DAY: 2


CHAIRPERSON: Good morning. We want to start the proceedings. Can we get some order. For the record, it is Wednesday the 12th of April 2000, we are continuing with the amnesty applications at that Christian Centre in Durban. The Panel is constituded as has been indicated on the record earlier. We have on the roll this morning the amnesty application of S P Khumalo, amnesty reference AM1584/96. It's been indicated to us that there are some difficulties with the matter. Ms Patel, what is the situation at this stage?

MS PATEL: Thank you, Honourable Chairperson. It appears that the applicant in this matter has legal representation on the basis of legal aid. Mr Webster was instructed by our offices to appear for the applicant. The applicant has however indicated that he wishes Mr R Dehal to represent him. As a result thereof I contacted Mr Dehal, who has indicated that he doesn't have an objection to representing the applicant, however he is not available for this week, he is committed elsewhere. And that's the position as it stands.

CHAIRPERSON: Yes thank you, Ms Patel. Mr Webster, are you able to shed any further light on this, in view of what Ms Patel has advised us?

MR WEBSTER: Mr Chairperson and Members of the Commission, I confirm that I was instructed about three weeks ago to represent the applicant. He was duly interviewed, and yesterday I received a telephone call advising me that Mr Roshan Dehal was instructed by the applicant to represent him. I established from the applicant himself this morning, that he indeed preferred Mr Dehal to represent him. In the circumstances, I would ask leave of you, Mr Chairman and Members of the Commission, to withdraw from the matter.

CHAIRPERSON: Thank you, Mr Webster. Mr Khumalo, just indicate to me, is your headset working, can you hear the interpreters?


CHAIRPERSON: Have you listened to what Ms Patel and Mr Webster told us?

MR KHUMALO: Yes, I heard.

CHAIRPERSON: Yes. Can you keep it on please. Do you want Mr Dehal to represent you and to handle your case for you?

MR KHUMALO: Yes, that is correct.

MR WEBSTER: And have you heard from what Ms Patel has told us, that Mr Dehal is not available for the rest of this week to deal with the matter?

MR KHUMALO: Yes, I heard her.

MR WEBSTER: And perhaps I should explain to you that the Commission does its business by reserving a certain period of time in a particular place and then it goes somewhere else, so we are only sitting here in Durban for this particular session since yesterday and we had planned initially to sit until tomorrow, whereafter we will be leaving and we will be going somewhere else. Do you understand that?

MR KHUMALO: Yes, I understand.

CHAIRPERSON: So that the result of all that is, if we don't hear your case now, your case will have to be removed from this roll and it will have to be reinstated onto a roll at some future date, which one is not sure when it will be though.

MR KHUMALO: I do not have a problem with that, as long as all the people here with me, who are involved in this case, would be represented properly. As I was told that Mr Dehal is the one who would be able to represent us in a proper manner and as we expect him to do as comrades. He's got some background, because he got some information from the other comrades and he was told that since we've been there in prison we didn't know what was happening about the case. We only got a breakthrough when Mr Dehal sent some lady to come and tell us that he was prepared to represent us, and then this lady told me to make an application, to send it to Cape Town and tell the TRC office in Cape Town to ask Mr Dehal's representation. It's not that I have a problem with Mr Webster, or I know him for something else that is not right, but I cannot sit here and have him represent me.

CHAIRPERSON: We assume that you are still in custody, you're serving a sentence in connection with the matters that you are applying for amnesty.

MR KHUMALO: Yes, that is correct.

CHAIRPERSON: And do you understand that if your matter is not heard now, it will in all likelihood be matter of months before the matter can be re-enrolled and be heard by the Commission. Do you understand that?

MR KHUMALO: Yes, I do understand that. Even if we would start today with the case, I am sure that I was going to encounter problems because the other comrades, Madala and Jabulani Nzimela, they also applied for amnesty but their forms got lost mysteriously in the Cape Town office. Therefore, there are incidents where they are also involved in and the lady who is working with Mr Dehal, told us that if I'm going to testify here about things that I did with Madala ...(indistinct) and Jabulani Nzimela, at the end they are going to encounter problems because they will look like people who did not apply for amnesty. What actually happened - I hope that it is also going to help them if we wait for Mr Dehal, maybe their applications will be found in the Cape Town office.

CHAIRPERSON: Yes, no the point that I was just trying to emphasise is that you accept that you will probably spend some further time in custody before you can hear what the outcome of your application is. You understand that.

MR KHUMALO: Yes, I do understand that, Chairperson. I do not have a problem with staying for a while in jail, knowing very well that eventually what we are going to say here is going to help the other people who were also victims in the incidents and the other people who were also harassed during the struggle.

