TRC Cases | Khampepe Commission of Inquiry: 21 July 2026

[00:00:05]raise your right hand and say, "So help me God."

[00:00:08]>> So help me God.

[00:00:09]>> Thank you.

[00:00:10]>> Yeah.

[00:00:11]>> Yes. Doctor, again, good morning to you.

[00:00:15]>> Morning. Morning.

[00:00:19]Uh you have a very colorful decorated uh history with this country, doctor. Am I right?

[00:00:31]You accept it.

[00:00:33]>> Uh until of course you start with my days at the crash.

[00:00:45]That history is incomplete.

[00:00:48]Yeah.

[00:00:49]>> Yeah. But most significant and for the purposes of your evidence today Yeah.

[00:00:56]You served government in various portfolios.

[00:01:00]>> Yes. Yes. And uh relevant to the workings of this commission, you served at one period as the minister of justice.

[00:01:12]>> Yes.

[00:01:14]And that would have been period of 1999 to 2004.

[00:01:19]>> 2004. Yes.

[00:01:21]But I want to go with you by way of background with how we come here.

[00:01:31]>> Yeah.

[00:01:32]>> Just as a preliminary >> excursion with you and I propose to do it with facts that are not denied, not refuted and perhaps even irrefutable.

[00:01:52]you would have had a background coming into the new South African democratic order of government. Yes.

[00:02:05]But uh to that end you would have been aware being where you were about the creation of the Truth and Reconciliation Commission, right?

[00:02:16]>> Yes, I was.

[00:02:18]And that process was intended to cover questions of amnesty relating to crimes of the past.

[00:02:26]>> Yes.

[00:02:27]>> And the formula, I'm just saying it at the high level.

[00:02:32]>> The formula was that those who would have been guilty of those crimes, >> yes, >> would apply to the Truth and Reconciliation Commission.

[00:02:42]>> Yes.

[00:02:44]They would uh if making full disclosure about what crimes they committed.

[00:02:51]>> Yeah.

[00:02:53]>> Uh and meeting various criteria that was set down in the act.

[00:02:58]>> Yes.

[00:02:59]>> Would it then be granted amnesty?

[00:03:02]>> Yes.

[00:03:05]uh that commission took its course over the years to finally f write its report in 2003 and placed it before the then uh president Jawbe.

[00:03:22]>> Yes.

[00:03:23]>> Yes.

[00:03:23]>> Yeah.

[00:03:24]>> You have a recollection of all of that.

[00:03:27]I wouldn't blame an absolute recollection but I have sufficient recollection. Yes.

[00:03:38]And uh two things uh if we read from the president's speech former president's speech at the time to the joint seating of parliament you have recollection about that too.

[00:03:54]>> Yes I do. And this would have been in 2003.

[00:03:57]>> Yes.

[00:04:00]>> And uh one of the things that seemed to have concerned the government at the time is that the process of uh the TRC did not yield the outcomes that were expected.

[00:04:22]>> Yes and no.

[00:04:25]Yes, because maybe our expectations were too high.

[00:04:30]Uh I I've said to you on an earlier occasion that maybe we were naive when we started the process of talks about talks.

[00:04:45]We thought human beings would suddenly cease being human beings.

[00:04:52]I I've said to you evidence leader that some of us were completely surprised that this country saw more violence after the release of Nelson Mandel, the so-called black-on-black violence.

[00:05:14]So we we had to understand human beings totally from scratch.

[00:05:20]We thought that all of us from either side of the struggle against a party would behave totally differently.

[00:05:40]and and we know that uh one area of concern was a group of people who would have been advised not to take part with the TRC process. Right?

[00:05:54]In fact, it was not only that advice.

[00:06:03]A major party then had decided not to participate in the elections themselves on the 27th of April 1994 until well we've read some historians who say this I don't know whether it's right that God in his wisdom sent professor Okum Washington okum to see and changed his mind and the name of Inata and his photo were pasted on the ballot h this thing papers right at the bottle.

[00:06:50]So all that was wrong advice.

[00:06:54]Part of that wrong advice also was the notion that you could keep the basic structures of a partate as they were.

[00:07:06]The TBVC, Trans Sky, Vanda and Syskai with their own armies and whatever. In other words, you would retain the bulcanized country.

[00:07:24]So that if I ran my own making, I would be boss there. Right? So all that was changing and you had to get all political players to agree that the days of the reserves of Sir Theophila's Shepstone on on the foundation of which the bantto stands were built were gone.

[00:07:59]Uh we we we all had to accept that that from a certain date we were talking about building a new country and and to that mix we there was also a category of people who for one or other reason thought they would not be caught with regard to the crimes they had committed. Is that right?

[00:08:27]>> That's right. I suppose all people who play in the crime industry never imagine themselves being caught until someone spills the beans at the maj commission and suddenly the whole cat is in standing in front of us and many others of course. So there is that tendency to believe that you are not only untouchable but you won't even be noticed found ETA right >> right and and we know also that the truth and risk consiliation commission report then recommended that there should be prosecution of those whose amnesty applications who were refused. Yes.

[00:09:22]>> One category.

[00:09:23]>> Yes.

[00:09:24]>> The other being those who did not apply at all.

[00:09:27]>> Yes.

[00:09:29]>> And I suggest to us that that was a trigger uh explaining the terms of reference of this commission.

[00:09:39]Uh you would know by proclamation May 20 29 >> 2025.

[00:09:47]>> Yes.

[00:09:49]Uh we have a proclamation established in this commission.

[00:09:52]>> Yes, I do. Yes. its its primary purpose, you would be familiar with its terms of reference at least if I put them at a helicopter level again, would be to inquire into uh attempts to stop the investigation of those matters that needed investigation and the prosecution of those matters where evidence was available.

[00:10:24]to be prosecuted. Uh that's why we here.

[00:10:28]>> Yes.

