Amnesty Hearings

CHAIRPERSON: Since the matter was adjourned, we have received a number of documents. When I say we, I mean I and in most cases the legal representatives. I propose to discard those documents now and to put them onto the list of exhibits. We already have A and B. The next document which I think we should mark C, is an application form for amnesty in Zulu. It is, we are told, the Zulu version of the English translation which appears on page 11 of the bundle.

We have also received a third amnesty application, apparently written in the handwriting of the applicant, dated the 20th of June 1996, which I will mark as D.

We have also received - sorry, I have missed out one - an English translation of the Zulu application at page 1 of the bundle which I will mark E.

We have received three letters written by the applicant, the first one dated the 17th of October 1996, which I will mark as F. The second one dated the 29th of October 1996, G, and the third one marked the 26th of March 1997, which I will mark as H.

I understand, Gentlemen, that you have not received a copy of the Zulu translation, C. Is that so?

MR DEHAL: That is correct, Judge. With your liberty, I borrowed your copy and made myself a copy.

CHAIRPERSON: What is your attitude towards proceeding with this matter now?

MR DEHAL ADDRESSES: Mr Chairperson, I have taken instructions on all of these annexures. I am ready to proceed. May I just outline what the instructions are, relative to each of these annexures, briefly.

Firstly, I will not deal with Annexure E because it is purely a translation of the Zulu on page 1 of the bundle. Page 1 of the bundle consists of an application which the applicant concedes is his application for amnesty, but for the signature thereon. The handwriting on pages 1 to 7, sorry 1 to 9 of the bundle, is indeed his handwriting, that the application contained therein is in fact his application. He cannot recall why he did not sign it, but the signature thereon is not his. That's the only reservation he has on that application.

So going to Annexure E, I have no problems with Annexure E, that being the English translation of the Zulu application for amnesty in the bundle, page 1 onwards.

May I deal with the other annexures?

CHAIRPERSON: Yes.

MR DEHAL: E is the interpretation of page 1, the application on page 1 of the bundle. I have not checked with the applicant expressly, word for word, whether the English interpretation is correct, having regard to the Zulu.

That, Chair, leads me to the remaining annexures. Annexure C which is the Zulu version of the English translation on page 11 of the bundle, the applicant says is not his application. He says it's not even his signature at the back hereof. As to Annexure D - shall I pause for a while, Chair?

CHAIRPERSON: Can you wait for one moment? I have just got to go and get a pad.

MR DEHAL: Shall I mark yours for you?

JUDGE DE JAGER: Yes, I've asked for copies of C and E, because I haven't got copies with me at the moment.

MR PANDAY: Chairman, I don't have copies of C.

MR DEHAL: Shall we wait until we all have copies?

CHAIRPERSON: Right.

MR DEHAL: Thank you. Chair, then the position is briefly, with Annexure E we have no problems except that I have not checked with the applicant word for word whether it's a detailed correct translation, but we have no difficulty with that being what's presented as a translation of the Zulu aspect.

With Annexure C, I have mentioned that the applicant says - and this is the Zulu version of the English translation on page 11 onwards, that this is not his application, it's not his signature thereon.

JUDGE DE JAGER: So that would be pages 11 up to ...(intervention)

MR DEHAL: No, sorry, it's not a part of the bundle. This is that additional application which is the Zulu version of the English translation. The English translation being on page 11 of the bundle.

JUDGE DE JAGER: Ja, the English translation is on page 11 up to page 16, 17?

MR DEHAL: Oh sorry. The index should tell you. 11 to 17.

JUDGE DE JAGER: Ja. Now if C, if this is a translation of C, am I correct?

MR DEHAL: Yes. Well, I haven't checked but that's the level at which its premised.

JUDGE DE JAGER: And if C is not his application then 11 up to 17 wouldn't be his application, or a translation of his application either?

MR DEHAL: That follows, correct.

JUDGE DE JAGER: So that should, subject to argument, be excluded from the bundle because it wouldn't relate to him at all?

MR DEHAL: Indeed. Correct.

JUDGE DE JAGER: I must point out that I find it rather strange that the facts referred to in many respects, are facts related to this incident.

MR DEHAL: Well, I also find that strange. In fact it becomes increasingly strange as you deal with the remaining annexures.

