CHAIRPERSON: Good morning to you all, the day is the 3rd February 2000. We are going to consider and hear the application of Mr Simon Khaka Nghobeni. The panel comprises myself, Judge Khampepe, Judge de Jager and Judge Motata. Ms Cambanis, will you please place yourself on record?
MS CAMBANIS: Thank you Honourable Chair, I'm Crystal Cambanis, an attorney appearing for the applicant and also for one of the implicated persons, namely Mr Moses Msimande, the implicated person. Thank you Madame Chair.
CHAIRPERSON: Mr Steenkamp?
MR STEENKAMP: Thank you Madame Chair, my surname is Steenkamp, I'm the evidence leader in this matter. Thank you Madame Chair.
CHAIRPERSON: Mr Klute?
MR KLUTE: Thank you Madame Chair, my name is Armien Klute from the Attorneys firm Armien Klute Attorneys. I act on behalf of the victim and more specifically Mrs Swanepoel, Mrs Kotze, Mrs Ransaila. These victims lost their husbands during the incident to be heard today and then further two victims, Mr van Wyk and Mr van Jaarsveld who were severely injured during this incident.
CHAIRPERSON: Thank you.
MS CAMBANIS: Thank you Chair, I beg leave to call the applicant to lead evidence.
CHAIRPERSON: Yes, before you proceed Ms Cambanis? Mr Steenkamp, there is only one person implicated by Mr Nghobeni, that is Mr Moses Msimande as appearing on page 18. Was he duly served with a section 19 form?
MR STEENKAMP: Correct Madame Chair, Mr Msimande is actually present here today.
CHAIRPERSON: I'm aware of that but was he properly served?
MR STEENKAMP: He was properly served, that's my information Madame Chair.
CHAIRPERSON: Thank you. Ms Cambanis, you may proceed.
MS CAMBANIS: He was not served, Madame Chair, but I represent him and he has waived his rights and he is present, he is properly before.
CHAIRPERSON: He has waived his right.
MS CAMBANIS: Thank you.
MR STEENKAMP: I'm sorry, Madame Chair, that what my information, but he is present, thank you Madame Chair.
CHAIRPERSON: You will take note Mr Steenkamp and make sure that when matters are set down all the logistical requirements have been met before the matter is ripe for a hearing?
MR STEENKAMP: I do apologise, Madame Chair and I will make sure that that's the position, I was under the impression that was also my information and I thank my learned colleague for assisting me, thank you Madame Chair.
CHAIRPERSON: Ms Cambanis?
MS CAMBANIS: Thank you Chair. The applicant will give his evidence in Zulu.
SIMON KHAKA NGHOBENI: (sworn states)
EXAMINATION BY MS CAMBANIS: Thank you Honourable Chair.
Mr Nghobeni, you have completed an application for indemnity on the prescribed form which appears at page 2 to 13 of the bundle in Zulu, is that correct?
MR NGHOBENI: That is correct.
MS CAMBANIS: The Zulu has been translated into English and that can be found at page 14 to page 20 of the bundle, is that correct?
MR NGHOBENI: That is correct.
MS CAMBANIS: The translation on page 20 has not been signed by yourself but the Zulu has been signed by yourself, is that correct? Attested to?
MR NGHOBENI: That is correct.
MS CAMBANIS: And then at page 21 through to 24 of the bundle appears further particulars relating to the political motive, is that correct?
MR NGHOBENI: That is correct.
MS CAMBANIS: And the affidavit in Zulu, at page 12, if you'll look at what I'm showing you, is that your signature? Do you confirm?
MR NGHOBENI: That is correct.
MS CAMBANIS: And we see at page 13 that it was properly attested by the Correctional Services, can you see that on page 13?
MR NGHOBENI: Yes that is correct.
MS CAMBANIS: And is it correct that we have gone through all the English of your application and do you confirm the contents of that?
MR NGHOBENI: That is correct.
CHAIRPERSON: Ms Cambanis, I'm sorry to interpose, I have a problem with regard to the translated version of his written application. I don't have his response to paragraph 10(b). Have you been able to locate the translation of what is contained in his Zulu application?
MS CAMBANIS: I do not but a document was handed to me this morning which Mr Klute has just pointed out to me. It says the typed version and it begins - I don't know if this has been placed before the Committee?
CHAIRPERSON: No, the only typed version we have is that relating to the victim's statement, Mr van Jaarsveld, as appearing on page 28 to 35 of our bundle.
JUDGE MOTATA: Madame Chair, if we look further in the document there would be a typed version "my case was politically motivated" if you see the last two pages of the Van Jaarsveld typed version.
CHAIRPERSON: You seem to be ...(indistinct) Ms Cambanis?
MS CAMBANIS: I've only seen this now.
