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Type AMNESTY COMMITTEE
Starting Date 27 July 1999
Day 3 - (RESUMED HEARING)
Names MR STRYDOM, MR LAX
Matter BOIPATONG MASSACRE - ARGUMENT
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CHAIRPERSON: Good morning ladies and gentlemen, today we are here to listen to the closing argument from the various legal representatives. Mr Strydom, shall we kick off with you? What I propose doing, we will start with Mr Qambelani Buthelezi. His evidence is broadly speaking to the effect that he was not there, he did not take part in the attack, not because he did not like to take part in the attack, but simply because he was ill as I understand his evidence, is that right?
MR STRYDOM IN ARGUMENT: Chairperson, just before I start, can I just ask to get another set of these headphones, this one is not working, only on the one side. Thank you Chairperson. Chairperson, just to start off with, I would like to refer you to page 33 of the Heads of argument and at that page, I start dealing with the evidence of Qambelani Buthelezi. I tried to summarise the important aspects in his evidence in relation to his own motives and his own participation. Point 14.3, a question was asked him
"... I was in favour of the attack because of the situation, the difficulties that we were experiencing, even though this was against IFP policy, the attacks that we were experiencing were really difficult on us."
Chairperson, he further testified, I am not going to read everything that is stated here because it is in the Heads, that he was in favour of the attack, he was part of a group that made a decision that a township should be attacked, it is not clear on his evidence that it was decided that Boipatong should be attacked, but he said he was part of the decision making process, as a leader in the hostel, that an attack should be launched. My submission is merely by taking part in such a discussion, would not make him guilty of murdering people inside Boipatong, unless it can be said that he formed a common purpose with the perpetrators and he associated himself with their acts and on that basis then, also formed the intention of killing people in Boipatong. Without conceding that it is not a sound argument, I think the crime he is guilty of, is a crime of conspiracy to commit murder. The basis, I am arguing this is the following: Conspiracy is an act whereby certain people come to an agreement to do a certain crime. My submission is that agreement has been reached, agreement was reached that a township would be attacked and the element of the crime, conspiracy, which is actually a crime enacted by parliament in terms of Section 18 of, I am not sure of the Act, I think the Afrikaans is "Wet op Oproerige Byeenkomste" or something of that kind, that is Section 18 that states that a conspiracy is a crime and the crime is completed, the act of a crime is in fact the agreement, the agreement to attack. My submission is that the agreement was already reached that an attack should take place and mr Qambelani Buthelezi was part of that agreement, but it goes further, it was agreed that a murderous attack should take place and therefore I would say that he associated himself with the murderous attack on the people of the township, Boipatong because he agreed that it should take place. He was in a leadership position, I think that is common cause, so obviously if he is part of a decision as a leader, then he at least associated himself to the extent that it can be said that he formed a conspiracy with other people to do the crime, to commit the crime. I want to refer you to Section 20(2)(g), my submission is that Qambelani Buthelezi may fall in this category. I am going to read the subsection -
"... any person who associated himself or herself with any act or omission committed for the purposes referred to in paragraphs (a), (b), (c), (d), (e) and (f), will also fall in the category of a person who had a political motive ..."
and my submission is that Qambelani Buthelezi at least falls in that category of a person that associated himself with what happened in Boipatong because he conspired with other people to commit the act. Chairperson, my Heads on page 39 I make certain submissions in regard to Mr Buthelezi, I am not going to repeat them, I stand by those submissions and Chairperson, you will also see that I make reference to Section 20(2)(d) which is just a further alternative to the main argument. I am going to read on page 39 -
"... an alternative argument which can be advanced is that the residents of the kwaMadala hostel became a publicly known liberation movement. Their freedom was taken away from them, they could not move freely and wanted to liberate themselves. The attack on Boipatong was committed bona fide in the furtherance of the struggle to liberate themselves."
