genetically, has he made a full disclosure of all relevant facts commensurate with his subjective condition? To ask the question in an abstract, objective manner, would work an injustice both to the applicant and other applicants. One cannot expect a person to do more than what is within him. We now know that, whether it was ten years ago, one day ago, or for that matter twenty years ago, the person described in Mr Garwood's report is the applicant.

Now to relate to the particular instance that the Chairperson has referred us to, the finding of the body. Yes, of course, there has to be a reciprocal understanding, respect and support for the values and feelings, sentiments, beliefs of the various cultures and groups that we are trying to reconcile, but in this case we know that Mr Richardson did go out with both the Truth and Reconciliation Commission and with others in an attempt to find the graves. The graves were not found. Now to draw the inference that Mr Richardson did not co-operate or somehow obstructed the pointing out exercise, I don't think is fair to Mr Richardson. There are many other inferences completely consistent with the fact that the graves were not found. As I have said to my Learned Colleague who represents the victims, Mr Richardson is more than happy to go to that area yet again and attempt to locate the graves and is more than happy to do whatever he can to co-operate, but then I as his adviser, can only caution that past experience speaks for itself. It's improbable that we will find the particular graves but the tender is there and openly made. It's not as if there's an attempt to withhold evidence, which I think is a more important observation when dealing with an applicant of the make-up of Mr Richardson.

If he were a mere mendacious, evasive, lying witness and there were no explanations for the conduct, clearly I would not be able to argue as I have, but with the reports, I believe I may proceed to the next point and that is ...(intervention)

CHAIRPERSON: Before you leave that point, what should we make of the evidence of Dr Garwood, that is viva voce this time, that when the question was asked: "Should he be released?" and he said: "No, he should be referred to Sterkfontein hospital, he is not a man who could be let out to society", what should we make out of that evidence?

MR RICHARD: I have considered that aspect. We have before us the Act. The Act makes no particular provision for the situation that we are dealing with. Section 20 creates an unconditional obligation on the Committee to grant amnesty if the provisions are satisfied, so it is my submission that in the event that there is satisfaction of the provisions of the Act, Mr Richardson is entitled to amnesty. On a management level, I can only point out that institutions such as Sterkfontein are not only inhabited by criminally insane, the vast majority of their inmates are not criminal. There's a whole body of law that would need to be invoked if amnesty were given, such as the procedures of the Mental Health law, but that stems from our responsibility, not from the Act constituting the Committee.

So, to summarise on that point, I don't think that medical evidence before us pre-empts and precludes this Committee from granting amnesty, the issue is whether the Act has been complied with and if it pleases the Committee to grant amnesty, I believe that the appropriate would be to request that Mr Richardson be referred back to Sterkfontein for investigations and tests, such as the ones carried out by Mr Garwood in the past and then for the procedures existing at law, to take their course, obviously outside the ...(indistinct)

CHAIRPERSON: Could we, as you correctly said, in an effort, I'm conscious that as I'm sitting here, I don't enjoy the inherent jurisdiction I have if I were to be seated at our appropriate forum, but looking at it, it just crossed my mind looking at it that, would we in trying to reconcile the conflicts of the past, be able to make a recommendation in our decision that this is an aspect of Mr Richardson which should be looked at because it's not reconciliation one-way straight, it's vis-a-vis two parties, that is Richardson in this instance vis-a-vis, the families of Sono, Tshabalala, Zwane, Lerothodi, you know what I'm referring to, the Sepeis, could we, because if I look at it we are charged with this and we are limited to what the Statute before us seeks us to do, but could we in this instance, just to round off the point?

MR RICHARD: My thoughts last night preparing went this way, I recalled making the decision to argue for the issue answered by Dr Stevenson to be addressed. I came to the conclusion that to have that issue addressed, was about the fairest decision that could be made from the victims' points of view. If Mr Richardson was insane in the ordinary sense both then and now, while it may be an unpleasant reality to accept, it would be an honest one with which a victim could deal. In the event the word insane was not the finding by either the 1990 psychologists or Dr Stevenson. In the end Mr Garwood's report stands.

Now that report is to the effect that a weak-willed man, easily influenced by others was drawn into the events that surrounded Mrs Madikizela-Mandela's house at that time and did what he admits doing. I believe from the victims' point of view, the fact that Mr Jerry Richardson is now described as the personality that he is, and that he admits to doing what he has done, amounts to as much as can be said by Mr Richardson taking into account his personality, so I don't see anything inconsistent with the notion of reconciliation by Mr Richardson getting amnesty on this present set of facts. It serves the purpose. A decision granting amnesty would, of its nature, have to deal with the personality problems of Mr Richardson and by disclosing those personality problems and difficulties and defects, I believe Mr Richardson did disclose possibly what was the most relevant aspect of the entire story and his role in it.

