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Type AMNESTY HEARINGS
Starting Date 01 December 1999
CHAIRPERSON: Good morning everybody, I apologise for the delayed start but there were all sorts of problems, including a motor accident on the freeway which caused people to be delayed. When we finished yesterday we were still busy with the application of Mr Sifiso Cedric Sbisi, and we'll now continue with that application and then we'll proceed to the application of Mr Vivian Bhani Ngcobo. When we finished yesterday we were at the stage to ask Mr Dehal, who appears for the applicant, whether he has any re-examination. Mr Dehal.
Mr Sbisi, I want to firstly deal with paragraph 21, I think it is, yes, 21 on page 6 of your statement, Exhibit A, wherein you deal for the very first time with the count relating to Kamanati Sithole. Now it seems to me, or it is so clear that you did not ever mention this before, especially in your amnesty application, can you please tell this Committee why.
MR SBISI: When the Investigator came to me in prison in Johannesburg, he didn't explain to me that I was supposed to reveal everything that happened at Bekuzulu area. When I arrived in Pietermaritzburg Prison, that was the first time I've spoken to the attorney and then my attorney said to me I'm supposed to reveal everything what happened in that area.
CHAIRPERSON: Yes, but I think what Mr Dehal is asking you is - because even if it was only mentioned for the first time this month, it would still be far too late. Is there any particular reason why you didn't mention it when you were filling in your application form?
MR DEHAL: Are you saying, Mr Sbisi, correct me if I'm wrong, that you did not understand the need for full disclosure, especially in regard to acts for which you were not charged, arrested or convicted or any of those, until you met Ms Kooverjee, Monday this week, who told you that you must speak about everything in your life for which you want to seek amnesty, that means make full disclosure?
MR DEHAL: You were cross-examined yesterday about Mbongwa the man, sometimes referred to as the boy, then referred to as 15 years, who was killed by you or at your instance. Now you said that ...(intervention)
Who was targeted by you. You mentioned that you saw him as being 24 years or thereabouts of age and it was said to you that he was about 15, you did not dispute that but you mentioned that he was tall and big in size. Now I'm not asking you for his age, I want to ask you to describe him and to tell us what led you to believe that he was not 15 but 24 or thereabouts, in age, sorry.
MR DEHAL: You were also told under cross-examination that Mbongwa, this man Mbongwa was ever politically involved or motivated and that your killing of him must therefore have been outside the parlance of political actions. Now would you like to tell us why you thought that he was politically involved, motivated?
MR SBISI: The reason we targeted him was because he was implicated and he participated in the killings in Bekuzulu area, and also he was an informer to the ZP Police, that's why we decided that he was a legitimate target.
MR MALAN: You say that the Mbongwa boy that was your target, was an informer to the ZP Police, what was he informing them on, was he informing them on your involvement on the attack on Radebe on Xmas day?
MR SBISI: That one as well and also that he had informed to the ZPs about other members who had firearms and the ZPs will come to that person and take those guns from that person and when they arrived there they had full knowledge as to what type of a firearm that person possessed.
Mr Sbisi, how did it come about that you understood Mr Mbongwa as being politically active in the area as a part of the IFP, was that based on your intelligence gathering from the other comrades within your unit or did you personally go about with the reconnaissance and intelligence gathering?
MR SBISI: Our comrades had that knowledge. One time police came to my house and they searched my house and a certain girl who is my neighbour told me that he was the one who informed the police and also they've seen him with the police.
When did this incident happen when the police came to your home and when the girl, your neighbour, the girl told you that this was the person who informed the police and was with the police, when did that happen?
MR SBISI: It is because at that time towards the end of 1992, the IFP was strong, it wasn't easy for us to attack the IFP and also there were areas where we couldn't go. We launched attacks afterwards and they moved away and we took over that place or that area.
Mr Sbisi, finally, when you established on the morning of the day after that your target Mbongwa was not eliminated, but that his sister Pumzile was rather eliminated, that was obviously a mistake to you, did you discuss that with those unit members of your MK Unit, and what did you do about it?
MR SBISI: When I discovered that the person who was injured was not the targeted one, we discussed about this and we decided to remove that person who was responsible for killing the girl, because we realised that he was going to put the unit in danger.
MR DEHAL: There's just one other aspect that I've just remembered, the Chairperson had asked you by analogy about IFP members who may own a shop and if they were active in the area against the ANC, what you would have done and there was some talk about you would have robbed them, do you remember that?
CHAIRPERSON: Just a couple of matters, Mr Sbisi, just to clear up here. In your statement which is Exhibit A, in paragraph 11 you say that on Xmas day, 25th of December 1993, you together with a few members of the ANC were seated at the bottle store and then Jabulani Radebe's son entered being in possession of a spear and a home-made gun and then he was disarmed and he was assaulted and stabbed. That's what you say in that statement and that leaves me with the distinct impression that you were present when all this happened because you said you were there. Then if you take a look on page 18 of the bundle, that's the affidavit you made to the TRC Investigator, it's about two-thirds of the way down, you say
"It was at night when he was attacked but he was not found at his home due to the incident that happened earlier where his son was stabbed in our area, but I was not present when he was stabbed."