Then I refer to Section 20(2)(d) read with Section 20(2)(f). This argument may be applicable to all the applicants who were living in kwaMadala hostel, obviously the terminology liberation movement will have to be interpreted in the wide sense. The argument really there revolves around the question if there was a political motive,but what I submit is that Qambelani Buthelezi was part and parcel of the decision to attack and therefore he also served, in the light of the background of the situation, a political objective and therefore my submission is that he should also be granted amnesty. The only person that said that he was at Boipatong itself, and that is a further submission that I make, is Victor Mthembu, but you will see in my Heads, I deal with the evidence of Victor Mthembu and I would ask the Committee to reject the evidence of Victor Mthembu to the extent that it is contrary to the evidence of the applicants. I therefore, as far as Qambelani Buthelezi is concerned, submit that he is entitled to amnesty, he made a full disclosure and he served a political objective. That is the argument on behalf of Qambelani Buthelezi, Chairperson. Chairperson, if I can just add something which I thought of just now, when Qambelani Buthelezi was part of the decision making to attack the township, he must have foreseen at that stage, that this attack would be a violent attack and that people may get killed during the course of the attack and on that basis, he must have foreseen that, on that basis, he is guilty of the ultimate offence that was committed on a foreseeability basis.
MR STRYDOM: My submission is yes. He was part of the planning, he associated himself with the inevitable, that is that people can be killed, and then on a dolus eventualis basis, he formed a common purpose, on a dolus eventualis basis, he foresaw the possibility that people can get killed, but on a common purpose basis, he formed a common purpose with co-perpetrators that they wanted to kill people of the township. So, I would say yes.
CHAIRPERSON: Because ordinarily whether a person has associated himself with others, forming a common purpose, is a matter of fact which has to be determined from the conduct of the person in question, okay and what we have here is firstly, his overwhelming support for the attack and his determination that the attack be carried out and his willingness to take part in the attack, but for the ailment. It is very rare that one has a situation where a person says I wanted to be there, I would have been there, but I couldn't because I was ill. Those who perpetrated this crime, had my overwhelming support.
MR STRYDOM: Yes, but his act is that he positively contributed to the attack in the sense that he was one of the decision makers, he was not the person that went out there and stabbed people, but he prompted other people and got other people so far as to go on this murderous attack and he must have foreseen the possibility that people could get killed. On that basis, he formed a common purpose with the eventual attackers.
CHAIRPERSON: Well, take the scenario of a person who hires assassins to go and kill, okay, he makes the decision, he commissions the killing, but he doesn't go there to do the actual killing, but for all intends and purposes, he is as guilty as those who he had hired.
MR STRYDOM: And just a last word on this, a person can be guilty of a conspiracy even though the crime eventually does not even take place, the crime in itself, is the conspiracy and that is the crime that Qambelani Buthelezi committed.
MR STRYDOM: Yes, and on the probabilities, I would ask the Committee to find in favour of Qambelani Buthelezi, because it would have been much better or easier for him, if he wanted to lie about this, to rather say I was in Boipatong, I killed one or two people and therefore I ask amnesty. But he placed himself in a more difficult position by stating he was not there, and it is improbable that he would have done that in the light of the difficulties he would have experienced because of that, so I would ask on the probabilities to find that he was not there.
CHAIRPERSON: What do you say Mr Strydom if we look at the probabilities, it is improbable that a person would go the length of actively, well associating himself with a murderous attack and even indicating that if it had not been for my ailment, I would have been there and at the same time, knowing that all that he would be required to do to get amnesty, is simply to say he was there, but he nevertheless says "I was not there".
MR STRYDOM: That is the argument, on a probabilities' basis and I can also add that it is on the probabilities also so that Victor Mthembu could have made a mistake about Qambelani Buthelezi, bearing in mind that there were 300 people there that night, he knew that Qambelani was in a leadership position, so it is easy just to say he was there. I think there is a chance that he can make a mistake about that.
MR LAX: Mr Strydom, I have heard what you have had to say so far, I have one difficulty on this last probability argument and that is if one looks at his application and all the documents in his application, at the time he made the statement that he wasn't there, he was asserting that he knew absolutely nothing about the attack and that is a consistent set of conduct and a set of probabilities, by saying "I didn't know anything about the planning, I wasn't involved, I didn't even know the attack was going to take place", that is consistent. Now afterwards, when asked to explain that, we then get an increasing, in his testimony, we get an increasing sense of his involvement. How do we deal with that, that contradiction?