JUDGE DE JAGER: Alright.

MR DEHAL: That takes me to Annexure D. This is a further application, or purported application for amnesty. This is an application for amnesty in English and one that appears to be dated 20th June 1996. The applicant says that this is not his application.

CHAIRPERSON: Not?

MR DEHAL: No, this is not his application. In fact if you look at the handwriting, it is also substantially different from anything that comes near his. I only mention this Chair because when you dealt with the annexures, you said which appears to be - which is alleged to be the applicant's handwriting and the writing of his name and the signature, slants in the opposite direction from his. He's a right-handed person, all his signatures on those annexures that I've handed in, Exhibit A, slant to the right. This is a signature slanting to the left.

JUDGE DE JAGER: The handwriting itself in the body of Exhibit D, isn't that his handwriting?

MR DEHAL: No. Nothing in this application relates to him, he says.

JUDGE DE JAGER: Because that seems prima facie to correspond with the handwriting on some of the letters.

MR DEHAL: Well, that's unfortunately not my view, with respect, but you will hear that even if that view be correct, it will become immaterial once you've heard what my instructions are on the letters.

JUDGE DE JAGER: Right.

MR DEHAL: You see that what's - at that level alone if one compares the letters and finds them similar, you'll find that the writing on this application, Annexure D, slants to the left as though it were a left-handed person's writing, whereas the writing on the letters slants in the opposite direction.

JUDGE DE JAGER: And is it also his contention that nobody else wrote letters on his instructions or completed application forms on his ...?

MR DEHAL: That's an interesting question. In fact the version there is, I hope I'm saying it correctly, that no other application apart from the application in the bundle, page 1 to page 10, was ever made by him directly or to any other person. So effectively, either by him directly or no person acting on his behalf ever did an application for him, duly authorised by him.

CHAIRPERSON: And the letters, are you coming - or does he accept the letters?

MR DEHAL: No, he does not Judge. F, G and H - sorry, I'm having some problems with my earphones, do you mind bearing with me?

Thank you. Anyway - sorry, thank's for bearing with me. The version, Annexures F, G and H, is that this is not his letter, he had not recorded this letter and there are three things to note in this regard.

JUDGE DE JAGER: Well, the different letters, it's three separate letters.

MR DEHAL: There are three separate letters.

JUDGE DE JAGER: And none of them ...(intervention)

MR DEHAL: None of them are his. He says he never writes in English, which is the reason why the application for amnesty contained on pages 1 to 10, is actually in Zulu. And the second thing he says is that - Mr de Jager, you raised this earlier, he did cause a letter to be written in English on his behalf, but that was only on one occasion prior to his application for amnesty, as for pages 1 - 10 of the bundle being handed in, being completed and signed by him. He says that letter was done by another person at the prison on his behalf as he spoke in Zulu and that person wrote in English, calling for an application for amnesty to be sent to him, an application form that must be in the Zulu language. Now if you look at Application for Amnesty, pages 1 - 10 of the bundle, you will see that its a Zulu application form, the content is also in the Zulu language, in addition to the details handwritten therein by the applicant.

CHAIRPERSON: So the applicant says these letters are forgeries and must, if they were sent from the prisons, be sent by someone there with a view to implicating him?

MR DEHAL: Yes, he's got some versions to explain these, but I think that's lengthy and he'd rather say it.

CHAIRPERSON: Well, it might be necessary to get some expert opinion on this. He wrote the first one, page 1?

MR DEHAL: Of the bundle, indeed.

CHAIRPERSON: Of the bundle, yes.

MR DEHAL: Yes.

JUDGE DE JAGER: The signature appearing on Exhibit B, no that's alright, that's ...(indistinct - microphone not on) signature.

MR DEHAL: Yes.

MR SIBANYONI: Does your client know who is this person who was writing all these letters, purporting to be him?

MR DEHAL: No, he doesn't know, in fact he can only surmise and he tells me on instructions that there are persons within the ambit of the prison who are opposed to him politically and have expressed to him the wish that he should not be granted amnesty, persons who are privy to the knowledge personal to him as to his details, namely his prison numbers, board numbers, ID numbers, etc.