CHAIRPERSON: It's page 18 and you'll see that there's some highlighters which have come out having exactly the opposite effect of highlighting, they're in fact blocking out certain names and then immediately under the long one it says
MR SBISI: The reason why I said I was not present is that I was on the scene, I was inside the bar but this incident happened outside the bar because when I went out of the bar they had already disarmed him, but I was present in the vicinity because I was inside the bar and the incident took place outside the bar, although on the same premises.
CHAIRPERSON: Yes. Then this question, you've said that on the night when the Mbongwa's house was attacked, you said you were the Commander of the SDU, that you were the only one who had received any form of training and the other members hadn't received any training, about six of them were then sent, were armed with inter alia, AK47 rifles and petrol bombs to go to the Mbongwa house to kill the eldest son of that family, by taking him out of the house and shooting him, now you say you did not go because you were guarding and you wanted to rest and you said your guarding amounted to half-an-hour of walking around the block and then you waited for them to come. Now from what I gather, this would be your first, when I say "your" I mean the SDU's first operation, is that not so? It would seem that the occurrence of Xmas day, when Mr Radebe was necklaced, wasn't really an operation, it was something that happened unplanned, spontaneously, it was an incident rather than a planned operation, so was the Mbongwa attack the first operation of the SDU under your command?
CHAIRPERSON: Yes. Now you see this is what I've got a bit of difficulty with, you were the only trained person, you are the Commander, the others are untrained, the IFP are stronger than you in the area and yet you don't go on the mission, you walk around the block for half-an-hour. Why didn't you as the leader insist on playing, probably the main role in the operation, seeing it was your first one and you're dealing with untrained people and you're the only trained person? It doesn't seem to me to be the thing that leaders are made of, to conduct an operation like that.
MR SBISI: The reason why I did not go out was because I was also being sought after by the police and even when my comrades were arrested they'd be assaulted and they'd be questioned about my whereabouts.
CHAIRPERSON: Yes, but if you're being sought by the police - so you're saying that is the reason why you didn't go? I mean surely when you go on an operation of that nature, armed with AK47s, going to kill somebody, you're not expecting to be arrested by police, one wouldn't think that the fact that the police were looking for you would be sufficient cause not to lead the operation. I mean the police were looking for all operatives.
MR SBISI: I express the reason yesterday because we did have a policy with regards to guard duty, it was a policy that if I had been on guard duty the previous day it was then my turn to rest, but because of the reason that we were under attack all day and night and the police were also on our tail, I did not sleep because I was keeping guard on the area that I was in at that time when they went out.
What do you mean by that because we've heard that the first incident was on December, on Xmas day and the second one was on the 23rd of January? But you say you were arrested in January after about two months, after about two months of what?
CHAIRPERSON: You say that - we know that the attack on the Mbongwa's house took place on 20-something January, 23rd of January or the 21st, I'm not quite sure, I can't remember, but in 20-something January, that was the attack on the Mbongwa's house, we know that the attack on Mr Radebe took place on the 25th of December 1993 and here you say
Now if you were arrested in January 1994, it couldn't have been longer than a week or ten days after the Mbongwa house or a month after the attack of Radebe, so I want to know what is this "after about two months", what does that refer to? What does the "two months" refer to?
I just want to know why you said "after about two months" you were arrested, if it was in January 1994, two months before January 1994 is November 1993, what happened in November 1993, if anything? Or is that just a mistake?
CHAIRPERSON: And then something else that I find a bit confusing here. In the same paragraph, this is after your arrest, you and some of your comrades were arrested, this is what you say in this statement
"We decided that I should be the one who carries the blame because I was older than all of them and we thought the case would be much easier if I am alone, but the thing turned out the other way around."
Now we know that you were the only one who was convicted, now you say here it was decided that you would take the blame, but in the trial you denied everything, you said you weren't even there, you know nothing, so how can you be taking the blame if you deny that you ever did anything?
CHAIRPERSON: No, I understand that, that's not what I'm asking, we in these sort of hearings always where the applicant has denied it in court, gives a reason like you've given the reason, they didn't trust the court and obviously you didn't want to get convicted, so you come up with a story, but here you say you and your comrades decided amongst yourselves that you would take the blame. Now how can you decide that if you deny anything, how can you agree to take the blame and then not take the blame? You say here
And now you've all been arrested, it's not for anybody to decide well, I've been arrested on a murder charge, let's agree between us that you three don't be charged, you haven't got that power to decide not be charged, you're all charged but you between you agree that you're going to carry the blame. I just can't see how that could have happened, what did you mean by that? - especially if you didn't admit to doing that. If you had went to court and said yes, I did it, the others weren't there, then I could understand carrying the blame, but that didn't happen.
MR SBISI: I can state two reasons for that. The first one is that I volunteered to take all the blame. When I was arrested there was still a lot of violence, so it wouldn't have been a good idea for all of us to be arrested because then there would be no-one to protect the community. The second reason was that I thought it would make the case go easier in court.
CHAIRPERSON: Yes, and then also on that same page, the last paragraph - well before I get to that, if take a look at your application for amnesty, the actual application form, this is on page 16 on your application form for amnesty, you say - and I'm reading from the translated version, paragraph 13(a)
"I was only present in so aborted (that should read "the" I'm sure) - I was only present in the aborted attempt to necklace Mpikayi Pele Radebe."