MR STRYDOM: Yes, I don't have his application now in front of me, I can't remember if he said he was not part of the planning, if he specifically mentioned that, he said he did not know about the attack, when the attack took place, in fact that was his version throughout, that the night of the attack, he also didn't know that the attack was in progress or was going to happen at that stage, but I will have to look at his application to see if he excluded the possibility that he was part of the planning or he knew about the attack on a previous time.
"... please give particulars of how and when you first came to know of the pending attack to be launched by the residents of kwaMadala?"
"... did the Steering Committee discuss the pending attack and if so, please supply the particulars of such discussions."
MR STRYDOM: I must just - the general feeling at that stage, that he elaborated on, his role as he went on in evidence, but we must bear in mind that his statement is really a short statement and he was asked many questions and then it later transpired that he knew something about the attack at the previous occasion. I want to move on, otherwise I am going to run out of time.
MR STRYDOM: Yes. Chairperson, the first few pages of my Heads of argument, deals with the question of political objective, what is stated there, I can't really take further. I am not going to deal with that at this stage, then I deal with the evidence of Victor Mthembu, I stand by the submissions that I make there, that to the extent that his evidence is contrary to what the applicants said, his evidence should be rejected and the reason why I say that, he was a poor witness. He contradicted himself on various material aspects, he deviated from his statement, so I submit that not much reliance can be placed on his evidence. Then I deal with the evidence of Vincent Khanyile. I submit that he was one of the better witnesses that testified during the course of these hearings. There is no basis upon which his evidence can be rejected. He involved himself, I would state that he made a full disclosure, he stated his political objectives quite clearly, he confirmed the political objectives contained in the annexure to his application and I submit that the only question to be decided is whether on his own evidence, he is entitled to amnesty in terms of the Act. I make the submission on page 21, that he meets the requirements of the Act as far as political objective is concerned and that he made a full disclosure. Obviously his evidence should be weighed against the evidence of the victims and the allegations of police complicity, but I think I can deal with that as a general proposition towards the end. I submit that his evidence was better than any other witness, putting police and police vehicles and white people in the township on the night of the attack. Chairperson, there is a general probability which I repeat in these Heads on quite a few occasions and the first time I make it, I think it is on page 22, and I think it is quite an important aspect. The overwhelming probability in favour of the applicant that there is no logic in protecting other people, what can he gain by doing that. It was suggested that he and the other applicants was scared to mention that police were involved, this is with respect ridiculous. My argument is, if I can take that point now, in relation to this application, is that there is nothing for the applicant to be gained by protecting the police or white people, and that is a general probability running right through this hearing. Why would they do that, and therefore I would ask the Committee to find in favour of the applicants, in the light of their denial of police complicity of white people, to accept that that is not the situation, that Vincent Khanyile for instance whilst he was busy with the attack, did not see any white people or any police vehicles, during the course of the attack. If he did, why would he not be willing to say that? The argument that he may be scared of what may happen to him subsequently, doesn't hold water and the reason for that is, he has been sentenced to jail for I think 15 years, will he now rather protect some unknown white people or the police and thereby risking his own, the success of his own application? I can't imagine that to be the situation and therefore I would submit that it cannot possibly be true. Although this applicant and other applicants testified that if there were white people and if there were military or police vehicles involved during the course of the attack, they would have seen then, I would argue that if there were a few white people in Boipatong on the night of the attack, that the applicants would not necessarily have known about them. It is clear that Vincent Khanyile for instance, and he was clear about that, he had no dealings with them, there was no agreement that he would be involved with the police, but I think there is still this possibility that Damara Choncho for instance, was in control of getting weapons, I don't know where he got the weapons from, it could have been from white people, but he could have told some of those people he got the weapons from "we are going to attack Boipatong" on that night, and that they decided to take part in that attack without the knowledge of the other attackers. That possibility cannot be ruled out. So as much as these applicants say that they would have known, I don't think it can be accepted if one looks objectively at it, objectively speaking in a township, a dark township, the size of Boipatong, anything is possible in the sense that a person can be in Slovo Park, a white person can be in Slovo Park, whilst the other attackers are in Majole Street for instance. They would not know about this person.
