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Type AMNESTY HEARINGS
Starting Date 18 February 1999
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MS MOLOISANE: Madam Chair and Committee Members, yesterday, that was the 17th, I had an interview with the witness that I intended calling in support of the applicantís case. The witness in question is Mabusa Mhlongo, who was allegedly the unit commander of the applicant, rather of the unit to which both applicants belonged at the time when the incident that led to this application took place, Madam Chair. From my interview with Mabusa Mhlongo it transpired, or rather I noticed, that he could not give a logical account of what happened then. I opined that there is something wrong with his mind, Madam Chair, and I also concluded that he was not in a mental state to can adduce evidence before this Committee. I therefore request this Committee to give me permission to send him, or to have him sent, to a psychologist or to a psychiatrist for an assessment, regarding his mental state.
However, I have also made arrangements that the said witness be fetched from his home in Sebokeng so that the Committee Members can also have a look at him, although I intend relying on the psychologistís or psychiatristís report or assessment in this regard Madam Chair and Committee Members. I am therefore not calling him to come and testify.
MS MOLOISANE: Madam Chair I have spoken to the ANCís desk who ascertain patients, who is the person in charge of these proceedings at the ANCís desk or office, Madam Chair. If I have to put it that way, and she will be arriving at any moment from now Madam Chair, and I intend arranging that a psychologistís assessment be done tomorrow. And I intend to finalise those arrangements before the close of business today.
CHAIRPERSON: We will grant you your request that you have him assessed by either a psychologist or a psychiatrist, but we must stress that in view of the short life-span of the Committee, we would expect a report to be submitted to us within a very reasonable time. We therefore, without being unreasonable ourselves, must indicate that we would expect such a report to be submitted to our Cape Town office within 21 days from today.
MS THABETHE: Yes Madam Chair. If the Committee can allow me to call Elsie Mokoena, who I had intended to call as a witness. She is the victim in this matter. I had also indicated to the Committee Members that the mother of Hapile Ndumo would like to say something as well, in public, so I would like to call her as well.
CHAIRPERSON: Ms Thabethe, may I just request that you shift your chair slightly to your left, to enable us to be able to have sight of Ms Mokoena as she gives her evidence. Yes, maybe that would be ideal, thank you.
MS THABETHE: According to the applicants, that is John Radebe and Fani Mkhwanaziís evidence, they allege that they told you that you were wanted by the community and your response was that you knew that you were wanted by the community. What is your comment to that?
MS MOLOISANE: Madam Chair the allegation of sleeping together, thatís what the witness says. She says John Radebe and others slept with those girls. Those girls are the only persons or people who can come and testify to that effect, Madam Chair.
CHAIRPERSON: Well unless there is a clear indication that one of the girls who is alleged as being a relative of Ms Mokoena never told Ms Mokoena directly about this incident, so I will allow this line of question by Ms Thabethe because maybe she is still laying a basis for what is yet to come about how Ms Mokoena knows about this information.
MS THABETHE: My question was, why do you think they targeted you, and you were still saying itís because they were always targeting girls, and you had been told by Sissy that they took them one night and slept with them. Is that your evidence?
MS MOKOENA: Well I would have been able to respond to Ms Molisane. Thatís not hearsay evidence at all. Thatís within her knowledge after having been told by a victim concerned. Thatís what you have said. You may therefore proceed.
MS MOKOENA: Skosana once arrived at home, it was at night. He knocked at the door. My granny opened the door for him, and he asked my granny where I was and where the boyfriend was, my boyfriend. And the granny asked him where are you taking them to? If you donít tell me the reason you want them I am not going to tell you where they were. They were arguing and it came to a point where Skosana said to my granny, if you do not tell me where they are I will search for them myself in the house.
MS MOKOENA: Can I carry on? He then said to my granny, if she was not telling him where we were he would search the house himself. When he said he would search for himself, I was still listening. I was in the bedroom. I went out of the bedroom and got into the other and went out through the window and ran away. I went to our neighbours and I spent the night there. In the morning I went back home. When I arrived my granny told me to leave. She said we should leave for Hlombaniís office to go and report this issue. When we arrived at the office five comrades were released to come and sleep over at my place for protection. Thatís how I knew Skosana.
MS THABETHE: Thank you Madam Chair. According to the evidence of the applicants the policemen in the township were perceived to be associated with the IFP. Didnít your boyfriend as a policeman fall into that category?
MS MOKOENA: Itís because he lived in the township, and I had never seen comrades coming home accusing him of being a policeman and that policemen were not wanted in the township. He lived like anybody else in the township.
CHAIRPERSON: The evidence was that she also was involved in the Boipatong massacre. She has not been excluded in that activity, and thatís why they both were targeted. Isnít that the evidence thatís before us? Itís not only Ms Ndumo, itís Ms Ndumo and Ms Mokoena, and youíd be in a position to get better evidence from her, rather than to have her speculate about whether Ms Ndumo was or was not involved in the Boipatong massacre.
CHAIRPERSON: She definitely was. They both would go about knocking at peopleís doors at night, screaming, and people would open the doors because they would hear female voices, and once they opened the doors then people would come in and attack those who had opened the doors.
MS MOKOENA: Hapile and other girls resided at a certain place belonging to Oupa, who was a comrade. They lived with some of the comrades. It happened that one day these comrades took a bakkie from a white woman and they killed her. One of the comrades took a van and went to Sharpeville, and he was accosted by the police. They told him that they were looking for the van, and he pointed a place where they all stayed, including Hapile and them. When the police arrived there they found Hapile and some of the comrades, and all of them were arrested. They were taken by the police to Barrage cells, they were kept in the cells and the comrades managed to escape. Hapile and them were released because Jay Naidoo interfered, intervened.
MS MOKOENA: I escaped whilst we were at a certain house. It was at Zandiís house. I was told to remain outside. While I was outside I sat down. Zandi came out to me, and he said I should kiss him, and I requested water because I was full of blood. He went back into the house for quite a long time and because I did not see them for a lengthy period I decided to run away. Thatís how I escaped.
CHAIRPERSON: Ms Thabethe we would prefer that you lead evidence and donít put it to the witness what has been stated by the applicants. What they have said, may not in fact be the truth, so youíd be better off just seeking evidence from her as to what transpired so that we get her full version.
You have not covered the aspect of what happened from the time they were abducted from the tavern to the time where now she is at Zandiís place. We have not heard her version of events in regard to those aspects, and those are important aspects. We would prefer to have her own version in regard to those aspects. Donít adduce evidence by putting to her what has been stated by the applicants. You will then be denying us an opportunity of getting her version, which version would then be in a position to contrast with that of the applicants.
MS THABETHE: Thank you Madam Chair, Iím indebted to you. Iíll do as you say. Ms Mokoena, the last time I asked you about the incident of the 15th of August 1993 you had told this Committee that you refused to go with John Radebe and others after he had asked you to go to the offices. What transpired thereafter?
CHAIRPERSON: I am going to ask you again. We have all kinds of interferences with the sound, and there is now drilling which is going on outside, just try and be slow when you give your evidence. Itís very important for us to write down what you are saying. You may proceed. John Radebe then asked Mr Mkhwanazi what he should do, what should happen to you? Will you come back to that? What did John Radebe say to Mkhwanazi?
MS MOKOENA: He asked Abraham as to what he should do to me because I was refusing to go. Abraham said he did not know what he should do to me. I saw him pulling a gun from his waist, and he shot at me. He shot me to the neck.
After shooting me I ran away into the house at the tavern, and I hid behind a sofa. John Radebe came in, he found me behind the sofa, he ordered me to go out, and I went out. There were people outside asking as to what was happening. John Radebe responded to them by saying we were members of the IFP. Himself and Abraham had their firearms in their hands and we left the tavern, got into one of the streets, and headed for Small Farms.
CHAIRPERSON: You are still too fast there. You are so fast that itís amazing the interpreter is able to keep up with you but heís doing so at great difficulty, to his ears and his mind, so I know itís difficult. Just try and be a little slower. Will you just repeat your evidence where a group of people were following you and were asking what was going on, and Radebe was telling them to back otherwise he would crush their heads. Continue from there.
MS MOKOENA: When they heard that their heads were going to be crushed the people turned back. John ordered us to run, and we did as we were told, and I was bleeding. Abraham was merciful on that day, he gave me a toilet paper to wipe the blood off, and he did not want us to run.
Thereís a school called Zeta, we took the street that is running parallel to Zeta and we headed downwards. There was an open space next to a certain house. They ordered us to stop there. Abraham and John left us with Bopipo and they ran into a yard that was nearby. They came back to us. When they arrived Abraham said we are now going to Zone 12 ...(indistinct)
We left for Zone 12. There is an open space that is dividing Small Farm and Zone 12. We stopped there again. John, Abraham and Bopipo went aside, talking among themselves, but I did not hear what they were saying. They left Bopipo with us. He had a gun. And they ran to Zone 12 Extension while we remained behind. When they came back they were with Zandi. When Zandi arrived he asked me whether I knew Meme. I responded by saying yes, I knew her. I told him that Meme was my friend, and he sad to me wow if you are Memeís friends then we are going to kill you.
The four of them went aside again and they conversed among themselves. John and Abraham left for the old Zone 12 through Zone 12 Extension, and the rest of us went to Zandiís place. I was at the front when we went into Zandiís place. Bopipo pulled me back. They went into the house. When I wanted to get into the house they shut the door.
MS MOKOENA: I sat down waiting for them. Whilst waiting Zandi came out, and he said I should kiss him. I told him to get me water. He went back into the house for about five minutes. Then I decided to stand up and run away, and thatís what I did. I ran to Zone 10. When there was a car in the street with its lights bright there were people inside that vehicle, two of them, I saw them coming out of the car, coming towards my direction. They asked me as to what was happening because my clothes were full of blood. I told them that I had been shot. They took me into a house, into the house. It was a couple, it was a woman and a man. And the man asked me where did they shoot me. I told him itís at the neck, and he told me they did not have telephones, he would go and try to call an ambulance, and after a while an ambulance came to take me to Sebokeng hospital.
MS MOKOENA: One day, it was on a Sunday, I was coming from the soccer, a certain boy arrived. His name was comrade Fish. He arrived at home and told me that I was wanted to Nghlombaniís place, and I asked him why. And he told me that there were people spreading the rumour I was a sell-out. It was on a Sunday when he told me that, and he said I was wanted at the office on Monday 11 oíclock in the morning.
MS MOKOENA: I went to Hlombaniís place and I was questioned. What they did, they told me that, they asked me what was going on between me and the policeman. I told them that he was my boyfriend, and they told me that I knew that policemen were not wanted in the township because they are associated with Inkatha. I told them that yes, I know, but my boyfriend is not associated with Inkatha because he lives with me. Thatís how I responded to their question. I told them I do not know him to be associated with the IFP, he is with me most of the times.
MS MOKOENA: There is a certain Mr Ndlapo who was present. I donít know whether he was vice to Hlombani, but I know him to be a senior as well. When our case ended, he mentioned in the meeting that he was washing his hands just like Pilato did. He told us that he was not going to get involved at all because we were not, he did not see anything wrong with us.
CHAIRPERSON: Thatís what I want to find out. Your earlier testimony was that you were questioned about your association with your boyfriend who was a policeman and you were told that you knew that policemen were not wanted in the township because they were associated with the IFP. You responded that you did not think your boyfriend was associated with the IFP because he was with you most of the time. You then said they understood and carried out investigations.
MS MOKOENA: He said to me we are satisfied with your explanation of how you conduct your life in your township. That was the explanation I gave them about my boyfriend and how we lived together. He was satisfied.
MS MOKOENA: What Iím trying to explain is, yes we lived normal in the township. Meme, there were cars that frequented Memeís home and it was rumoured in the township that she was a member of the IFP. Now this person was actually referring to the freedom. He referred to, he said we should to live free in the township.
CHAIRPERSON: Did you understand that to mean that insofar as Meme was concerned she could continue to see him, that visitors of the persons who were driving the many cars that had been seen parked outside her home, that she could continue with a relationship with a person she had admitted that she was a member of the IFP.
MS MOKOENA: He heard from Meme that she was going out with that, Memo advanced reasons why she was going out with that person. She told him that she did not know that these were members of the I, of Inkatha, and these people were not yet known that they were members of the IFP. I only knew them to be car stealers.
MS MOKOENA: In their application they alleged that we were members of the IFP. It was common that if you are a member of the IFP your house would be burned and you would be killed immediately. I was not killed immediately when it was rumoured around the township that I was going out with a policeman and that I was a spy, and my home wasnít burned.
MS THABETHE: Regarding what they have said, the evidence that they have given, would you say they had told the whole truth to the Amnesty Committee about what happened that day, on the 15th of August 1993?
MS MOKOENA: About the information that they sought from the deceased, and that she was involved in the Boipatong massacre. That is not true. I know the deceased was not present during that massacre. She was in gaol. She would have never told them lies.
CROSS-EXAMINATION BY MS MOLOISANE: Ms Mokoena, you said John Radebe and one Godfrey abducted, actually Sissy told you that John Radebe and on Godfrey abducted her, and went to sleep with her. Is that correct
MS MOLOISANE: It is also my instruction that there is documentary proof in the form of a passport belonging to this Godfrey Shiya, that can be produced to prove that he was not in the country at that stage. What can you, do you say?
MS MOLOISANE: He is not sure as to the exact date but he is sure that it was early in 1992 when he left the country, and he is also sure that he returned, he spent almost a whole year in Lesotho and only returned in January, early in 1993, but he does have documentary evidence in the form of the passport, which, if this Committee needs, he will be in a position to produce.