[00:10:29]>> Now it also tells us amongst other things that we should look and inquire into this problem and uses a temporal period of since 2003.

[00:10:46]>> Yes.

[00:10:47]>> You familiar with it?

[00:10:48]>> Yes. Now I say that 2003 because at that time as we go back you would have been the minister of justice.

[00:10:57]>> Yes.

[00:10:57]>> Okay. And quir minister you had legislation and the constitution circumscribing the area of responsibility you would hold as a minister.

[00:11:14]>> Yes. Might I just take you to the constitution? It would without reading every section of it. It would tell us that as a minister of justice under the constitution, you would have responsibility even in areas where the NPA was seated. It was one of those over whom you held responsibility and authority. Am I right?

[00:11:42]>> Yes. It was limited to political responsibility.

[00:11:47]>> Yes. And I want us to make the distinction there.

[00:11:51]>> Please explain.

[00:11:54]Uh the constitution deliberately does not say the minister is part of the system of deciding whether and who to prosecute for anything that under section 179 I think subsection six of the constitution is resting solely in the hands of the national director of public of of of public prosecutions.

[00:12:33]the two positions were not interchangeable >> and that clearly uh I will go through these provisions which two uh in themselves >> yes >> ultimately rests with the commission as to what their legal meaning is.

[00:12:56]>> Yes. But let's go through it and to the extent you're familiar with what I'm saying >> you you would comment >> uh as you say 179 had to guarantee the independence of the prosecution authority.

[00:13:11]>> Yes.

[00:13:13]>> And it would have placed the NDP as head of the NPA.

[00:13:19]>> Yes.

[00:13:20]>> Answerable differently to what the Minister of Justice would do. Precisely.

[00:13:27]>> But you say political responsibility rested with the minister.

[00:13:33]>> Yes. And it it was very limited answering questions in broad terms in the National Assembly as well as at the NCO which didn't give you any control of the institution. A question relating to the end to to to the institution was was asked. The minister would go to the institution and say please help me provide the answer to this question.

[00:14:06]>> Even getting involved in operational matters of the NPA would have exposed even a minister to a criminal offense.

[00:14:15]>> No. In fact, it was a no go zone for any minister.

[00:14:18]>> Mhm.

[00:14:20]>> All right.

[00:14:22]now but it also plays certain responsibilities which I may share with you and tell me if you >> think differently 179 would then tell the reader under sub paragraph 4 that national legisl ation must ensure that the prosecuting authority exercises its function without fear, favor or prejudice. That's the independence >> that we were talking about.

[00:15:03]>> Yeah. Yeah.

[00:15:05]And it would say under 51795, the national director of public prosecution A must determine with the concurrence of the cabinet member responsible for the administration of justice and after consulting the directors of public prosecutions uh prosecuting policy.

[00:15:35]which must be observed in the prosecution process. You are familiar with that environment.

[00:15:41]>> I certainly am. Yes.

[00:15:43]>> And uh you would have concurred to the prosecution policy that was prevailing at the time.

[00:15:50]>> In fact, concurrence is not even defined. A simple node would have been sufficient.

[00:15:56]>> Yes.

[00:15:57]>> Unless I was unhappy with certain elements and I would ask questions.

[00:16:01]>> Mhm.

[00:16:02]>> Right.

[00:16:03]And we know under 1796 the constitution reads the cabinet member responsible for the administration of justice must exercise final responsibility over the prosecuting authority that is what you call the political responsibility.

[00:16:24]>> That's the political responsibility.

[00:16:26]Yes. we should include uh being informed as a minister in respect of specified matters. Is that right?

[00:16:36]>> Yes.

[00:16:39]Now I go and read out what is 1797 which would say all other matters concerning the prosecuting authority must be determined by N national legislation.

[00:16:58]>> Yes.

[00:16:59]>> And that national legislation we know became the NPA act.

[00:17:05]>> Yes.

[00:17:08]You would exercise those powers correspondingly with what appears under national prosecuting authority as responsibilities of the minister.

[00:17:21]I'm I'm making this leading questions because I don't expect any objection.

[00:17:26]I'll be rebuked.

[00:17:27]>> No, no, no. I I don't object. Yes. Yes.

[00:17:30]>> Yes.

[00:17:31]Okay.

[00:17:33]Then if you go to the NPA act, you will see there is a doveetailing between the constitution and the powers and provisions of the NPA act.

[00:17:49]>> Yes, I want us to go there. You will see there is section 20 section 21 one of the MPA act.

[00:18:04]Can I just quickly go there and read it out to you please?

[00:18:15]It talks about powers, duties and functions.

[00:18:21]Now it talks about powers, duties and functions of national director and in subp paragraph 2 it reads thus in accordance with section 179 of the constitution the national director bracket A must determine prosecuting policy and issue pro and issue policy directives as contemplated in section 21. You familiar with that environment?

[00:18:56]>> Yes, I am. Yes.

[00:18:58]>> And that's how the prosecution policy was settled.

[00:19:03]>> That's it.

[00:19:04]>> Again, it's a doveetail of what we found in the constitution >> 1796. Yes.

[00:19:10]>> Yes. And the legislation in terms of which further powers of the prosecuting authority would be determined.

[00:19:16]>> Yes.

[00:19:17]>> We go to the NPA act, right? To do that.

[00:19:21]And might I invite you also to look at what 331 would tell us of the MPA act.

[00:19:33]It would say minister's final responsibility over prosecuting authority.

[00:19:55]>> Yes.

[00:19:56]>> And it would read 331. The minister shall for purposes of section 179 of the constitution, this act or any other law concerning the prosecuting authority exercise final responsibility over the prosecuting authority in accordance with the provisions of this act.

[00:20:21]And it would say to enable the minister to exercise his or her final responsibility over the prosecuting authority as contemplated in section 179 of the constitution. The national director shall at the request of the minister a furnish the minister with information or a report with regard to any case matter or subject dealt with by the national director or a director in the exercise of their powers.