CHAIRPERSON: Is the submission, is that an alternative submission that we must accept as a matter of probability that there were no white men, police what the case may be and therefore that the victims, to the extent that they suggest that there were white men and police vehicles, they are either mistaken or not telling us the truth, that is the main submission?
CHAIRPERSON: But alternatively if we find that there were white men, described variously as wearing balaclava and headbands, having regard to the size of the group, the manner in which the attack was carried out, it is very probable that these white men were at places where the 16 applicants were not present?
MR STRYDOM: Yes, I would firstly say that the first question is actually question of credibility and reliability of the witnesses that placed these people, these white people and police vehicles in the township. In my Heads, I attack the credibility of these witnesses and I attack the reliability of these witnesses, but the alternative argument is if the Committee is going to find that there were white people at certain places at certain times, in the township during the course of the attack, then my argument is that that does not mean that the applicants are lying about this. It is possible under all the circumstances and objectively speaking, that there could have been a few white people at places and at times where these applicants did not see them. The vehicle issue is a bit different, because if there were vehicles travelling through Boipatong during the attack, one would have seen the vehicles, even more than individual white people for instance. But there I will argue, my argument there is there the issue is a reliability question. We know that vehicles were in the township shortly after the attack and one can just imagine what the state of shock of the victims and residents of Boipatong was immediately after the attack, they ran to various places, they hid themselves and then when they came out, they saw these vehicles. For instance, I think it was Florence Moleti that testified that she ran to the dumping site and from there, when she looked back, she saw vehicles. She was very unclear about the timespan, when the attack took place and when she looked back and saw these vehicles. That is the typical situation, I think if the Committee can accept that she saw these vehicles, then these were probably vehicles that came in after the attack. That would be my argument as far as the vehicles are concerned, but to deal with the next applicant on page 22, Mr Tshabangu.
He testified what happened to him in the township and how he ended up in kwaMadala hostel. He was a policeman and he attributed lots of these problems with the people in the townships, because they didn't like the Police Force at that time and they didn't like him because he was a policeman, that just developed and eventually he also became a political target and then he sought refuge in the hostel. I submit that he was a good witness. He didn't contradict his application, his written application, he was cross-examined at length and he came out on top, so my submission is that he was in kwaMadala hostel because of the political situation, that he took part in the attack because of the political situation and because of the conflict between the IFP in general and the ANC controlled township and I submit therefore that he should be granted amnesty if, obviously, the Committee comes to the finding that he is truthful when he said that the police were not involved or that he also falls in the category of a person that just didn't see the police or the police vehicles during the attack.
CHAIRPERSON: The evidence of the other witness, of the other applicants, speaks for itself. You have made submissions in your Heads of argument, you don't have to take us through that, all those submissions. The real question arises in the question of Sithembiso Kubheka. This is the chap who testified that had it not been for the fact that people saw him, he would not have revealed the fact that he, you know, he killed the child and the question is should we believe him?
MR STRYDOM: Yes Chair. He deviated substantially, in fact he made an about turn in his evidence, in the sense that in his application he said that he went to Boipatong, in that sense he was consistent, but that he did not kill any person and later on, he testified in quite specific terms that he did kill a child. He was candid or frank enough to state why he is prepared now to say so, because he said that the impimpi, Mr Dlamini testified that he was involved. I think if one looks at his evidence, it bears the ring of truth that although he was not prepared initially to admit, he admitted fully eventually. I would submit that his evidence in front of this Committee, can be believed regardless of the fact that he did not state the same in his statements. In fact, he gave a reason why he was not prepared to admit everything initially, because he is living in a township now, and to admit that he killed a child, could have endangered his life. That is the reason that he gave, but he made, according to me, a full disclosure and he explained why he was not prepared to do it at an earlier stage.
