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ON RESUMPTION: 2ND DECEMBER 1999 - DAY 4
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 ON RESUMPTION: 2ND DECEMBER 1999 - DAY 3

CHAIRPERSON: Today is a continuation of the matter of the application of Mr Jerry Richardson. When we adjourned on Tuesday the 30th November 1999, we were seized with an application that Mr Jerry Richardson should be seen by medical experts to furnish us with reports whether he is capable of understanding the proceedings of this hearing. When we adjourned we requested that Mr Richard, the legal representative of Mr Jerry Richardson, to obtain certain information that if we are inclined in granting the postponement we should have some other information which is concrete and not leave the postponement in limbo. 

&#9;Mr Richard, what have you done in the process?

MR RICHARD: Thank you Chair. What I have done is attend at Leeukop Prison where I consulted with Mr Maseko, the head of the maximum security section. He referred me across to the medical ...(intervention)

CHAIRPERSON: Which prison? Pardon, let's just be together, which prison?

MR RICHARD: At Leeukop Prison.

CHAIRPERSON: You may proceed. You were at Mr Maseko.

MR RICHARD ADDRESSES: Yes, the head of that section referred me across to the medical health services and after discussion and I await report now as to what has been done today. The procedures have now been put in place for a referral 

of the applicant to a visiting psychiatrist who in fact is attached to Sterkfontein Hospital. 

&#9;Regrettably, yesterday I had forgotten it was National Aids Awareness Day and it was very difficult to find anyone but that was the result. In addition, my curiosity as to what had been done in the past led me to do a search at the William Cullen Historical Documents Library at the University of Witwatersrand. I there found Judge Kathleen Satchwell's file on the applicant relating to his trial, that was when the Honourable Judge practised as an attorney. In that file I found the psychological report on Jerry Richardson and I have distributed copies of that report to the various legal practitioners and to the Committee and it seems that I am not alone in having found reason to have beliefs that a proper evaluation is appropriate.

&#9;The day before yesterday when I argued, much was made about whether I had to lay a basis for my beliefs. This document which I found and is now before us can be looked at this way. The first page and that is the letter from a Dr S Levy ...(intervention)

CHAIRPERSON: Since we are using this document can't we give it a number Exhibit A?

MR RICHARD: I think - correct, the first part of the bundle distributed is selected by Dr Levy dated 17 July 1990. While I certainly don't pretend to be a medical expert, my questions of medical personnel as to what it meant establishes that there is brain damage which needs to be properly investigated. That's the letter. 

&#9;The second one and that with the permission of the Chair marked B.

CHAIRPERSON: Now when you say B, let's refer to the whole document as A even the letter attached to it.

MR RICHARD: Well the second page of bundle A is a psychological report of Jerry Richardson prepared by a clinical psychometrist called Gawood and a clinical psychologist Midge Doepel. I am aware that the document is nearly ten years old. However, I spoke to Mr Gawood last night and asked the question, would there be any improvement or variation or deterioration from what he said therein and taking that it's ten years since it was prepared, Mr Gawood said the probability is very slim that there will be any improvement, the probability is that there will be deterioration. I refer the Committee to page 3 of that report, at paragraph 4.1.1, at the top of the page. It there records that the applicant's practical I.Q. is 63 and then in brackets expands by saying 69 and less is classified as defective, 70-79 is borderline defective and then I don't intend to go through the report page by page but it makes allusions to the applicant having schizoid tendencies, possibly psychopathic ...(intervention)

JUDGE DE JAGER: The trial court had this report before it and notwithstanding the report the court decided that he is capable of standing trial?

MR RICHARD: That's not correct. The trial court had this report before it at the stage of sentence, not before trial and despite hearing it saw fit to pass the death sentence. That's where this report fits into the trial.

JUDGE DE JAGER: Well at that stage the court gave consideration to the document and all the contents and found that there was nothing wrong in hearing the person, he could stand trial and he could stand the further extension of the trial as far as sentence is concerned?