[00:21:01]>> The carrying out of the duties and the performance of their function. You you familiar with it?

[00:21:08]environment.

[00:21:09]>> Yes sir.

[00:21:10]>> Yes.

[00:21:11]>> It continues to tell us under sub paragraph B, provide the minister with reasons for any decisions taken by a director in the exercise of his or her powers, the carrying out of his or her duties or the performance of his or her functions. You familiar with it? Am I right?

[00:21:34]>> Yes, I am. It goes under paragraph C to say finish the minister with information with regard to the prosecution policy referred to in section 211A.

[00:21:49]You're also familiar with it?

[00:21:50]>> Yes, I am.

[00:21:51]>> And you would be finished with information as a minister with regard to the policy directives referred to in section 211B.

[00:22:02]>> Am I right?

[00:22:03]>> Yes. submit reports contemplated in section 34 to the minister in terms of bracket E.

[00:22:10]>> Yes.

[00:22:12]And it then continues under bracket F to say arrange meetings with the minister and members of the prosecuting authority.

[00:22:22]Am I right?

[00:22:23]>> Yes. Yes.

[00:22:25]>> Then there are responsibilities for instance to file reports with parliament for your portfolio.

[00:22:31]>> Yes. Yeah. Now coming closer here we have to look as to can I just comment yes none of that gave the minister because it's not about the president then it's about the minister any right to cross that thin line that the constitution itself prescribes.

[00:23:09]You you would be wrong therefore as a minister to cross it doesn't allow you to venture over it at all. Just carefully craft it.

[00:23:24]Uh those of us who grew up uh uh much earlier will remember that the ministers would just pick up a a phone and call the attorney general of some province about a matter and whatever a decision would be made. You had section six of the terrorism act of 1967 which said no judge can adjudicate on any matter right involving decisions taken under this act or ws to the defect. So you you you had to carefully make sure that no politician should be given as awesome a power as was given in the past just done deliberately.

[00:24:26]>> Yes.

[00:24:26]>> Yeah.

[00:24:27]>> And to assist the commission you then filed a statement uh with the commission.

[00:24:33]>> Yes. Is it a document uh with a heading panel Madona in front of you?

[00:24:42]Yes. Yes.

[00:24:44]If you go, you will find to it at page, let me get there 929 at the top of the page and in particular you'll see >> 929.

[00:25:08]Yes.

[00:25:09]>> Yeah.

[00:25:09]>> Yes, I do.

[00:25:10]>> You do?

[00:25:11]>> Yes. And you'd see there is a signature above the name Panel Maduna.

[00:25:17]>> Yes.

[00:25:17]>> Do you recognize that signature?

[00:25:20]>> Certainly.

[00:25:21]>> Whose signature is that?

[00:25:23]>> Uh, it's mine unless the contrary is proved.

[00:25:29]>> Yeah, I'm sure even that is an immutable fact.

[00:25:33]>> Yeah.

[00:25:34]>> All right.

[00:25:36]When you go to paragraph five, you confirm there the state status you occupied during the period 1999 to 2004.

[00:25:52]>> Yes, please read it out for the commission.

[00:25:57]>> I was the minister of justice and constitutional development in brackets minister from 1999 to 2004.

[00:26:06]I have been invited by the commission to commend and provide my knowledge in respect of the issues raised in paragraph 4 above qua my tenure as minister as a minister >> you then continue to make it >> sorry yes >> um Dr. Maduna, good morning. Um Um 2000 um yes 2004.

[00:26:37]Um that date um you were a minister until 2004.

[00:26:44]>> Can you give us a date because it's going to become important until which date? In 2004 were you a minister? I can't remember the date exactly, but after the 2004 elections, I only had to wait as minister until the appointment of the cabinet that had replaced ours.

[00:27:17]So, I can't I can't remember the exact date. It could have been sometime in May 2004 >> I would think so. Okay. Thank you. Thank you uh >> yes >> commissioner. I will verify that my distant recollection is April but I'll come back uh with the exact date of appointment and the ex last date of office.

[00:27:43]>> Thank you very much. Yeah.

[00:27:45]>> Then you give us a background under paragraph six if you were to read it.

[00:27:52]As a general remark, I have no knowledge of any collusion, influence or pressure on members of the South African Police Service or the National Prosecuting Authority to stop investigating or prosecuting TRC cases. Nor do nor do I know of any co collusion in that respect. So just just told there this is a response to the question that was put uh in terms of the terms of reference of the commission. Am I right? That's what you're responding to.

[00:28:31]>> Yes, it is.

[00:28:32]>> Okay. You may proceed.

[00:28:33]>> Yes. I have also never devised or enforced nor enforced any moratorum to the investigation or pro it should be or prosecution of any TRC cases >> and you continue to say >> as I understand it the moratorum that is alleged to have been put in place against the prosecution of TRC cases was not an official documented moratorum but a practical stance adopted until such time the prosecution policy amendment was finalized.

[00:29:12]For the record, I restate that I have never in inferred or pressured anyone to investigate or prosecute the TRC cases because of this so-called moratorium.

[00:29:27]>> And that is during the term of your office as minister. during the term of my office.

[00:29:33]>> Of course. Uh then you deal further in paragraph 7 if you are to read it to us.

[00:29:39]>> Further, I have not been implicated in such malfans.

[00:29:44]In preparation to respond to the commission's request, I had discussions with advocate Bleaning Uber and advocate Vumuzi Vumsi Picoli who were the director general in my department and the national director of public prosecutions respectively during my tenure as minister. They confirmed that I never inferred I mean interfered with their work in relation to TRC cases.

[00:30:17]The commission has also had evidence that following the address of parliament by the former president.