I then, because it is closely associated, intended to proceed to the point of the subjective perception which has become the catch phrase to describe what an applicant needs establish. I'm the first one to say that what was subjectively perceived by the applicant and what is led in evidence in support of that, must be critically considered by the Committee. There's no requirement on the Committee to be uncritical of what appears, but in this particular situation, if one looks at what could be perceived by a personality such as Mr Richardson, the authority figure, Mrs Madikizela-Mandela was clearly the authority figure in his life. Mr Garwood describes his relationship with her as obsessive.

I then refer to the findings and conclusions of the Human Rights Violations Hearing in the Commission. The labelling and pointing out of people as informers, immediately made them legitimate targets, to use that language. Taking the weakness and ahborrency of Mr Richardson's ability to perceive, I have no difficulty in arguing that if a particular person was labelled as an "impimpi", an informer, in his mind the perception would become fixed and the result inevitable.

JUDGE DE JAGER: ...(indistinct - mike not on) suppose Mr Richardson was an informer, he was suspected of informing on the two cadres who were killed. In order - the consequence of that would have been that he would have been killed himself. In order not to be killed, he put the blame on Lolo and Tshabalala. The reason for them to be killed was to save himself from being killed. Would that be a political objective?

MR RICHARD: My first comment is that in relation to the admitted killing of Tshabalala and Sono, what has been put is an argument that holds a certain amount of weight, the evidence is there on which it could be argued. However, the political object to be achieved if Mr Richardson was an informer, could equally well have been if he is an informer loyal to the then police and State, he must protect his identity and continue in his mission of informing.

JUDGE DE JAGER: If that was his case before us: "Listen, I've done this because I wanted to serve the police", that would have been another thing.

MR RICHARD: That's not before us.

JUDGE DE JAGER: That's not before us, that's not his case, so we can't grant him amnesty because he was on the other side of the war at that stage, because he himself says: "Well, that's our trouble in the first place", he says: "At one stage I was on the other side", on the other he denies being there, but his case is: "I've been fighting on the side of the liberation forces and I've killed because of my involvement on that side". If there's doubt about it, can we be satisfied?

MR RICHARD: The issue before the Committee is whether the case as put forward by Mr Richardson, can be accepted in the light of another competing possibility. The competing argument arises from a number of circumstantial facts which appear from the various records surrounding us. My question then is, is that the only consistent inference with those facts? Clearly it's not. Other inferences can be drawn and then to use circumstantial evidence rules, for what they're worth in an inquiry, I would argue that as there's no overwhelming probability of that inference, the inference of Mr Richardson killing to protect his identity, is reduced to mere speculation. The next question which I will anticipate is, if taking into account the contradictory nature of Mr Richardson's evidence, can one place any reliance on what he says, when there is no corroboration as there is in the Stompie Sepei incident? My first argument is that the logical option is to separate the Sono and Tshabalala incident from the abduction and murder incident and if the case made out in the Tshabalala/Sono killing is not sufficiently strong to make that finding however, my first argument is that as in most other cases, we have very little to go on besides the applicant's ipse dixit and it stands uncontroverted. The best that can be put to negative what the applicant says, is hypothesis.

CHAIRPERSON: How could we, if we say we look at what he says and for a moment and say we've got to draw inferences and we take it with Sono, Tshabalala and Sepei because they said he did that to wipe himself off the stigma of being an informer and you find him, that to draw inferences, he firstly says: "No, I'm not an informer", then when pressed harder he says: "Yes, I was an informer and I was handled by Pretorius". With that doubt in our minds, could we say no the inference satisfies the two legs which our authorities have placed at this juncture, could we come to that and satisfy it in our minds that the only inference we could draw is that he did it from a political motivation? Can we really?

MR RICHARD: My first point is that the different incidents share a common denominator, for me not to deal with that aspect immediately, with the intellectually dishonest ...(indistinct). In all the incidents, the justification put forward by Mr Richardson is that the victims, including somebody like Ikaneng, were informers or "impimpis" or leaks, or threats at whatever level. The next question is, were all those killings consistent with an attitude to prevent his flushing out of being an informer, either as well, or instead? Certainly in the Stompie Sepei abduction/assault aspect of the subject matter, the overwhelming evidence is that the belief as to him, that is Stompie being an informer, emanated from completely some other source. We've had Ms Falati for what it's worth, this morning. We have her evidence which is now confirmed and I believe that that aspect cannot be tainted by the suggestion that his behaviour in that regard was consistent with the inference of covering up his identity.

CHAIRPERSON: Let me politicise that. Let's politicise Stompie in this instance, because my understanding of the four boys was that they had to be rescued from the Manse, from being again sexually abused. They had to find sanctuary in Diepkloof at the house of Mrs Winnie Madikizela-Mandela. Now you have these people you wanted to protect and you subsequently kill them. Where is the political motivation here?