He says he never writes English, which is why his application is in Zulu. He doesn't speak English but for a little bit of understanding of it. He is also concerned actually about the pages in the bundle, the English translation pages 11 to 17 and especially the content thereof for he says somebody is mischief-making and has a bent design to go against his application.

JUDGE DE JAGER: Am I correct in saying that his application would then be pages 1 up to 10 of the bundle?

MR DEHAL: Correct, and ...(intervention)

JUDGE DE JAGER: And the translation thereof, being Exhibit E?

MR DEHAL: Correct.

JUDGE DE JAGER: And are there any other documents in the bundle, the bundle of the hearing which could be regarded according to him from his point of view, as fraudulent documents that should be ignored or could we pay attention to the rest of the bundle?

MR DEHAL: Well to answer the question, unfortunately I have not taken instructions on the bundle itself, pertinent to the enquiry on whether it is fraudulent or pertinent to his application, but I perhaps can ease the position by saying this. I have taken instructions from him for the purpose of this application for amnesty on the bundle itself before these Exhibits A - E surfaced, and he's had no difficulty with them, except for the English translation contained on pages 11 to 17. So subject to him confirming it, I can say that he's not told me that he's had any difficulties with it.

CHAIRPERSON: Do you know when he was sent to Westville Prison?

MR DEHAL: Sorry Chair, I don't have that detail, but I could always seek that from him.

CHAIRPERSON: Or we could get that - I suppose the prison's department must have that. Right are we ready to go on, or what's the position?

MR PANDAY ADDRESSES: Mr Chairman, we've also been burdened with a lump sum of documents now and I believe that the only person that may be possible to assist us at this stage in terms of how these documents got to this stage, or into the application of the applicant, would be that of the Investigator.

Mr Chairman, in the circumstances, I think it would be only fair that if one could have a quick word with the Investigator in this matter and maybe she should give us some direction as to the ascertainment of these documents into the bundle or into the file. It is quite obvious that this matter has been put on file. It is quite obvious that these documents have been brought under the same amnesty number, I would presume, and to accept it on the face of it at this stage that the applicant then merely denied the origins of the documents by virtue of the fact that most of the documents seem to be contrary to his version, I therefore believe that one would need to at least consult with the Investigator for them to at least give us some direction as to how these documents did arrive in the file and whether they did have sight of this prior to this because it would seem very farfetched for one to obtain the ID number, for one to obtain the - well almost the entire facts of what really took place on the day in question, to also obtain the amnesty number for the documents to arise out of the same application and to merely go on at this stage without having some direction from the Investigator or input from the Investigator, at this stage would be detrimental to the victim's case, Mr Chairman. It is for these reasons I submit that I'm not in a position to readily just proceed without having some direction from the Investigator as to how these documents have originated. And more importantly, Mr Chairman, there are letters, Exhibits H, G and F. It is quite clear that these letters have originated out of the prison and it is to my understanding, in prison there's always a record kept of outgoing letters by the prisoners as well as incoming mail to them and as such, maybe one would have to briefly contact the prison to merely confirm if letters were ever sent out by the applicant himself, Mr Chairman.

I don't know if my learned friend, the Evidence Leader, has any input in this matter, Mr Chairman.

MR MAPOMA ADDRESSES: Thank you, Chairperson.

Chairperson, perhaps I will be in a position to explain insofar as how these documents came into being. These documents actually, which have been Exhibit C, E, F, G, H, are documents which have been discovered from the Cape Town office, the Amnesty Committee office. In fact they are not dealt with or received by the Investigator. These documents are in Cape Town office. They were addressed to the Cape Town office and a file was opened for them.

I have been advised by the Evidence Analyst, who was preparing this bundle of documents, that these documents were erroneously in a separate file, apart from the file number 7921/97, which file apparently was a duplicate file opened for the applicant and it is out of that file that these documents have been discovered and sent to the Committee. The Investigator only received these documents as well today. She has not been in possession of these documents as well, so I am of - I submit that she won't be able to take the matter any further in the circumstances.