[00:30:29]Uh the digital justice collected a number of people to form what was later known as the amnesty task team.

[00:30:40]>> Yes.

[00:30:41]>> Do you have any information on that?

[00:30:43]>> Uh not in a personal sense of the word.

[00:30:49]uh because I was not involved in in the activities of the what was it called the DG's >> forum >> forum I was not involved in those because I was never a DG >> correct >> yeah so but I I would get briefings uh they would tell me what was happening right and I accepted what I was told Right.

[00:31:20]>> Is there anything beyond that information by your DG uh relating to prosecution and or investigations relevant to TRC cases? and and no, they were talking about forming a structure and sourcing resources for that structure to be able to start its work.

[00:31:50]That's what we were talking about and nothing else. In any event, at that point, advocate was not the NDPP.

[00:32:01]>> Correct. So he had no authority to prosecute anyone.

[00:32:08]>> Yes. Yeah. So he wouldn't have told me about prosecutions and whatever whatever else.

[00:32:16]>> Correct.

[00:32:16]>> He would discuss with me their needs and what was happening etc. >> Right. M and you say under paragraph 8 of your statement by way of background context to the TRC amnesty issues I represented the African National Congress in the convention for a democratic South Africa. This was a negotiating forum established in 1991 to end apartate and transition South Africa to a multi-racial democracy.

[00:32:53]>> That you say by way of the growth.

[00:32:55]>> That's true.

[00:32:57]You also mention under paragraph 9 the indemnity act 35 of 1990 which act sought to regulate similar subject matter to the impute open codes prosecuting policy and directives relating to the prosecution of offenses emanating from conflicts of the past and which were committed on or before 11 May close quotes policy came about as a result of those negotiations.

[00:33:29]>> Yes.

[00:33:31]>> That was the extent to which you became involved in any discussions and conduct relating to aparate crimes.

[00:33:39]>> Yes.

[00:33:40]>> This act has since been repealed by the promotion of national unity and reconciliation act of 95.

[00:33:48]>> Yes.

[00:33:49]>> All right. Do you want to tell us a little bit more about that? Please, if you can embellish it, tell us. Uh, never give anybody who who who was destined to be a priest cut blanch to speak.

[00:34:13]Uh, I came back into the country on the 21st of March 1990 after the late Nelson Mandela and the late FWD Cler had agreed that members of the ANC of the NC leadership based outside would have to come back into the country to kickstart what we called talks about talks.

[00:34:54]Uh for all my sins I was selected by the national executive committee under Tambbo then to to to join that team. The first two I'm not going to mention or say anything about those who were assisting the team were Jacob Zuma and me. So we landed on the 21st of March 1990 and we were picked up by General Sebastian Basis and many of his people at the Yianmart's airport in the evening and taken to a place in East Pritoria where we would stay for a short while.

[00:35:41]It soon became very clear that mischievous elements who had known us in the past may do a whole host of wrong things to us.

[00:35:57]>> So we needed what we would call an umbrella, a statuto umbrella to protect us. We negotiated with the apartate parliament eventually the enactment of the 1990 act without which the talks about talks would never have started.

[00:36:20]After the enactment of this act, the likes of Alfred Zo, Joe Slovo, Joe Mudis, Tabi, etc. came back into the country. They were covered by the provisions of this act.

[00:36:40]>> Yeah, I I suspect that would be a a long story to tell.

[00:36:47]>> Yes. But you engage with allegations made in the Galata papers.

[00:36:54]Of course, you'd have been out of office uh by this time >> and much older.

[00:37:00]>> And much older.

[00:37:01]>> Yes.

[00:37:03]>> There you react to paragraph 392 of the affidavit which you are advised is the basis of the commission's terms of reference.

[00:37:14]>> Yes. because there was a high court proceedings.

[00:37:18]>> Yes.

[00:37:19]>> Which uh sat gave birth >> Yes.

[00:37:22]>> to this commission ultimately.

[00:37:24]>> Yes.

[00:37:26]>> Uh that Mr. Charles Nakula who was minister of police at the time and you met with a delegation of the South African Defense Force generals led by Mr. Kinesese as you tell us. This was in Cape Town on 17th February 2003.

[00:37:48]Right.

[00:37:50]I see that. And please proceed to read paragraph 11 of your statement.

[00:37:54]>> From the context of the relevant paragraphs in that affidavit, some of which I referred to in a moment. This delegation would have been gener generals that served under the aparted regime.

[00:38:09]>> And please continue.

[00:38:11]>> 12. It is claimed that this delegation petitioned for postc legislation granting new blanket amnesty with no disclosure of crimes committed during apartate being made. It is suggested that we seemed to insist on a policy of amnesty following full disclosure.

[00:38:37]>> And to that you say what? Under paragraph 13.

[00:38:41]Under yeah paragraph 13 I confirm that I met with various stakeholders in Cape Town by virtue of my office and I would have discussed matters related there too. I also confirm that I had such discussions at various times though I cannot confirm the date h and that I had with them with a particular with this particular delegation.

[00:39:10]I do however confirm that that is indeed the position that the government adopted and I've always insisted that all amnesty be granted following full disclosure as the law required >> and then you choose to digress a little >> then you choose to digress a little >> to digress momentarily the claimed request by this SATF delegation is consistent with the nonaccountability position adopted by the estate president Mr. PW Bordia who stated that he would not apologize for any aparted crimes because he was fighting for my people.

[00:39:58]>> Paragraph 393 and 394.

[00:40:02]You respond to it under paragraph 15.

[00:40:05]Please read it out to us. Paragraphs 393 and 394 of the same affidavit. Note that there was no resolution between government and those generals. This is consistent with my claim that I have always in insisted on principle and application of the law without fear or favor. M and to continue under paragraph 16, I confirm that there's never been a decision made by me or in my presence to afford any amnesty outside the legal pre prescripts regardless of whether such person fought for or against their parted regime. This is despite some contending that we intervene by providing blanket amnesty to our comrades without them making full disclosure of the crimes that they may have committed. The law simply did not provide for this. We had advised some of our comrades to go through the TRC commission amnesty route, but some chose to approach courts instead.