MR STRYDOM: Chairperson, yes, one could have gained the impression that it is arrogant of him to make such a statement, but I got the feeling, and this is the submission that I make, at the end of the day, he was telling the truth.
CHAIRPERSON: Yes, indeed. One can't be naive in these matters. One doesn't know what preconceived ideas people might have of and concerning the process of amnesty. But speaking for myself, I think he was unusually frank to say the least, to tell us upfront that he would have deliberately misled us had someone not revealed the truth to us. How do we deal with that applicant and how do we know that he has told us everything?
MR LAX: On the other hand, did he have any alternative? On the other hand, did he have any alternative? We had his papers, we had his case before us, now his colleague points him out as having been involved, how else, he would have had to explain his colleague's evidence? Did he have any alternative to say "yes, I lied, I am being honest with you and open with you"?
MR STRYDOM: Well, he could have denied it, or - well the fact that he did not have another option, does not mean he was lying eventually, that may have put pressure on him to tell the truth eventually, and then he came out with the truth. I find support for his version in the evidence of Diana Manyika. He said in his original application that he threw a burning tyre through a house, that house is on the corner of Hlubi and Bafokeng Streets. He in fact, from the word go said that he was the person that threw the tyre, so there is some corroboration for some of his initial version as well.
Chair, I must deal very shortly with the evidence of Nosenga and that I do on page 66 of my Heads. I make the submission that annexed to his first application, was an unsigned affidavit. Now, at the early stages when this affidavit was presented, Mr Prior said at page 511 -
"... Mr Chairman, may I just briefly say, according to Mr Van Rensburg in Cape Town, who was the analyst preparing this matter, the application as we have it before us, is complete, although the TRC had the completed version as it. The affidavit, unsigned and attested, was received at some other stage, but was not annexed to the initial application."
Only in that affidavit, he starts mentioning his participation in the Boipatong incident. It is not clear when that affidavit was received by the TRC. In his second application, he did not mention the Boipatong incident. My submission is that this witness, Nosenga was an untruthful witness and it is not clear if he was part of the group that attacked Boipatong at that night. On the probabilities, I would ask this Committee to find that he was not part of the attackers on the night, also because of the fact that he deviated from his statement that was taken whilst these hearings were in progress. The statement was taken by Mr Kjellberg. He used interpreters, he read the statement back to him and then he came to testify and every second sentence of that statement of his, he did not agree with. I submit that he was such a bad witness, that no reliance could be placed on his evidence, in fact his evidence cannot even be used to corroborate the evidence of other witnesses who testified here on behalf of the family of the victims. The quality of his evidence, cannot be used to do that. I have highlighted a few points here which is why I say his evidence is not to be believed.
MR STRYDOM: Yes, maybe one point that I want to make, he admitted that he killed eight to nine people and he was using an AK47. If one looks at the memorandum presented to the family how the people got killed at various places, the majority of the people were killed by stab wounds, his evidence is not supported by that document.
MR STRYDOM: Yes. And then the other situation, he described for casspirs, four to five casspirs, but he said four eventually, he said were gathered outside the township, attackers got into these casspirs, these casspirs moved off simultaneously into the township, then they split up, at a later stage they met again at Slovo Park, then they moved to some hostel where people were shot outside the hostel. Not one of the victims support him on that score. Some of them saw the odd casspir here and there, but no one during the attack saw four casspirs driving one after the other during the course of this attack.
MR STRYDOM: Yes, but he testified at various stages these casspirs came together again and in fact he said that they left the township together, they drove through the township, up to the road that leads to the factories and I think then turned left into Nobel Boulevard and moved with that street along.
CHAIRPERSON: Yes, I understand. As I understand, the basic submission you are making is that having regard to the inconsistencies within his evidence and between his evidence and prior statements, his evidence is not to be relied upon where it conflicts with that of the applicants. Yes, I understand that.
CHAIRPERSON: I think the issue that you should address perhaps finally is the evidence in regard to the question whether Mr Vanana Zulu was present, regard being had to the evidence of Mr Baloyi which was to a large extent corroborated by Mrs Buwa as I recall.