I gather, Chairperson, from the applicant's legal representative, that he disowns Exhibit C, D,F,G and H and seeks this Committee to disregard those documents. I object to that Chairperson. These are the documents which have been received by the Amnesty Committee and contained in the records of the Amnesty Committee for the purposes of this application. The fact that they were inadvertently not in the file which was used for preparation of this bundle does not make these documents not to be the documents received from the applicant to the Amnesty Committee, as far as the Amnesty Committee is concerned, and they are the documents of and concerning the applicant's application.

I notice, Chairperson, that the applicant disowns in particular Exhibit C on the basis that the signature is not his, but the very same applicant claims the application which appears on page 1 of the bundle onwards to be his, yet he disowns the signature. Chairperson, it is my submission that the applicant cannot be heard to be denying the application simply because of the signature, whereas he can claim the application with the signature which is not his. It is my submission therefore Chairperson that these documents ought to be considered in dealing with this matter. Thank you.

JUDGE DE JAGER: If the signature on page 9 is not his and it's the only application that we've got, what would the position then be? Would we have a valid application before us?

MR MAPOMA: Sir, the matter would be determined by the explanation that is given by the applicant as to why a signature which is not his, came to be in this application, if he owns the signature in one way or another

JUDGE DE JAGER: Is there any explanation why he forwarded a fraudulent application to us, not bearing his signature, but somebody else's signature?

MR DEHAL: With respect Mr de Jager, that's premised on the basis that at the time he forwarded it, it had that signature which is not his. What he says, of course, is different. What he says is that he completed pages 1 to 10 in the Zulu language after he received the Zulu application form. There was no signature on it when he forwarded it.

JUDGE DE JAGER: No.

MR DEHAL: He had forgotten to sign.

JUDGE DE JAGER: The trouble is, at the bottom, after he'd written the last word, there stands written in Zulu that it requires his signature.

MR DEHAL: Yes.

JUDGE DE JAGER: And now it's been signed, but it's not signed by him.

MR DEHAL: Correct.

JUDGE DE JAGER: On completing the form in his own language, didn't he understand that he should sign it?

MR DEHAL: I asked him the same question and his response to me was, if I recall it correctly, he doesn't know why he didn't sign it, but he knows that he didn't sign it.

CHAIRPERSON: So the statement by the Commissioner of Oaths is false?

MR DEHAL: It would follow, yes.

CHAIRPERSON: So if one discovered who that Commissioner of Oaths was, presumably ...

MR DEHAL: A ...(indistinct)

CHAIRPERSON: It would have been someone in the prisons department.

MR DEHAL: Yes. May I just clarify at this stage? I think the Evidence Leader has misunderstood my stance and is reading too much into it. My position and the applicant's position is simply this. There are documents now placed before us. Insofar as Exhibit C, D,F,G and H are concerned, yes, we say they are not ours. We can't be standing here and saying they are ours when they are not, but we are not saying you've got to expunge them from the record. It is crucial that these documents have come to be with the TRC. It is prudent to establish whose documents they are, what the source thereof is, and I think in the interest of justice, what you've said here about a handwriting expert or some form of expert being engaged is correct and perhaps at this stage what we should do is establish how we should go ahead in establishing the source, authenticity, writings etc of these other disputed annexures are and then adjourn at this stage to traverse those exploratory lines.

MR PANDAY: Sorry, Mr Chair. If I may just add? I may stand to be corrected but if I do recall the evidence of the applicant, when being led insofar as his application on page 1 to 10 was concerned, what the applicant did say is that he had not signed that document, but merely confirmed the correctness of the document, thereby implying that he had not written it. Now today it's been led that the applicant has actually written or wrote out his application in pages 1 to 10 but has not signed it.

MR DEHAL: No, no, no there's no contradiction there. What my learned colleague is doing is by error looking at one line of evidence at the beginning when it was evidence-in-chief. It was dealt with subsequently on two or three occasions. I think you, Mr Chair, or was it Mr de Jager asked the applicant directly some questions about the application, whether he disputed the signature and then there was a subsequent occasion when you as the Chairperson misunderstood that the applicant disavowed pages 1 to 10 as being his application, but rather the interpretation of pages 11 and 17 as being his application. At that stage then clarity was sought from the applicant and he said no, no, pages 1 to 10 is my handwriting, that's what I completed, I had forgotten to sign it but pages 11 - 17 I have difficulty with. Then followed some discussion between Mr de Jager and you Mr Chairperson, to this effect - you understood him as saying pages 11 - 17 are not his, Mr de Jager then corrected you and said no, he has problems with that one paragraph contained in one of those pages, I don't remember the page.