MR RICHARD: That is correct, but there was no evaluation and investigation of the applicant in terms of Section 78 so the question of the competence of the applicant wasn't investigated beyond this report. 

&#9;Now in my dealings with the applicant over the last two years behaviour described in this report is similar to behaviour I've experienced when under stress. The applicant would often come up with a statement which bears no context to the situation we are in, is random in his answers, gives misinformation for no coherent reason at all and I persist in my application and ask that the reports requested be obtained.

CHAIRPERSON: Before I proceed any further, are you that to the question that the legal representatives involved in this hearing have had sight of this report, may we just get confirmation for the sake of the record? I'll start with you Mr Simenya?

MR SIMENYA: Chairperson, Members of the Committee, thank you, yes. We have been favoured with the report and our response to the application is as follows and perhaps before I articulate the nature of the difficulty we have it would be useful to put a context to it. 

&#9;Chairperson, the prejudice to my client is inestimable and before I put adjectives to describe what is possibly a parallel with reality, let me bring us back to the reality as I know it. As early as 1989 prior to the unbanning of the African National Congress and the release of the leaders there became a movement at that time to associate my client with criminal conduct involving the killing of a fourteen year old. Now this is more than ten years ago.

CHAIRPERSON: My colleague has just run out of pages and I'm just attending to that. Sorry about that Mr Simenya, you may proceed?

MR SIMENYA ADDRESSES: Chairperson, I'm trying to sketch a context within which the prejudice to a client must be understood. As early as 1989 as I say, prior to the unbanning of the African National Congress, prior to the release of the

leadership of the African National Congress together with the other political formations, there were beginning to be suggestions of criminal conduct on the part of my client with profound consequences to it both to her political life, both to her personal life and as well as to her marital life and it is common cause that those accessions about it were in the main, were in the main predicated on this character we are now told is schizophrenic.

&#9;Now that was 1989. My client went through a criminal trial, the record is in the bundle of documents we have and we realise that up to today at every given turn an attack has been taken about her being convicted of kidnapping of the children. Now we have Jerry Richardson who says before yourselves that when they went to collect the little boys they went there that told them that "Mummy wants to see them" and the reply he gives to it is all of them said that they said it was fine. Now after 10 odd years one is beginning to come to a close shave with understanding this kidnapping charge that the world is harping on all the time, that according to Jerry Richardson they all said it was fine and just when one seeks to obtain an opportunity of demonstrating that the very first complaint of the sodomised children, that of Cebekhulu who was said to be sodomised. Just when one is having an opportunity that that Cebekhulu upon receipt of that complaint was taken to Dr Asvat, that it would be inconsistent with a version that they were assaulted at the instance of client, then we are told the man is schizophrenic. But if one leaves it at the moment of them that's going through a trial, that was 1997 just before the elections again, one has the Human Rights Violations hearing. What is being reported there is that she again associated with killings and this is in relation to things that happened in 1989. Nothing turns on it with this schizophrenic evidence again.

&#9;Then we are coming back again in these hearings, Chairperson. It is 1999. Reliance again is being placed on this schizophrenic evidence and the newspapers go, as no doubt they will, that she's again associated with the killings and as one would have suspected, when they bring an application to say Jerry Richardson is mad, which is something consistent with my instructions in the first place that nobody is capable of this callousness and still claim family with the definition of the sane expect that is not clinically dysfunctional as we would contend. The newspapers don't say, as we would have expected them to say and the media doesn't say as we would have expected them to say that no, the associations of killing are coming out of the mouth of a madman. They're silent about it. But the prejudice is going to be the following. Come next year when this sitting is restarting we're going to be having again the TRC Amnesty Committee hearing is going to be listening to the killings of Mrs Madikizela Mandela again, about the fourteen year old Stompie. Surely somebody like her is entitled to say "Is that not enough? Am I not entitled to my redemption?" Because there is no fundamental justification for this thing, it is perpetuated through the mouth of a lunatic as she described him and this is the difficulty that we must have, Chairperson. 