MR STRYDOM: Yes Chairperson. I deal with that aspect on page 112 of the Heads. Chairperson, I may just mention here that we tried to distribute some of the work, and my learned colleague, Mrs Pretorius deals with the evidence of Baloyi and Buwa, so she analysed those witnesses, but I make certain submissions here.
CHAIRPERSON: The broad issue that arises in the context of that, assuming for one moment that the evidence of Mr Baloyi and Mrs Buwa is acceptable, now to what extent does that affect the issue of disclosure, full disclosure?
MR STRYDOM: Chairperson, each individual applicant testified about his participation and gave all the information he could give about his participation and made a full disclosure to that extent. I know the Act reads "full disclosure of all relevant facts", but it would depend how wide the word relevant should be interpreted. Is it relevant vis-a-vis the individual applicant or relevant in the broader sense? My submission obviously is that these witnesses had said that Mr Zulu was part of the attack, made a mistake, they are unreliable, but if it is accepted that he was there, I would say it won't affect the individual applications on the basis that they said everything that they knew. It can also be argued that if Mr Zulu came along, that they were not aware of that, that has not been established that any individual, like Mr Dlamini, that he was for instance aware that Mr Zulu was part of the group of attackers, again arguing that there were 300 people, it was dark, Mr Zulu, if he took part in the attack, he could have joined at a very late stage. He could have decided to go along without the knowledge of the other people, so the fact that he is placed in Boipatong, does not mean that everybody, all the other attackers should have seen him there. I think it can be argued on the probabilities that they did not see him and if they say they never saw him and that he was not there, that does not detract from their full disclosure they made.
CHAIRPERSON: Well, assuming for one moment that he was there, but that the applicants tell us that he was not there, to what extent does that affect the issue of a full disclosure in regard to the materiality of his presence?
MR STRYDOM: Yes, on the assumption that they knew he was there, Chairperson, it is difficult to say because I still maintain if an applicant tells everything that involves himself and what he did and how he killed people, that he made a full disclosure and if he hid something, one must consider how material it is that he hid something, and I submit it is not all that material that they left out one or two people, even though Vanana Zulu was in a leadership position. That won't detract from the fact that they made a full disclosure as far as they are concerned. I must emphasise that the submission is that it cannot be accepted that Mr Vanana Zulu was there because only - let me put it, I have put it to the witnesses when they testified, during the criminal trial, various accomplices testified and nobody said that Mr Vanana Zulu was present, and it is only during the course of these hearings, that three people implicated him. Two people only heard ...
MR STRYDOM: Yes, what I can say is that Mrs Elsie Buwa's husband testified during the course of the trial, and he was also in that house, and surely he would have said that Vanana Zulu was part of the attack during the course of the trial if he had such knowledge, even if he heard it from his wife. He never said so during the course of the trial.
MR STRYDOM: And Mary Baloyi, Wilson Baloyi's wife also testified, and she never mentioned Mr Zulu during the course of the trial, and one would have expected such a prominent person to be mentioned by witnesses during the course of the trial.
CHAIRPERSON: And of course if one has regard to the conduct that was ascribed to Mr Zulu on the day in question, namely that he called out the children of some of the relatives, so your submission is that if that is true, Mrs Baloyi would have seen that and would have given evidence to that effect?