CHAIRPERSON: Yes.
MS CAMBANIS: I have only seen this now and I have not gone through this with him at all and I think I would like ...(intervention)
CHAIRPERSON: I would want to afford you an opportunity to consult with Mr Nghobeni in order to have regard to this important document because you are not Zulu speaking? I am Zulu speaking, I have not been able to understand what's contained in this Zulu application form. I think again this was an error from our office not to have included in the bundle the translation of paragraph 10(b) which I think is an important translation for you to take proper instructions around. I will give you a five minute adjournment for you to take proper instructions.
MS CAMBANIS: Thank you Chair.
CHAIRPERSON: We'll give you 10 minutes.
COMMITTEE ADJOURNS
ON RESUMPTION
CHAIRPERSON: Ms Cambanis, are you now in a position to proceed?
MS CAMBANIS: I am, thank you Honourable Chairperson. What I intend doing because my client is not happy with the interpretation is that the relevant - we will go through page by page and he will read his own handwriting into the record for interpretation so that we may all know what his version initially and in fact is.
CHAIRPERSON: Yes. It is his contention that the typed version is incorrectly translated?
MS CAMBANIS: It is his contention. After one paragraph we then abandoned further translation.
CHAIRPERSON: Yes you may proceed.
MS CAMBANIS: Thank you.
Mr Nghobeni, I'm placing before you the form 1 application for amnesty. Is it correct that you yourself filled out this application form?
MR NGHOBENI: Yes that is correct.
MS CAMBANIS: Now if you look at paragraph 10(a), the question that was asked is "state political objective sought to be achieved". Please would you read what you wrote in your application?
MR NGHOBENI: "I wanted the community amongst whom I resided to realise that I had been convicted falsely because the police who had arrested me had given evidence to the effect that MK members were responsible for killing" ...(intervention)
MR KLUTE: Madame Chair, I beg your pardon. I'm trying to copy down what the applicant has said, I don't want to prejudice him later on for not having jotted down precisely what his translation boils down to and unfortunately I have missed most of the first part.
CHAIRPERSON: So you'd like that evidence to be repeated?
MR KLUTE: Please, as it pleases you?
CHAIRPERSON: Would you be kind enough Ms Cambanis to take him through paragraph 10(a) so that it can again be translated?
MS CAMBANIS: Thank you Honourable Chair.
Mr Nghobeni, if you will just read a sentence and pause to give the time for the interpretation and for writing? If you will begin at the beginning and please go a lot slower so that we can write down your answers?
MR NGHOBENI: "I wanted the community amongst whom I resided to realise that I had been falsely arrested because the police who had arrested me had shown or rendered evidence to the effect that uMkhonto weSizwe members were responsible for killing people."
MS CAMBANIS: And then it goes on to paragraph 10(b) when the question is asked "your justification for regarding such acts, offences, omissions, associated with a political objective?"
Please will you read what your response was to that?
MR NGHOBENI: The offence that I committed is politically motivated because when I was arrested it was for an offence that was committed by the third force.
CHAIRPERSON: You are too quick.
MR NGHOBENI: It was an offence that had been committed by the third force and the guys that it had been committed by the self-defence units and members of uMkhonto weSizwe, that was the crime of killing people. That is why I state that my offence is politically motivated because they wanted to know where political activists were.
JUDGE DE JAGER: If one looks at the typed version, this last sentence doesn't appear at all?
MS CAMBANIS: That is correct Judge, it doesn't appear, that is correct.
JUDGE DE JAGER: No, I'm saying that because I thought I would use it as a basis not to rewrite everything but we have to rewrite everything.
MS CAMBANIS: Judge, I also tried that, it doesn't work. Thank you.
JUDGE DE JAGER: Would you repeat the last sentence please?
Could he repeat the last sentence please?
MR NGHOBENI: We were ten people in the township, that is why I state that the offence is politically motivated because they wanted to know where activists were located. Even on my arrival in prison I realised that the murder and robbery unit members.
JUDGE DE JAGER: Yes, I'm afraid he'll have to go a bit slower even, I can't keep up. My colleagues seem to be writing faster than I am.
MR NGHOBENI: The murder and unit members worked in co-operation with prison warders. They would come to fetch me from prison without authorisation from the court. When I reported this to the head of the prison, they did not take the matter up. He would inform me that there was nothing he could do. He would say I was under the jurisdiction of the SAP whereas I had already been sentenced in court. They would arrive bringing a letter that was not signed by the magistrate but that would be accepted in the prison.
MS CAMBANIS: Honourable Chair, we're just trying to find a page that hasn't been cut off at the edges for you.
CHAIRPERSON: Ms Cambanis, I must say I have not been able to read this paragraph in particular because as I was reading, you know I'm very good in Zulu, I could not be able to understand it, it doesn't make sense. From here, ...(indistinct) it doesn't make sense, I don't know whether there's a page which has been omitted?