MR LAX: She said she didnít lay charges. Sheís already said that no charges were laid. She has already said no charges were laid. So, itís no point putting it to her, sheís agreed with you that no charges were laid.
MS MOLOISANE: Now my instruction is that during that time you were too young and you did not stay with any boyfriend at your home. Ms Moloisane we are here to deal with offences which are politically motivated and not to deal with how people conducted themselves morally. Whether one decides to stay with a boyfriend when she is twelve years of age or eight years of age it is none of our concern. I donít know what would be the probative value of that kind of evidence that you are seeking to elicit from Ms Mokoena. How she decides to conduct her sexual life, it is not our concern here.
MS MOLOISANE: Thank you Madam Chair. Now letís go to the incident when one Skosana visited your home. Is it not so that this Skosana that you have referred this Committee to was one of the unit commanders in Zone 12 Sebokeng? Is that not so?
MS MOLOISANE: I further put it to you that the reason why you fled through the window was because you knew that you were one of the IFP spies and that he would question you about it. What is your comment thereon?
MS MOKOENA: That is not true. Skosana took girls and slept with them. He would come to your home, abduct you, and sleep with you. I ran because, had he found the two of us, he would have killed the policeman, take me, used me, and killed me afterwards.
MS MOLOISANE: Now, my instruction is that you were never targeted by the SDUs or by the comrades, because of your affair with, your love affairs with a policeman, Johannes Masime. You were never targeted because of your involvement, or because of your love affair with Johannes Masime.
MS MOLOISANE: That is correct Mr Lax. The reason why I'm highlighting this is because I want to further put it to her that the reason for her attack was simply not because Johannes Masime was a policeman, and that is why Johannes Masime was himself never attacked by anybody, despite his staying in the township.
MR LAX: Your clients have both said they didn't know Masime. Your clients have both said in their testimony that they didn't know who Johannes Masime was. So how can they even begin to put such a proposition to this witness? They didn't know who the man was. You understand? That was their evidence. They never heard of him before. So, they're in no position to say anything about him, and you're therefore in no position to put anything about him to them, other than in the most general of ideas.
MS MOLOISANE: The reason why I am putting this question is because Mr Bonga Khumalo stated that he was aware that the witness, that Elsie Mokoena had an affair with a policeman and he categorically stated that he was not attacked. She, I mean, was not targeted because of her love affair with a policeman.
CHAIRPERSON: Not seen in cars. That she did have a boyfriend who was driving a car and that boyfriend was an IFP member, but that when the relationship started she was not aware that he was an IFP member. She thought that person was a car thief. She initially knew the boyfriend as a car thief.
CHAIRPERSON: Are your instructions also that they were spying for the IFP and also passing on information to the police? That is how I understood the basis of the motive that led to the killing, as stated by, in particular, Mr Radebe.
CHAIRPERSON: I think it would be fair then to put both the reasons why they were target, that they were IFP spies as well as being, as well as passing on information to the police, obviously bearing in mind that she had a relationship with a policeman.
MS MOLOISANE: And you also confirm that at some stage you appeared before the ANC I shall say disciplinary committee also. You were questioned at the ANC office or at that garage which was being used as the office.
MS MOLOISANE: And during those, during the questioning, you were, let me rephrase it this way. During that time you were extensively questioned about your involvement with the IFP, is that not correct?
MS MOKOENA: She was questioned of her relationship with Memo. She was asked whether when the cars arrive at Meme's place she would be present, and she was asked whether she had a friend as well, in that group of IFP men.
MS MOLOISANE: You say, or let me put it this way Madam Chair, my instructions is further that you and Hapile were lashed and reprimanded for your, I mean after you were questioned at the ANC office there, or rather at the garage. What do you say about that?
CHAIRPERSON: Just expand more so to enable her to respond properly. Tell her what ample time they had. Expand more on what you are putting to her, explain what you mean when you say they had ample time to rape her.
MS MOLOISANE: Let me start it this way Madam Chair. How long did it, or, I still have a difficulty. Let me rephrase it again. What time was it when you were called, you and Hapile were called at the tavern by John Radebe?
ADV BOSMAN: Is that really a fair question? Because what the witness testified was he asked her, the first time to come with him, she thought he would rape her. So is this a fair question, to say he had ample time? She did not testify that at the time that they were shot she thought they were going to rape her. She testified that when he first asked her at the tavern to come with him, she thought that they were going to rape her.
MS MOLOISANE: So you are not in a position to can dispute that whatever John Radebe and Fani Mkhwanazi or Abraham Mkhwanazi did on that particular day was in execution of orders that had already been issued, not so? You are not in a position to ...(indistinct).
MS MOLOISANE: My instruction is that there was in fact an order that had been issued by comrade Mhlongo, that you and Hapile be apprehended wherever you were to be seen, and that you should be killed, as you were classified as ...(indistinct).
CHAIRPERSON: Ms Thabethe I am going to disallow your line of re-examination. You are supposed to re-examine on anything that came out as a result of Ms Moloisane's questioning. I have allowed you already a great amount of latitude. You are questioning Ms Mokoena on issues that have long been traversed. With regard to when Skosana came to her house, whether it was before or after, her, Ms Mokoena's evidence has been crystal clear on that issue. Mr Skosana came in June 1992, and the enquiry took place in March 1992. Nothing new came out during Ms Moloisane's cross-examination. I will not allow this line of re-examination. If you still have anything new that has come out as a result of Ms Moloisane's cross-examination, proceed to do so. Do not repeat the ground that has already been traversed.
CHAIRPERSON: Ms Mokoena we wish to thank you for having had the courage to come and give your testimony to us after what you have been through. We hope you will be present during the remainder of the proceedings, because it is in your interests, and we hope this process will go a long way in trying to address the pain that we know you were subjected to. We thank you very much ma'am. We also appreciate the courage that you have shown during your viva voce evidence. We know it is not an easy thing for a person who has been subjected to any kind of atrocity that we have to deal with as an Amnesty Committee, to be able to contain herself when she gives evidence, because the mere giving of evidence revives the terrible memories, that I am sure not only you but our country would like to have as a closed page. We thank you. You may step down now.
CHAIRPERSON: Ms Thabethe, you had earlier on indicated that the relatives of Ms Hapile Ndumo also wanted to testify in respect of the incident that we are currently dealing with. Is that still your intention, and if so, who do you wish to call?
MS THABETHE: Madam Chair, it was my instruction that they want to, the mother wants to says something to the Committee members and to the public, so I would proceed to call her, and in the meantime, can I be excused for two minutes?
CHAIRPERSON: It was explained that you'd like to say something to us, and we want to take an oath for that. And because you are the mother to the deceased, we saw it necessary to give you this opportunity and tell us what is in your heart. We now give you this opportunity.
MRS NDUMO: I wanted to tell this Committee how I found the body of my child. She was shot four times and the letters of Inkatha were cut into her thigh, and she was dragged from where, from the original place of killing. I want to tell this Committee that I'm deeply hurt at the loss of my child. She would be working for me today, doing everything. I am old. She is dead. They are here seeking amnesty. I do not forgive someone who wronged me. I do not forgive anyone, because by forgiving them I would be sending a message of, yes, you helped me by killing my daughter. I do not have any forgiveness. I don't have anyone to draw water for me. I don't have anyone to iron for me. And to come here and say thank you, you killed my daughter, no ways. I have nothing further to say.
CHAIRPERSON: We thank you for your words and they clearly indicate how deeply you hurt. We want to tell you that the process that we are busy with, it's a process that is trying to see whether the people who killed had a political motive. If we discover that they killed because of politics, under the Act then we are obliged to give them amnesty. That's what we can do as a Committee. And we cannot force people who lost their loved ones to forgive. It has to come from them. I do understand what you are saying, and we thank you.
MS MOLOISANE: Madam Chair and Committee Members, it has come to my attention that comrade Mabusa Mhlongo has arrived. I have had the opportunity of consulting with him, and I am therefore of the intention to call him to come and testify, and I therefore withdraw my earlier request that he be sent for psychological or psychiatric assessment.
MR MHLONGO: When I arrived in the country there was a lot of violence. I had to get information from the comrades as to who belonged where, and I got information that Hapile Ndumo, Meme and a group of them were now under the IFP. As the member of the unit, and as the commander, I managed to investigate this thing thoroughly. Now there was this unit that was under my command, and during the patrols a certain vehicle approached. It was white in colour. There were two boys inside and three girls. Hapile was among them.
CHAIRPERSON: Now can you recall whether it was immediately after you had set up your unit? You came back in 1992. How long after you had returned did you become a commander? You've been able to tell us that you came back in February 1992, when then did you become a commander of your unit?
CHAIRPERSON: Now, to your knowledge, did this incident when you see Hanta Ndlovu, did it take place towards the end of 1992, did it take place mid-1992, or are you unable to estimate was it summer, was it winter, was it raining, was it cold, did you have to put on a jersey?
CHAIRPERSON: Yes, there is something wrong with, but what I'm telling Mr Mhlongo, that little box will help you to hear me. Don't keep it in your hand, leave it on the table. Don't even block it with your hand. Can I repeat what I was saying?
CHAIRPERSON: Your earlier evidence said these things, that is the killing of people and kidnapping of girls by the IFP people never happened in the township, they only happened in Zone 7, and you now changing. You're saying they happened in other zones. We want you to give us a clear evidence that we can write.
MR MHLONGO: I then told my unit that it should be very vigilant. I told them that I did not want to hear anything reported to me about Zone 12. I told them that anything that would happen in Zone 12, they will carry that responsibility.
MR MHLONGO: They listened and they kept watch at all times, until morning. And when we met again in the morning I gave them orders that should it happen they see Hapile Ndumo they should kill her, together with her friend Mandayi.
CHAIRPERSON: Before you answer Mr Mhlongo, what do you want to elicit from him? He has already said he gave an order that they should kill Hapile and her friend Mandayi who is Elsie, when they saw them.
MR MHLONGO: It was in the morning when I dismissed them to go and prepare themselves for other activities of the day, and I went to go and investigate the whereabouts of Hapile and I discovered that she was not around Zone 12 together with her friend Mandayi. Mandayi was also not around Zone 12. It took quite some time before I could assemble, before I could meet them, the year and that, before I could meet them, and I met Hapile in town.
MR MHLONGO: Thank you Chair. Yes, this was not acceptable to me, and in 1993 around May I co-opted John Radebe and I took him to Sasolburg for crash courses. That's where he received his training up, and when he came back I gave him the two IC rank. And I gave him an order, I said to him, "...Radebe should you meet Hapile and Elsie, kill them."
CHAIRPERSON: Your evidence was that a person who executed an order was accountable to you, and my question is, am I correct in therefore assuming that that person would be so accountable to you irrespective of rank, as long as he had executed your order?
MS MOLOISANE: Now when you issued this particular order, specific order that Hapile and Elsie should be killed, did you do that on your own or was it because of orders that you received from elsewhere?
CHAIRPERSON: Mr Mhlango you had not yet explained that, and I am listening to you as you give your evidence in Sotho. I can't even apportion blame to the translator. You had not yet said anything about the person who had issued the order. You may simply proceed to respond to questions put to you by Ms Moloisane and don't tell us about that which you have already said or not. Just answer the question without having to prefix anything to your responses.
CHAIRPERSON: Yes, thank you. And let me repeat what you've said. The general order was to the effect that you as unit commander should kill Hapile and Elise when you saw them. And this an order that was given by Mr Khumalo to you as unit commanders, that's correct?
CHAIRPERSON: Hasn't it been your evidence that the general order was that you should kill Elsie and Hapile? Is that not your evidence? I believe you may be correct. My note says that the general order was that you should kill Hapile and Elsie. It would appear that one of my colleagues has something different. What do you have?
MR LAX: Let me explain it to you. You're being asked to elaborate on what you meant when you said, and just to give you the background, you were asked what were the specific words Bonga Khumalo told you, as commanders. Your answer was that he issued out this order to the unit commanders. He said, and then you quoted him, "...should you see Hapile and them, or should they be seen anywhere, they should be killed." Do you remember saying that ?
MR MHLONGO: I have explained already that I saw them harassing the community. It was my aims as well as my duty to protect the community, and it was my responsibility to see to it that the community was safe.
CHAIRPERSON: May I interpose? Your evidence has not elicited anything about what Hapile and Elsie did. Your harassment that you are referring to has been in relation to the person, or to persons that you named Oupa Smith, Dondo, Dada, and that group. You did not in your evidence say how Elsie, other than having been seen in their company, harassed the community.
MR MHLONGO: My apologies. They harassed the community in the sense in that they were the ones who identified the community, the members of the communities, and they were the ones who pointed out the houses where these people lived. Ultimately those people died.
CHAIRPERSON: And your earlier evidence that Dada stayed, before he moved to Kwamadala Hostel, at Zone 12, and so did Jabu, you didn't know where Dondo stayed, and Oupa Smith stayed in Zone 13. Why would it have been necessary for Elsie and Hapile to identify people to be attacked by the IFP when in fact they were in the company of people who were familiar with your zone and were also familiar with the community in Zone 13, because they had before moving to Kwamadala Hostel been staying in those zones?
MR MHLONGO: Thank you chair. It is true they once lived in those zones, but they did not have information as to who the active members were. Now to know who the active members were, it was through them. And who was from outside the country, they knew through them. And we were in their hit list.
CHAIRPERSON: I know that this happened during the political turmoil in Sebokeng. I just need the precise period. Which month and which year did you capture people who were able to tell you that you were in the hit list?