Yet, you come here at this hearing and say it was you who forced him to drink petrol, it was you who filled the tyre with petrol and it was you who set the tyre alight. Now how do you reconcile this statement on the last paragraph of page 19, with your evidence here?
"The offence that he's seeking amnesty for is for necklacing a person because it is something that he knows."
MR SBISI: With regards to that I was of the opinion that I would explain everything in person when I appear before the Committee, because as I mentioned before I did not have an advisor who advised me on how to render the statement, I only mentioned what I thought was the most important things.
Mr Sbisi, you responded to a question of the Chair on the incident where Jabulani Radebe, when his son came into the bottle store. You say that the incident happened outside, you did not see it, you were inside. Did I hear you correctly?
"... Jabulani Radebe's son came into the bar with a spear and a home-made firearm. The comrades who were sitting with me ..."
"... caught hold of Jabulani Radebe's son and disarmed him of the home-made firearm. They assaulted him and stabbed him with his own spear."
Mr Sbisi, when your attorney was re-examining you and the Committee Member put a question to you "When did the Mbongwa son inform the police about you?", you told the Committee Member that in 1992 you were informed that he informed the police or the ZP. Now Mr Sbisi, I'm going to refer you to page 19 of the bundle of documents, on the second paragraph, sorry it's page 18 on the first paragraph, where you mention that the violence in the area started in 1993, between the ANC and the IFP. Now based on this statement, isn't it correct that there was no problems in 1992 if the violence only started in 1993 in the area?
MR SBISI: As from 1992 there was conflict, but at that time we did not use weapons, it was just verbal and physical fighting that was going on, it was only in 1993 that firearms and other such weapons were used.
MR SBISI: When the police arrived they questioned me on whether I knew this Mbongwa boy, they informed me that he had alleged that I had pointed a firearm at him and that was the reason why they had come to my home to search my home, because of that information from him that I kept an arms cache at my home.
When you were asked a question as to why you had included this offence only yesterday, you said that because the TRC official who came to you did not explain properly or you did not understand ...(intervention)
CHAIRPERSON: No, he said that, but then it was pointed out to him that he was only approached this month by the TRC official and then when asked why he did not include it when he completed his form, he said he just didn't have the knowledge and he only included incidents in respect of which he was charged and convicted.
"The only operation that I was involved in was attacking of the aborted attempt to necklace Mpikayi Pele Radebe."
CHAIRPERSON: Yes, now I presume the question is: Why do you say that, why do you say that the only operation that you were actually involved in was Radebe's, when here in Exhibit A you say that you also were involved in the killing of Sithole?
MR SBISI: It is because as I mentioned before, I was not clear as to what incidents would be permitted for inclusion in the application, it was only yesterday when I consulted that I was informed that I should divulge everything that happened.
MS THABETHE: Was this statement a response to a question as to what other operations you were involved in? And then your answer was no, the only operation you were involved in was attacking Mpikayi Pele Radebe.
MR SBISI: The only reason why I mentioned only this operation is because even in my application form I have mentioned only one incident. As I have already mentioned, I did not have a person assisting me ...(intervention)
MS THABETHE: Sorry, Mr Chair, can I interpose here? I think initially he was asked that question and he said there were things that were signed by him. What I'm suspecting, I'll confirm with Mpumelo(?) Vilakazi, because she's our Investigator, whether there isn't a hand-written statement and this not is not a typed one, but still he did confirm it.
It is my respectful submission that - or firstly let's deal with the number of counts were are dealing with. One deal here with those three counts, the Mbongwa count and then of course the Radebe count, the 25th of December '93 and the Kamanati Sithole count.
I would like to deal with my submissions relative to the last count and why it ought to be included. Firstly, in terms of time constraints, it does preclude this Committee sitting as an Amnesty Committee, from not considering it because it falls within the purview of the time period within which it can well be considered, it is before the cut-off period.
CHAIRPERSON: But the thing is the applications for amnesty must be made, had to be made by the 30th of September 1997, and now he's made application for the killing of Mr Sithole, on the 30th of November 1999.
MR DEHAL: Correct. I'm fully alive to those problems, Mr Chairman, my only difficulty is, if within the broader context of the Act as indeed correctly alluded to by yourself, Chair, yesterday, I do not think that the Act restrains this Committee from considering applications for amnesty. If we use the two analogies in the first case, where a person calls in here and talks about firearms and it turns out that he was in possession of an illegal or unlicensed firearm, that count per se not having been included in his original application for amnesty, it is not precluding him at this stage from dealing with it, and it is known that Amnesty Committees of this sort and various Committees throughout the country have granted amnesty for those and understood those. I agree against this application that this however a completely different ball game, this is an application completely different from the other two counts, this indeed is a separate count.
Now what I'd submit respectfully the Committee ought to take into consideration are the following. We are dealing here with no so intelligent an applicant, a person who, whilst he may well have featured prominently in political parlance and circles, he's not one who is au fait with the applications for amnesty, the parameters within which it falls, and says honestly that when on Monday he consulted with Ms Kooverjee, Ms Kooverjee, the other Director from our offices, he was told that he must make full disclosure, he was told that he must talk about every incident in his life, he was told that inasmuch as he was not convicted of incidents he must deal with them. He said that is why he dealt with it. Now the corollary of that submission is simply this, if he did not deal with that aspect, none of us would have known about it and I dare say not even Mr Panday would have been able to sit here and cross-examine Mr Sbisi as to this incident, for the purposes of showing lack of full disclosure.