MS CAMBANIS: That is exactly what he is saying Judge.
CHAIRPERSON: It doesn't make sense at all.
MS CAMBANIS: He says he is asking for a copy of the original because he is experiencing the same difficulties. If we can perhaps have an adjournment to find the original because it's not possible to continue with half the documents?
JUDGE DE JAGER: While we're at this, could he listen to me on this, he said "I've already been sentenced in court. They would bring a letter not signed by the magistrate but it would be accepted." But he was only sentenced on the 25th April 1995?
MS CAMBANIS: No Judge, in his application he was convicted of attempting to escape from - of escaping from custody, previously.
CHAIRPERSON: Yes.
MS CAMBANIS: And convicted in June 1993 and that sentence finished not relating to this, he was also convicted for escaping.
CHAIRPERSON: Yes.
MS CAMBANIS: Thank you.
CHAIRPERSON: That was in relation to the escape concerning the murder of one Mavivie.
CHAIRPERSON: That is correct, Honourable Chair.
CHAIRPERSON: Thank you. We hate doing this, it is definitely delaying the proceedings having to take these numerous adjournments which are necessitated because of documents not having been properly prepared by our office. In this case we must apologise to both attorneys appearing for the applicant and the victims for such unnecessary and dreaded inconvenience. How long do you need Ms Cambanis?
MS CAMBANIS: Judge, we would like to see the original or else we will have to get a fax, if it is in Cape Town which I suspect it is. Then as long as it takes to get all the pages faxed from Cape Town.
CHAIRPERSON: Mr Steenkamp, can you give an indication of how long we should adjourn to enable the Cape Town office to place us in possession of your original document which should have been part of my bundle?
MR STEENKAMP: Madame Chair I do apologise as well, unfortunately I'm not very fluent in Zulu but we've made arrangements for the documents to be faxed immediately and if necessary the original document in any event I'm going to ask for the original document to be couriered in any event immediately and a proper copy of the original be faxed to us immediately. It will take about five or ten minutes and I'm going to ask for the original to be couriered also immediately, for your records. That can be checked against our copies then completely, what is now in our possession at the moment, Madame Chair, I'll do it immediately.
CHAIRPERSON: Yes, we are not too happy with this status.
MR STEENKAMP: I do apologise Madame Chair ...(intervention)
CHAIRPERSON: The original document should have been part of the document before the Committee.
MR STEENKAMP: I understand that but I see the document has been numbered continuously so I just want to check whether or not we actually received that document because I find it very highly unlikely that we would have left out a document, a piece of document which we probably will have in our possession firstly and secondly, I've checked with our analyst, the translator that we apparently had, I've asked for that person to check again the translation which we had made but clearly the four page document can clearly not be only translated on one and a quarter page and I must also apologise, I've asked for the translation about a week ago, I received it this morning. Be it as it may, it stays our responsibility. I'm going to get those documents immediately Madame Chair and again I do apologise for that but I'll make sure we get the original if necessary even today.
CHAIRPERSON: So how long should we take an adjournment?
MR STEENKAMP: Madame Chair, I see it's unfortunately now it's 11, if you can maybe if possible give me fifteen minutes, I'll have it before you in fifteen minutes time.
JUDGE MOTATA: May I say we should take careful care in that that document being faxed to us because with my "hello Zulu", is definitely disjointed from page 7 to page 8, the last portion of page 7 and first portion of page 8.
MR STEENKAMP: Madame Chair, again it is unfortunate that I couldn't understand it but we could have checked it again and I do apologise vehemently for us not properly reading those documents and making sure that they're properly translated. I will also suggest if necessary the certificate for the translator be incorporated as part and parcel of the bundle before this hearing has been concluded. I would like to have at least some sort of certification that's saying this was a proper translation or not.
CHAIRPERSON: Yes.
MS CAMBANIS: Honourable Chair, may I interrupt? Mr Nghobeni has indicated to me that there are definitely pages what he would call definitely pages missing and we haven't even got to page 28 where there's further - sorry, page 21 of the bundle, the profile, those seem to be consecutive orders but what he remembers, he remembers actually having numbered additional pages that were added, where there wasn't enough pages, so for 10(a) or (b) he would himself have numbered extra pages that were inserted.
CHAIRPERSON: Is he suggesting that he numbers the pagination with a circle, number 7? Did he number that? The 7 that is appearing on page 8? The number which is inside the circle.
CHAIRPERSON: I don't have a - yes.
MR NGHOBENI: This one, this one is me.
MS CAMBANIS: Yes I'm sorry, that's his.
CHAIRPERSON: So that would mean by implication that there are 6 pages which are missing?
