&#9;TRUTH AND RECONCILIATION COMMISSION

&#9;AMNESTY HEARING

DATE:&#9;22ND JANUARY 1999

NAME:&#9;PUMULELO GUMENGU & AARON TYANA

APPLICATION NO: AM 3610/96 & AM 3786/96&#9;

MATTER:&#9;POSTPONEMENT

DAY:&#9;&#9;5

--------------------------------------------------------------------------CHAIRPERSON: Ms Patel?

MS PATEL: Thank you Honourable Chairperson, the next matter on the role is that of Gumengu and Tyana. I believe both my learned colleagues would wish to address you, thank you.

CHAIRPERSON: Can we kindly have the names of the legal representatives appearing in this matter for the record?

MR MALAN: Kobus Malan from the Attorneys firm Kobus Malan Prokureur from Northern, on behalf of both the applicants, Pumulelo Gumengu and Aaron Tyana.

MR VABAZA: Thank you Honourable Chair, I am Xolise Vabaza. I have been instructed by Attorneys Ntsebeza Inc, acting for the families of the victims.

CHAIRPERSON: Thank you very much. Mr Malan, what is the position?

MR MALAN: Honourable Chairperson, I was informed by Ms Patel last night that apparently it seems that my colleague would like to ask for a postponement in this matter.

&#9;I indicated that in the circumstances that prevailed, it will fit our case as well, due to the fact that we could not succeed in getting hold of Mr Aaron Tyana, informing him of this meeting in the time allocated.

&#9;Nevertheless, all the efforts that we made, we were not successful in getting hold of him. Apparently he is in Lesotho at the moment, and there is no contact that we can make.

&#9;There is also another technical aspect and that is that his affidavit is not contained in the bundle that was before, presented to us. If a postponement would be granted, we would make use of the opportunity to get this included.

CHAIRPERSON: Mr Vabaza, I believe that you have a formal application to make for a postponement of this hearing in respect of the two applications before this Committee. Can we hear you on that application?

MR VABAZA: Thank you Honourable Chairperson. Honourable Chair and Honourable members of the Committee, the basis for the application, the reasons for this application, are the following: the families or the Attorneys acting for the families of the victims, were notified of today's hearing, or were made aware of today's hearing on the 13th of January 1999.

&#9;I may just state that the Attorneys have been on record since June 1998. The Attorneys concerned Honourable Chair, are in Umtata which is plus minus 500 km away from Port Elizabeth. I have been informed that the families of the victims themselves stay plus minus 200 km from Umtata.

&#9;The result of the short notice has been that they had been unable to prepare sufficiently for this hearing. Matters were aggravated by the unfortunate incident of the tornado that happened in that region which Honourable Chair, I submit that it definitely had a direct bearing on communications between the legal representatives concerned and the families as well as the potential witnesses they would have liked to call.

&#9;One more reason Honourable Chair is that I have been informed that there was some outstanding documentation which they had not received up to now. But in any event, I have been supplied with a copy of a document which I have not been able to peruse and it will be of great assistance in the preparation for this hearing.

&#9;I do submit therefore Honourable Chair, that on those grounds, we do apply for the postponement.

CHAIRPERSON: Thank you Mr Vabaza. Before I come to you Ms Patel, may I find out from Mr Malan why it has taken you this long to advise the Amnesty Committee of your inability to locate Mr Tyana?

&#9;Couldn't you have telephoned our office to advise them of the difficulties in which you were finding yourself in view of the fact that Mr Tyana could not be located?

MR MALAN: Honourable Chairperson, we have done everything possible and at that point in time, we believed that we would be in a position to get hold of him. Unfortunately we did not. It was not due to a lack on our side, to cooperate with this Committee in any way.

CHAIRPERSON: But why have you not been able to advise the committee by last week or probably early this week of the difficulty in which you were, with regard to Mr Tyana?

MR MALAN: Honourable Chairperson, due to the fact that we were still of the belief that we will be able to get hold of him before this day. Unfortunately we did not get hold and I informed one of the Witness Protectors of my predicament, but I said to him that I still believe that we will be able to get hold of Mr Tyana and I did not foresee that he was unreachable.