MR RICHARD: One must not forget that it has been documented elsewhere and in these hearings, if I recall correctly, I don't have the reference, that there was the suggestion that Stompie Sepei himself was an informer.

CHAIRPERSON: I'm asking you that because you discounted the suggestion or the invitation I made to you that look, and you quite correctly said, if we look at all the people, Sono, Tshabalala, Kuki, Ikaneng and Stompie Sepei, there's a thread that is running through all five, that they were "impimpis", informers and I invited you to address me on that, that he says in his evidence that: "I wasn't an informer" and when pressed, he says: "Yes, I was an informer and handled by Pretorius" and you submit the other way around. Hence, I asked you the question now, if we were to remove for a moment that Stompie Sepei was not an informer and we accept that Mr Richardson was not proving - that he was trying to prove that he was not an informer by doing these killings, how would we compartmentalise the question of Stompie Sepei and the other boys because they were rescued to be given sanctuary from the abuse, if we may believe, of the Pastor. You see the difficulty of your argument in saying we should draw an inference from a certain fact, from a certain set of facts, it brings us back to the same quagmire which we are thinking that you would take us through without putting a foot in it.

MR RICHARD: Chairperson, the way I formulate the answer goes this way: The question is, in the most ambiguous manner possible, Mr Richardson concedes that at some or other level he had a co-operation arrangement with Mr Pretorius. He denies that it was the full extent of an informer. That leads us to ask the question, is it not possible that the killings and assaults and attempted murder were an attempt to preserve his identity and retain credibility?

CHAIRPERSON: I think we are speaking English now. By saying he had a certain co-operation with Pretorius - I want us to be up front, because I'm really concerned, we haven't made up our minds, but we have certain concerns which we are putting to you, that you probably answer that so that in our deliberations whether to grant or not, we should take into account. If you say he had certain co-operations with Pretorius, we know that Pretorius was a Security Branch man, that is a given, now for anybody to have co-operation with such people for certain things and immediately remove himself to be something else, it does not work. It's either you are an "impimpi" or you are a liberator, or a struggler who is fighting for liberation. You can't mix the two, let me be blunt on that point, you can't mix the two because it's merely semantics to me to say he had some certain co-operation with Pretorius, I do not accept that kind of argument.

MR RICHARD: Chairperson, what was in my mind was the last few questions that I put to Mr Richardson yesterday. I put to him: "Did you ever give information?" The answers were "No" and "no". However, so as not to be ...(intervention)

JUDGE DE JAGER: Mr Richard, I think there's one aspect that also stands out and that is that he never initiated the kidnapping of the four youths, so even if he was an informer, he didn't act on behalf of the police in kidnapping them. On all the evidence it's clear that the removal of the four youths was not done on his initiative. He'd been sent to do that together with the other people, so that may sort of differentiate between that incident and the other incidents.

MR RICHARD: I believe, Chairperson, that that argument is correct. Each one of the particular acts and sequences associated with it, has to be evaluated separately. It is quite correct to say that what happened with Stompie Sepei was a chain reaction started with the report that these young boys were being abused and I think it's clear and has been established that while Mr Richardson was a player in that drama, he wasn't the lead. We have Ms Falati's evidence again this morning.

The next thing to answer is what Mr Semenya said yesterday. Is it so that instead of being under the control of Mrs Madikizela-Mandela, Mr Richardson was under the control of the Security Police and the sequence of events that happened in Mrs Mandela's house, could now be attributed to some third force. Mr Semenya's argument and my submission for the obvious reasons that we've already discussed, relative to the Stompie Sepei part of the story, is speculation and of no real value or use, in fact it's a waste of time. However, when it comes to Lolo Sono and Tshabalala, to finalise on that point, there we have an unsatisfactory version by the applicant versus a possible inference from the facts. In favour of the applicant I argue that the inference that might be drawn, which is negative to him, is not the only consistent inference and then according to the laws of evidence, that inference must be disregarded and not used as authority for anything at all and preference be given to the applicant's version.

The reason for giving preference to it is again the probability in my belief is that the applicant has made a full disclosure of the relevant facts. The relevant facts are: I went out with the execution party, I was associated with it and they were killed.

Then it's necessary for me to deal with Lerothodi Ikaneng in a slightly different category. There Mr Ikaneng had the good fortune of surviving the attack. A perusal of the records does associate him with Dodo Tshilo's, and I use it very loosely, organisation which seemed to be in competition with Mrs Madikizela-Mandela. So, Lerothodi Ikaneng's version is not entirely uncorroborated, it's not entirely the ipse dixit of the applicant. What's important there is that the applicant's conviction wasn't dependant entirely on circumstantial evidence, there was a direct eye witness in the form of the victim of the attempted murder. Again to deal specifically with the Kuki Zwane, there we have a situation that objectively we know that a body was found consistent in fitting the description and person of Kuki Zwane. The method of killing is consistent with the method used by the applicant. Where we depend on his word, is that she was pointed out as an informer and that her death followed. Again there is nothing to contradict what Mr Richardson says. The essence of it is that he admits to the act of killing her, he establishes his bona fide subjective perception and to say that it was not political in the context I believe is contradictory to all that's before us. Political motive - I don't really think I need yet again argue today the identity of an informer in the eyes of - I really can leave that one.