MR DEHAL: Yes, I agree and then there are additional difficulties of that nature. Ms Thabethe, the Evidence Leader, did not have the opportunity to bring people before us. We therefore have not tested whether this application, within the context of that logic, is indeed an acceptable application, an acceptable count. Now those are the difficulties no doubt. But my submission are that it does not in the nature of things, preclude this Committee from considering this count as a count for amnesty. There are difficulties, but I submit they are not insurmountable. The difficulties point at what possibly would have occurred procedurally, namely in the nature of the Evidence Leader bringing persons here, possibly a lawyer being appointed for the victims and Mr Sbisi then being questioned thereon per se the application within the ambit, within the context of the political lines, this deals with a political matter, Kamanati Sithole as an IFP person and Mr Sbisi as an ANC/MK operative who dealt with him as a legitimate target.
Mr Chair, apart from that, looking broadly at all three counts, I respectfully submit that Section 20(1) of the Act, of the Promotion of National Unity and Reconciliation Act 34/95, has set out the basis on which amnesty ought to be granted and my submission is that Mr Sbisi's application on all three counts falls within the realm of Section 20(1), but it must be considered that it is only one of these three counts that is being objected to, the other two counts are not being objected to, the count of the necklacing of the 25th of December '93 is not being objected to, there are no family members here, there's no lawyer here and indeed the same applies to Kamanati Sithole.
MR DEHAL: As to the objection, Chair, it is as I see it premised on two grounds. It would appear to be premised on a lack of full disclosure, inasmuch as that I submit was not established, it appears more strongly to be premised on the lack of political lineage.
Now as to lack of full disclosure, my learned colleague, Mr Panday, had dealt at some length with cross-examination on activities that Mr Sbisi might well have been involved in and endeavoured to embark on a line to establish whether Mr Sbisi was involved in other incidents which were not disclosed within Exhibit A. It is clear that Mr Sbisi had kept to his statement, he did not concede that there were other acts, it did not appear at all clear that there were other acts which are not brought before this Committee, in fact on the contrary, the very inclusion of the Kamanati incident negates any argument as to the absence of full disclosure. Even if this Committee were not to consider the Kamanati Sithole incident for the purposes of amnesty on that count, that disclosure in itself, the reference to that act in itself supports irrevocably in my respectful submission, the contention that there is full disclosure, otherwise there would have been no need for him to have mentioned it.
MR MALAN: Mr Dehal, the Act stipulates that full disclosure must be made on each incident which amnesty is sought for, it's not compelling any applicant to disclose any other violation that he has committed which he's not applying amnesty for, so that line of argument does not hold water. The question is whether he has made full disclosure relevant to the incidents and his acts for which he applied for amnesty. So you need only to argue that.
On the count relating to the 23rd January '94 count, the Mbongwa incident, the one difficulty that seems to surface is the fact that the mother of that house was regarded by the judge as a credible witness and Mr Panday's argument it seems, premised broadly on the basis that if she were credible and adduced testimony to the effect that Sbisi was within the house, then how can it now be said that he was not.
There are two broad arguments against that, the one is, that was a trial, we are not within that trial, we do not have the transcript before us. Inasmuch as the Honourable Judge had accepted her as a credible witness, we do not know to what extent Mr Sbisi was then represented, to what extent the lady of the house, Emily, was cross-examined, to what extent these aspects relative to Sbisi's presence in the house and the absence in the house were dealt with and whether that aspect, if dealt with at all, led to the conclusion and the finding of credence in her favour.
And the second broader aspect is this, one is dealing here in hindsight with a transcript which we do not have before us, we cannot now categorically simply accept the judgment and the findings as drawing inferences and conclusions that suit us.
The other argument, Mr Chair, is this, why would Mr Sbisi come here to this Amnesty Committee today and say he was not in the house, he could well easily have said "I went to the house, I was there, I caused the act, in fact I shot the girl and I killed her. It was dark, there was no lights, I took it for granted the figure in front of me was the boy I intended to kill and not the girl, I made a mistake". Now he could easily have said that, nobody would have gainsaid that, it would have fallen in line with the testimony in the trial of the State witnesses there and it would have negated, removed the need for the cross-examination, it would have given a different light to it, but he came in truthfully to say it as he knows.
Whilst the fact that he was absent in itself draws adverse inferences, and I concede that, the ring of truth in persisting that he was absent when there is no tangible reason as to why he shouldn't say the contrary ...(intervention)
CHAIRPERSON: You know there might be, we don't know, we're basically sort of getting in the realm of surmise now, but you he might well want to distance himself from the actual killing of the innocent girl by saying "Well you know it's not my fault, I want amnesty, so I've got to now connect myself with the incident without taking the blame of killing this innocent girl because I when I get out of jail have got to go back and live in that area and these people are there etc., etc., so let me have the best of both worlds, let me say I didn't kill her and let me also get amnesty by saying I was the mastermind behind the plan, but I wasn't there and my followers didn't follow my plan, they messed up". You see, so what I'm saying it's just a question of surmise when you say well why should he say that he was at his home. That might be a very good reason to say that he was at home, he's getting the best of both worlds, to suit himself. Just as in the trial he said he wasn't there, he knew nothing about it at all, alibi to save himself. And you know we hear that often, they come with that.