MS CAMBANIS: Yes that's what he is attempting to convey to me.
CHAIRPERSON: So what is missing is page 2, 3, 4, 5 and 6?
MS CAMBANIS: Yes, yes he recalls that that is his numbering on the last six pages.
CHAIRPERSON: The numbering within the circle?
MS CAMBANIS: Yes.
CHAIRPERSON: Mr Steenkamp?
JUDGE DE JAGER: I don't think so, perhaps if you follow, there's at the top of page 6 it's a printed 6. Then you've got the next written page 7, on the reverse side 8, then 9 and 10 and 11 is sort of renumbered the old pages or the printed pages and it ends up at 13.
CHAIRPERSON: Circled 12.
JUDGE DE JAGER: Twelve and circled 11 and the printed page numbers would appear on page - the index page 10, 11 and 12. It followed his further numbers.
MS CAMBANIS: No Judge, that is not what - he clearly remembers that he made a 6 that was a half page, he didn't go up to an entire page, his instructions are that there are missing pages, Judge.
CHAIRPERSON: Well there does seem to be a missing page at least because as I have indicated the last sentence on page 7, on our paginated 7, does not make sense if it is read with the first word appearing on our paginated number 8 so there seems to be a missing page or missing pages. Can we try and get clarity on that by speaking to Cape Town? We'll therefore take a 20 minute adjournment and we'll reconvene at twenty five past eleven.
COMMITTEE ADJOURNS
ON RESUMPTION
CHAIRPERSON: I have been requested by all the parties involved in this matter in chambers to have this matter postponed sine die to enable a proper investigation to be conducted in relation to the various documents which appear to be missing in the bundle, that is forming the basis of Mr Nghobeni's application. In view of the fact that if this matter proceeds without a proper bundle being used by Mr Nghobeni, Mr Nghobeni will be prejudiced by such proceedings. We have agreed to such a request. In the premises this matter is hereby postponed sine die. We must however mention that in view of the fact that this matter has repeatedly in the past been postponed for some reason or other we are going to prevail on Mr Steenkamp to ensure that this matter is given priority in setting it down for hearing.
MS CAMBANIS: Thank you Chair. Before we ask to be excused, my client has requested that he be returned to Groenpunt Prison. He has been moved now to Pretoria local for convenience for this hearing and he's afraid that he will stay here where the conditions are a little difficult for him. If he could please be returned to Groenpunt until the hearing resumes? Thank you.
CHAIRPERSON: Yes. Mr Steenkamp, will you facilitate such a request?
MR STEENKAMP: Madame Chair, I will do it, I've conveyed to my learned colleague that unfortunately the applicant is a long term prisoner and there's certain new regulations regarding that and but surely if that's possible, we'll definitely facilitate that.
CHAIRPERSON: Yes.
MR STEENKAMP: I just have to - obviously the responsible authority must be the correctional services but I will convey that to them immediately.
CHAIRPERSON: Thank you.
WITNESS EXCUSED
MR STEENKAMP: Thank you Madame Chair. Madame Chair?
CHAIRPERSON: Yes Mr Steenkamp? MR STEENKAMP: I'm sorry to interrupt you, maybe it's the wrong time but a certain document has been placed before you, it is the report, a copy of the report that was done by the official authorities at the time, correctional services regarding this incident. I don't want to maybe place the document now before you, I think it's a bit early to be honest, so I'm sorry to place the document before you already so I'll - the document was made available to everyone but I think it's basically pointless handing the document in by consent so if you would allow, I would just take back those documents, they're not being officially handed in yet.
CHAIRPERSON: Yes.
MR STEENKAMP: Thank you Madame Chair.
CHAIRPERSON: Yes, we hope if these documents will ultimately be used they are going to be properly paginated and be in proper bundles to facilitate proceedings. We don't want documents to be handed up in a haphazard fashion.
MR STEENKAMP: Maybe just also for the record, I've made arrangements for both my colleagues that we will probably have to - will definitely have two pre-trial meetings, the first being conducted as soon as possible where only the subject discussion will be documentation in order to facilitate proper bundle or bundles being prepared by myself or my two colleagues and just for the relevant documents, specific relevant documents because there's literally thousands of documents in this matter. A single supplement document. There was also a request from my colleague from the victims that if the applicants be allowed to add the additional information that he will be afforded the same, obviously the same right but I indicate to him that's in your hands to decide if he would also be allowed to hand in another document or more ...(intervention)
JUDGE DE JAGER: If you've got a pre-trial conference it's before the hearing, if you agree on it there or if he submits it as something that he will submit at the trial but it's given beforehand so there could be no objection.
CHAIRPERSON: Thank you. This hearing is then accordingly adjourned. We thank you for attending.
HEARING ADJOURNS