CHAIRPERSON: We've heard so much about informers that we have accepted their killings within the conflict of the past, how it occurred, we have heard enough, we don't think we will burden you with that.

MR RICHARD: Thank you Chairperson, I am indebted. I believe I do not have the ability to take the argument much further. I leave it rest.

CHAIRPERSON: Is that the end of your argument?

MR RICHARD: I leave it rest.

CHAIRPERSON: Thank you. I would request all parties that we have a five minute adjournment.

COMMITTEE ADJOURNS

ON RESUMPTION

CHAIRPERSON: Ms Mbuyiswa, any submissions?

MS MBUYISWA: Yes, Chairperson.

MS MBUYISWA IN ARGUMENT: When we were initially instructed to represent the victims and the families, our instructions from the victims and the families was that if Mr Richardson made full disclosure and told the truth, they would not oppose his amnesty application, but in light of what has happened here from last year and yesterday, it is quite clear to us that Mr Richardson has not made full disclosure.

I would like to go through each and every one of the acts that Mr Richardson is applying for. I will start with Lolo Sono and Siboniso Tshabalala.

Mr Richardson has so far submitted three versions to this Committee about what happened to Siboniso Tshabalala and Lolo Sono. The first version was the version that he submitted in 1995 at the Human Rights Violation - 97 sorry, 97, in that transport was organised to go and fetch the two boys because they were suspected of being police informers and they had informed about the two MK cadres which were at Mr Richardson's house. The second version was the one that he gave at his amnesty application last year to this Committee that after the raid at his house where the two MK cadres were killed as well as Sgt Pretorius, he was arrested, then upon his release, he went straight to Mrs Madikizela-Mandela's house, where he found the two boys. Already the two boys were there, according to him, for about a week. I also turn to his amnesty application, which I think is page 3 of bundle 1, where he says:

"Sono/Tshabalala, they were abducted by myself and a person called Shakes and Jabulani Kubheka (Guybooi). They were assaulted at Mrs Mandela's home for about a week. They were taken to the veld and Kubheka and Shakes slit their throats while I watched."

Now, within those versions again that he gave, he maintains on page 26 of bundle 4, no sorry page 28 of bundle 4, when he was asked during his evidence-in-chief how the boys got to Park Station, this was a question asked by Mr Richard, he said ...(indistinct) they were given R20. This also is in line with the testimony that he gave at the Human Rights Violation Committee hearings, that he gave the boys R20 and took them to the taxi to get to town. That version contradicts Mr Sono's version that his son told him the following day that he witnessed the raid at Mr Richardson's house.

Now with regards to these two acts, or this one act for the two families, it placed them in exactly the same position, if not worse, that they were in before they came to this amnesty application. This is a family for over fourteen years, who have no idea what happened to their children. They were willing to support Mr Richardson's application if Mr Richardson was willing to tell the truth. We're not even sure if Mr Richardson even witnessed the killing of the two boys. This is further shown by the contradictions of yesterday's testimony when Mr Semenya was cross-examining him on the fact that previously he had only said that Lolo Sono was the one who was killed and that Siboniso had gone to Lusaka. Now you add another version, a fourth version to this whole story which leads to more confusion. We are not exactly sure at this point where we stand, but there's one thing that is clear, we still don't know where Lolo Sono and Siboniso Tshabalala are. We still don't know who killed them. We still don't know whether the killing was political or not. The fact of the matter is that there are two bodies missing and nobody has given light to that. The one person who could, has four different versions. Now that is not in line with the spirit of reconciliation.

Mr Richard said on - when he gave his submission that without a doubt, the acts were political. We do not think so. Mr Richardson stated in his amnesty application that at no stage when these acts were committed, all of them, were they discovered by members of the liberation and that will be the members of the ANC. He was questioned yesterday in that regard. Now if Mr Richardson is to claim that his acts were political, in what context is he claiming that because the ANC, I assume when he says the liberation, had no idea what he was doing.