So I think the fact that he said that he was at his house instead of coming and saying "Well, it was me, I was at the window, I pulled the trigger and shot, just as Mrs Emily Mbongwa said at the trial", because he doesn't want to admit that he's got to go back there an face those people afterwards.
MR DEHAL: Thank you, Mr Chair. I accept that that's a very real possibility at a level of extension of logic that exists, but the other logic also exists which of course doesn't negate the point you've made here, but one sees Sbisi sitting here as a convicted person, convicted of this incident. In townships that we live in once you're convicted by a court of law you are looked at as being a person who caused the incident. He gets back after he's released, whether after he's served his term or after his amnesty or both, he's seen in the eyes of the public as the person who has committed this act, there is no gainsay argument to that.
Apart from that, there are some other difficulties I have, one of which is this age factor. Mr Sbisi says he saw him to be about 24/25, he gives his evidence as being - sorry, descriptive evidence about this man, this boy, as being tall, big in size, one whom he saw as having a beard or something of that sort. He reasoned on the basis that he associated with this man as a man of age, not as a boy of 15 ...(intervention)
CHAIRPERSON: Yes, look on that point, Mr Dehal, we haven't seen the boy, okay it's many years later now so I don't know how relevant it would be if we saw him, we know, I'm sure all of us, that you can get youngsters who are big and certainly look older than what they actually are. I don't think he's wrong in his estimation of his age, saying he's 24, whether he estimated him to be 20 or 24, I don't know if there's a huge difference, but if we had some evidence as to the physique of the kid, as he then was, something to find that the applicant is lying on that aspect, then maybe it would be worth arguing about but I don't know if we can say well without having seen that child, how badly wrong he was in the estimation of his age and if he was two or three years out in the estimation.
MR DEHAL: Yes, thank you Chair, I agree with that, we also don't have the birth certificates here. The father I understand was available and instructed Mr Panday. But apart from that, Chair, the ...(intervention)
CHAIRPERSON: I don't think we've got any basis to find that what Mr Panday put was lies, I think we can accept that there were the four kids there and the eldest was the deceased who was 19 at the time and the boy was 15, I mean we can't say well despite that being put, finding that he is 24 or 18 or 22.
MR DEHAL: I accept that, in fact Mr Sbisi also when this was put to him, said "I can't argue with you, I didn't know his age, but I just saw him to be this, he may well be 15". He didn't say you may be lying, bring him here let's see him.
Chair, but the other aspect relating to this age is important and that is, it is not an inescapable inference to be drawn from his age, that his lack of political content or lack of political activity and therefore the act against him in the endeavour to kill him was not politically motivated, is acceptable. Now we know in South Africa, lots of young boys have been actively involved in political life, the Soweto uprising dealt with a young man, Mrs Mandela is presently before an Amnesty Committee dealing with the death of a young man in her football club ...(intervention)
MR DEHAL: Indeed, rightly put. And the evidence before us is that this young man or young boy is one who featured prominently on intelligence gathering and indeed on information given to Mr Sbisi and his own knowledge. And the Act is subjective, the Act asks us to take into consideration what Mr Sbisi believed.
That brings me to the second point and that is the political lineage. Here again the Act is not prescriptive, it deals with subjective tests. Mr Sbisi understood fully, correctly, on intelligence gathering, on his own understanding, living within the community, active in the community, active within the ANC against the IFP, that indeed the Mbongwa boy was a political activist. Now there is nothing to gainsay this political argument. So I respectfully submit that the basis for the objection falls away, on the aspect of full disclosure there is seems nothing tangible, on the absence of political lineage, there is nothing to support that argument.
There are some other minor aspects which I submit Mr Sbisi can well be criticised on, but I submit that all of these in the cumulative effect do not have so drastic an effect as to negate, as to cause his application to be unsuccessful. Some of these are the following. Mr Sbisi says that he remained within the house and sent the unit members to execute Mbongwa, I myself have difficulties with that, he was the unit head, he however has reasons why he did not go, he says he did not sleep the night before, that's contained in pages 18, 19 and 20 of the bundle, that he remained asleep, he says in his application for amnesty that he remained to guard, there was a real need to guard and indeed he did not sleep, so he wanted to sleep. Now where does that take us? However difficult that may be on credibility, or even on the application, it does not in my respectful submission, negate the basis for the application.
CHAIRPERSON: If one's dealing with probabilities now where you've got a bunch of people who are inexperienced right, have never been on a planned operation before, none of them, they're untrained and you've got the leader who is trained, okay not extensively, but he's trained in the use, and he is the leader and then he sends them out and he stays at home, stays awake, doesn't go to sleep, what's the probabilities of that? You know then this comes into the judgment, which I've heard you on that, and from the judgment we hear that the judge says that Mrs Mbongwa, I think the word used was an outstanding witness, who identified him at the window shooting and she had seen him twice before that occasion.