CHAIRPERSON: Well did that information come to your knowledge in 1993, or in 1992? You should be able to remember, we are dealing with a situation wherein you only came back into the country in February 1992. You are able to remember the precise month when you came back into the country, and when you established the SDUs. Surely did you capture these people whilst you were a commander of the SDU? Did this happen whilst you were in command?
MS MOLOISANE: Madam Chair just before I proceed with my questions, I just want to inform the Committee that due to lateness of an hour I just want to cover the Maletsatsi incident as he was the commander then.
MR MHLONGO: It was because I was the present of Cosas at that time and she might have realised the treatment that I received from the white people. Each time they came to look for me I would run away and she told me that she had a house and I can come and stay with her.
MR MHLONGO: I lived with the comrades for quite a long time, and Maletsatsi lost control and she left us in the house, and we did not know her whereabouts. She came back after some time and she took some girls who lived around and she left with them. The disappeared for quite some time and only those girls would come back without her, and they told us then where they went to, and who Maletsatsi made them to meet.
MR MHLONGO: A decision was taken to eliminate Maletsatsi because the innocent girls were kidnapped and when they arrived at Kwamadala was, she was bossy, she would choose men for each girl. She was sort of a star, and I ended up issuing out an order that Maletsatsi be eliminated.
MR MHLONGO: Thank you Chair, yes, I issued out an order and I issued out orders on a daily basis, and I was working with many people. I do not remember when it was when I ordered Radebe to eliminate Maletsatsi.
CHAIRPERSON: Was it common practice for you as a commander to issue specific orders that involved a killing of women, particularly the ones that were once close to you, and once offered you a safe haven?
CHAIRPERSON: And that is why Ms Moloisane has asked you to give evidence. In order to be able to assist us. You are not much of an assistance if you can't tell us the month nor the year in relation to what you are testifying to. You are not much of any assistance to us. You must bear that in mind as you give your testimony. Proceed Ms Moloisane.
MR MHLONGO: At this moment I want to say whatever happened then, I am asking forgiveness on behalf of my unit. The situation and the present, or the then situation in politics led us to doing such things. Sorry.
CHAIRPERSON: You are not the one who is applying for amnesty. The applicants have already expressed their remorse in this regard. You are here to give evidence. We expect you to be of assistance, and we hope you will be of assistance, particularly in contextualising your evidence in relation to time. Thank you. Ms Thabethe.
CHAIRPERSON: Don't generalise Mr Mhlongo. Either you saw Elsie on that day, or you didn't see her. We don't want your speculation, we want what you saw and not what you thought because of what had previously happened, did you see Elsie on that day or didn't you see her?
MS THABETHE: My question is, Mr Mhlongo, you have said that you only were aware of such an enquiry having taken place. Was there any information relayed to you about the said enquiry, as to what was happening there, and what findings were made there with regard to Hapile Ndumo and Elsie?
CHAIRPERSON: Are you saying that prior to the enquiry that we have already heard evidence both from Mr Mkwanazi and Mr Radebe, as well as the witnesses we have called to support their application, Mr Ngiba and Mr Khumalo, you are saying that a general order was issued before that enquiry was held. Is that what you are saying?
MR MHLONGO: I am saying the general order was issued out after my commander had met with the underground structure that was investigating this incident. Now I got out of the unit and found the information myself.
MR LAX: Sorry, can I just interpose here. Are you saying that your commander told you that he had met with his underground structures, who had made an investigation, and that after that you issued the general order?
CHAIRPERSON: Mr Mhlongo do you agree with the version that has been given by Ms Mokoena? That an enquiry that was intended to investigate some allegations that had been levelled against Ms Mokoena and other ladies, some of whom included herself and Ms Ndumo, was held in March '92. That's her version. We have also heard a different version from the applicants that the enquiry was held in June 1992. Are you in a position to assist us in that regard? Do you know when this enquiry was held? Was that in March or in June?
CHAIRPERSON: Now you are saying you came back in February 1992. So that would actually take you to between January and beginning of February 1992. Am I correct? Oh, a few weeks after your entry. That would take you to March?
MS THABETHE: I was referring to the fact that he said he did a thorough investigation before issuing an order. So my question to him was the thorough investigation done after the enquiry had been done, or before.
CHAIRPERSON: My question was what did your investigation entail? How did you conduct your investigation? What is it that you did in order to come with whatever finding? Iím not asking you about the findings of your enquiry, Iím asking you about the steps you took in conducting such an enquiry.
MR MHLONGO: Thank you Chairperson. My apologies. I searched for them and I couldnít find them. When I met them, I was not investigating. It happened that I saw them. When I first saw them it was when I took out a grenade and threw it at them. The second time was in town when the community was harassed. That was evidence enough to give my unit an order to eliminate them upon sight.
CHAIRPERSON: No the reason why Iím putting that question is because of your earlier evidence that you also conducted your own enquiry, and you said it was a thorough investigation. Now have you not elicited that kind of evidence, this question would have been completely unwarranted. It is your evidence, and it is as a result of your evidence that I am asking this question. You stated that you conducted a thorough, not just any kind of investigation. You qualified the kind of investigation you conducted as having been thorough. Now I just wanted to find out how this thorough investigation was conducted.
MR MHLONGO: As I have mentioned that I investigated, but I could not get anything out of this investigation, and the final proof was to see them and there were no investigations necessary just because I had seen them.
CHAIRPERSON: No I know that. I want to know your earlier evidence. Everything you say is taken into, seriously into, account. I want to know whether you didnít say earlier on that you conducted a thorough investigation. Did you or did you not say that?
CHAIRPERSON: No, Iím going to ask you for the last time. If you are not prepared to answer, then you donít answer. You are here to assist. As a commander, or an alleged commander, in the applications of Mr Mkhwanazi and Mr Radebe, we expect you to respond to questions when they are put to you. If you are unable to answer, do not answer, and indicate your inability to do so. Do not adopt a particular attitude with this Committee. Itís not going to get you anywhere. Do you understand me? You are here to assist us and when we ask you questions, we expect you to respond to those questions because we need information in order to be able to decide whether the grant or deny the applicants the amnesty they have applied for. Did you earlier on state that you had conducted a thorough investigation? Did you, or did you not, say that in your earlier testimony?
MR MHLONGO: I explained how I proved my point that they were involved. That made me issuing out orders that they be eliminated. Now what I donít understand is your question. Where is your question leading to?
CHAIRPERSON: Earlier on, of your own accord, you said you conducted a thorough investigation in relation to the activities of the two girls in question. Thatís what you said, and I want to understand if you still maintain thatís what you said.
CHAIRPERSON: I hope it takes you a little faster next time to say yes instead of giving us a sermon that doesnít take us anywhere. You are there to assist Mr Mkhwanazi and Mr Radebe and not to adopt an attitude with this Committee. You have been called in to support their application because you were allegedly a commander of a unit. We hope youíll do just that without wasting our invaluable time. We donít have time to waste. Proceed Ms Thabethe.
MR MHLONGO: I told my unit, that was after the vehicle sped off. I told them the description of the car. I told them that I threw a hand grenade inside the car, it was thrown out, and the car sped of.
ADV BOSMAN: Why did you not lead this confession when I asked you whether you had told him anything about confessions? Why did you not remember that you had told him about confessions at another stage?
MR LAX: Your earlier evidence was that you recruited him in about June. You sent him on a monthís course to Sasolburg. When he came back he started operating with your unit as a 2IC. That was your evidence.
MR MHLONGO: I told him that my soldiers were responsible for the death of Hapile, and Elsie survived, and I told him that it was a blunder that Elsie survived, and after, upon realising that they made a mistake by letting Elsie survive they also went under cover, so it was upon my shoulders to call a gathering and meet with them.
MR MHLONGO: I met with Bonga in October of 1993, I am not mistake, and as a unit commander I was accounting, telling him that the people responsible for such an act were under, were in my unit. And I was accounting on their behalf because they had, they were not present.
MR LAX: The point is, you went on to explain that you knew what they had told, you were able to report because you had met with these guys and they had explained to you what happened. That was your evidence. And then when I asked you when did you meet with them, you said it was in 1994. Do you understand my puzzlement with you?
MR MHLONGO: Chairperson, my apologies. I said the person who came to report to me was Bopipo, not the people who committed the act. The act was committed by Mkhwanazi and Radebe, but the person who was with them came to report to me and he is Bopipo.
MR LAX: What exactly, Iím asking this for the second time, did you tell Bonga Khumalo, when you briefed him fully about this matter? So far youíve told us that all you told him was that your unit was responsible, that it was a blunder that Elsie survived, thatís all you told him. Is that right?
MR LAX: So when did you tell him about the confession? Your evidence earlier was that at the second briefing you told him about the confession. You didnít tell him about any confession, isnít that right?
CHAIRPERSON: Mr Mhlongo, Iím aware that you are getting tired, and that these things happened a long time ago. But we also are in the hands of Ms Moloisane. She called you here to testify to events being alluded to by her clients who are applying for amnesty. We want to believe she would not have called you if she had not, in her consultation, exercised her mind as a lawyer whether your evidence would be relevant and would materially support the application of your comrades, Mr Mkhwanazi and Mr Radebe. Do you understand me?
CHAIRPERSON: We donít ask you questions for the fun of asking you questions. These questions are intended to assist us in considering these applications of your comrades, and we want to believe that you willingly came in to testify in support of their applications. Are we correct in our belief?
CHAIRPERSON: Now you have testified earlier on that you also conducted your own investigation about the activities of Ms Ndumo and Ms Mokoena, and came to the same conclusion, that they indeed were Imidwembe. Did I understand your evidence correct in that aspect?
CHAIRPERSON: The reason why Iím asking that question, is that yesterday we heard evidence from Bonga Khumalo who was your general commander, that it was the function of the underground structure of MK to verify information regarding Imidwembe. That was the evidence that was given before us, and he was unable to explain whether the allegations of Imidwembe pertaining to Elsie and to Hapile, whether it had been referred to the underground structure. So you are the commander of the unit. We now want to find out whether you were aware of this important principle that Bonga Khumalo alluded to, and said it was in fact the cornerstone of your structure, that the principle was based on logic, that the organisation did not want to act upon unverified information concerning Imidwembe.
Now since he was unable to shed more light about this, we are now looking to you as the commander of the unit concerned to tell us whether these allegations were referred to the underground structure at all, and if so, to whom, and if not, why they were not so referred, when Mr Khumalo has made us to believe that it was an important requirement before any action be taken concerning Imidwembe.
MR MHLONGO: Mr Khumalo testified to the effect that there was an under structure, and I did not know who it consisted of. Those people were underground, they were hidden, but some people knew them, and some of us did not.
CHAIRPERSON: Mr Mhlongo I am not going to be long with you. It is really this aspect, and one very short aspect, however I can see that there is a look of fatigue on your face, and I think weíll adjourn for three minutes. I hope that will be sufficient so that we can just have a breath of fresh air.
CHAIRPERSON: Ms Thabethe, Ms Moloisane, may I draw your attention to the fact that whilst the witness is being questioned, you may not speak to him. That is the rule of thumb. It would be unethical for you to speak to him.
CHAIRPERSON: Precisely because any person who sees you speaking to your witness would not know the content of your discussion, it is always wise and more than advisable for Counsel not to be near the witness who is being questioned. You are not supposed to be near that witness because of public perception. It is part of our public administrative law.
Mr Mhlongo, I will repeat what I put to you before we took a short adjournment. Yesterday Mr Bonga Khumalo who was your general commander, advises that the cornerstone rule of your structure, which was put there for the integrity of your organisation, was that you as commanders could not act upon any information concerning allegations of persons who were referred to as Imidwembe, without verifying those allegations with your underground structures of MK. Are you aware of that rule as a commander?
CHAIRPERSON: You see when we questioned Mr Khumalo about whether this was done in the situation of Ms Hapile and Ms Ndumo he said he did not, he did not know whether you as a commander had done so, because it was a function of a unit commander to do the verification. That is why Iím asking you as a unit commander, because the evidence suggested that it was not his function but that of a unit commander to refer such matters to underground structures.
MR MHLONGO: If when, if I heard Mr Khumalo well, he was saying unit commanders had the rights to issue out orders only after theyíve investigated that yes, these people were involved. Thatís how I understood him. Not that because I was a commander of a unit I had to meet under structure.
CHAIRPERSON: Yes, I am not concerned about how you comprehended his evidence. I am putting to you what he said. He said there was a need to verify information before it could be acted upon, to avoid innocent persons from being killed, merely on the say-so of someone that they were either IFP informers or passing on information to the police, and that even Ďthough this was an important principle it was not his function to verify, suggesting that it was the function of a unit commander to verify. Are you saying he was wrong?
CHAIRPERSON: Now whilst I was still trying to peruse my notes to find out exactly what Mr Khumalo said in this, in this regard, it has now been drawn to my attention by a member of my Committee, that Mr Khumalo said it was your function to verify and that you reported to him that you had verified with the underground structures of MK before, before this incident occurred, and that you told him so after Ms Ndumo had been killed. Was he lying when he gave us that evidence?
MR MHLONGO: That is not correct. As the unit commander, I was supposed to make sure whether it was true, and I had to give the general commander a report back, and he was supposed to move and pass it on to the underground structure, and the underground structure was supposed to then verify.
CHAIRPERSON: But he says thatís what you said to him. You told him that you had verified with the underground structures. Did you or did you not tell him that you had verified with the underground structures?