MR STRYDOM: Yes Chairperson, and I can take it further that no evidence was presented during the course of this hearings and for that matter, at the trial as well, that Mr Zulu played an active role at the stadium before the attack. If he is a leader, one would have expected some witness to say somewhere along the line, that there at the stadium, Mr Vanana Zulu was also there, he said this, he did this, he made a decision, he was a leader, he would have led the people, but nobody states that. Right through these hearings, it was stated that Mkhize and Choncho were the leaders. If Mr Zulu was in fact part of the group, he would have been a prominent figure during this attack, but it never came out. It was only these people that know him, that say he was there, and it is actually a coincidence. Let me put it this way, what these witnesses in fact say is that he made in public during the attack, that he was there. That is improbable if he was part of the attack, he would certainly be careful that people do not identify him in Boipatong during the course of the attack, but what they say is he basically made it public that he was there and that towards people that know him, in the same street where he lived. That is my submission, and that is why I say the evidence is unreliable if not false, if Mr Zulu took part during the attack and I can also say that Mr Zulu made the affidavit, he is not one of the applicants but he made an affidavit, denying those allegations made against him. I think my learned friend will obviously rely on Iscor's reply to the Attorneys for the victims, which shows that Mr Zulu did not have leave at that time, but my submission is that not much reliance can be placed on that, it is only a letter, it is untested, it is not evidence, it does not mean that, the fact that he did not have leave, does not mean that he was in fact at work on that day. There is direct evidence from many people that contradict that and there is also the affidavit from Mr Zulu himself. Chairperson, that is the submissions that I want to make at this stage, maybe at a further stage, I will make further submissions, but I think I will give my colleagues a chance.
MR BERGER: If I read the Act correctly, they must make the application and they must indicate what they had done wrong to put it in layman's terms and there is nothing, no indication that they have done anything wrong.
MR LOWIES: As it pleases you Chairperson, I agree. Chairperson, with respect to these two applicants, I refer to them as the fifth and sixth applicants as a result of the Bundle, but dealing first with Mr Mbele with respect, you will find the evidence in front of this Commission and my analysis thereof at page 12, paragraph 24 and further. Chairperson, I would respectfully submit that having regard to what has been found in the criminal trial and the evidence of Mr Mbele, dealing with him first, I would submit that there is a full disclosure, he tells us much more than what was found against him in the criminal trial and he accepts responsibility for various acts which I have set out in my Heads of argument. There is one aspect or two aspects however, which is in issue and that is of course, he says nothing about the participation if any, of Mr Vanana Zulu and of the police and or other white people. Now, he with respect and what I am saying here, I would also like to make the point regarding Mr Mazibuko as well, none of them state categorically as far as I could see, that Mr Zulu was not there. What they say as far as I have it is that they only saw him at a later stage. That of course does not exclude the fact that he may have participated in the attack. It goes further with respect, Chairperson, if you find which I do not concede, but if you find with respect that the four witnesses who implicate Mr Zulu according to my analysis of the evidence and I will deal with that later, who they are, I will just mention at this stage, I think it is Mr Nosenga, Mrs Buwa, Mr Baloyi and Mrs Monokane. If you accept their evidence, where Mr Mbele was present is no nexus between where they saw Zulu and Mbele or Mazibuko and I would respectfully submit that this is an important point which has to be borne in mind, and that is the applicants did not go into Boipatong as one massive group, they broke into two groups and those at a later stage if one reads the evidence carefully, also suggests that that was broken up. With respect, it is improbable and it is unlikely that they would have knowledge of each and every incident which was committed at Boipatong. But not only at Boipatong, the same argument goes for what happened at the hostel. My submission is the following ...