CHAIRPERSON: 14.

MR DEHAL: Yes, page 14. And then we sought clarity from the applicant and he said, to the extent that he has problems with the interpretation, he has not looked at the balance of the interpretation, he therefore does not go by those pages 11 - 17.

Then followed the enquiry on where that interpretation came from and then we sought an English translation and following upon the English translation, a dearth of how the information and documents came to be.

CHAIRPERSON: ...(inaudible)

MR DEHAL: Sorry Sir, I think your speaker was not on, so it's not been interpreted and he's still waiting.

MACHINE SWITCHED OFF - NO RECORDING: MAFANDO JOKONIA MAFU: (s.u.o.)

CHAIRPERSON: Will you please write out your full name and then the next line or couple of lines down will you please write out the name of the first prison you were sent to after your conviction and the date when you were sent there, as far as you can remember. Right.

The next prison you were sent to and the date you were sent there. Do you understand what I'm asking you? I want to know which prison you went to immediately after your conviction, then if you were changed, what was the next prison you went to? Now were you sent to any other prison after that?

MR MAFU: There's quite a number of prisons which I was sent to.

CHAIRPERSON: Well which are the ones? Write them down please in the order in which you went there. Have you written them all down now?

MR MAFU: Yes, but the last three, I don't remember the dates.

CHAIRPERSON: Can you give me back that paper then now?

What has been written here is the name Mfanlo, M-f-a-n-l-o Mafu Joconia, J-o-c-o-n-i-a, then Umzinto June 14 1991, Westville June 14 1991, Pretoria, spelled P-r-i-t-o-r-i-a, Marriburg, M-a-r-r-i-b-u-r-g and then Income.

INTERPRETER: It's Encome in Zulu, not Income, Encome prison.

CHAIRPERSON: Are you not in Westville Prison at the moment?

MR MAFU: I'm in Westville at the moment.

JUDGE DE JAGER: And weren't you in Pietermaritzburg New Prison?

MR MAFU: I've been there.

JUDGE DE JAGER: When were you there?

MR MAFU: In 1994, after I had been transferred from Pretoria Prison.

MR PANDAY: Sorry Mr Chairman, is that not referred to as Marriburg? Is that the same prison as Maritzburg, if you could confirm that?

CHAIRPERSON: As what?

MR PANDAY: The list of prisons you have there, Marriburg, is that the same prison as Pietermaritzburg? Can he just confirm that?

MR MAFU: Yes, I meant Maritzburg.

CHAIRPERSON: Is it correct that when you are in prison, if you want to send any mail, you have to do it through the prison authorities?

MR MAFU: Yes, you give the letter to the prison warder and then they will send it to wherever you want to send the letter.

JUDGE DE JAGER: And they also forwarded your application? You handed it to the prison warder and they forwarded your application to the TRC, is that correct?

MR MAFU: Yes, I gave it to an Indian guy who brought the forms in Pietermaritzburg prison.

JUDGE DE JAGER: Can you remember his name?

MR MAFU: No, I do not remember his name.

JUDGE DE JAGER: Can you remember any of the warders that you've given letters to while you were in jail, to post it for you?

MR MAFU: I don't quite follow, whether you are referring to an ordinary letter or a specific?

JUDGE DE JAGER: Ja, ordinary letters.

MR MAFU: It is difficult for me to remember because I've been to quite a number of prisons and usually I used to give to different prison warders to send letters home for me.

JUDGE DE JAGER: No, I quite agree with that but can't you remember the name of a single one? One that's been kind to you and trying to be helpful or one who wasn't so kind and you remember him because you didn't like him?

MR MAFU: Prison warders are the same. You would give your letter to whoever came to work that day.

JUDGE DE JAGER: Ja, but you haven't answered my question still. Can you not remember a single name of any of the warders that took letters from you?

MR MAFU: I can remember now a recent event. I do remember that in Westville Prison I gave it to Makatini Dlamini and Steyn(?) and these are the recent letters that I've wrote in Westville prison.