Now if you take that which was found by the trial court, the probabilities of the trained leader not going on the first operation, planned operation of the unit, staying at home because he's got to guard and he's tired, but he doesn't go to sleep, he waits for them to come home, can't one then start saying well, doesn't this affect the credibility of the applicant? Is this believable or is it so false that it must be rejected on the probabilities?
MR DEHAL: Chair, I see it the way you do, there are difficulties, I began by conceding this is one of my difficulties, but I must submit that it doesn't defeat his credibility so insurmountably as to render this application for amnesty nugatory, one must have regard to the facts of this incident. He was sleepy, he did not sleep the night before, perhaps what he considered within the ambit of his own mind, is that in the execution of this act, sleepy as I am, drowsy as I am, I probably wouldn't do as good a job as these other applicants. At the level of surmising ...(intervention)
CHAIRPERSON: You see and another thing that just comes in, just for your comment, Mr Panday will probably comment on this as well, the applicant says right we planned this operation, I'm sending these six inexperienced untrained people in, the objective of the operation is to go to the Mbongwa house to extract the eldest son from the house, take him out the house and kill him. Now how are they going to do that? They get to the house, we've got no detail whatsoever, we only know that when they get there they lob a petrol bomb through the window and there's shots fired and an innocent girl gets killed. Now could it not be argued that he's saying that this is a plan once again to distance himself from the tragic death of an innocent girl? His instruction was extract this guy from the house, we don't know how many people were in the house or they didn't know when they went there, it might have been a whole house full, they didn't know which room he was sleeping in, if he was sharing a room, how are they going to extract him, these are youngsters. I think there's somewhere in the papers that one of them was 15 years of age who went there, they're not operatives, they're not MK, they're green, they're rookies. They're the sort of people who should have been walking around the block and go, so maybe again it might be seen that he's again saying it wasn't my intention to cause an injury to that innocent girl. They had to extract him cleanly, like a surgeon cutting out an appendix, bring him out and then kill him. It all comes too sort of neat, especially when one takes a look at the Radebe incident as well, you know we get the statements "I wasn't there, I didn't do it", now he comes and says that he did it. That's probably - it's just the whole thing is worth looking at, one must take a look at it and consider all these aspects.
MR DEHAL: Yes. Against that background, Chair, you look at two aspects. On the other incident of Kamanati Sithole, he comes out openly and says "I was there, I did it, I did whatever was necessary, I intended to kill". On the Radebe incident again he says "I poured the petrol, I got him to drink petrol, I personally got him to drink it". Now my question is, why would he not in this incident say he went to the house against the background of what the judge has found on Emily? It may well be that, not at the level of surmising, that had he been to the house he would have carried out the execution with the precision that he intended as Commander to carry out. And therein lies perhaps support for the submission that he wasn't there, that had he been there it would have been done the way he designed it to be. And at the level of sent untrained little chaps to execute somebody, two things follow, perhaps it was so simple an incident, so simple a home where everybody knew where the boy, Radebe(sic) or the man Radebe was, to remove him and cause the execution and on the contrary a group of people go there, the lights are off, they don't know how better to act, they believe within the realms of their own mind, shooting at this figure is Radebe, they made a gross mistake. Now ...(intervention)
CHAIRPERSON: Yes, because one would have expected going on an operation like that, the preferable situation would have been for the lights to be out and for the people to be asleep, rather than the lights to be on and people active in the house, wouldn't you think? And yet they say because the lights were out we didn't know what to do so we started hurling bombs. One would have thought that would have been a better reason if the people in the house were awake and there was a lot of activity there, to get them out and then catch the chap, but it just sounds silly.
Mr Chair, the two other considerations are the following. In South Africa in black townships you have a situation where people go into a house with guns in hand, whether lights or lights are off, they go into the house, they extract the person, they remove him out, as warlords, as gangsters or as political activists, in order to execute their act. Why that didn't happen here I do not know, lights ...(intervention)
MR DEHAL: Yes, and that's the point, this is the first operation, they probably took fear, probably acted on the spur of the moment out of anxiety and did what was instinctively their gut reaction, wrongly in this case.
Now against the background of that you have Mr Sbisi who then establishes that the wrong person had been executed, what does he do, he disciplines them. The person who was involved in causing the incorrect execution is then dismissed from the unit, he can't possibly dismiss him from the ANC, but he's dismissed from the unit.
Now Mr Sbisi seems, against the background of all of that, as having acted as a disciplined leader of the MK. One wonders what would have been the situation had he personally been there, if one accepts that hew as not there.
ADV SANDI: That was not part of his evidence-in-chief, he only came up with that much later under cross-examination, this thing about taking disciplinary action against the chap who had done things wrongly.
Chair, there's just two other submissions that I want to make quickly and that is, there were some errors that appeared evident from Exhibit A, I'm not endeavouring to salvage the position relative to those difficulties, but I think it would be prudent for me to submit that it is common cause, common knowledge at this stage, that Exhibit A was hastily drawn. My offices came to be instructed on Friday, we received bundles on Friday afternoon, we endeavoured to meet these people on Saturday, we could not ...(intervention)
MR DEHAL: Correct. And just to add, the last bit to that is on the Tuesday morning I was delayed in coming in here, principally because we were hastily trying to finalise this statement and you can see that there were errors with the names. Ms Kooverjee dictated is, I don't know whether aspects that were frowned over and questioned at length are as they should read in the affidavit.