[00:41:23]And you say this is the extent of your knowledge regarding the terms of reference referred to in paragraph four above which are the terms of reference of this commission. Yes. All right.

[00:41:36]Your statement adds there but chair commissioners with your permission.

[00:41:42]We are alive to the fact that there has been an application to cross-examine the witness. The application only came yesterday afternoon and uh the intimation is once that application is granted uh we would have to have the doctor come back but also having dealt with those documents which are next to the application for cross examination for that reason chair uh we do not propose to address that area.

[00:42:23]If permission is granted, we would have to deal with that in re-examination of the witness.

[00:42:28]>> Yes.

[00:42:30]>> Yes.

[00:42:35]>> Is this when did it start?

[00:42:59]In respect of terrificator questions, I'm advised that on teams would be uh advocate Guala SC for the NPA.

[00:43:12]It would be advocate razoto for advocate similani and I'm being advised that missco will speak on behalf of the NPA if there are any questions chair >> is it advocate guala or missco because they represent both parties >> that's the note I have maybe we will find out from advocate guala if uh there will be further questions I don't know >> yes >> that's your evidence in chief isn't it Mr. me.

[00:43:55]>> Correct. Chair.

[00:43:56]>> Yes, you may proceed.

[00:44:00]>> And just uh for the record again, Commissioner Homo, I have the dates as 17th June 1999 to 28th April 2004.

[00:44:18]>> Thank you very much, >> Dr. Muna. Good morning.

[00:44:24]>> Good morning. Good morning.

[00:44:26]>> I have a few questions for you.

[00:44:30]>> Now, you've confined your statement to your role as the Minister of Justice between 1994 >> and 2004.

[00:44:43]>> No, between 1999 and 2004.

[00:44:49]>> 19. Pardon me. Pardon me. You're quite correct. Now in that time you would have been a member of cabinet.

[00:44:59]>> Yes.

[00:45:01]>> So you would have been aware of government policy.

[00:45:05]>> Yes.

[00:45:06]>> Regarding the TRC report and the TRC cases, there was no cabinet position about that.

[00:45:19]The report itself pointed the way out and it came much later than the date of the establishment of the TRC.

[00:45:38]So you say there was no official cabinet policy dealing with what was to happen with the report of the TRC?

[00:45:48]No, because we hadn't even seen the report. But what certainly was discussed was that there would be no general amnesty.

[00:46:00]This was in the law itself. I think the year of the law was 1995.

[00:46:08]H we had sought to persuade a whole lot of people that that was the right way to go.

[00:46:17]I I said to to Mr. Simmania on a much earlier occasion, there were so many things that had been happening in the country that there was no way you could persuade members of Mandela's NEC, let alone the public at large, that we should declare general amnesty.

[00:46:42]People had suffered at the hands of the regime.

[00:46:46]I'm smiling as I'm about to say this. On the 27th of June 1990, couple of months after we' come back, I was shot in so and left for dead.

[00:47:00]There was no way I could say you are right. Give them general amnesty for attempting to kill me and for whatever other things they done to me.

[00:47:11]Uh in case you don't know who the Maduna in state versus Maduna 1978 volumes one and two is.

[00:47:23]>> He is sitting right in front of the commission.

[00:47:27]>> I'm sorry about your unfortunate experience.

[00:47:30]>> So there was no way I could agree with anybody that uh we would be right in granting a general amnesty. In any event, I remember we asked the clerk, "The clerk, you're still the boss.

[00:47:46]Why don't you just declare a general amnesty yourself?"

[00:47:53]>> What I'm really focusing on is >> the cabinet position. Are you saying that these TRC cases were never discussed at cabinet level?

[00:48:05]>> There was no TRC report before cabinet.

[00:48:09]>> Okay. It came out in 2003 >> and3. Yes. So the there was no way we could have discussed TRC cases as cabinet.

[00:48:24]We would in fact be wrong in discussing cases unknown to us.

[00:48:33]The TRC identified the people who could be pursued for purposes of prosecution.

[00:48:40]Before then there was no memorandum before cabinet h telling us these are the people to be pursued.

[00:48:51]In any event, the cabinet would have been wrong to discuss that question at all because according to the constitution relevant parts of which have been read into the record, that function, that discussion, that decision vested solely in the NPA.

[00:49:21]Do you accept that there can't be prosecutions without investigations?

[00:49:26]>> Absolutely.

[00:49:27]>> So who was it envisaged at a policy level would do the investigations so that there could be prosecutions?

[00:49:41]Well, in a normal situation, the the police would have to do that.

[00:49:51]We had since established what is called SEPs as opposed to Zulu police, Transai, KSA police and whatever.

[00:50:09]But you I think it must be accepted that you would need something uh that would ensure that that process was not interfered with by the forces that ran law and justice in the 10 Bandust and the aparted pretori glorious state. If you said to them, "Go and investigate yourselves," they wouldn't do that for God's sake.

[00:50:44]>> You're talking about the NPA?

[00:50:46]>> No, this was before the NPA was formed because the NPA was established by the new government led by Mandela, >> right?

[00:50:57]>> The act that was referred to as a 1998 act. Before then, there were attorneys general all over.

[00:51:06]>> Yes. I'm aware of that.

[00:51:07]>> Yes. Some of whom had actually persecuted us.

[00:51:13]Now we are a minister in the chap just says you must be mad. You investigate Sebastian meet Fun and whoever else and bring them to to courts.

[00:51:30]>> Okay. So during your time your DG was Mr. Vousy Picoli.