CHAIRPERSON: We are having enquiries made with a view to attempting to ascertain dates of receipt and matters of that nature. I think we will have to adjourn this matter now till tomorrow. I don't want to keep everybody hanging around, particularly those who have to be taken back elsewhere. What time tomorrow? 9.30. We have this other matter set down for tomorrow too. I propose to make a - I don't propose, I propose to have photostat copies made of what the applicant wrote down. It will be Exhibit J and I'll make them available tomorrow morning. I take it none of you - if you want to have a look at them now you are at liberty to do so.

MR PANDAY: Sorry, Mr Chairman, before we just adjourn, could I just enquire from the applicant if he's ever written any letters to the TRC?

CHAIRPERSON: Certainly.

Did you hear that question?

MR MAFU: Yes, I did. The only letter which I wrote to the TRC is the one that appears in the bundle from page 1 to 10. I don't remember any other matter, in fact let me just say, I never wrote another letter. Another letter which I know is that I requested another prisoner to write a letter to the TRC for me in order to apply and after that I received the application form.

MR PANDAY: And did you write any letter to the Minister of Justice?

MR MAFU: Somebody helped me to write a letter to the Minister of Justice, because we were sentenced, we were given a death penalty in fact and so my attorney is the one who wrote a letter to the Minister of Justice. It wasn't myself.

MR PANDAY: Thank you.

MR DEHAL: And for clarity, I wasn't his attorney at the time.

MR SIBANYONI: Did you write letters to your family when you were in prison?

MR MAFU: Yes, there are letters that I do write and send them home. Even with this event, I did write them to let them know that I was going to appear before the Truth Commission.

MR SIBANYONI: Were you restricted in connection with the numbers of the letters you would write within a month or so? Was there any limit?

MR MAFU: No, there is no restriction at all. You can write as many letters as you want and you can send them anywhere you want to send them. There isn't any restriction whatsoever.

MR SIBANYONI: Now you say you will give the letter to a prison warder. Will the prison warder just take that letter to wherever it is or there is an office where the letters would be registered and posted out? Do you know that, maybe?

MR MAFU: I wouldn't know when it comes to that because what happens that in the morning when we are counted or when they check us, that's when we give the prison warder a letter, if you have a letter and then they will close the gates and then later they will come after we give him whatever we needed to give him to mail.

JUDGE DE JAGER: So you've applied for amnesty, you've sent your form in November 1996, is that correct?

MR MAFU: Yes, it was in 1996.

JUDGE DE JAGER: Have you received any letters or acknowledgement that the TRC, that they received your application?

MR MAFU: Yes, a form, a certain form was sent to me and it was written in English, but then I didn't fill it in. Another inmate helped me and he's the one who interpreted that form to me and told me that this form was just an acknowledgement that they had received my letter.

JUDGE DE JAGER: And did he fill in a form on your behalf then, this English form?

MR MAFU: Yes, he did.

JUDGE DE JAGER: Was it a long form?

MR MAFU: It was a three page form but I was only needed to fill in four sentences in a certain paragraph. There were just four questions.

JUDGE DE JAGER: Alright and who was this prisoner who assisted you?

MR MAFU: Nhlanhla.

JUDGE DE JAGER: Nhlanhla. In which prison was that at that stage?

MR MAFU: He is with us in Westville.

JUDGE DE JAGER: Is he still there?

MR MAFU: Yes, he is still there.

JUDGE DE JAGER: And how long ago was this?

MR MAFU: In 1998, I don't remember the month or the date.

JUDGE DE JAGER: Were you not worried when you heard nothing when this matter would be coming up for a hearing? Didn't you enquire, "Listen, when are you placing the matter on the role for hearing?"

MR MAFU: No, I didn't because in that prison there was no one from the Truth Commission. The only thing which we received were the forms and there was no one from the TRC in the prison for me to ask.

JUDGE DE JAGER: So you couldn't write a letter to the TRC?

MR MAFU: No, I didn't, I only fill in the forms.

CHAIRPERSON: 9.30 tomorrow morning.

MR MAFU: Thank you.

CHAIRPERSON: I think after our other experiences, 9.30 is safer.

COMMITTEE ADJOURNS