... it may well be that that took place within, it may well be it took place outside, it's not clear. I'm not saying that it did take place inside or outside, I'm saying one can read within that line an ambiguity and therein lies the difficulty.
MR MALAN: Was his evidence not that this was really the only statement that he ever made where he knew exactly what he had to do and make a full disclosure on the true and relevant facts and even beyond what is relevant, if you refer to the third added application for amnesty?
MR DEHAL: Yes, yes, I agree Sir, that was his evidence, but you must look it against the background of what really happened. I mean as lawyers we hastily take his affidavit, he's not an English speaking person, we use an interpreter from my office, we hastily go through this. In fact, we had just about half-an-hour on Monday to do this and I had about an hour to settle it on Tuesday, without having consulted with him. I'm saying within the broader context of the way it was taken, there may be difficulties. If I had a week or two to deal with it, one can then say yes, it's an exacting expression of exactly what happened. Mr Sbisi on the other hand made this as the first statement, the fact that he makes it and testifies to it as being the first full disclosure statement doesn't in itself infer that it was well thought of and well considered and well documented and well doctored and well recorded.
Broadly speaking then against that background, in terms of Section 20(1)(a), I respectfully submit that the requisite provisions of the Act have been complied with and inasmuch as there are these difficulties they are not so insurmountable as to be nugatory. Thank you.
MR PANDAY: ... he would have no reason to lie about not being present. The answer actually is quite simple, if one peruses page 29 of the sentence, even if one accepts that the applicant is a political activist, he may obtain amnesty for count 1, that of the Radebe incident, but that still doesn't dissolve his problem, he will still be in prison because the effective sentence he got is 30 years. Now the only thing now to solve that problem is to link himself to the killing of the Mbongwa girl, and how does one do that? He must now try and come up with someone in the family that may have been politically active, namely the brother.
Now it is true that my learned friend directs the Committee to the fact that one must not place too much weight on the evidence of the mother, but it is my respectful submission that I totally disagree with that. The evidence of the mother read with the discrepancies that were put before this Commission, changes the entire scenario. You have the applicant who has sworn to the truth to this and correctness of the affidavit from page 18 to 20, he thereafter confirms the Exhibit A that was handed in and it is here where the discrepancies come in. He maintains in Exhibit A, namely on paragraph 19 on page 6 -
When the discrepancy was pointed out in paragraph, in the affidavit, on page 18 to 20, where he mentions that he was asleep, he now seems to remedy this by giving the impression that he could not sleep. That may be possible, but these remedies only came about when the discrepancies were put to him. And Mr Chairman, one must not lose sight of the judge's analysis of the witness.
It is my respectful submission that if the judge at any stage regarded the witness to be doubtful in identity, the accused would have never been near applying for amnesty, that would have solved his problem, he would never have been convicted because he maintains he was never there.
CHAIRPERSON: Because if he agreed to take the blame then one would have expected him to have gone to court and pleaded guilty at least to culp or something, you know take some sort of blame, but he doesn't, he puts himself away from the scene. I can't see how that is in fulfilment of an agreement that he takes the blame. One wonders how he was arrested or why.
Now it is further my submission that if the judge was wrong in analysing the evidence of the mother, whom he regarded as outstanding, then we would still have had the other accused that were arrested in this matter, standing trial, but yet he was the only one that was convicted and the only way that he could have been the only person that stood for trial was if he was identified and the judge points out that the mother methodically, analytically identified him on three occasions, that led him to consider that her identification and her evidence was accepted in all material respects.
Now the issue of full disclosure. It is my respectful submission that he has not disclosed fully to this Commission. He may in the eyes of the Committee, be believed to have been a political activist. The unfortunate position the Committee is faced with is that all the applicants or most of the applicants allege their political affiliation, together with the history that our country has experienced. One has to accept that there's reasonable possibility of them being politically active. But then, it is also further safeguarded to test the political affiliation by the disclosure aspect and the disclosure assists us in preventing the awarding of amnesty to any person that merely alleges political affiliation and political activity.
Mr Chairman, I must respectfully submit that in the affidavit the applicant, on pages 18, 19 and 20, submits that violence was first rife in 1993, when Mr Chairman's brother put to him that, or questioned him as to when he was first informed of the police or when did the police know of him, by the Mbongwa boy, he related to 1992. Now one has to view this evidence with great circumspect, as to whether he now wants to implicate someone as being a political activist because at the end of the day it is my respectful submission, the Amnesty Committee may grant him amnesty in respect of the necklacing of Jabulani Radebe, that doesn't solve his problem from coming out of prison, he's left with approximately another 15 years to go. And it is my submission that his application will be futile because at the end of the day he will still be serving his sentence in respect of count 2, the murder of Pumzile Mbongwa.
Mr Chairman, I respectfully submit that the applicant has not made full disclosure and great consideration must be given to the judgment in respect of the mother who gave evidence, unfortunately she is deceased, we cannot have her evidence before us, and it is my further submission that even if the applicant passes on the political aspect of his life, he has failed on the disclosure aspect, having regard for the discrepancies. And I must stress that the discrepancies are not immaterial discrepancies, he attempts to remedy these material discrepancies only upon cross-examination.