We move on. Now we come to Kuki Zwane. When Mr Richardson was asked yesterday by Mr Semenya who had Kuki Zwane informed on, he states that to his knowledge he never say Kuki inform on anyone but she was labelled an informer anyway. Last year, 1999, he testified that he had killed Stompie first, if I'm not mistaken, then Kuki second. It was show yesterday that that couldn't have been so. Now I know it might be too much of a burden to place on Mr Richardson to actually remember the exact dates of the killing, but I do not think that it is a burden on Mr Richardson to remember the sequence of the events, of whom he killed first. Again, another contradiction which leaves us further confused as to exactly what happened. In 1999 a member of the Committee asked Mr Richardson when he was giving his evidence-in-chief that would he say that Kuki's murder was then not politically motivated. He responded by saying yes. Unfortunately I do not have the reference, but I do recall that specifically because I made notes about it. Again there is no political motive in this act and again, there are contradictions and we might even go further and say lies. Again we're left confused, which leads me to submit that there was no full disclosure.

We move to Stompie Sepei. May it be noted that when the four youths were taken from the Manse, the intention was as already stated, to save those kids from sexual abuse. Now, it was during while the youths were assaulted that it was made mention that Stompie Sepei was or could have been a police informer. Now I refer the Committee to the Act, Section 20, the granting of amnesty and the effect thereof. I'm not going to go through the whole Act, but in the Act it is made mention of proportionality there. If I may explain. If the intention is to kill informers, then the torture before the killing would be proportional to the act, but in this regard the intention was not to kill Stompie, as the applicant had already testified, Stompie was killed because the applicant saw that he was going to die anyway and that there was pressure from the Crisis Committee to hand the boys over. Now if the boy was not so brutally beaten and there wasn't the pressure from the Crisis Committee to hand over the boys and then to explain what had happened, Stompie might have lived. Again this is not in line with the criteria, if I may say so, in granting amnesty. No matter how much corroboration with regards to the killing of Stompie Sepei was given, the fact of the matter is that the killing of Stompie Sepei was not intentional, he was only killed because he was going to die anyway and there was that pressure and therefore I submit there was nothing political about that either.

I come to Lerothodi Ikaneng. Mr Richard has submitted that this was an organisation in competition with the United Football Club, that is Dodo Tshilo's organisation. Again, if this was only the competition, what is the political motivation there?

JUDGE DE JAGER: ...submitted or in evidence sort of said that he had inside information because he was a guard at the house and he could divulge that information to outside people now, because he'd left the inner circle.

MS MBUYISWA: Chairperson, in the testimony of Lerothodi Ikaneng, if it can be recalled, there were various meetings which were called between the community, the Mandela United Football Club and I don't know what you call, Ms Tshilo or Ms Tshilo and her children and when Ikaneng was attacked so were Dodo Tshilo's, one of the children I think if I'm not mistaken, was assaulted as well. From the entire testimony she was given in 1997 at the Human Rights Violation Committee Hearings, it does indicate that the entire incident was a competition between the two groups and there was nothing political about it because at some point Ikaneng did associate or did keep company, if I'm not mistaken, with Dodo Tshilo's children and the members of the United Football Club would go hunting them down.

Now in 1999 we adjourned these proceedings at the instance of Mr Richard, stating that he did not feel that his client was capable of following the proceedings of this Committee and that he felt that he needed psychological evaluation. From the victims side, we did not officially object this because we felt that the truth needed to come out and we felt the need to know whether the contradictions were the contradictions of a man who could not follow the proceedings, or were they just contradictions of a man who was telling a lie? Now we had Dr Stevens here yesterday who testified that Mr Richardson was fit and proper to follow the proceedings of this Committee. Mr Garwood's testimony in essence does not differ with Mr Stevens' when you take into context the brief, Dr Stevens' brief. Mr Garwood even went further to state that at the time when he was conducting the tests in 1990 with Mr Richardson, one of the tests that he - regarding the IQ was not a test created for black people as such, so that would affect the result. He further stated that the fact that Mr Richardson was under a lot of stress he was facing at that sentence, would also have affected the outcome of the results, but he did not state that Mr Richardson could not follow the proceedings of this Committee. He also testified yesterday that he felt then in 1990 that Mr Richardson was lying to him and he was lying to this Committee yesterday when he was under cross-examination. Now we feel that, or it is our submission that Mr Richardson, the entire time, was lying to this Committee even when he didn't have to. He contradicted himself even when he didn't have to.

JUDGE DE JAGER: Wouldn't that exactly be our problem? Why should a person be lying if he didn't have to? ...(indistinct - mike not on)

INTERPRETER: The speaker's mike is not on.

JUDGE DE JAGER: You're lying if you don't even need to lie, why would you do that?

MR MBUYISWA: That could also mean that that person is a pathological liar and has nothing to do with mental defect.

ADV BOSMAN: ...(indistinct - mike not on) a disorder between your pathological liar. The word pathology indicates disorder.

MS MBUYISWA: I concede that the very word pathology itself indicates disorder but that does not mean that this person is insane or cannot understand or fully comprehend.