[00:51:38]>> There was an earlier DG who's who whose name escapes me. H it was an Africana chap who actually came to me and said he's on his way out.

[00:51:50]So we had to find a replacement. We found that replacement in Vum Patrick Por.

[00:51:58]>> Okay.

[00:52:00]Now we've heard from Mr. Picoli that during this time there was an amnesty task team that was formed which produced a secret report.

[00:52:17]>> Yes.

[00:52:19]What do you know about that?

[00:52:22]>> Uh virtually nothing because I wasn't part of any such committee.

[00:52:31]The committee would obviously produce reports to advisor. One of its two reports says something very interesting.

[00:52:39]The committee itself was was opposed to general amnesty.

[00:52:44]>> Right. Was cabinet aware of the formation of the amnesty tasks team?

[00:52:50]>> Cabinet was made aware.

[00:52:54]Two things actually happened if if my memory serves me well.

[00:52:59]uh one because I could not er give a note to the formation of a task team any task team without reporting to cabinet. I did report that we shall need a special task team.

[00:53:21]Uh eventually we got approval to have established a committee of directors general, your topmost top level officials who would then be advising the minister, right?

[00:53:43]H the report was not a secret report as far as the minister was concerned. They would have to come and say this is where things are now, right? And we made sure that at all times we made no concession to the demand for a general amnesty.

[00:54:09]But what emerged from that amnesty task team based on the evidence we've heard is that amendments were made to the prosecution policy that treated the TRC cases in a specific way.

[00:54:32]Now that those amendments to the prosecution policy, I think only came into effect in December 2005 and you would have left in April 2004.

[00:54:48]Were you aware of the proposed amendments?

[00:54:55]>> No, I wasn't.

[00:54:56]>> You wasn't?

[00:54:57]>> No, I wasn't. Yeah. And at cabinet level was that discussed to your recollection?

[00:55:04]>> No.

[00:55:06]Because again the the whole issue of policy making under the constitution itself was in the hands of the NDPP the national director of public prosecutions who would with the concurrence of the minister put the policy out. He didn't say with the concurrence of cabinet >> but as minister you reported to cabinet.

[00:55:36]>> Oh yes certainly. You look the system would not permit anybody to keep any secret to cabinet in case questions are asked.

[00:55:49]>> And what was cabinet's response when you reported on the amnesty task team? No, cabinet had accepted it as right because we too had accepted that you needed a structure of that sort, right? To try and weave together the activities and maybe also the thinking of the director's general and whoever worked with them.

[00:56:22]Right. We had a very interesting situation where the national commissioner of SES didn't like the scorpions at all.

[00:56:39]Right.

[00:56:41]And much later I would not going to give not going to bother the commission with the details.

[00:56:54]But let me give you a bit of the detail.

[00:56:58]When we realized that there was a problem, Steve Jo took Bulan and Ji to one of your fancy hotels in Santi to try and work things out between them.

[00:57:22]I I stood between them when they nearly came to close.

[00:57:31]Checkby, my old friend, using any imprintable word, right, to describe Bleani, saying all sorts of things about Bulani sleeping with uh little girls and whatever and impregnating a girl in the trans sky. We dealt with all that. We could see that there was never going to be any ra between the NDP and the head of the police. Now you can imagine what would happen.

[00:58:09]They would be taking those battles and those fights into the system that was expected to be dealing with TRC cases.

[00:58:22]Right? that would be happening right what we didn't know was that some people had formed relationships already with the likes of Glen Aliote right so and some people in the SAPs had begun identifying people to capture in the SAP's leadership ship in the NPA leadership as well in as well as in the political leadership. We didn't know this that all manner of relationships were forming beyond that point, right? It was a difficult moment for us.

[00:59:17]>> So, who then was going to assist the NPA?

[00:59:21]Well, >> with the investigation.

[00:59:24]>> Well, ordinarily, ordinarily the police would have to do their work.

[00:59:29]>> Find Penwell Matuna in whatever ho he is or Snake Pete, whoever. Just find him.

[00:59:39]>> Sorry, Dr. Muna. Sorry. Um the the then what what part would he have to play?

[00:59:49]Was it funding and funding what?

[00:59:52]>> No, the Glen Aliote thing came out in a court case, a a particular relationship after the death of H Brett Kebell.

[01:00:09]I can't remember the details, but it was a very interesting case. The only person who was jailed not for killing red cable was Jackie.

[01:00:27]That was very interesting.

[01:00:30]The killers came to court having done plea bargains and said I shot I'm sorry and so >> I killed him. So sorry um I I interrupted but I just wanted to know the bladder was it for purposes of funding someone or funding a cause or was he a rebel without a cause what just just that in >> I don't want much detail we >> he was no rebel at all he didn't rebel against anything.

[01:01:10]He was a downright thy right. Bobs and weaves as young people used to do in the township streets to survive.

[01:01:27]>> Yes.

[01:01:28]>> He was not rebelling against anything.

[01:01:31]>> Okay.

[01:01:31]>> And fortunately for us, he never even pretended to be rebelling against anything. But if he wanted it and he knew how to get it, he would get it.

[01:01:41]>> Yes. Thank you.

[01:01:43]>> Take someone, buy him, buy them a pair of shoes at Mandela Square and that's it. You've got them all on your side.

[01:01:54]>> Okay. Thank you.

[01:01:55]>> So, you've told us about this tension between the DSO and SEPs.

[01:02:03]>> Yes.

[01:02:04]And it warranted Steve Chuete going to try and resolve things >> and and me >> and you was cabinet aware of these tensions >> much later.

[01:02:19]Well, we had to tell cabinet that we as ministers had this problem, right?

[01:02:28]where people for whatever reason will never work together.

[01:02:35]>> You see the effect of that and some of the evidence that we have heard >> Yeah.

[01:02:41]>> is that the NPA did not receive investigative assistance.

[01:02:48]>> Yes.