CHAIRPERSON: In your evidence, you stated that the reason why you initially issued the order to have Elsie and Hapile killed, was after you had identified three girls who were seated at the back of the car, and two boys, who were identified as IFP members. You were in a position to identify one of the girls as Hapile Ndumo. And it was on the basis of having seen those girls in the company of people who were IFP members that you issued the order that Elsie and Hapile should be killed. My question is, it is quite clear in your evidence that you only identified one person, and thatís Hapile Ndumo, yet your order was specific in terms of what had to be done, and to whom, the killing had to be effected. Why did you include Elsie whom you had not identified amongst the three girls?
CHAIRPERSON: Yes, I know that incident. That happened quite a long time after because your evidence was that they disappeared thereafter for a long, long time. Is it not so? That was your evidence. And the next time you saw them was when they were in town in the company of a group of people that you identified to us. You named Oupa Smith, you named Dondo, you named Dada, and a number of people. But that happened a long time after the grenade incident. Is it not so?
CHAIRPERSON: And you will recall that your order was issued the next day after you had identified Ms Ndumo in the company of these IFP persons, so how could you have included her because of what she then further did? And Iím talking about Elsie. How could you have included her in what she had further did, because the order was prompted by the fact that you had seen these three girls in the company of the IFP persons? Were you not wrong in including her then?
CHAIRPERSON: Mr Mhlongo, you ordered that Elsie and Hapile should be killed immediately after you had recognised Hapile amongst the small group of girls who were in the company of alleged IFP members. How can you say you included her because she disappeared, when, how soon does it take one to disappear? She wasnít in the car, you said, and the next day you give an order, so when has she disappeared in 24 hours?
MR MHLONGO: Chairperson I think I said already that they had disappeared before the incident of this car. When I saw Hapile in the car they had long disappeared. I could only see Hapile. Now since that they had disappeared, the two of them, I thought she must be among those girls, thatís why the following day I included her. Thank you.
CHAIRPERSON: Mr Mhlongo we are sitting here and listening very meticulously to your evidence. We have to understand the sequence in which you give your evidence. It is our function to do so. It is our function to make sure that we donít mislead you, in the evidence that you have led. If we did so we would be doing a serious miscarriage of justice, not only to you but to the process itself. Not to mention to the applications of Mr Radebe and Mr Mkhwanazi. And we can assure you that we make sure that we do not do a miscarriage of justice. We do not misquote you. It was your evidence said that these ladies disappeared for a long time, after the hand grenade attack, and the next time you saw them you saw them when they were in town, and when you saw them they were in the company of Oupa Smith, who stayed in Zone 13, Dondo who stayed in, no you didnít know where Dondo stayed, Dada who stayed in Zone 12, and Jabu who once stayed in Zone 12 as well, at which time all these men were now staying at Kwamadala Hostel. That was the sequence of your evidence.
CHAIRPERSON: Yes. Now how can you say Elsie had disappeared a long time before? How can you say that? When I asked you, you said this incident happened around June 1992. I asked you that question specifically and that was your response. You said around June 1992, and later said it must have been before June 1992. The record will bear me out. Was it not a mistake to have included Elsie in your order, your initial orders which you issued immediately, and to be precise, a day after you had identified only Hapile Ndumo amongst alleged IFP members in the car?
CHAIRPERSON: On what basis was she included? Your evidence is that she was not there, and you enquiries were only prompted by that particular incident. This is your evidence. You only started investigating this matter after the hand grenade incident, which is the incident that occurred at the entrance of LTA in Zone 12 Extension.
MR MHLONGO: Chairperson, letís go back a little bit. We must remember that that sentence had already been passed out on them, as well as other, as well as other Imidwembe. Chairperson you are disturbing me. You are really scaring me.
MR MHLONGO: Yes. The general commander had issued out a general order already, and after throwing a grenade into the car and it was thrown out of the car I repeated the order. I said Hapile and Elsie should be killed.
MR MHLONGO: Iím saying it was around June, yes. Iím supposed to, Iím right saying it was around June, but I am not exact as to the dates. It might have been that he became a commander on the 8th of June and the 31st he became the commander, and now it would be difficult to actually separate the dates.
CHAIRPERSON: Yes. Now Iím aware that it would be impossible for you to give us a specific date. I am saying if Mr Khumalo said he didnít order, give a general order, around June, but only issued it much later than June, then he would be incorrect.
CHAIRPERSON: Mr Radebe you may again take your seat. You know that you lead evidence in respect of the other incident. I think for the record we shall now move to the incident regarding the killing of Maletsatsi Morumo, which occurred on the 14th of June 1993. We shall now proceed with the evidence in chief of Mr Mjanyana John Radebe, who is the only applicant in respect of this incident. The Panel consists of, itís still the same as the one that heard an earlier incident concerning Ms Mokoena and Ms Ndumo.
"It was in early 1992 or late 1992, I would not remember the month. Maletsatsi was our comrade in the ANC youth league, she was supporting very well. She was a pupil at Mpuluzi secondary school. It happened that while she was still a pupil her father passed away. After the passing away of her father her mother left her. She went to look for another place at Grassmere.
After they left, Maletsatsi got involved in the issues regarding comradeship where she was with us most of the times. We realised that she was financially struggling, and as comrades we went to her school and we intervened. We told the principal that Maletsatsi, we requested that she pays, we requested the principal not to let her pay the school fees because she was left alone, and this was accepted. We then went to the owner of the place because she lived in a shack, she was a tenant, and we requested that the R20 rent that she was supposed to pay every month be scratched. They understood that.
Comrade Maletsatsi became very active in our struggle as the ANC youth. After some time we discovered that she was now living in Vereeniging. She went to town, came back to the township, and after some time it was rumoured that she was involved with Getisi and others. That was during the time when Getisi and his people began the killing of people. We asked comrade Maletsatsi about this rumour and we discovered that she did not know it, and we just left it there.
After quite some time some girls from the youth league, who were involved in the struggle, and just to mention a few, Makezasa, Gambu, Mkhwanazi, Gogo and Ellen, it was quite a group of girls who supported our organisation. We got information that these girls also were getting, were associated with Getisi and his group. One day I was travelling, I was moving from Zone 12 and the the comrades from Small Farms informed me that the Gogo and them were kidnapped from town and they were assaulted."
"I think it was early 19, late 1992 or early 1993. Somewhere around there. The comrades informed me that they assaulted Gogo and them, yes, I was informed and I came to know that those girls were assaulted. When this group was assaulted Maletsatsi was not present, and she disappeared into town and she lived at Kwamadala Hostel. There is a girl called Makazasa Gambu. I also heard that she was involved with them.
One day we went to Makazasa's home to ask her questions, and she was not telling us the truth, but some people confirmed that they saw her among a group of Inkatha members in town. There was no information received out of her, and we left her. We went to Mandlela's home to look for her. We could not find her. She was now permanently living in town. We were using Maletsatsi's place as a place of our hiding, because the police could not even suspect that a place belonging to a girl could be used to hide things.
One day it was at night when the whites came, they did not find us because we heard the sounds of their cars and we ran away. The next day the neighbours told us that is was Maletsatsi in the company of the boers. It was evident for us that what we heard was true, because here she was with the police. There were two ladies Thandi and, Thandi Dlamini and Naniki Tshabalala. One day when they went to town Maletsatsi and her gang took them to a place called Steel Park and they were assaulted and they were locked inside a house. They managed to escape."
"One day, I do not remember where we came from, but it was in the morning at about 4 o'clock, I think we were from Zone 7, we met at a certain place and he informed all the comrades. He said, '..comrades, we had such comrades in the organisation and they removed themselves from the organisation and those comrades are now living with comrades.' And he informed us that '...do you see one of our comrades had just been shot last week. It was close to the shops. Close to Maletsatsi's home.''
Before that there was a certain comrade called Moscow, he's now in the South African National Defence Force. At that time he was the chairperson of Cosas in Mpuluzi. He addressed this issue with the students. He said '...comrades we must know from now that comrade Maletsatsi ... and he mentioned others, he said '...they now reside in town, they are members of, they are with the IFP.'
Now it was known in the whole township that Maletsatsi is not to be seen. Because some of the girls in the organisation were complaining that they had been to Kwamadala, they had been inside, but they did not go voluntarily, they were lured. There were new shops that were opened in Vereeniging. The first one Crystal Palace, or it's called American Palace, and Giddys. Maletsatsi did not have money, but she managed to give these girls a lot of money and take them to town knowing exactly who they were going to meet.
Now when these girls came out of Kwamadala they informed us, they said '...comrades, we come from such and such a place. It was not intentionally. Maletsatsi is very free right in there, she is the leader, and she is in front of all the, all the assaults taking place in town.'"
MR RADEBE: The first one is Gogo, Ellen, I personally spoke to Makazasa Gambu. And she told me about Kwamadala, and she described how Maletsatsi lived in there with Getisi, Dondo, Hanta Ndlovu, and many of the IFP men. After comrade Kennel spread this message of Maletsatsi's killing I ...(intervention).
MR RADEBE: I said Moscow informed us that Maletsatsi was no longer a member of the organisation, and there was no meeting that Maletsatsi would attend, and that Maletsatsi was now living in town with Getisi. He was addressing the pupils and those of us who were present at the school.
MR RADEBE: I think it was in the morning, 4 o'clock, he said "...comrades you must know from now that Maletsatsi lives in such a place and they are assaulting people." He said, "...Maletsatsi takes our comrades who happen to be her friends and she takes them to Inkatha." He said, "...comrades she must be killed." That's all. I then left to go and join the unit in Zone 12, that is comrade Mabusa's unit. ...(intervention)
MR RADEBE: I went to join comrade Mabusa's unit because we were based together at Maletsatsi's place. If it was difficult in the other side comrades would run to the other side. We then discussed and realised that Maletsatsi's issue was very, Maletsatsi was dangerous, and the decision that she must be killed because she was the most dangerous amongst all, because she participated in a lot of activities of the ANC. She ...(intervention).
MR RADEBE: Comrade Mabusa, comrade Godfrey, and other comrades who belonged to the unit. We discussed Maletsatsi's activities in town. Comrade Mabusa issued out an order. He said to me "...Umkhonto, should you meet her," because even if I hid somewhere I was supposed to go back to the house and take a bath, that's how my order came out, he said I should shoot her. Indeed one day when we were at comrade Sipho Tshabalala's home, we were just sitting outside. If I remember well we had a problem with a gun and we were fixing it. I think this boy Zakhele Shoba who came to us was ten, if not twelve years old then. On his arrival he told us that Thandi sent him to call us to her place, and they needed us to bring the material. We comprehended what the material was. Material referred to something like a firearm. We then left for Thandi's place. The Small Farm office was very far. Now we used Thandi's home because it was the nearest to us and we would put some benches outside, sit and have our gatherings. When I arrived at Thandi's house, it was full of comrades. Majiga was there, comrade Yebohang Gambu was there, yes, Nchanyana was also there. I asked a question, "...comrades, where did you get this wanted person?" They said she was travelling in a train ...(intervention)
"She was seated with the comrades inside. I asked them, '...comrades, where did you get her?' They said, '...in the train.' Who found her, they explained. The comrades assumed she was going to her mother, and when the train was at Stratford station, that's where they took her out of the train by force. They took a taxi from Orange Farm to Small Farm. That was the information given to me.
I was with comrade Sipho Tshabalala at that time, and I asked them. There was a firearm that we used to carry, we used to call it Boito. Now I had Boito with me, but it was hidden under a lumber jacket, because I was wearing a lumber jacket. There was only one round inside. And I said to them, '...comrades, do you know that the police can arrive at any moment and disturb you because you are in a big group?' We then left with her. We were taking her to Reverend King's house, that's where we had an ANC office. We were a group of comrades.
Comrade Majiga was holding her in his hand and I was following from behind together with comrade Sipho, and I recalled that, yes, the police are troubling us in this area, I don't need any information from Maletsatsi. It was enough, the information that we had about Maletsatsi was enough, that she was Imidwembe, and an order had been issued out. What order was I waiting for? That's where I pulled out Boito from underneath the lumber jacket. I shot her from behind, and she fell, and I said to comrades, '...let us leave and go to Zone 12.'
We went to Zone 12 and we slept over there. The next morning we came back to see, to check as to what happened. When we arrived there, Maletsatsi's body was still there from the previous night. We passed and I met comrade Mandla Malindi. Comrade Mandla Malindi said to us, '...comrades, a certain comrade from Zone 12 arrived.' I think he mentioned his name but I've forgotten the name. He said that comrade stabbed Maletsatsi with a knife. That's how Maletsatsi's case ended."
MR RADEBE: When I said she knew a lot, I was saying she knew our activities. Now that she was in that place we were going to be an easy target. Our place of hiding was going to be attacked by the police, and our stuff was going to be confiscated. We used places such as the churches, there's something we called DLB. It was a place where we would put our stuff. Now we realised that we were going to lose a lot of things.
CROSS-EXAMINATION BY MS THABETHE: Yes, Madam Chair. Mr Radebe besides the evidence that you have given today, do you still maintain what you had written in your affidavit, on pages 147 and 148 of the bundle?
MS THABETHE: In that affidavit, you stated that one of the people you were with when you hunted for Maletsatsi, Page 128 paragraph 6, was Bonga Khumalo, and when Bonga Khumalo was asked, was questioned yesterday about his presence when you were hunting for Maletsatsi, he denied it. What is your response to his denial?
MR RADEBE: The person who came to the prison to take this statement I think the names that I mentioned to him were more than the names that he has written down. Many times when we were hunting for someone we would be many, and comrade Bonga Khumalo would ultimately receive such information. I think that's how it came to his knowledge.