JUDGE DE JAGER: But that's not - that's common cause, he can understand and he can follow, he can stand trial, but is there an explanation why he's lying while there's no reason to lie?

MS MBUYISWA: If I understood Dr Stevens' testimony yesterday he could not explain that because that was not part of his brief, right. Mr Garwood in 1990, listed various factors why, one of them was that - if I'm not mistaken I forgot the word that he used, but that Mr Richardson was mentally unstable and that his IQ was lower than normal, but then those reasons were explained why the results came out that way, which means we're back exactly the same position as we don't know why he's lying.

ADV BOSMAN: Mr Garwood did say and Dr Stevens concurred with it that the intelligence is very low, the debate was whether it's below average or just sort of low normal.

MS MBUYISWA: I concede that they did agree that - Dr Stevens said it was normal - lower normal ...

CHAIRPERSON: ...(indistinct - mike not on)

MS MBUYISWA: Thank you. And now I understood Mr Garwood also conceded to that point, but the fact of the matter is we cannot for sure say that Mr Richardson is insane. We cannot rely on a test which was ...(intervention)

JUDGE DE JAGER: I think we can for sure say he's not insane.

MS MBUYISWA: Exactly. We can for sure say that he's not insane, but I have to say I take - for me to take Mr Garwood's testimony from a person who had seen Mr Richardson in 1990 and who only listened to him for a couple of hours, ...(intervention)

JUDGE DE JAGER: Well, he listened for more hours than Mr Stevens examined him.

MS MBUYISWA: But also at the same time the report was made for sentencing, not for Mr Richardson as to whether he was competent to stand trial or not. Let that also be taken into consideration.

JUDGE DE JAGER: That's not in dispute, he can stand trial. Everybody says that, he's not insane, so we're not arguing about that, he can stand trial.

MS MBUYISWA: ...(indistinct - mike not on) I submit that if he can stand trial, then because he can understand the proceedings, then he knows exactly what is going on, he should be able to answer and not lie.

CHAIRPERSON: Wouldn't the reports given by the doctors revolve on the question of low intelligence and if he has the low, low normal range of intelligence in this instance, and we say he has lied, would a person of low intelligence lie?

MS MBUYISWA: I guess I would also come up with the question that would a person of low normal intelligence, not be capable of telling a sequence of events as is, as he remembers them and not contradict himself so much?

CHAIRPERSON: I wanted you to answer it, not me.

MS MBUYISWA: Chairperson, my submission is this, Mr Richardson, with his low normal intelligence, could have come up with the sequence of events, this is a man who can't even remember who he killed first for example. That is a sequence which he could have followed with that low intelligence. Now, we know for a fact that he's not insane, we just want to know why he's lying. Unfortunately I cannot give to this Committee the reason why Mr Richardson is lying, we can only speculate and that is not good enough.

ADV BOSMAN: Ms Mbuyiswa, isn't that a rather simplistic approach, to say a person is either sane or insane, or of low intelligence or normal intelligence, what about this whole range of possible psychological disorders which you may have in combination with a low intelligence? Are you not disregarding that possibility in trying to argue that there's no room for Mr Richard's argument?

MS MBUYISWA: If I concede that there is room for Mr Richard's argument, then I concede that Mr Richardson is not capable of telling the truth and that supports my application.

ADV BOSMAN: But if it's in his nature that he should lie, it does not really mean that you now have to concede that amnesty must be granted. The question is, on certain aspects which are material to the amnesty application, did he lie in those respects? Because what troubles my colleague, Judge de Jager, also troubles me. Why would he lie about matters where there's no need to lie and which are not material to the amnesty application, if there's no underlying pathology?

MS MBUYISWA: If we submit that Mr Richardson is incapable of telling the truth and therefore should be granted amnesty, I feel that that would go against the whole objective of reconciliation. May I proceed? Thank you.

It is therefore, in light of what we've just said and the testimony which was given last year and the cross-examination as well as yesterday's cross-examination, that Mr Richardson did not make any full disclosure and therefore should not be granted amnesty. Thank you.

CHAIRPERSON: Mr Mapoma, any submissions?

MR MAPOMA: Just shortly, Chairperson.

MR MAPOMA IN ARGUMENT: Chairperson, centrally in this application at this point in time is the question of full

disclosure on the part of the applicant. Chairperson, the legal representatives have dealt together with the Committee much on the question of disclosure of these relevant facts. I just want, Chairperson, to deal with the question of lies. It is common cause at this point that the applicant has lied. Almost everybody agrees to that and the question now which seems to be an issue is whether these lies can be justifiable in the circumstances. Can the applicant, because of his mental incapacity, be treated as a special case to accept those lies? And I submit Chairperson, no.