CHAIRPERSON: Yes. And I'm raising these questions because we as an Amnesty Committee have a duty to try to get the cases of people who are in custody done as quickly as possible, because although for everybody the applicants are important, for them perhaps it's slightly more important than people who are not in custody, and that is why we are raising these things with you, to make sure that you do understand what the consequences are of the matter not proceeding. So that's the sole reason why we are raising these things with you.

MR KHUMALO: I appreciate that, but truly speaking, I am obliged not to get any further with the case. As I've already explained that there were other comrades who were with me in the struggle, if I testify today I know very well that it won't be a good idea, things won't be the same tomorrow because I will look more like a person who is implicating the other people.

Even the fax of Madala, the one that was received last Thursday, it stated that he forwarded the application after the deadline, but we knew very well that that was not true and we didn't know what happened, how did they get lost in the office. Mr Dehal told his clerk that if we wait for the moment they will get a chance to investigate, because he didn't want myself, Madala and Jabulani Nzimela getting into problems or a conflict.

CHAIRPERSON: The other considerations that we normally take into account are matters like there are other people who also are interested in this matter. As you can see, there are quite a number of people present here, there are two further lawyers, apart from Mr Webster and Ms Patel, who are here and we must take all of those factors into account when we deal with these matters, so that's why we want to make sure that what we are doing is assisting your case but it's not doing harm to the interest of the other people. So these matters, unfortunately, always also concern other people whose interests we must take into account, so we're trying to be fair to everybody. But we're not blaming you for anything, I'm just mentioning to you how we should look at these matters.

MR KHUMALO: Chairperson, I must also take into consideration such matters, so that I'm not involved in some conflict with other inmates, because we are enjoying good relations with the other comrades in prison. If I am going to testify here today and say everything that happened, whereas they are complaining that they are not in a position to testify because their forms are missing. I do not want to betray people by testifying here under these circumstances. For us to stay in jail, I know eventually that some of the people who were harassed and ourselves will benefit, because if we are granted amnesty the people who were victims, it's very important, because we also get bad dreams when we think about the fact that all we did was a mistake, but we are grateful to get a chance to ask for an apology. I would like you, Chairperson, to bear in mind that it's not my intention not to continue here but I am forced by the situation because some people would be dissatisfied at the end.

CHAIRPERSON: Yes, thank you. Mr Harkoo, is there anything that you wanted to add?

MR HARKOO ADDRESSES: Mr Chairperson and Members of the Committee, I am representing the Reddy family, being victims of a particular incident. Whilst I would prefer that the matter goes on, I leave the position as ...(indistinct). I don't have much of a choice in the matter.

CHAIRPERSON: Yes, thank you, Mr Harkoo. Mr Panday.

MR PANDAY ADDRESSES: Thank you, Mr Chairman. Mr Chairman, I confirm that I've also been instructed to represent victims as the result of the acts committed by the applicant. Mr Chairman, just to ensure that we do not have any other problems in the future, at some stage I was informed by the TRC, that the applicant was a person that only understood Zulu and would have had problems in any legal representation other than that of persons Zulu-speaking.

Now Mr Chairman, if the applicant can confirm that he accepts Mr Dehal is going to be his attonrey and not on the next occasion we run into some other problem, because my learned friend and I we are well aware that Mr Dehal is an attorney of Indian origin and I hope he's got the necessary staff to cater for the applicant, so that we would not have a similar situation occurring here on the next occasion. Unfortunately it is as such that the matter will invariably have to be adjourned. Also for the Committee to take into consideration when setting down this matter, to kindly consult myself and my learned friend, just to ensure that we are also available suitably - well advised suitably, for the day it's going to be heard. Thank you.

CHAIRPERSON: Yes, no those are factors that are normally taken into account and dealt with by the Commission, even the matter of Mr Dehal's means of communication with his client. Thank you very much.

MS PATEL: Honourable Chairperson, sorry, before you proceed, would you like me to address the question of the applicant's allegations that his co-accused had sent in amnesty applications to us, at this stage, or would you like me to hold it over for some other stage?

CHAIRPERSON: No, perhaps we shouldn't deal with it now, I think those matters have been brought to the attention of the Committee and there were documents that were presented to us as well in that regard. So it's something that seems to have been coming on, so I think we will have to deal with it as part of the preparations for the resumed hearing.

Well we have listened to what the legal representatives and the applicant had said, it appears as if through some logistical problem - and this is not really uncommon, there has been some misunderstanding about the legal representation for the applicant in this matter. The Committee has engaged the services of Mr Webster, who has been prepared to deal with the matter on fairly short notice. And that, I must add, is the kind of co-operation that we normally get from the attorneys and the other legal representatives in dealing with the matters that we have to deal with, and without that kind of co-operation we really wouldn't be able to be doing this work.