CHAIRPERSON: Sorry Mr Radebe. Can we observe some rules of decency. ...(indistinct), this is our Evidence Leader. Please try and be polite. I can see that there has not been any observance of rules of decency. It's getting into my nerves.
CHAIRPERSON: If that is so, speak in Zulu. We have translators who will translate what you are saying in Zulu. Even in Zulu, don't say this woman. Her name is Ms Thabethe or just refer to her as Evidence Leader.
MS THABETHE:†††Can you explain why you didn't include that in your statement? Instead, you said, on page 148, paragraph 9
My question is why didn't you highlight it, the fact that he had given you orders to kill Maletsatsi as well? Especially after you had highlighted the fact that he spoke to you about having experienced a similar problem in Zone 12 at Sebokeng.
CHAIRPERSON: No, I have now rephrased my question. Did Paulus not tell you that? Did he not say that Maletsatsi was now part of a group that were assaulting people, and that she was now taking her friends who were your comrades, to IFP, and that she must killed. That is what I wrote in my notes.
MS THABETHE: What is your comment to the fact that it appears from Ms, from her statement that Maletsatsi, Makasas, and the other girls that you had suspected to be in associated with the IFP, were actually kidnapped by the IFP, and not that they had gone to the hostel out of their own free will?
"...Ndondo came back to us and spoke to Maletsatsi and asked her to tell us that they have a car and they can take us back home."
"...I refused to accept the offer. The other two came. They asked us the same question. I refused. They then suggested that we go outside because it was noisy inside."
"...They then spoke to us again and asked us to get into the car. I refused to get into the car, and Panda, who was among these three guys left me and got into the car. We left to a certain house. They told us this is where they keep their weapons, etc. etc."
MR LAX: You see the issue is that, the issue here is Makasas may have been abducted, that's patently clear from the statement. You put it to the witness that Maletsatsi was abducted along with them. And it's that area that I'm concerned about, because the statement doesn't say that. So maybe you just want to change your question, or put it in a different way, or whatever.
MS THABETHE: Thank you Mr Lax. Mr Radebe I would like to withdraw the fact that Maletsatsi was kidnapped since it doesn't say so in Makasas' statement, but would you agree with me that Makasas was kidnapped on the said day?
CHAIRPERSON: But hasn't it been your evidence that the reason why you were so against Maletsatsi was because she was kidnapping your comrade women, and taking them to the hostel and choosing men to sleep with them? I thought that was the grain of your evidence?
CHAIRPERSON: Now why should you assault your very own comrade that you knew she had been kidnapped by Maletsatsi and had been subjected to a traumatic experience, being forced to sleep with men at the hostel?
MR RADEBE: I agree with the Committee, she was kidnapped first. Yes. She was kidnapped, I do agree. But then, she, afterwards, she disappeared and it transpired that she was at Kwamadala. Now we got information that Makasas is no longer among us. She is back in.
MS THABETHE: Mr Radebe are you suggesting that after Makasas has, had undergone through being raped and being kidnapped, to the hostel, she thereafter went there again? Is that what you are suggesting? To say that?
MR LAX: Mr Radebe, what person in their right mind would, after having undergone such a terrifying ordeal, go back to the very place where they had experienced such humiliation? I mean, really, how could you not comprehend such a thing? How could you believe such rumours? That any normal person would find very, very difficult to believe.
CHAIRPERSON: Yes, we know that, but what we find most distressing with your evidence is that you are seeking to rely on the fact that Maletsatsi was hated by your community because she was instrumental in the kidnapping of your women comrades, and she didn't stop there, she would take them to the hostel and she would choose men to sleep with them, stripping these poor girls of their dignity. Subjecting them to rape, and you believed these women when they came back to report that they had been subjected to this ordeal through the assistance of Maletsatsi. You believe them, didn't you?
CHAIRPERSON: Why then should you assault Makasas, when she had told you that she had been subjected to a traumatic experience of kidnapping, rape by a big group of hostel dwellers, through Maletsatsi's assistance, do you think she could then willingly go back and subject herself to being raped again?
CHAIRPERSON: According to what Maletsatsi said, Makasas states in her affidavit, is that Gogo was also punished by a whole group of comrades, who were demanding an explanation about their whereabouts. Are you aware of that?
CHAIRPERSON: According to Makasas, in her affidavit, she states that Gogo was amongst those girls who were severely punished by the comrades who demanded to know where they had disappeared to, and they had to give an explanation about the kidnapping and the terrible ordeal that they had been subjected to whilst they were at Kwamadala Hostel?
CHAIRPERSON: Why did you then have to go to Makasas? What information did you want, if you knew what kind of information had already been extracted from the girls who had been kidnapped and gang raped by hostel dwellers?
MR RADEBE: Makasas came back to the township. She told us, she informed us as to what was happening, and we accepted that. We accepted the version of what happened to Kwamadala. Makasas spent a few weeks, and afterwards she vanished and we did not know her whereabouts.
MS THABETHE: Mr Radebe, I don't understand, because I won't venture into this point any further but, according to her evidence, she was called by comrades, she explained, they were punished, then you went to her house again, you assaulted her. My question to you is that, was it common for SDU members to do this, to punish their own people, especially ladies?
CHAIRPERSON: Ms Thabethe is it fair to put the question as you put it to him? If he knew that Ndondo was Maletsatsi's boyfriend, without indicating what is contained in the statement with regard to how Maletsatsi befriended Ndondo.
CHAIRPERSON: I'm fully aware of that, and that's why I'm asking you, because according to the explanation given by Makasas they became girlfriend and boyfriend, if they ever did, on the day when they were abducted.
MS THABETHE: Now, my question to you Mr Radebe, is that, is it not possible that Maletsatsi, who was your comrade, who also, according to Nicoleen Gambu was a girlfriend to Ndondo, is it possible that she decided to stay at Kwamadala Hostel as you have suggested earlier on because she feared your questioning and your punishments and your assaults? Is that possible?
MS THABETHE: Considering the fact that she didn't have parents, and the shack that she had been using was being used by you comrades, and considering the fact that you had assaulted other people who had been kidnapped at Kwamadala Hostel, do you think it's not possible that she might have sought refuge at Kwamadala Hostel where she had a boyfriend?
CHAIRPERSON: Yes, but now you know you expect him to respond to what you yourself are speculating about. This is sheer speculation, and there is no basis even for that speculation. At least if there was some ground that had been laid for you to at least base your information and your opinion on, then it would be a fair question to put to Mr Radebe. I think it's very unfair.
MS THABETHE: I will leave it at that then Madam Chair. In your statement in page 148 you say when you found Maletsatsi at Thandi's place, you decided, it's on paragraph 8, you decided to take him to the ANC office. Is that correct?
MR RADEBE: An order had been issued out and the police were troubling, were a trouble in Small Farm at that time. We had received information from comrade Makasas and them. We had received ...(intervention)
MR RADEBE: Can I please explain to the Committee. I said she came back from the kidnap, and nobody assaulted her. We believed her. All of us. And she disappeared afterwards, and we went to her place to enquire about her whereabouts. They said they did not know where she was. Her other sister was an active member who participated in the activities of the women's league. She said she did not know where Makasas was.
CHAIRPERSON: On that point I don't think it really turns on anything in respect of your application. You have now seen her explanation about her disappearance, which appears on page 187 and at paragraph 16, that she was ordered by her parents to go to Tembisa. And then if you check again paragraph 19, the reason why she later came back to her home was after she had again tried to avoid the comrades who were harassing her simply because she was once abducted and subjected to long hours of rape by a gang who stayed at Kwamadala Hostel. Were you sensitive at all to her plight? When you heard about her kidnapping, and the fact that she had been gang raped repeatedly for weeks? If you say you were sensitive, what did you show as comrades, about your sensitivity? How did you show your sensitivity towards her plight? Did you read her statement? She says neither her parents even believed her.
MR RADEBE: After the kidnap we believed her, and we were deeply disturbed about Maletsatsi leading our comrades into the hostel. Yes, I see here that her parents took her to Tembisa, but Lebohang was her sister. She could have told us that she was in Tembisa and we would understand it, but they did not know her whereabouts when she disappeared the second time.
MR RADEBE: Makasas was one of our comrades. We were taking part together in the Matsani cultural group, singing together, and she disappeared. Not that we were surveilling, we were guarding her, no, we just wanted her as a comrade, and her family could not tell us where she was. Afterwards we got information that she had gone back.
CHAIRPERSON: Are you saying that you went back to her house to ask about her whereabouts out of concern not because you suspected that she had gone back to the hostel and to be a police, an IFP informer, or?
MR RADEBE: She was back. Makasas where were you? She tells us that she was in Tembisa. We asked her why do members of your family not know that you were in Tembisa. We don't know it, your sister doesn't know it, the people that live with you in the house do not know it that you were in Tembisa. Now this puzzled us, we did not know what was happening. Yes, the first time we understood how she was abducted, but now the second time was really puzzling.
CHAIRPERSON: Why did you not believe her when she told you that she had been to Tembisa? Did you really expect that she could go back to where she had been subjected to such trauma? Did rape to you as comrades mean nothing at all? Did it not indicate that if you wanted to strip a woman of her dignity all you needed to do was to rape her?
MR RADEBE: Chairperson, some of them went back. We never thought that she would go back, but because we did not know where she was from we would not accept her among us, she would be a timebomb, and the way she was talking to comrades showed that she was looking for information, and after that, after the assault, we believed that she was not coming from, she was not coming from Kwamadala.
MR LAX: No problem. What I'm saying to you is, is it not clear to you that not all of your comrades understood her plight, understood what she had been through. Some of them like Majiga persisted in asking her questions about where she had been.
CHAIRPERSON: Are you aware that there were cessation of hostilities by the MK as a structure, when you allegedly went for your, what has been called a crash course? Are you aware of that? That you therefore couldn't have been trained as an MK? And that's the reason why there was a need for the establishment of SDUs. Because MK had become operationally inoperative.
CHAIRPERSON: I'm telling you this as a fact. We have a submission from the ANC together with its undoing Umkhonto weSiswe. You evidence in this regard is completely in discord with the submission by the structure itself. You are mistaken.
ADV BOSMAN: Now you also, if I understood you correctly, testified that the reason why you felt Maletsatsi had to be killed was because she knew too much. She knew where you were hiding, and she knew where you hid the weapons. Is that correct?
MR RADEBE: Sometimes it would happen that we go to a night vigil and some of the comrades would be expected to patrol, and Maletsatsi was among a group that was singing for a cultural group, and before leaving for a night vigil we would go past the bases and take what we would need. And we did not hide things, some of the things from them, sometimes when one of the comrades was being sought by the police we would send her, we would send the girls, so that the police or the people do not realise there were people in the yard. That's how she knew about our bases.
MR RADEBE: I think I mentioned that it was in the morning when Kennel mentioned this issue. We were still in Small Farms, and I left the Small Farm unit heading for Zone 12. That's when I told them about this issue, and they had already received the news as well.
MR LAX: Your previous evidence is that you hadn't joined the Zone 12 unit at that stage. Do you remember that? You remained a member of the Small Farms unit, and that's why Molekwane was your unit commander. Have you forgotten that?
CHAIRPERSON: That is your evidence. It's approximately then. You were not precise. You were estimating. According to the evidence of Mr Mabusa however, you initially joined, you were recruited or went into his unit, in May. He then appointed you to go to Sasolburg for a course for a month. When you came back not only were you a member but you were second in charge to him. That's in June 1992.
MR LAX: According to Mabuso Mhlongo you went on a training course. Let me just check something to be absolutely certain. Yes, my note here is fairly clear. You came back from your training in June 1993. The end of June he said. You joined at the end of May. The whole of June you were away on training. You don't know when you came back.
MR RADEBE: Mabuso Mhlongo said you want on a proper training course, a full training course, and he went with you so he knows what course you went on, because he recommended you for that course. Can you explain to us that?
MR LAX: Mr Radebe, we've heard from Bonga Khumalo and from Mabusa Mhlongo, that you as an ordinary member wouldn't have had anything to with your training. They would have organised it for you. You would have been selected to go on the training, but you wouldn't have made the arrangements yourself. That was the way it worked, and they said as much, and you heard that evidence yourself.
MR RADEBE: I think I said Kennel told us when it was many of us. Your evidence was that Mabusa Mhlongo told you in the company of others like Godfrey, I can't remember all the other names without going back to the details of my note, but you mentioned a few other members.
MR LAX: So there's no mistake here. Your evidence was clear, there were more than just the two of you present when he gave the order. He was very careful in his testimony to say that he was alone with you when he gave you the order. I want you to explain that to us.
MR RADEBE: I can tell this Committee that we engaged in many activities and we did not write these things down. We did not keep a record. The records that were kept were the meetings of the ANC, and mistakes are bound to be made in such activities because I would say here I was involved in such an activity with a certain comrade, while in actual fact I am making a mistake, it was a different comrade, because these things happened a long time ago.
CHAIRPERSON: Without going into a very long story, if you've made such a mistake just say I made a mistake. I mean I'm having recollection difficulties, this thing happened in 1993 and we are now in 1999 and there were quite a number of activities that we were involved in other than this. Just say so without having to bog yourself down into unnecessary details.
"..during the hunting I was with the following comrades, Godfrey Shiya, Kennel, Skosana, Oupa Keswa, Bonga Khumalo, Fani Mkhwanazi and Sipho Tshabalala."
MR RADEBE: Yes, I said he was not there. Can I explain Kennel's issue in this way? Now when we had in our midst a comrade from Small Farm he would assist us in identifying people, we didn't want to attack members of our own community. He would actually give us the signs that were used during the patrols because signs differed by day.