Chairperson, Dr Garwood gave evidence here and in his opinion expressed that the applicant is, if I recall the term well, is psychopathic because he can lie in order to protect other persons. He, that is Dr Garwood emphatically agreed, I mean gave evidence that he lied in order to protect Mrs Mandela, Madikizela-Mandela. Chairperson if that is ...(intervention)

CHAIRPERSON: At the trial. At the trial.

MR MAPOMA: Yes, at the trial Chairperson, but even, if I remember well, he was asked by Mr Richard as to whether in the observation that he has made to the applicant during the course of him giving evidence in his presence, can he explain why he is lying and then he gave that explanation again that he lied in order to protect Mrs Madikizela-Mandela and I submit Chairperson, if that is the case, then it remains a lie and it is very difficult therefore to satisfy the Committee in the circumstances that full disclosure was made, especially, Chairperson, given the circumstances, I mean the material aspects which have not been unravelled by the applicant in these proceedings. It is material Chairperson to know where the bodies of Lolo Sono and Tshabalala are, I mean Siboniso Tshabalala are and as it is now, it is inescapable that these lies are contributory to us not knowing where the bodies are because at some point a pointing out was made and the bodies were not there. Surely that was a lie to say that the bodies are here when they are not here? And then repeated pointings out were made, the bodies were not there and that is very much really an issue Chairperson and if that issue is compromised by these lies ...(intervention)

JUDGE DE JAGER: Mr Mapoma, the searching for the bodies, suppose the body was in fact two yards away, how intensive was this search, do we know? ...(indistinct - mike not on)

MR MAPOMA: Well Chairperson, I wouldn't know at this point in time, but what is a fact is that the bodies did go to dig and the bodies were not found and the TRC investigators, during the TRC period now, they were pointed bodies, I mean pointings out were made again by Mr Richardson and the digging out again was made in the presence of the TRC investigators now and the bodies were not there.

JUDGE DE JAGER: So your submission is there's no reason to say there wasn't a thorough search?

MR MAPOMA: That is precisely my reason, Chairperson. Search was thoroughly made on the areas that were pointed out and the bodies were not there and Chairperson it is my submission therefore that it was a lie to say the bodies were there because, for that matter, bodies, the exhumations were made by the TRC throughout on bodies which were pointed and bodies which were recovered.

JUDGE DE JAGER: That's the difficulty. You're admitting: "I've killed them", you're admitting: "We've buried them there", but now you point out a wrong place. Why?

MR MAPOMA: Precisely, why? That is the question Chairperson. And in the circumstances it is not unreasonable or it is not inconceivable what was put to him that he does not know where the bodies were and that he was not involved actually. That is not inconsistent. That is not an unreasonable point ...(intervention)

JUDGE DE JAGER: Should I admit that I've murdered people, if I didn't? He's not been prosecuted for this yet, so he may be prosecuted later on and ...(intervention)

CHAIRPERSON: If we refuse amnesty.

JUDGE DE JAGER: Yes ...(indistinct - mike not on)

MR MAPOMA: Chairperson that can be attributed to nothing but the lies, the consequences of the lies, that is my answer.

JUDGE DE JAGER: Usually one would expect the lie to sort of free yourself, but not to put yourself in jeopardy.

MR MAPOMA: You can easily do it Chairperson, if you want to enhance your credibility as a truth teller, whereas you are a liar. As it is Chairperson therefore it is my submission that full disclosure of the relevant facts has not been made and the application must not - must fail. Thank you Chairperson.

CHAIRPERSON: Mr Richard, any reply?

MR RICHARD: ...(indistinct - mike not on)

INTERPRETER: The speaker's mike is not activated.

CHAIRPERSON: Your mike is not activated. Your mike.

MR RICHARD: A few brief points.

MR RICHARD IN REPLY: A sub-normal or low IQ is not all that was found. Mr Garwood's report describes a lot, lot more. It does give the basis and explanation for the personality disorders and defects consistent with an intrinsic inability to give a correct and factual account of an event. It explains many things, but we have dealt with that.

Finally while clearly and quite correctly, and it's something that we all associate ourselves with, reconciliation is the ideal and the objective we seek to achieve, however, the Act doesn't make it a condition, it's a process it sets up to achieve it.

My last point is we have before us Mr Richardson. Some people are born with different talents. If a person is born blind or deaf, you deal with that person according to that disadvantage. The personality disorders that have been outlined are also things like blindness over which Mr Richardson never had any control and is not culpable in having. Instead of anger, my plea for him is that he be dealt with with mercy and understanding. He is a disabled person who is irreparably damaged by his condition of birth. I rest the case. Thank you Chairperson, nothing further.

CHAIRPERSON: But the question which Mr Garwood brought to the fore that he would like to protect people and in this instance he further testified that whenever you brought the question of Mrs Madikizela-Mandela to him, he would quickly lie and get away from that point. That he was protecting, we see the disabilities which he has outlined in his report, but why lie to protect other people? That is what is worrying.