&#9;Now let us examine what is being offered as a reason to produce a document that comes from 1990. That document was there in 1990, it said Jerry Richardson is childlike. If the report that was consistent with the behaviour that he has displayed, there is no substance which is offered as a predicate for the application and we are given the following line by Mr Richard:

&#9;"What I have read in the report of 1990 I am able to say in my dealing with him he has displayed a behaviour similar to the report."

But that report does not exonerate him from the type of process into which he is here and Chairperson, the decision ultimately is that of the Committee but we must record that the damage all these postponements will do to client is inestimable.

CHAIRPERSON: Supposing the report, I'm speculating, supposing the report comes back, he says: "The man is completely, mentally incapacitated" wouldn't that redeem your client?

MR SIMENYA: Chairperson, I should draw an answer by stating both the perceived and the reality, that as a matter of reality that his criminalising conduct and associating it with client that it is lunacy, it's effect which she knows, that reality does not bother her but the perception, the perception that it will continually be used to give it a semblance of reality, it's a difficulty that she's still going to have to deal with both in her political, personal and other family life. The grandchildren, I'm told, are going through a distress to be looking at newspapers in 1999, now in the year 2000, about the mental condition of Jerry Richardson who they're saying he did whatever he did at the instruction of Mrs Madikizela Mandela and that's the perception which we must accommodate in our assessment of this application.

CHAIRPERSON: The vilification and probably "the vendetta" which the newspapers are waging is beyond us but as I've asked you that if it comes back that the man is mad, wouldn't a reasonable man say Mrs Winnie Madikizela Mandela was vilified by a man who is now a lunatic and in the process she has suffered great distress not only to herself but probably to her family, but let's put it behind us because those stories were never founded because the man, it has come to our attention, that he did not know what he was talking about?

MR SIMENYA: Chairperson, I'm not able to say beyond stating that the truth would be there, the perception would be different. I'm yet to see any media publication which will say she's vindicated.

CHAIRPERSON: Did you listen to E.TV? They nearly put it in perspective. They said he was confused and incoherent in his evidence.

MR SIMENYA: I'll put that transcript for National Museum Recorder, I was not aware of it, Chairperson.

CHAIRPERSON: Thank you Mr Simenya.

JUDGE DE JAGER: Mr Simenya, our problem is this. Legally, we're now working on this, but suppose this man is mentally compos non mentis, could we proceed with a hearing at all?

MR SIMENYA: Legally the answer is no. 

JUDGE DE JAGER: So shouldn't we ascertain before proceeding whether he is compos mentis or not?

MR SIMENYA: Chairperson, the answer is twofold at that level. If we have a basis to believe he is not then we should but the question is do we have a basis outside a report obtain in 1990 during his sentence which the trial court has found not sufficiently warranting a departure which the Supreme Court of Appeal, then the Appellate Division found consistent? Are we having reason beyond those judicial assessment of the reports to decide differently and I'm saying there is no basis which is being put before the Committee for that conclusion?

JUDGE DE JAGER: Thank you.

CHAIRPERSON: Thank you Mr Simenya.

&#9;Ms Mbuyisa, did you see the report and do you have any comment? That is Exhibit A?

MS MBUYISA ADDRESSES: Chairperson, we did see the report and our position is the same as when we last convened that if there is doubt to the fact that Mr Richardson cannot follow the proceedings of this hearing then he should be sent for psychological assessment because our instructions are solely that if he cannot be mentally competent he wouldn't be able to tell the truth. We want him to be able to tell the truth and we want to make sure that he is mentally competent when he does so. Thank you Chairperson.

CHAIRPERSON: Mr Alli?

MR ALLI ADDRESSES: Thank you Chairperson. I confirm having received a copy of this report. I merely want to state that - there seems to be a problem with my recorder, just a second? I merely want to state that at the successful conclusion of this hearing, whether it be in January whichever date the Commission decides, at least at that point we will have evidence before us indicating what the mental capacity or incapacity of the applicant is and at that stage perhaps all the victims and the real victims of this matter are in fact our clients, they will know whether they can actually rely upon the evidence that has been led or not. The evidence that has been led previously is on record and one can then continue with cross-examination. However, if at this stage we continue that doubt will always linger whether the applicant, the evidence that he has tendered here can be relied upon or not. In order for us to clear up the difficulty for the sake of the victims and for the sake of the Commission in fulfilling it's duty, there can only be one decision I submit and that is that the application for Mr Richardson to be evaluated be granted. Thank you, there's no further submission at this point.