MR LAX: Nowhere in this statement, in relation to the killing of Maletsatsi, do you say that Bonga Khumalo gave you the instruction to kill her. No sorry, not Bonga Khumalo, I beg your pardon, Mabusa Mhlongo.
MR RADEBE: I mentioned Mabusa's name in the first order. I thought it would be improper to write Mabusa in the first one and in the second one. Some of the things we do not include in our applications and thinking that we would elaborate on them when we sit here. Like now, there are many people who stole in the township that were involved ...(intervention)
MR LAX: Yes I don't want to hear about people who stole in the township, just stick to the point. The point is a simple one. Why didn't you mention Mabusa Mhlongo who gave you the direct order, in your statement?
"...the orders to commit the, the commission want to know where I received orders to commit the killing, and they came from the African National Congress office from Paulus Kennel Malekwane, Stanley and Mabusa Mhlongo."
CHAIRPERSON: You know I would be much better if you gave a much more plausible reason, that you included Stanley because he is part of the leadership. Now you've alluded to that, and now you are diverting from really what should be a very clear response. As a chairperson of the ANC youth league he must take overall responsibility for your action as SDU members.
MR RADEBE: The person who wrote Stanley's name here is the person who wrote this letter on my behalf. I told him the positions that were occupied by the people and he included Stanley's name and I agreed with him.
CHAIRPERSON: But he didn't give you the order for this incident, isn't it? He wasn't your commander when you committed this act. When you killed Maletsatsi you were not acting directly on the command of your unit commander?
MR RADEBE: I'm saying I took it from Mabusa because I was already in his unit. The issue of Kennel addressing us when we were in large number, I leave it. Such orders were even issued out at night vigils. A comrade would stand up in front of the people and inform the people as to what happened.
"...comrade Kennel Paulus Malekwane was a unit commander who told us that Maletsatsi and the IFP members must be killed. We began hunting them but could not find them."
MR RADEBE: Chairperson, I explained to the person who was writing this letter on my behalf. I told him that Stanley told us to do a clean job. This person said, oh yes, then we must include his name, and then I agreed.
CHAIRPERSON: I'm not concerned about what a person told you to do, and you agreeing, when in fact it was not so. We are concerned about why you included persons, and we need plausible explanations why they were included in the context in which they were included.
CHAIRPERSON: You may proceed to do so but otherwise if you need it, about five minutes to collate your notes, I know this has been a very protracted matter, we would be very favourable to give you that indulgence. However, if you feel that you are in a position to proceed without any kind of adjournment we would be greatly indebted to you now that we notice that the time almost half past seven at night.
Madam Chair and Committee Members, my submission is that there has been full disclosure of these activities as required by the Act, and Madam Chair, I also would like to point out that as far as I am concerned, the applicant tried his best to recall the events of 1992, 1993, that led to the killing of Maletsatsi Marumo. Madam Chair, Committee Members, I agree that it has been a very tedious task for the applicant to recall the sequence of events as they happened then, Madam Chair and Committee Members, and Madam Chair, I, in this regard, would like to draw this Committee's attention to the fact that when this incident took place the applicant was 15, 16 year of age, and it is therefore the reason why he has, or he experiences such difficulty in recalling the sequence of events.
Nevertheless, my submission is that the applicant has established that in committing the said murder, he was acting on the orders. Madam Chair it is not disputed that the said orders came from Mabusa Mhlongo and Kennel Malekwane. Madam Chair it is also not disputed ...(intervention).
CHAIRPERSON: You confuse me now if you include Kennel Malekwane. My understanding of your client's evidence, at least the thrust thereof, is that this was mentioned by Malekwane when they were in Small Farm. As a result of that information he took it to his commander, Mabusa Mhlongo, who then appropriately as a commander of his unit issued the order to have Maletsatsi killed.
MS MOLOISANE: I'm indebted to you Madam Chair. Madam Chair, the crux of the matter is that the applicant in acting in the manner in which he did, that is in killing Maletsatsi, was merely executing orders that had been issued by a person who was in authority, and Mabusa Mhlongo himself testified, Madam Chair and Committee Members, that he was indeed the person in command, and the he did issue such an order, and to some extent that was also corroborated by Mr Bonga Khumalo, that Mabusa Mhlongo, having been an ex-MK cadre, was the unit commander of the unit to which the applicant belonged, and furthermore, Madam Chair, the said Bonga Khumalo also confirmed that the unit commanders had the authority, above all, to issue specific orders. Madam Chair, I therefore ...(intervention).
CHAIRPERSON: Without interfering with the flow of your argument, and I hate having to do this, you are now relying on what Mr Khumalo said as the general commander, rightfully so, but hasn't he created a little bit of a problem insofar as the suspect is concerned, because his testimony is that, inasmuch as the commanders had authority to issue specific orders, emanating from his general order, they were also under some kind of obligation to verify information, before acting on that information, and in this case we do not have any such evidence that anything was verified by the commander concerned.
MS MOLOISANE: Madam Chair and Committee Members, I have already stated that the applicant was merely an operator. He depended on somebody who had to issue orders, and as to the verification of the allegations levelled against the particular people, or in this case Maletsatsi, it was not encumbent upon the applicant himself to verify those orders. It was the duty of his unit commander, Madam Chair, and having, these SDUs having been recognised by the community, and, my submission is that the applicant had no other way but to comply with orders that were issued by his unit commander who was recognised as his unit commander and who had earned that position by virtue of his having been an ex-MK cadre, and who also had the authority to issue commands.
MS MOLOISANE: Madam Chair, the applicants they said that Maletsatsi had to be eliminated, and although it was not his own initiative to do so, it was an order, but that he went further to say that it was because Maletsatsi was in possession of vital information concerning their activities, which information was being suspected that she was passing, or imparting.
MR LAX: Well then how do you deal with his evidence where he said that he was going to take her, they were going to take her to the office at Small Farms, but then he decided of his own accord that in view of he order, and in view of the information he already had about her, she should just be killed there and then? Just before I finish, doesn't that imply that he used his own discretion at that point in time, and he wasn't just following orders?
MS MOLOISANE: Committee Member Mr Lax if I recall the evidence of the applicant well, the evidence, and that of Mr Mabusa Mhlongo, an order had been issued that Maletsatsi should be eliminated, and surely by taking the applicant, or the decision to take the Maletsatsi to the ANC office for questioning first, was only the applicant's own decision. He had never been told to take him for questioning first. The order was simply that Maletsatsi should be killed.
MR LAX: The question is that he and his comrades, as he testified, were going to take her to the office, not necessarily for questioning, they were going to take her to the office first, to report, as I understood it. Then he of his own according decided well in view of the order, and in view of the other information he already knew, that was his evidence, he was going to kill her there and then. Because he was worried the police might catch them on the way.
CHAIRPERSON: So you are basically saying the question of taking her to the office, which was his decision, does not detract from the fact that his order was to kill her, whether he decided to take her to the office, for whatever reason, that still does not remove the fact that he was acting under orders to kill Maletsatsi, and that's what he ultimately did.
MS MOLOISANE: Madam Chair, it is also an established fact that there was political violence in the Vaal townships during that period 1992, 93, when this incident took place. I therefore submit that the offences that the, the murder of Maletsatsi falls within the ambit of Section 20, Subsection 2, of this Act and that in terms of Section 20, Subsection 3, that context, Three, Section 20, Subsection 3(b) the context in which this act or offence took place, was committed in the course of a political uprising, and we have already heard evidence that this act was clearly associated with a political motive.
MR LAX: Sorry, my understanding of that subsection is that that's intended to deal with situations where people react to a situation like a crowd where the police open fire, or a group of people in the heat of a disturbance do something. This was a premeditated thing. Do you see what I mean?
MS MOLOISANE: I do agree. I concede that it was premeditated, but then it was not just something that came out of the blue. The reason why a decision was made that Maletsatsi should be eliminated, came as a result of the information that the comrades, and in particular Mabusa Mhlongo's unit, had at their disposal, that is to the effect that Maletsatsi had vital information about their activities, that is the ANC activities, or comrades activities, and that she had now joined the other camp, and that she was now imparting information to the other side.
CHAIRPERSON: I don't understand why you should agree with Mr Lax. Isn't it common cause that there was political turmoil in the Vaal at the time when this incident happened, and you are relying on that Subsection because of that?
MR LAX: Please continue. We have different understandings of that section, and it's not that material. You are still covered by other sections. I'm just saying my understanding of that specific section B is that it deals with situations where people react to a particular incident. This is not where somebody reacted to an incident, but we don't have the same understanding of that section and I don't wish to burden us with that issue. I still think the issue of the political context of the violence, that's common cause. There's no issue that there wasn't violence at the time. That's not the issue as far as I'm concerned.
MS MOLOISANE: Madam Chair and Committee Members, I also would like to draw this Committee's attention to the evidence of the victim herself. That is the, no, I'm sorry I'm now getting in to the grain of the other application. As far as this application is concerned, that is concerning the incident of Maletsatsi Marumo, that is all Madam Chairperson.
MS MOLOISANE: Madam Chair and Committee Members I have already drawn this Committee's attention to Subsection 2(a), subsection, yes, 2(a), any member of which provides that, any member of political, or supporter of a publicly known political organisation, or liberation movement on behalf of or in support of such organisation or movement, bona fide, in furtherance of a political struggle ...(intervention)
MS MOLOISANE: My further submission is that he also qualifies in terms of Subsection (f). Because he was acting in the course and scope of his duty and within the scope of his or her express or implied authority. I'm in. I'm indebted to you Madam Chair. A and D.
MS THABETHE: Well Madam Chair if I have to make any position really I would say it appears that the applicant was acting under orders and I would concur with my learned friend that it appears that his act does fall under the ambit of the Act.
MS MOLOISANE ADDRESSES THE COMMITTEE: Madam Chair and Committee Members, as far as the second incident is concerned, that is that of Hapile Ndumo and the attempted murder of Elsie Mokoena, my submission is also that there has been full disclosure as required by the Act.
I further submit that these offences were committed with a political motive and I also wish to reiterate the fact that the Committee and all of us know that there was political turmoil in the Vaal townships during that period and that there were self defence unit, and that these self defence unit were engaged or involved in certain activities within the townships.
I further submit that the both applicants belonged to a unit, a self defence unit. They were both members of the ANC youth league, and both of them belonged to the unit that was headed by Mr Mabusa Mhlongo.
MS MOLOISANE: I do agree with the fact that that was his evidence, Madam Chair, but then I ask this Committee to take into account the fact that Mr Abraham Khumalo was the youngest, in fact he is the youngest of the two applicant, ...(intervention)
MS MOLOISANE: I do agree, Madam Chair, but the point I'm trying to drive home, or to bring home, is that Mr Radebe was under the command of Mr Mabusa Mhlongo. Mr Mabusa Mhlongo issued instructions, orders, that Hapile Ndumo and Elsie Mokoena should be eliminated, or should be killed, and as far as Mr Radebe is concerned, he acted in furtherance of or in compliance with those orders.
CHAIRPERSON: What weight should be attach to the fact that Mr Mkhwanazi, inasmuch as he was only fifteen years of age, was much longer in that unit than Mr Radebe. Mr Radebe came in quite late to join the unit. Wouldn't one have expected Mr Mkhwanazi to have know the commander better than Mr Radebe? I am saying this mindful of the fact that Mr Radebe was second in charge to the commander of the unit, when he joined it, but he joined it much later. Surely Mr Mkhwanazi would know who is the commander of his unit, and cannot make a mistake with regard to his commander. How does that mistake happen?
MS MOLOISANE: Madam Chair, I do agree that there was that mistake, but, and it is unfortunate, because I am no in a position to can account for that mistake, but the point is that Mr Bonga Khumalo was the overall commander of the Zone 12 self defence unit, and as such Mr Mabusa Mhlongo was subordinate to him and accountable to him to some extent.
CHAIRPERSON: You see what really caused me concern, was Mr Mkhwanazi saying that not only was Mr Khumalo a commander, but he was a commander to whom Mr Radebe was second in charge. That really created more problems to me. It showed a situation where one was aware of the structure and the chain of command. Do you get the problem that we are sitting with?
CHAIRPERSON: We are not talking of a person who is ill informed of the structure of his unit and the chain of command. He is aware of the structure. He is able to tell you who is on top. He might have honestly mistaken Bonga Khumalo as being a commander by virtue of him having been the general commander of Zone 12, but how does he then go on to mistakenly say Mr Radebe was second in charge to the commander Mr Bonga Khumalo?
MS MOLOISANE: Madam Chair, at this stage we know that Mr Radebe was sort of more senior to Mr Mkhwanazi, but that being the case, the fact that Bonga, I mean Mr Radebe was second in command to Bonga, I mean, puts me in a very difficult position. I cannot take that further, but the only point that I can drive home is that it is true that Mr Radebe was second in charge, or had some kind of authority that had been bestowed on him by Mr Mabusa Mhlongo.
CHAIRPERSON: We are quite aware of that from his evidence, and from the evidence of Mr Mabusa Mhlongo, and definitely from the evidence of Mr Khumalo, but where does the evidence of Mr Mkhwanazi leave us in this regard? What weight should be attach because Mr Radebe inasmuch as he ultimately became second in charge he was a Johnny come late into the unit as it were, and Mr Mkhwanazi was well know. All the witnesses who came in to testify in support of their applications were saying they knew Mr Mkhwanazi very well, they knew Mr Mkhwanazi better than they knew Mr Radebe. But how do we, how do we account for a serious mistake which relates to not only the structure, but the chain of command?