CHAIRPERSON: I think we must express our dissatisfaction again on the steps that you failed to take, to notify this office, even at the late hour before you boarded the plane to come all over to Port Elizabeth, knowing that you were coming without Mr Tyana and knowing that it would be difficult to proceed with these hearings without the presence of Mr Tyana.

&#9;We must express our dissatisfaction in that regard. We would have expected you to have been at least be able to advise Ms Patel, even on the last minute about your difficulties.

MR MALAN: Honourable Chairperson, I only learnt Ms Patel's number last night, after arriving in Port Elizabeth. I can also then say that we were put into this predicament by receiving this information two weeks before the time, and in future I would really appreciate it if they grant us sufficient time then to reorganise our programme.

&#9;We have done, we went out of our way to be able to be here, assisting this Committee and with all due respect, not receiving - to be criticised for efforts that we made beyond the normal. The only thing where we failed, is not informing Ms Patel and I have learnt that she will be the Evidence Leader yesterday, when I arrived here.

&#9;My one client was still here, so as a matter of fact, we would have to appear on his behalf in any event.

CHAIRPERSON: Ms Patel, do you have anything to say in respect of the formal application brought in by Mr Vabaza on behalf of Ntsebeza Inc, who are representing the objectors in this application?

MS PATEL: Thank you Honourable Chairperson. In as much as I would concede that parties were notified last week or on the 13th, my instructions at all times from Mr Dladla from our offices was that the matter was set down by agreement with all the parties.

&#9;Even to the extent that Counsel for the victims, Adv Dukada, had confirmed that he would in fact be available today. The difficulties that the victims' Attorneys had experienced, was only in fact relayed to our offices very late on Friday afternoon.

&#9;Furthermore in respect of the outstanding documentation that had not been supplied to the parties concerned, I wish to state at the outset that the parties had received the application forms last year already, when the matter had been set down.

&#9;Furthermore the extra documentation that has in fact been made available, are documents that are a matter of public record that if the parties had prepared, that they would have in fact, even without our assistance, have been able to get that documentation in preparation for this matter. Thank you Honourable Chairperson.

CHAIRPERSON: Ms Patel, we have previously been informed that the reason for the postponement of this matter in June 1998, was to enable the Investigative Unit to conduct its investigations. Are you aware whether such investigations have now been conducted because my bundle does not contain anything that would indicate that subsequent to that hearing, anything has been investigated?

MS PATEL: Unfortunately Honourable Chairperson, I am not in a position to comment on the status of the outstanding investigation at this stage.

&#9;Mr Dladla from our offices had informed me that this was the documentation that in fact had been made available to us. I can take the matter no further.

CHAIRPERSON: But you being the Evidence Leader, had you not been made privy whether outstanding investigations which were the reason why the matter was postponed in June, whether those have now been finalised?

MS PATEL: I may state that the full investigation has not been finalised and also that our Investigator who was working on the matter, there was a bereavement in his family and he has not been contactible for the past two weeks, so I can't take the matter further than that.

CHAIRPERSON: An application for a postponement of these applications, has been made by Mr Vabaza, who is applying on behalf of Ntsebeza Inc, who are the lawyers representing the objectors.

&#9;The reasons advanced by Mr Vabaza, sorry I am now made aware that I am actually pronouncing your surname incorrectly, it is Vabaza, may I confirm with you?

MR VABAZA: That is correct Honourable Chairperson.

CHAIRPERSON: Vabaza?

MR VABAZA: That is correct.

CHAIRPERSON: I hope the record will be corrected to indicate that it is Vabaza.

MR VABAZA: Without an M, yes.

CHAIRPERSON: The reasons advanced by Mr Vabaza, are the following: that the Amnesty Committee failed to notify the objectors timeously and in this regard, he stated that the objectors' legal representatives were only notified on the 13th of January 1999; that as a result of the late notification, the legal representatives of the objectors have not been able to properly consult with their client and want to be afforded that opportunity.

&#9;There was also an unfortunate occurrence of the tornado that hampered communication between the legal representatives and their clients; that the objectors were not given copies of the bundle of the application by the Amnesty Committee, and as such, one cannot expect that they would have known what case has been put up by the applicants. In compliance with Section 21 of the Act, consequently they are not ready to proceed to oppose substantively.

&#9;We have been told by Ms Patel, on behalf of the Amnesty Committee that this indeed, this matter was previously postponed, that the matter was initially set down sometime in June 1998, and the reason for a postponement was that further investigations had to be conducted.