CHAIRPERSON: Thank you Mr Alli. Mr Mapoma, I suppose this time you don't concur with Mr Simenya, you've got your own views?

MR MAPOMA: Chairperson, I confirm that I have looked into the document and I have no comment Chairperson, I'm leaving it to the Committee to decide.

CHAIRPERSON: Thank you. Mr Richard, do you have any reply and particularly to Mr Simenya?

MR RICHARD IN REPLY: I don't believe it would be appropriate to point out facts and argument relating to the appeal record relating to Mrs Madikizela Mandela. She was convicted on more evidence than just that of the applicant but my submission is I'll wait the reports and I'll persist in the application. I'll leave it there.

CHAIRPERSON: Thank you.

D E C I S I O N

&#9;This is our interim decision and it relates to the application which we are ceased with. The applicant applies for amnesty in terms of Act 34/1995 in practise the act in respect of several offences. These offences which include abduction and murder, constituted gross violations of human rights and necessitated a hearing in terms of the Act.

&#9;The application was set down for hearing at Johannesburg before a sub-committee of the Amnesty Committee consisting of Motata A J, De Jager A J and Advocate Bosman S C. The hearing commenced on the 29th November 1999. On that day the applicant testified and completed his evidence in chief being assisted by his legal representative. On the 30th November 1999 the applicant was cross-examined by the representatives of the victims. After being subjected to cross-examination for some time the legal representative of the applicant intervened and expressed doubts as to whether his client understood the nature of the proceedings and whether he had the legal capacity of a mentally healthy person, fit to stand and appreciate the proceedings in which he is involved.

&#9;It is clear that the Amnesty Committee has no legal authority to make any ruling about a person's mental state or the treatment of a person who is considered to be mentally ill. It is, however, determined by common law principles, binding on all committees or legal entities endowed with a power to make decisions which would impact on the rights and status of persons that any person appearing before the Committee should have a legal status and capacity to bring or to oppose an application for amnesty. He or she should have locus standi in iudicio, he should be able to understand and appreciate his rights and obligations to act accordingly.

&#9;Whether a person is mentally incapacitated and if so to what extent and to make an effective order in that regard falls within the jurisdiction of the high court. The legal capacity of a mentally ill person is determined by the common law principles whereas the reception, detention or treatment of such persons are governed by legislation. There many grades of mental deficiency ranging from mentally handicapped persons who are unable or to an extent unable to manage their own affairs to those who are mentally ill to such a degree that they are a danger to themselves or others. A mental illness would, according to legislation, include any disorder or disability of the mind and would include any mental disease, any arrested or incomplete development of the mind and any psychopathic disorder.

&#9;As already states, this Committee in our view, has no jurisdiction to make any ruling on the status and legal capacity of the applicant. This Committee, however, has a duty to make sure that an applicant applying for amnesty and giving evidence before the Committee which would not only affect his own rights but also the rights of victims or other persons whom he may implicate, is not mentally ill to such an extent that he cannot appreciate the consequences or what he is saying and further to act in accordance with the appreciation and responsibility. 

&#9;As stated, the applicant's legal representative during the course of the second day of the hearing expressed doubt as to whether his client understood the nature and exigency of the procedures. He said that he had previous doubts about his client's legal capacity and that these doubts were substantiated by client's behaviour during evidence in chief and under cross-examination. The applicant's evidence at times appeared to be irrational and illogical. Whether this is a result of an incapability to bring together the ends of an untruthful account or whether it is due to mental deficiency or mental illness affecting his legal capacity cannot be decided without the assistance of expert evidence. The fact that applicant's legal representative raised this issue at such a late stage has been rightly criticised by Advocate Simenya. This, however, does not solve the problem. It would be in the interest of all concerned to know whether the evidence given by the applicant should be evaluated as evidence of a mentally healthy person who may be mental handicapped or retarded or whether it is the evidence of a mentally ill person or psychopathic disordered human being. 