I accept that my learned friend placed the constraints that all of were, that he had to consult and draft affidavits, but these discrepancies are not relating to the material defects that come out in cross-examination, these discrepancies don't impact on the discrepancies and more specifically to the Mbongwa child that was killed. Thank you, Mr Chairman.
With regard to the murder of Pumzile Mbongwa, Mr Chairman, my submissions are that the applicant in his evidence appears to be disassociating himself to the murder of Pumzile Mbongwa, in that he admits to having been involved in the planning of killing Mr Mbongwa, but he admits to the plan having gone wrong, that is his instructions or the decisions that were taken during planning were not carried out as according to the plan. My submission therefore is that maybe amnesty can be considered for conspiracy to kill but not the actual murder because he disassociates himself to the murder.
With regard to the incident of Sithole, I would like to argue, Honourable Members of the Committee, that the applicant has given reasons why he has included this incident so late, but Mr Chair, I would like to submit that our officers, our Investigation Unit are police officers, they deal with applicants all the time and their practice is to go to the witnesses, applicants, the victims, they explain what the process is about, that is the practice and they explain the issue that one has to disclose all the involvement or all the acts that he's committed. I would like to submit Members of the Committee, therefore that I think this was an afterthought. And besides that, Mr Chair, according to the Act or in terms of the Act, the Committee cannot consider applications which were submitted after the cut-off date for the submission of applications and therefore the incident of Mr Sithole cannot be considered, moreover it doesn't flow from the offence which the applicant had initially made application for. So really, it's outside the ambits of ...(intervention)
CHAIRPERSON: I'm sitting here as a Member of the Amnesty Committee and I'm not sitting in court as a judge where there's an inherent jurisdiction, but here I'm completely confined to my powers as described in the Act.
MS THABETHE: No, I've argued that. Basically with regard to the Mbongwa incident, I see the applicant dissociating himself, I'm even compelled to say he denies guilt with regard to the murder, he only admits to having planned it, but he disassociates himself from the murder that consequently or eventually happened.
With regard, Mr Chair, to the attempted murder of Mpikayi Pele Radebe, from the evidence of the applicant it appears to have been political and I respectfully leave it in the hands of the Committee to made a decision with regard to that incident. That is my humble submission.
ADV SANDI: Sorry, just one thing. With regard to this attempted murder of Mpikayi Pele Radebe, is he not really - when one looks at his evidence, he's putting himself on the scene, whether it happened inside or outside this building where he was ...(intervention)
MR DEHAL IN REPLY: Thank you, Mr Chairperson. I actually wanted to deal with these political aspects earlier, but I don't think it's - I think I will just deal with them by reference. I think Chair, yourself and the Honourable Members are fully familiar with the African National Congress' statement to the TRC, August 1986 and it's position on SDUs and necklacing.
CHAIRPERSON: ... also familiar with the fact that a lot of the SDUs were undisciplined. You see the ANC policy with the establishment of the SDUs, particularly in this province, and I know it because I was involved in the amnesty application of the person who was responsible of the persons who were responsible for establishing the SDUs in this province, was that it should have been done in conjunction with the MK.
They would send an MK cadre to the area who would train them, who would sort out about getting guns, but they did say that when the violence got out of hand and got more extensive, these SDUs were just springing up without them even knowing about it. And I don't know if this was one of those or not because the operation conducted on the Mbongwa house was very amateurish to say the least, not only in the carrying out of it but also on the fact those people so experienced, were sent to do that.
MR DEHAL: No doubt there was criticism ...(indistinct) Mr Chair, but it seems like in these submissions what the ANC did is further than that, they said that whilst they were springing up all over and were ill-disciplined in some respects, within the broader spectrum of what was happening from the right-wing, from MK being attacked by the Security Police, the police, the regime as they call it, of the then government, the SDUs activities must be seen within the broader spectrum ...(intervention)
MR DEHAL: Sorry, Chair. Then finally, the other aspect is, on page 11 to 12 of the further submissions and responses by the ANC dated 12th May 1997, where they deal with the question of necklacing and the ANC stance on necklacing, I don't want to read those voluminous paragraphs, simply to submit that Mr Sbisi's act on the necklacing or the endeavoured necklacing falls within the parlance and the purview of this. Thank you.
I see that it's now time for the - in fact, beyond the time, for the short tea adjournment, so we'll take the short tea adjournment now and then we'll start with Mr Ngcobo's application. If you could let us know as soon as you're ready, but we can take it for 20 minutes unless there's any reason why you want any longer. Thank you. We'll adjourn.
MR DEHAL: I was just worried about the time constraints, I understand that this hall is going to be used at 1 o'clock for some other purpose and that we're going to be leaving earlier, so I don't know whether we'd finish Ngcobo by then. Ngcobo is going to be little lengthier than Dludla. I was just hoping to assist by finishing Dludla.
MR PANDAY: Mr Chairman, I don't have any objection, if the Dludla matter is going to be expedited, I'm prepared to go on with that matter as well if the family is available. They were here in the morning.