MS MOLOISANE: Madam Chair and Committee Members, I do agree, I do admit that there is that mistake, but as my submission is that that mistake according to the evidence that we have before us is not that material in the sense that Mr Mkhwanazi and Mr, I mean Mr Mkhwanazi said that he got, he had been instructed by Mr Radebe to keep watch on the two girls, and even in his application he did state when there was a sentence, yes, there is a sentence where he is, well a question I mean, where he was being asked if he had been acting under orders or in compliance with orders, whose orders were they, and he mentioned Mr Radebe as the person who had given him orders on that particular day or relating to the event of that day.
CHAIRPERSON: That's neither here nor there, is it? If one takes into account the evidence of Mhlongo, that this order was given to all unit members, which would include Mr Mkhwanazi himself. That to me is the problem. A profound problem. He need not have actually acted on anyone's orders, if one takes account of Mr Mhlongo's evidence.
ADV BOSMAN: And furthermore, when there was evidence that Mr Radebe asked him, what should we do, and he said I don't know, it gives me a problem if he had an order where he had been present, then he should have said well we are ordered to kill. It give me a problem.
MS MOLOISANE: Madam Chair and Committee Members, my submission is that Mr Mkhwanazi himself, on that particular day, according to the evidence, had reduced himself to a subordin, to be subordinate to Mr Radebe. Mr Radebe was very active.
CHAIRPERSON: I think Mr Radebe was an active person from the look of things, but the fact of the matter ids, if one is cognisant to the evidence of Mr Mhlango who was the commander, the members present when he issued the order included Mr Mkhwanazi, and his order was that any of them should kill Ms Ndumo and Ms Mokoena on sight. So the fact that he really acted under orders doesn't take the matter any further. We still are saddled with a profound problem of what weight to attack to Mkhwanazi's evidence which stands in stark contrast to the evidence given by a host of witnesses that you called to support both the applications. I understand your difficulty.
MS MOLOISANE: Madam Chair and Committee Memebers, I wish to draw this Committee's attention to the fact, to put weight to the lapse of time, the fact that these incidents took place five years ago, more than five years ago.
CHAIRPERSON: Absolutely, we take that into account. Then when we deal with the chain if command, it was not Mr Mkhwanazi's evidence that he could not properly recollect who the commander of his unit was. That was not his evidence. There was no shadow of doubt about who his commander was, so we cannot, outside the context of the evidence before us, take things into account unless the evidence indicates that we should take such things into account. If some doubt had been expressed by Mr Mkhwanazi about the structure of command, then maybe we would definitely have to take that into account. As it is, we were given very clear evidence about who the commander was. He expressed no doubt.
MS MOLOISANE: Madam Chair and Committee Members, I wish to draw this Committeeís attention to the evidence of Elsie Mokoena. Elsie Mokoena in her testimony, corroborates what the applicants had said. She actually confirms that she was at some stage summoned for questioning at the garage, although she went on to mention the owner, Mr Hlombani, the person who was in charge, Mr Hlombani. She did confirm that Mr Stanley Gqiba was also present.
She does also confirm that she was rumoured, or that she knew that there were rumours that she was an IFP spy or informer. Therefore, to some extent she corroborates the version of the applicant as far as that is concerned, and Mr Mhlongo himself told this Committee that he managed to find out more about the activities of Elsie Ndumo, Elsie Mokoena and Hapile Ndumo, and that made him to become more cruel, that is in his own words, he said "...that changed me and made me to become more cruel." And because there had been a general command that had been issued, about or concerning the Imidwembe, or Elsie Ndumo, Elsie Mokoena, Hapile Ndumo and other Imidwembes, he confirms that he did in fact issue a command, an order, that whoever saw them, wherever they were to be seen, and whenever they were to be seen, they were to be eliminated.
And the applicant, Mr John Radebe, boldly admits that he is the one who carried out the execution, who executed the Hapile Ndumo and heís also the one who shot Elsie Mokoena, fortunately she survived. And as far as the first applicant is concerned, Mr Abraham Fani Mkhwanazi, he was with John Radebe at the time when these incidents took place, and as lawyers we know that he was merely convicted because of the doctrine of common purpose. But he did not actively ...(intervention)
MS MOLOISANE: I am indebted to you Madam Chair and Committee Members. As far as the Court record is concerned, he was convicted on direct evidence that was adduced in Court, but my submission is that as far as this amnesty application is concerned he is merely drawn into the picture simply because, and thatís my submission, simply because he actively associated himself with Mr Radebe, although that was not the evidence in Court. Iím merely focusing on the evidence as it is before this Committee. He did not carry out the shooting although he was aware of an order. Mr Radebe admits that he executed the order, and that Mr Mabusa further confirmed that he is the one who had issued that order that they be eliminated.
CHAIRPERSON: Does it really matter Ms Moloisane? We shouldnít waste time on this issue. Does it really matter who ultimately fired a shot? Iím sure if his gun had had the necessary ammunition he would have fired the shot. After Mhlongo had issued the order, he didnít leave the unit because he did not want to execute the order, so letís move on. You donít need to waste time on that one.
The only problem which I have, which I might mention, is that when you mention the evidence of Ms Mokoena you will also have had to have regard to the evidence of Mr Gqiba, that the activities of these women were not public knowledge. Thatís the evidence that was given by Mr Gqiba who was called to support the applicantsí applications, and the applicantsí applicant was founded on the fact that it was common knowledge that these persons were committing certain activities which were considered unacceptable, which therefore rendered them to be enemies of the community.
MR LAX: I might add that Mr Khumalo corroborates that by saying there were people who were shocked at the decision, and he had to explain what had happened. He had to explain to the community. Remember that. So just add that to the issue.
ADV BOSMAN: I also would like to mention that the fact that Ms Elsie Mokoena testified that they had not been found guilty, they had not been given lashes, is perhaps a material matter where it relates to the issue of full disclosure, and Mr Mhlongo, if I remember correctly, did not testify that he was aware of the fact that they had been given lashes.
MS MOLOISANE: As far as Mr Mhlongo was concerned he only received information concerning that incident. He did not have any first hand knowledge. He did not have any first hand knowledge thereof. ...(indistinct)
MS MOLOISANE: Madam Chair as far as the issue of full disclosure is concerned, my submission is that Mr Mhlongo, I mean, did not have actual knowledge as to the incident at the garage when the girls were being questioned, therefore I cannot take this matter further in the sense that he did in fact state that he only received information about that incident.
The only person who had information, first hand knowledge, about that incident, was Stanley Gqiba, who had been present during the questioning, and although the two girls had been acquitted at that stage, Mr Mhlongo went on to tell this Committee that he did at some stage throw a hand grenade in to a white car in which Hapile Ndumo and some other girls were travelling, and that the fact that he also saw them, I mean, being involved with, in the harassment of the members of the community, angered him, and that prompted him to issue an order that they should be killed.
My submission is therefore that the killing of Hapile Ndumo and the attempted killing of Elsie Mokoena occurred because of the circumstances that prevailed in the, in Sebokeng at that time. There was political violence, there had been killings, and anybody who had been seen in the company of members or of member of the IFP were perceived to be selling the community out to the IFP and therefore endangering the lives of the members of the community, and that was also aggravated by the Boipatong massacre which had taken place about two months prior to the events of the 16th of August 1993.
MS MOLOISANE: Iím indebted to you Committee Members, but the experience, I might not be correct as to the year, but the experience that they had that emanated from the Boipatong massacre, prompted the unit commander Mr Mabusa Mhlongo to issue the instructions or the orders that the two girls be killed or be murdered.
MR LAX: You must be very mistaken. Mhlongo didnít mention Boipatong. He knew nothing about the confessions, and he conceded that after I had questioned him. So that couldnít have played any part in his mind.
MS MOLOISANE: Iím indebted to you Committee Members. I have also highlighted those facts. The fact that they were, Hapile was seen travelling in that white car and that a hand grenade was thrown by Mabusa into that car, and the fact that the two girls were seen in the company of alleged IFP members in town.
MR LAX: How do you deal with the fact that although he mentions those two incidents, and he relies on them so strongly, none of the other applicants mention it. The first one or the second one. We can understand Radebe wouldnít have mentioned the first one because he wasnít a member of the unit at that time, but certainly Mkhwanazi would have borne knowledge of it. It would have stood out in his mind as a particularly impressive incident. Nobody mentions these things. These things are all done ex poste facto. In the light of that, what weight do we then place on that evidence?
MS MOLOISANE: Madam Chair, Committee Members, if this Committee recalls the evidence of Mabusa Mhlongo, nowhere in his testimony did he mention the fact that he was with the others when he threw this hand grenade into the car, and we do not also, he also said that he was alone in town when he noticed them. And we do not have any knowledge or any information as to whether this incident were ever elated to the other unit members.
MR LAX: Iím sorry, with respect, he very clearly told us that he told them about them. His evidence was crystal clear in that. With regard to the hand grenade he told them the next morning, when he dismissed them, when he gave them the order. And with regard to the other one, he said that was why he gave the order and he told them about it. He reported back to his members. So in both instances he, these were important factors in his mind, because heíd tried other investigations although he was unable to elaborate what those were and he made no successes, thatís why these two things were so important. So his testimony was that he did inform his members.
MS MOLOISANE: Madam Chair and Committee Members it is unfortunate that I am not in a position to can explain to this Committee as to why the other, the applicant failed to mention this important fact during their testimony, and the fact, or let me put it this way, I submit that whether the said Mr Mhlongo had actually told them or not, or let us assume that he told them, because that is his evidence, as to why they failed to, the applicants failed to disclose that during their testimony, I cannot account, Madam Chair, Committee Members.
The crux of the matter is that the killing was, and the attempted killing, was in furtherance of an instruction, that is it was in compliance with an order that had been issued by a person who had the authority to issue commands, and that person himself confirmed that he had issued that command, and that command was carried, indeed carried out by Mr Radebe, and he openly admits that heís the one who carried out that act.
CHAIRPERSON: You see the problem with the evidence given by Mr Mabusa Mhlongo and the absence of the aspects testified to by him with regard to although that kept on prompting him to issue the first and the second orders, and more particularly the fact that he discussed all these occurrences with the members of his unit, and he goes on to say both applicants were present during the discussion, is that they usher in some kind of problems when it comes to the motive of the applicants. You already are sitting with the evidence of Ms Mokoena, whose evidence would like to suggest that the motive for the initial abduction at the tavern by both applicants was rape. And thatís why we are asking you these questions. We have to be clear in our minds that these were indeed politically motivated offences, that when they saw them at the tavern they decided to abduct them for no reason other than a political reason. And that is to carry out the order of Mr Mhlongo because of the many activities that Mhlongo was able to elaborate upon, that they did not attempt to elaborate upon. Thatís why we are asking you these questions.
MS MOLOISANE: Madam Chair and Committee Members, my submission is that if there was any other motive, apart from the political one, to abduct the girls from the tavern, then the applicants surely had ample time and, to do whatever they wanted to do with the girls. If the motive was to go and rape them, they could have taken them to a secluded place or wherever and carried out their intentions, or whatever they intended to do with the two girls, but because the motive was purely political, they told Elsie Mokoena that she had to go with them to Zone 12, and she was not co-operative, and that is the reason why she was shot at that place before Hapile could be shot.
CHAIRPERSON: When you mention the suspect that they had ample time to have been able to rape them if that was their motive, you will recall that from the evidence of both the applicants as well as Elsieís, that what really interrupted the chain of events, whether those event would have been political or purely criminal, was Elsieís initial resistance immediately after coming out of the tavern. By that Iím just merely trying to address the question of the fact that they had ample time to do whatever they would have wanted to do. That does not remove, however, your argument that if, their offences had been politically motivated. But as to time, even if they had intended to do something criminal, Elsieís resistance I think interfered with the train of events that would have followed.
MR LAX: Plus if I could just add one other aspect. Plus the crowd of people that then gathered, it wouldnít have been very possible for them to rape these girls in front of all these people, which wouldnít have prevented them from killing the girls in front of all these people, because the evidence says that there was a crowd at the time they killed them. At the time they killed Hapile rather, so the crowd wouldnít have stopped them from killing, but it would have stopped them from raping, which then adds a certain plausibility to what Elsie said about the crowd and how they responded to the crowd and so on. It was never put to Elsie that they never said that to the crowd. It was never put to Elsie that the things she alleged they had, Radebe had said to the crowd, werenít said to the crowd.
CHAIRPERSON: It is alleged, in fact it was stated by Elsie, that one of the things that Radebe said to the crowd of people was that if they did not go back because they were becoming a bigger crowd and following them around, he would crush their heads, and that as soon as he said that the crowd fearing for their heads to be crushed, they then dispersed. But the fact is the intervening factor in the whole chain of events immediately after they had been taken away from the tavern was Elsieís resistance, because that really caused the problem, even on the evidence of both Mr Mkhwanazi and Mr Radebe.
MS MOLOISANE: Madam Chair and Committee Members, if I recall the evidence of Elsie correctly, she was, and that is also the evidence of the applicants, she was at some stage left with a certain Borman Ntjolo, who had to keep guard on her, whilst they went to look for ammunition.
MR LAX: Just correct an earlier point. They were left in one of the peopleís, both ladies, two peopleís custody, but that was at a different stage. That was when they went to someone elseís house first. At a later stage they then went to Zandiís house so, but that doesnít change the thrust of the issue. Elsieís evidence was that she didnít know why they went to those places.
CHAIRPERSON: In fact your problem is that there was a time when Elsie alone was left with Ntjolo. And Iím tell you that there was never such an occasion when Elsie alone was left with Ntjolo. There never was such an occasion.