&#9;If while giving evidence the applicant's mental condition was such that he could not understand or appreciate the nature and the consequences thereof or if he was influenced by a delusion caused by mental illness, then clearly no value could be attached to whatever he had said and the truth will have to be established by other evidence. The Committee is of the opinion that it is in the interest of all concerned to establish whether the applicant is mentally ill or intellectually incapacitated and if so, to what extent. To establish this is a question of fact and can only be decided with the assistance of expert evidence. After studying the report of an expert or experts in this field the Committee would be in a position to decide whether the applicant is fit to continue with the hearing or not or whether other appropriate steps should be taken. 

&#9;The Committee came to this conclusion because we are with the opinion that it was common cause even amongst those who opposed a postponement that the applicant's behaviour was suspect. Let us obtain certainty as to whether we are dealing with a murderer seeking amnesty or whether we are dealing with a mentally disturbed or intellectually incapacitated person who should be detained and treated and should not be allowed to move freely in public if amnesty would be considered.

&#9;In view of the above, the hearing is postponed to the 23rd January 2000. The Committee has decided to request an expert or experts if needed to examine and report on the mental health and/or mental illness and intellectual capacity of the applicant on or before the 12th January 2000. Copies of the report should be furnished to all legal representatives. We wish to emphasise that any interested party will be at liberty to appoint his or her own expert to bring out further reports in this regard. The Amnesty Committee is, however, not in a position to contribute to the course of obtaining report over and above the course of the expert to be requested by the Committee.

&#9;The Committee kindly requests legal aid and the Department of Correctional Services to assist in whatever way they deem necessary to facilitate this speedy completion of the required examination and tests to bring out the report or reports. 

&#9;The Committee wishes to thank all the legal representatives and Mrs Madikizela Mandela who conducted part of the argument in person for their valuable contributions and input to assist us in coming to a decision. We trust that the press and media will treat the evidence thus far presented as untested and on the submissions of the applicant own legal representative possibly given by a mentally ill applicant. This is the ruling of the Committee. Mr de Jager?

JUDGE DE JAGER: I concur.

ADV BOSMAN: I concur, Chairperson.

MR RICHARD: As the Committee pleases.

MR SIMENYA: As it pleases the Committee.

MS MBUYISA: As it pleases the Committee.

MR ALLI: As it pleases the Committee.

MR MAPOMA: As it pleases the Committee.

CHAIRPERSON: This matter stands postponed to the 23rd January 2000. The Committee adjourns for the day. This brings to the conclusion this before you. All stand up. 

&#9;Please take your seats once more? Please take your seats. This concludes the hearings which were set down for the 29th to the 3rd December 1999. We wish to thank you all who made an effort to come here and I wish to extend an apology to the victims specifically and the implicated persons that it is unfortunate that we could not get to the truth in this matter because we are charged to hear full disclosure and there is a further delay in that you should know exactly what happened to those loved ones who have been killed and who was responsible for that. Our sincere apology to you all but we hope that on the 23rd January 2000 we shall be able to get to that truth and lay matters to rest.

&#9;To Mrs Madikizela Mandela and the victims, you are going to endure this pain once more for the coming ten weeks. We plead with you that bear with us, this Committee is charged to get to the bottom of what happened. We say to everyone else and again to the legal representatives thank you for your assistance. To the interpreters who had a difficult time, we thank you very much and we hope you don't over enjoy the millennium and come back and assist us once more to this. To the owners of the Johannesburg Institute of Social Services, thank you for the venue and all you did for us, we would not say we enjoyed our stay because we are faced with difficult tasks but you made your hospitality felt and we were able in that respect to continue with our work. Thank you to everybody, enjoy the year 2000 and let's see each other again on the 23rd January 2000. The Committee adjourns.

COMMITTEE ADJOURNS

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