We have a great deal of work to do, there are still a number of remaining applications to be dealt with and everybody, in their own way, contributes to us being able to do that. But it appears as if the applicant has engaged the services of a legal representative of his choice and as much as postponements and delays in finalising matters cause difficulties for us and for the process, it is one of the fundamental principles that we have to take into consideration in ensuring that the proceedings are fair, that the applicant, like the other interested parties, are satisfied with the arrangements in regard to their legal representation.

So under those circumstance, we unfortunately will not be able to proceed with this particular matter today, we will have to postpone the matter. We are unable to allocate a date on which the matter would be heard again. That is normally arranged administratively by our office in Cape Town, in conjunction with the legal representatives, which will happen again in this particular case. And the matter will, as I have tried to indicate earlier in discussing it with the applicant, it will have to slot in where there is a place and a space available to hear it next, which by the nature of the things will probably be in a matter of months. So under those circumstances we would adjourn the matter for a date to be arranged, when it will be heard. We must apologise for the normal inconvenience that goes with this sort of situation, but we try to ensure that the matters are dealt with as fairly as possible, and we think it's fair under these circumstances, to postpone and to give an opportunity for the legal representative who has been engaged by the applicant himself, to be availble to deal with the matter. So under those circumstance, the matter is postponed.

Mr Webster, we would excuse you, we thank you for your assistance and your willingness to come into the matter, but for now you'd be excused then.

MR WEBSTER: Thank you, Mr Chairman.

Perhaps before I leave, and following up upon what my colleague, Mr Panday, has referred to, in the course of preparation I picked up some important problems with the translations of the application form for amnesty. The document that I'm referring to, Chairperson, is the document numbered 1 to 8, I think - it is 1 to 7, being the translation of the signed document 8 to 17, and I believe in the interest of justice I should just place this on record, so that when the matter is heard next time these problems will have been sorted out, because there are inaccuracies in the translations.

- The ones I've picked up, for the record, appear on page 2 of the translation and page 10 of the original Zulu version, paragraph 9(a)(iv).

- The next one appears on page 3 of the translation and it is on page 12 of the Zulu application, paragraph 10(a).

- The next one appears on page 4 of the translated document, and paragraph 13 of the Zulu application, of the Zulu form, paragraph 10(b).

- The next one is also on - or perhaps before I go there, just in order to clarify. On page 4, 10(b), it's the one re: Vusi Maduna(?).

- The next one which also appears on page 4 of the interpreted document and page 14 of the Zulu form, is towards the bottom of the page, dealing with Moses ...(indistinct) Dlamini.

- The next one is on page 5 of the interpreted form, page 14 of the original application form, re: paragraph 10(d).

- The next appears at page 6 of the intrepreted form and page 16 of the original form, re: paragraph 13(a).

These are very material and need to be attended to when the matter comes up, as the interpretations as they stand can lead to a miscarriage of justice, particularly if the persons who are dealing with the matter do not understand or cannot read Zulu. Thank you, Mr Chairperson and Members of the Committee.

CHAIRPERSON: Thank you, Mr Webster. That has been noted. The translations are normally a working translation. Unfortunately it is financially prohibited to have a professional translator to do the work for us, so we have these working translations. We have amongst the Members of the Committee, people who are able to deal with the original text in most of the official languages, so normally they are picked up, but it does help us to hear that you have pinpointed those particular matters and those will definitely be attended to. But as I say, it's normally just a working translation of the document. But thank you very much.

MR WEBSTER: Thank you, Chairperson.

CHAIRPERSON: Mr Harkoo and Mr Panday, we will also excuse you. Thank you very much for your trouble to come through.

MR HARKOO: Thank you, Mr Chairman.

MR PANDAY: Thank you, Mr Chairman.

MR HARKOO: There's just one request. I've noted in the incident that I am particularly concerned about, that we have only a transcript of the sentence, which is just part of the entire judgment, and I think it's necessary. If the Evidence Leader could ensure, at least for the next hearing, timeously, hopefully we could get it, a transcript of the judgment in its whole. Thank you.

CHAIRPERSON: Yes, we'll note that. We normally try and get these things where they assist in dealing with the matter. Sometimes it's difficult, sometimes it's easy, but I agree, we should try to get as full a picture as possible.

MR HARKOO: Thank you.

CHAIRPERSON: Well thank you very much. Under those circumstances, we will then adjourn the matter. We will also stand down until the next matter is available to be proceeded with.

MS PATEL: Yes, that is correct. Apparently the applicant in that matter ...