[01:02:49]>> For the prosecution of the TRC cases.

[01:02:53]>> Yes.

[01:02:54]>> Now, what was done about that? What was government's policy or were there any attempts to resolve that impass?

[01:03:04]>> It did not need a policy. Police had to do their work.

[01:03:12]It didn't need any new policy. You're a police person.

[01:03:18]Maybe that's politically right. Yes, you're a police person. Do your job for which you are paid.

[01:03:28]It's as simple as that, you know. In fact, I am so happy in my old age that eventually Joe Mama has been caught because he's one of the people who did not bother to apply for amnesty at all.

[01:03:47]About a month or so ago, he was before court.

[01:03:50]I'm not saying before God. he was before court because someone had caught him. So if they did their work bearing in mind that police don't prosecute neither does the president or ministers of cabinet nor the ministers of cabinet just imagine what would have happened that would have made our lives simpler right they know who killed Matthew for Kalata etc they knew them. Why didn't they just go and do their work? Pick them up.

[01:04:32]We know. Oh, we have evidence that you participate participated in the commission of this crime.

[01:04:41]Why do you have to be backed, persuaded, cowled, and whatever? You do your work, but you wouldn't get cooperation from people who would either say, "I gave the orders or my orders were followed by X, Y, and Z."

[01:05:02]You had that problem.

[01:05:06]You see what we're grappling with Dr. Maduna in this commission is we had the promotion of national unity and reconciliation act.

[01:05:19]>> Yes.

[01:05:21]>> We all heard the hearings.

[01:05:23]>> Yes.

[01:05:26]>> That act meant that families gave up their right >> Yes. to sue or to claim damages from those who had either tortured them or killed their loved ones.

[01:05:39]>> Yes, >> that was the price they had to pay.

[01:05:42]>> Yes.

[01:05:44]>> Over years it seems that nobody provided investigative support to SAPS to the NPA.

[01:05:58]>> Yes. Neither the DSO nor SEPs.

[01:06:01]>> Yes.

[01:06:02]>> Now, one of the reasons is why uh I I didn't play in that league so I wouldn't know why they decided not to do their work.

[01:06:21]I didn't know. You know, in fact, the interesting thing is there's a a section in the TRC Act which says that you know once you have been granted amnesty all your sins known or unknown are forgiven.

[01:06:48]It's there.

[01:06:49]If I had anything to declare, I would have been among the first ones to appear before them to make full disclosure.

[01:07:02]Right?

[01:07:04]So that they say we grant you honesty after that. You could you couldn't sue me.

[01:07:12]But the the interesting thing is those who didn't get amnesty or those who decided not to apply for it may still be vulnerable.

[01:07:27]Right.

[01:07:30]As far as I'm concerned, they may still be vulnerable. You may talk prescription and things like that. Uh maybe we may quibble over that. But let me just say theirs is not a sound and solid position.

[01:07:52]>> Thank you Dr. Maduna.

[01:07:54]>> Thanks. Yeah, >> Miss Moroca. Any clarificator questions?

[01:08:02]>> Yes, chair. There is.

[01:08:05]And I take it one of the clarification questions chair is to disclose that the person who kept you alive was somebody we both know.

[01:08:18]>> She she's got a personal issue with me.

[01:08:21]commissioners.

[01:08:23]I referred but I referred to the evening when I was shot and left for dead.

[01:08:36]H on Fa there was an Eso garage on the Rockville side and a church uh on the Yeah. No, both are on Rockville. A white city city is further up.

[01:08:56]I was shot by people. It later emerged were released to kill me from jail to mention those two. We got to know them eventually.

[01:09:20]Right.

[01:09:22]So they were released, they were murderers from my township, Rockville.

[01:09:28]So I'm taken by a friend to Barakuanath Hospital and Mandela phones or before he phoned we saw some white people at bar sitting on the benches at the casualty ward and Miva phoned and said take him to Dr. Mutana, I've spoken to him. This was late at night. H she played the role of my nurse holding me h while her father was removing the bullets I mean the bullets without any anesthetic.

[01:10:20]She I've disclosed a secret. I'm I'm sorry you provoked it.

[01:10:26]>> I didn't want I didn't want us to go that far.

[01:10:29]>> Yeah.

[01:10:29]>> Dr. Mun, >> can I can I ask a clarification question arising from what uh Commissioner Gabriel asked you and it's really about trying to to to locate the TRC report. Yes.

[01:10:52]>> If I'm correct, the TSC report comes out in 2003.

[01:10:58]>> Three.

[01:10:59]>> And you're a minister then?

[01:11:00]>> Yes.

[01:11:01]>> And it gets tabled and accepted by parliament.

[01:11:05]>> By parliament. Yes.

[01:11:08]>> And and and from there do you you do know about the presidential speech of 2003?

[01:11:15]>> I do.

[01:11:17]So when she asked the question, it would seem you were you were trying to say you were not involved during that period.

[01:11:25]You were involved and parliament did adopt.

[01:11:28]>> Yes. Yes, I was involved in cabinet and in parliament >> and it also made the the TFC made a number of re recommendations including reparation and and and >> yes >> and other provisions.

[01:11:44]>> Okay. Can I also ask in paragraph six of your not paragraph six, paragraph I think it is um my apologies paragraph 16.

[01:11:59]When you say that some comrades did not go through the TRC commission amnesty route but chose to approach the courts, what kind of approach was this? Uh there was a case by about 37 members of the ANC including members of the leadership which came before courts and was dismissed.

[01:12:27]There was that case.

[01:12:30]So you advise people go and ask for amnesty but people may know that full disclosure is exactly that they may have to disclose what they know about me as well.

[01:12:47]Right? So they got some advice and the tragedy of bad lawyers is that they give wrong advice.

[01:12:59]No, you can win in court and get what you have not applied for before the Amnesty Committee via a court order unfortunately.