MS MOLOISANE: The fact Madam Chair and Committee Members that I want to highlight is the fact that the two applicants went about looking for ammunition, and if their intention was purely criminal, if they had intended to rape the two girls, surely they could have taken them along and not left them behind when going about looking for ammunition. But because the main reason why they had to go about looking for ammunition was for them to be able to carry out the orders as had been, they had been given to them by their commander ...(intervention)
MR LAX: In that regard, the order was to kill them on sight. They didnít kill them on sight. They were taking them for questioning first. Thatís your clientsí version. They were going to get the ammunition, but they were taking them for questioning. It was only at a later stage that Radebe then decided to forget about the questioning. Again, he makes that decision himself, to forget about the questioning, and then he kills her. Thereís a consistent pattern here, where in both instances, in both events, in spite of an order to kill them on sight he doesnít do that, he then purports to have something to do with questioning them and getting information and what have you, and then at a later stage of his own initiative then carries out the order.
So, thereís some disjuncture there that doesnít make sense, certainly to me, and maybe you can explain that to us or address us on that. If he was so strict about following his orders as he implies and as you are arguing, why then did he do these other little things on his own first, and not carry out the order? The other thing is that itís not a disputed fact that Ntjolo had a knife on him. Why didnít they just stab them, kill them to death with the knife, there and then? If that was their intention.
CHAIRPERSON: But wouldnít you argue against ...(indistinct) and say heís probably enjoyed to torturing people, particularly women. And that the fact that he didnít kill them there and there does not again detract from the fact that he ultimately carried and executed the order that had been given. He was a particularly terrible SDU member who did not mind to walk distances with one of the women who was bleeding from either the neck or the chin, from the evidence of Ms Mokoena she had been shot in the neck. From the evidence led at the trial, she had been shot in the chin, but the fact of the matter is that did not disturb Mr Radebe, simply because that was his make up. He wanted to have them tortured first and ultimately carry out the order to kill them.
MS MOLOISANE: Madam Chair and Committee Members, to some extent I agree with the Chair that he decided not, he had decided not to carry out the orders immediately but to go off with the girls, but I do not want to submit that perhaps he enjoyed torturing them before killing them, or before carrying out the orders. That point I never canvassed, neither was it canvassed by my learned friend Ms Thabethe, as to why he went about with them before executing the orders as he had stated.
CHAIRPERSON: No, that was a point that was extensively canvassed, both by Ms Thabethe and members of the Panel, and no plausible explanation could be given by Mr Radebe. So much that I draw an inference which inference would be in his favour in any case. Proceed therefore, but otherwise you may proceed, you are here to make your submissions.
MS MOLOISANE: I donít in his own evidence he said that he, it was a standing rule that they should not touch the victimís blood and that according to him the easiest way to do that, to execute, to carry out the orders, was to use a firearm.
MS MOLOISANE: Madam Chair and Committee Members I therefore submit that this act, act for which the applicant now seek amnesty fall within the ambit of the Act, and that the murder and the attempted murder were carried out in execution of orders and that there was nothing that the applicant could have done by virtue of the fact that they were members of the self defence unit and had to act in accordance with orders that had been given to them.
MS MOLOISANE: I further submit that this incident for which the applicants are now seeking amnesty fall within the ambit of Section 20 Subsection 2 and Section 20 Subsection 3 A, B and E. And I have no further address unless if the Committee Members still want me to address them on specific issues.
CHAIRPERSON: We are satisfied with what you have addressed us on. We have indicated our difficulties as you were going along with your address, and you have attempted your best to address us on those that we drew your attention to. Ms Thabethe do you have anything to say?
MS THABETHE ADDRESSES THE COMMITTEE: Madam Chair, I find myself in a very difficult position as far as this matter is concerned. The reason being, as an Evidence Leader, I hold a certain view, and as someone who represents the victim I hold a certain view as well. However, as a legal representative for the victims, I think the problem, or the difficulty that I find myself in is that I would argue that with regard to the killing Hapile Ndumo and the attack on Elsie Mokoena, the ...(indistinct) I would argue that it was not proportional in the sense that, proportional to the objective to be achieved in the sense that even Ďthough Mr Mhlongo had testified that there was a thorough investigation as to find out whether they were really spies or not, it also comes from his evidence that there wasnít really any investigation as to prove whether they were spies or not.
CHAIRPERSON: Now what was the objective? Wasnít the objective in terms of the evidence led before us by the applicants as well as the witnesses who were called in to support them, very unanimous on this issue of what objective was sought to be achieved by them, and that was to kill them because they were enemies of the people.
MS THABETHE: Madam Chair thatís precisely my point, that there wasnít proof as such and there werenít investigations conducted to prove, but maybe let me explain what my difficulty is. My difficult is that we are faced with the applicants who were carrying out an order. Maybe if we were faced with the commanders I would have argued better on behalf of the victims so as to say that there wasnít much investigation done, and probably the basis for having reached the conclusion that they were spies really lacked the relevant investigation that had to go through, and nevertheless, also it was not verified as it was the principle of the ANC to verify such issues.
MR LAX: Isnít the argument this, that on one hand if the applicants are relying on an order, and the evidence points to the fact that that order was probably not given based on the fact of all the other surrounding facts. In other words the probabilities based on the evidence produced by the applicants, in support of the applicants, is that there probably wasnít an order given, or even two orders given, cause if there had been there would have been verification on all those other issues.
MS THABETHE: No Iím talking about Mr Mabusa Mhlongo who issued the order. He was a commander and really they relied on the order that he had given. So thatís my problem, thatís my difficulty, that I think it would be unfair really to expect of the applicants not to have followed an order because probably it was not properly verified or this was supposed to have been done and it wasnít done.
MS THABETHE: Maybe I shouldnít have even raised the issue of proportionality, but I was raising it as something I would have raised if maybe the applicants were the actual commanders who issued the order, but now Iím faced with a situation where the applicants are the people who carried out an order, and that limits really my basis for argument, so to say, in opposition of the application.
CHAIRPERSON: Even if they were the commanders, the issue of proportionality would not have come into play at all. Even if they were commanders. The fact that the information had not been verified does not make their action to be disproportionate to the objective that they sought to achieve. However, I understand your argument is that you support the application because it is your contention that the applicants were not in command, they were acting on orders and they had an obligation to obey orders without any room of questioning whether that certain measures had been taken, which measures would then have entailed the verification of information or not, and you say that is something which is beyond what they would have been able to do. They could not question an order. Theirs was to obey, and thatís what they did. Thatís your argument, isnít it?
MS THABETHE: Precisely Madam Chair. Maybe I would request the Panel if maybe they can give me guidance on what they would like to get from me in terms of my opinion pertaining to certain issues. Maybe then I can respond to that.
CHAIRPERSON: Well youíve heard us expressing our concern with regard to the evidence given by Mr Mkhwanazi in connection with the structure and the chain of command of his unit, and that given by Mr Radebe. And crisply stated, his evidence was that Mr Radebe gave him an order that day and he obeyed Mr Radebe because Mr Radebe was second in command in the unit and the unit was commanded by Bonga Khumalo. It has transpired of course, during these proceedings, that Mr Khumalo was not a commander of Mr Mkhwanaziís unit. Itís common cause that he was a general commander of the Zone 12 SDU which consisted of four units. Mr Radebe on the other hand states that the order came directly from the commander Mr Mabusa Mhlongo, and he executed the order that was issued by him. Bearing in mind the fact that Mr Mkhwanazi was the long serving member of this particular unit, and that point stands undisputed, what weight should therefore be attached to such a discrepancy?
MS THABETHE: Madam Chair my response would be clearly the evidence of Mr Radebe contradicts that of Mr Mkhwanazi with regard to who issued the order. Nevertheless, I think the Committee shouldnít attach too much weight to that contradiction because Mr Mkhwanazi, in his application he says, where heís asked where he got the order from, he says from John Radebe, which suggests that he regarded John Radebe as his immediate commander. To me it appears as if he really does not understand, but thatís my own opinion, the real question of what is meant by command, because having mentioned Bonga Khumalo, itís not far fetched from the truth that Khumalo was a commander of these four units, even Ďthough he was an overall commander not a unit commander, and itís also not too far fetched, the fact that John Radebe was a second in command, but the problem is he wasnít a second in command to Bonga Khumalo but to Mabusa.
MR LAX: Isnít the other problem that Mkhwanazi doesnít know anything about the order that he should know about, that Mabusa Mhlongo allegedly gave, because he was present according to Mabusa Mhlongo when that order was given. In his application he says nothing about that order. Now that puts a direct conflict between the two applicants on where the order emanated from.
MS THABETHE: I think I understand the dilemma Members of the Committee. Also itís, unfortunately itís not clear and it wasnít, we did not question the applicant about the sad fact as to why he did not mention Mr Mabusa Mhlongo as the commander. I donít know whether he was questioned ...(intervention).
CHAIRPERSON: It is not the duty of anyone else to put that kind of evidence in order to clear the air. Thatís why applicants are represented by lawyers. I donít want such things being imputed to any persons having to try and clear the air in that regard. Mr Mkhwanazi was properly represented, and Ms Moloisane had the fortunate advantage of consulting and knowing the testimony of the two applicants. She must have anticipated what would be a problem in this regard.
I am addressing this to the Honourable Member of my Panel, as well as Ms Thabethe. In case youíve forgotten that the applicants lead evidence and has to comply with the requirements of full disclosure. Indeed we have from time to time assisted as it is fit and proper for us to do when such things do come to our attention, but that is why applicants are legally represented, so that such mishaps do not happen.
Coming back to what you earlier on stated, Ms Thabethe, you are saying that itís possible that Mr Mkhwanazi might not have understood his structure very well, and the he must have mistaken Mr Radebe as being the commander. You have referred to his written application form, and pertinently I suppose to question 11 A and B, which requires of an applicant to indicate whether the act was committed on the orders of any particular person. Yes, there is a reference to Mr Radebe, but that does not mean that Mr Mkhwanazi did not understand the structure of command. You will recall that he led evidence before us and in his evidence he was able to paint a very vivid picture of his structure, which he stated quite unequivocally that it was a unit commanded by Mr Bonga Khumalo. He went on to say Mr Radebe was the second in command.
MS THABETHE: Madam Chair, can I clarify what I meant? I think we, there was a misunderstanding. What I meant is not that he did not understand the structure, but what I said is reading from the application when asked who gave the order and he says John Radebe, and he doesnít say for example here Bonga Khumalo, he, what Iím suggesting is, itís the question to me that is not properly understood as to who exactly was he supposed to mention.
Nevertheless on the same breath I do acknowledge the fact that if there was that problem maybe it would have been better for him to mention the three of them because it does mention John Radebe as the second in command, he does mention Bonga Khumalo and maybe it would have been proper if he mentioned Mabusa Mhlongo as well. So, what I was saying is that the misunderstanding is on the question and the answer as to who really the commander was, because Bonga Khumalo was a commander, but not of the unit, so itís not far fetched from what he said, that Bonga Khumalo was a commander. The only mistake is that he says heís a commander of the unit and not of the whole structure, and itís not too far fetched from the fact that he says John Radebe was the second in command. I think that the problem is that he says second in command to Bonga Khumalo and not Mabusa Mhlongo. Thatís what I meant, Madam Chair.
CHAIRPERSON: What do you say to the fact that he was the long serving member in that unit? Do you still say that he would still be liable to mistakes as to who is his commander? He was there much longer than Mr Radebe.
MS THABETHE: Itís a difficult one but Madam Chair, I think as a member of an SDU he would be expected to know who his commander is. At the same time, like my learned friend has said, he seemingly was young, and even Ďthough he might have been long standing as compared to Radebe, but probably Radebe was more experienced than Mr Mkhwanazi with relation to the activities and the structures and the whole, you know, how the SDU activities were operated and whatever. So what Iím saying is even Ďthough Mr Radebe could have been the last one to get into the structure, probably he was much more experienced than Mkhwanazi, but thatís just an argument, Madam Chair.
CHAIRPERSON: Thank you very much to you Ms Thabethe and Ms Moloisane. You obviously are aware that the time is now 9 oíclock. We have kept correctional services much longer and we are really indebted to their accommodation with regard to the time. We have kept Mr Radebe and Mr Mkhwanazi much longer, itís been a very long day for them as well. I think we should bring these proceedings to a close now that you have concluded your legal argument. The hearings also at this venue will now come to a close tonight.
We thank Ms Moloisane and Ms Thabethe for their assistance that they have rendered to the Panel. We also are eternally grateful to members of the Department of Correctional Services for their accommodation which has been just wonderful. We wish to thank our interpreters who have really been more than accommodative. It is a very difficult thing to translate simultaneously. It requires focus, it requires attention, and it tires one very easily. They have been able to accommodate us throughout the week because we have had to stay much longer than we usually do in order to try and finish our roll that was set down for this venue.
We also wish to express our warm gratitude to the media who equally have been extremely accommodative. Our gratitude to our logistics officer Ntheki for the wonderful logistical support that she has offered us during our stay at this venue. I wish to thank the members of the public who are now absent because of the lateness of the hour. They had to leave early because they are from Sebokeng and surrounding districts, and lastly I would like to thank the Members of my Panel for the accommodation that they also gave this matter. It is very difficult to sit, listen, be focused, write notes, as a Committee and their assistance and participation in these proceedings have been indescribable. Thank you very much. Without forgetting the wonderful service which is always offered by our transcribers. They have been also very accommodative. Thank you very much to you all.