&#9;It would appear from Ms Patel's response that such investigations have not yet been concluded. Whilst comprehending the difficulties of the objectors, in regard to the reasons advanced, it is a view of this panel, that these applications can be considered and be decided upon without any further investigation having to be conducted.

&#9;The applicants themselves have in their applications, provided sufficient particulars to have been able to commence the hearing.

&#9;There is also substantial information that can be gleaned, that can be used by the objectors in proceeding with this hearing. Having said that, we must express our quiet displeasure at the abysmal failure by the Investigative Unit, to have completed its investigation, that it advised the previous panel that was supposed to have sat to consider the matter in June 1998, that those investigations were necessary for the proper and just consideration of the applications.

&#9;More so because the request for that investigation, resulted in the earlier hearing of these applications, being postponed in June 1998. Thirdly and surprisingly, six months down the line, those investigations have not been finalised.

&#9;We hope that Ms Patel will bring this omission to the urgent and serious attention of the Head of the Investigative Unit, and the Executive Secretary of the Amnesty Committee.

&#9;This Committee cannot afford to lose a single day of such hearable applications, on account of such inexcusable omission in matters not being finalised in so far as investigations are concerned.

&#9;In as much as we are aware that the Amnesty Committee and its Investigative Unit, is overburdened with applications which total over 7 000, every attempt must be made to make good of the few minutes it has, of its short life.

&#9;We are also disconcerted that even though the applications were postponed in June 1998, we did not furnish the objectors with a bundle of papers for this hearing. Notwithstanding the fact that the objectors had earlier on indicated their firm intentions to oppose these applications.

&#9;We are similarly distressed that the objectors' legal representatives, Ntsebeza Inc, did not take any firm steps to ensure that copies of the bundles were obtained of their own accord. They knew that the matter had been postponed in June 1998. One would have expected that some initiative on their part, would have been put into action to ensure that the bundles for the applications, are obtained.

&#9;As to the reason advanced by the objectors, that they have not been able to consult with their clients because of the late service of the Section 94 notices, we must tangentially mention, that these applications were not to be heard for the first time today.

&#9;Surely the legal representatives had at the last hearing, when the matter was to be heard in June 1998, been able to consult with their clients because the only reason that was advanced for postponement of the matter, was to enable the Investigative Unit, to further conduct its investigations.

&#9;By so saying however, it does not mean that we are not mindful of the provisions of the Act that makes it obligatory for the Amnesty Committee, to give reasonable notice to the objectors of the date and the place of the hearing of the applications and of their right to be legally represented.

&#9;What is further disconcerting is the fact that a proper bundle of the application, was never served on the objectors at all. It would appear that this bundle is materially different from the one before this hearing, and the Committee's omission to do so, compels this panel to grant the objectors the postponement for which they have applied.

&#9;Furthermore, it is difficult to proceed with this hearing with only one applicant being present. This Committee is loath to separate the applications of the first from the second applicants, for it feels that there are issues of background and other issues of evidential nature, which are so intricately interwoven in the applications of both applicants, that to consider one application, would do a serious disservice to both the applicants and the objectors.

&#9;In the light of the fact that this matter also is not likely to be finalised today, I think it is the view of this Committee that we cannot proceed with it. If we proceeded with this matter, it certainly would be a part-heard matter, thus causing it to suffer further delays.

&#9;In the premises, we have no option but to grant the application that has been requested by Mr Vabaza. The matter is therefore accordingly postponed.

MR VABAZA: Thank you Chair.

MR MALAN: Thank you Chairperson.

CHAIRPERSON: Thank you. Thank you Mr Vabaza, thank you Mr Malan, Ms Patel.

&#9;We have now come to the end of our hearings in Port Elizabeth. We wish to express our gratitude to the members of the translation services, also our gratitude to our Logistics Officer, Joe and our Media Officer, Pela and our other Administrative staff without whose assistance it would be impossible to have this hearing. We also wish to express our gratitude to Ms Patel, even though at times she has found herself being in great difficulties, which have not been of her making. Our gratitude to members of the media and most importantly our gratitude to the members of the public for having attended these hearings. Thank you very much.

HEARING ADJOURNS

&#9;