[01:13:14]And it won't stop happening because uh the element of the bad lawyer is not about to dis to to disappear.

[01:13:25]Can I confirm that you've got some lawyers here that have represented you and haven't given you wrong advice?

[01:13:30]>> No, no, no. And I wouldn't take wrong advice because I I I was also mimicking them.

[01:13:38]>> So, so can I can I just ask a very small question about the amnesty task team?

[01:13:46]So you your view about that task team was >> the rule visav your yourself as minister and visa v members of cabinet >> was essentially advisory and informative >> it it had no decision making powers or authority at all.

[01:14:11]>> Thank you chair. Thank you miss moroka.

[01:14:15]Is it Miss Chisani? Yes, Misani.

[01:14:24]>> Thank you, Mr. Guala online.

[01:14:31]>> Mr. Guala.

[01:14:31]>> Good morning, Chang. Um, it's Mr. Not Mr. Guala today. He is with us, of course, but he has given me the platform to ask the questions.

[01:14:44]Yes, Mr. Drogo, you may proceed.

[01:14:47]>> Thank you, chair. Um, and good morning, Dr. Muna.

[01:14:51]>> Good morning. I can't see you.

[01:14:54]>> I My face should be showing. My camera is on, Dr. Mina. I have been always informed to show my face when I speak to my elders.

[01:15:05]>> Um, can I just ask it >> live in the unknowable or unseeable?

[01:15:12]Well, I think we might debate that because you did just say you should not give a platform to a priest. We have not seen the Lord, but of course we know of him. So, of course, that could be a whole debate. But can I just ask it then if um they can see me because my camera is indeed on.

[01:15:31]>> I can see you now.

[01:15:32]>> Thank you.

[01:15:33]>> Thank you so much.

[01:15:36]>> Um Dr. Muna, I act as for the NPA in this proceedings and we just have a few very few questions, three in fact uh clarification questions um that stem from your current evidence before the commission right now. You indicated that your role was quite limited and you acted when you were informed of what was needed. So during that uh was there any time where the DG or the NDPP um informed you of what the needs of the NPA were in relation to TRC matters?

[01:16:15]>> Oh no. On numerous occasions uh they couldn't get money from appropriations in parliament without the minister pleading their case. They couldn't And were those the only was that the only thing that they would actually have discussions with you about the difficulties in relation I would understand that's a resource difficulty were there any other resource difficulties that they were experiencing um before this commission sorry Dr. Maduna, sorry to interrupt you there. Before the commission, um, Advocate Tuna had testified about great difficulties when he took over the office, including human resources and other resources. Were you aware of these as well?

[01:17:06]>> I I was fully aware of those uh problems.

[01:17:10]I remember Oh, I'm sorry. Amen. It's an inappropriate space.

[01:17:21]Mr. M. Yes. Yes. Let me apologize. Let's hope he's not watching this.

[01:17:29]And I even asked the uh not the job the job bar which was then headed by Johan Fandelind to help us in the training of the the human resources the institution solely needed. We asked them and they kindly acceeded to our request.

[01:18:06]The intention was to build capacity in the institution. Human capacity. Human capital.

[01:18:14]>> Yes.

[01:18:18]And was that due to what you would have inherited or was that for a different reason why you don't have enough human capital and enough resources?

[01:18:29]>> I I I beg your >> um so you indicated that there was an issue with human capital. Was that because of what you inherited or were there other reasons that you might want to share with the commission and the NPA? Of course. Well uh when we came in we inherited the resources of the previous regime and I'm not going to talk only about the apartate regime but the banter stands as well right and >> yes >> there was no prosecuting authority in the exile in the in the then banned in exile it wasn't So when you're given this awesome responsibility to establish the institution, you begin to ask yourself, what resources do I have at my disposal? And the answer is basically zero.

[01:19:29]There were good human beings among them.

[01:19:31]Let me let me say so.

[01:19:34]But uh for purposes of building a new prosecuting authority, some of them were not suitable and in any event others were leaving voluntarily already.

[01:19:52]Right? The good ones were very helpful in the institution's ability to perform its tasks.

[01:20:04]Even those we inherited from this country's ugly past.

[01:20:18]Thank you Dr. Maduna. And then my last question during these information sessions that you were you were having with the NTPP and I would assume also the DG, were you ever informed that they were experiencing or did they ever indicate to you that they were experiencing any difficulties that were political in nature?

[01:20:46]>> No.

[01:20:47]which was unfortunate because I would have intervened to say to whoever was interfering or intervening, stop it.

[01:20:56]Look at the constitution.

[01:20:59]Look at the law. You can't do these things.

[01:21:05]>> Thank you so much Dr. Medila and thank you chair. That's all the clarification questions we have.

[01:21:11]>> Thank you missto.

[01:21:18]Miss Ricardo online.

[01:21:21]>> Thank you. And I have no question.

[01:21:27]>> Thank you. H is missing online as well.

[01:21:46]Yes. Uh Mr. Vana, I take note of the application that uh has been intimated will be launched to cross-examine Dr. Mdona.

[01:21:58]>> That's correct. Chairperson.

[01:22:00]>> Yes.

[01:22:00]>> Yes. No. No. Chair just on the at leoti issue for the record the judge France Ku who tried him is judge France nar not myself just for the record >> yes Dr. Maduna, >> we thank you.

[01:22:32]>> We thank you for having come to give evidence before this commission.

[01:22:37]There is an application for your cross examination which is being processed by the commission.

[01:22:44]You will be advised of the date and time of the cross examination >> but for now you are excused as a witness until the time of cross examination is to happen.

[01:22:56]Thanks, Madam Chair.

[01:22:57]>> Thank you.

[01:22:58]>> Thanks.

[01:22:58]>> These proceedings are gent until tomorrow at 10:00.

[01:23:02]>> Indeed, sir.