MR RICHARD: In his report Mr Garwood makes comment that he, being Mr Richardson, has a low grasp of reality, is easily influenced and in that state, formed this loyalty and obsession regarding Mrs Mandela, so it's quite consistent that when his heroine is under threat as he perceives it, for him to skirt the issue, to lie, to avoid it, deny it, all those intimations are made in Mr Garwood's report.

CHAIRPERSON: Yes, but when we had Mr Richardson, when he was asked at some point during his evidence-in-chief, what should we make about that that: "I'm taking my chances", bundle 4, "I'm taking my chances".

MR RICHARD: ...(indistinct - mike not on)

CHAIRPERSON: Oh, sorry, sorry. I would, if - that you recollect him saying: "I'm taking my chances"?

MR RICHARD: I remember that very clearly, I was in the room at the time.

CHAIRPERSON: What should we make of that when we have this background of lying to protect people and he comes before us and says: "I'm taking my chances", which I have no problems with. I mean if I were in the position in which he is, I would definitely take chances as well.

MR RICHARD: With the prospect of another ten years and at that stage thirteen years imprisonment, all I can say is that I'm not sure of how much Mr Richardson understands about the nature and exigency of the amnesty proceedings. He saw it as an opportunity to get out of jail. He behaved in a manner which he thought was consistent in supporting his chances. It may not have convinced the other people. However again it's a statement that we have to take as a statement ex the mouth of a person as described by Mr Garwood, but I really don't think I can take it much further.

CHAIRPERSON: Does that complete your reply?

MR RICHARD: My argument is complete, thank you Chairperson.

CHAIRPERSON: Thank you very much, Mr Richard. This concludes the hearing of Mr Jerry Richardson. I must firstly thank all the legal representatives who were involved in this hearing, for the assistance they have lent to the Committee. It's invaluable assistance and as you can even see from the questions asked by the Panel and the manner in which they have been dealt with, they were of high quality. We thank you for that.

To the victims, families of the victims, the Sono family, Tshabalala family, Zwane family, Sepei family and Ikaneng family, the Committee is indebted to you that despite this having happened such a long time, we're speaking of more or less twelve years, that you have been wounded and despite that, you still found courage to come before this Committee, that the same should be replayed like a record or a CD that is most loved. We're not putting it in that vein. This is an encouragement because there were no scenes. We had expected people obviously to be very much hurt, but people are acting in accordance with the spirit of the Act that has brought us before you or you before us. We are grateful. We hope with what you've heard, you can now put everything to rest. At least we have heard Mr Richardson who is an applicant, to come forward and say: "I did it". What is left for us is to go back and consider whether Mr Richardson qualifies for amnesty or not and for us to do that we are going to reserve our decision and hopefully in the near future, because the Act requires us to give that decision in writing and as you can see, there's three of us here, I don't know what my colleagues have in mind, nor do they know what I have in mine, but we would traverse the evidence given in such manner. Mr Richardson, we thank you very much for having come forward. We know, as you said, the conditions in jail are not palatable, but we shall give our decision in writing, as I've said and it is the Act's intention that people in your position, such a decision should be given as soon as possible. We shall endeavour to encompass the spirit of the Act and your attorney, Mr Richard as well as our offices, will communicate such a decision to you and it will be faxed. Thank you very much.

Mr Mapoma, what is our position tomorrow? Oh, I must say again, before I forget, thanks that I was able to turn my head. Thank you Ms Falati for having had the courage to come before us. What you said to us, gave us also some light that we should take into account what you have said in deciding Mr Richardson's application, whether we should grant him amnesty or not. Thank you very much and I must apologise and it has been always the wish of the Committee that we would implore people of the news media to at least as accurately as possible, we are not going to dictate to them how they should write, it's a discipline in its own, journalism, but if you could encompass what obtains here as accurately as possible, we have no problems with that, because you are also contributing towards the spirit of reconciliation and to the electronic media, it has been fashionable that interviews would be granted to the so-called high profile people. If you do that and there is a party who is involved, that party must have the opportunity either to confirm or refute the allegations made against him or her. I think that's how we should conduct the proceedings, that's why when we come here, we hear everybody and we would wish that should happen. Thank you very much everybody. We will adjourn today and Mr Mapoma will tell us about what we are doing tomorrow because I believe there is an application outstanding.

MR MAPOMA: Yes, Chairperson, tomorrow we'll be doing the application of Buhali and Dube.

CHAIRPERSON: ...(indistinct - mike not on)

MR MAPOMA: 9 o'clock Chairperson.

CHAIRPERSON: 9 o'clock.

MR MAPOMA: Yes.

CHAIRPERSON: We adjourn until tomorrow 9 o'clock. ...(indistinct - mike not on) Thank you.

MR MAPOMA: Thank you Chair.

COMMITTEE ADJOURNS