MR LOWIES: Now Chairperson, regarding the four witnesses then, because this is important in respect of both my applicants', the last mentioned applicants, regarding two aspects and that is whether Vanana Zulu was there and whether there was white complicity, I would like to make the following submissions which I submit are relevant here, and I would like to deal with the four witnesses and due to a lack of time, I unfortunately did not do so in detail in my Heads of argument, but I would like to make the following observations regarding Mr Nosenga and I will be brief. I with respect submit that one can file Heads of argument pertaining to his evidence of 100 pages if need be, but I will make my submissions brief. Mr Nosenga, I would submit firstly, was a person with a motive and the motive is firstly to implicate Mr Peens and Mr Chaka, who according to him were the people responsible for his arrest and conviction on various charges. Just to make a sub-submission regarding this aspect, initially he denies that they have done anything wrong to him, and later on he admits or later on he states it categorically. I think words to the effect "you cannot meet Peens without being assaulted by him", words to that effect. Why, first of all, not immediately conveying this to the hearing? I would submit there is a question mark and the question mark is clearly he wanted initially to hide his motive and that is to implicate them. Another aspect which I feel with respect and this is my submission therefore, is highly relevant in his evidence, is the complicity of Mr Keswa. I would submit that if one has a look at the objective evidence, again, Keswa was in custody. Not only is this the evidence of the applicants and specifically Mr Mbele, and I have quoted it in my Heads of argument, it was also borne out by the investigations of Mr Kjellberg. I know it may be argued that the police let him out for a day or so so that he could just go and kill people and then have him rearrested, but with respect, that is so far from the probabilities, and so far from everything that has been led in front of this Committee, that I would suggest that it is an absurd possibility and therefore does not carry any weight. My submission therefore regarding his implication of Keswa and very seriously because Keswa and Peens is placed on the same scene, they have done the same things, they were there on the day of the attack, they received weapons, etc, etc. If that is wrong and if that is objectively disproved, my submission regarding Mr Nosenga is there is something seriously wrong with his evidence. Where he places Mr Keswa, just briefly Mr Chairperson, on the scene for instance the meeting prior to the attack where Mr Peens was there with Keswa and the white Opel Monza, he retracts portions of that evidence later on, he says he doesn't know anything about the white Monza, etc. Chairperson, I don't want to analyse his evidence in too much detail because as I say, that could take up a whole day.
MR LOWIES: That is correct Mr Chair, but I just highlight certain aspects which I feel are glaring and indicate to us one thing, Nosenga was on a mission of his own. Another aspect which I found absolutely glaring and totally improbable is the fact that he never mentioned one thing which he submitted in cross-examination by accident as it were, and that is the fact that he says his family members were killed in an attack of which he was part and he never mentions this. Now with respect, I would have thought and therefore I submit, that if that is the case, one would have expected Mr Nosenga to immediately tell us, listen I have one problem, I killed or I was part of an attack where members of my family were killed. He never does so, he never mentions it in any statement, he never mentions it to Mr Kjellberg. With respect Chairperson, that is glaring. I find it highly improbable that Mr Nosenga is therefore telling the truth. I find it improbable that where he is not implicated, that he would come and apply for amnesty where he killed people who could have been his own members of his family, but he doesn't mention it. Chairperson regarding Mr Vanana Zulu who was implicated by him, in his statement to Kjellberg and various others, he specifically states that Vanana Zulu played a leading role in the planning of the attack and he also saw him on the day of the attack. Cross-examination however, and if my record is not wrong, I think on pages 2258, etc, he admits categorically in cross-examination by myself, that he, I might be wrong with 2258, I will give you the exact page number before we leave, he specifically states that he did not see Mr Zulu at all on the day of the attack, which again is a glaring inconsistency. Mr Strydom made the point regarding Mr Nosenga and I have to echo his sentiments and add something else to that, the point that Mr Strydom made is Mr Nosenga's evidence is so improbable and so riddled with contradictions, that one cannot place any reliance on him and where he corroborates somebody or a witness, it is purely accidental or a coincidence that he does so. Therefore one can also argue with respect Chairperson, that the reason why there is such a corroboration is because of facts that he gained afterwards or information that he received afterwards and that he used this in the implication of people who I submit he had a motive against. I would also submit Chairperson, regarding Mr Nosenga lastly, that his evidence fly in the face of everybody else and that is the fact that Mr Mthembu and everybody's versions and always had been, even in the criminal trial, is the person who was responsible for allocating of rooms in the hostel. Yet, he comes and he says "no, the person who allocated the room to him, was Vanana Zulu", whereas I think objectively one can accept on the probabilities, unlikely. Another aspect on which he was caught out was his failure in cross-examination by Mr Strydom, to identify the leader on everybody's version, of the attack and by his own admission, namely Mkhize, and there is a very good reason why he could not identify him at all, not knowing him, not knowing who he is, and that is because at the time when the applicants, the other applicants say he joined the hostel which was the end of June, I think the 28th of June stands out, but it doesn't matter whether it is specifically that date, on that day the evidence is Mr Mkhize was not there. He was already in custody as a result of the arrests by the police and that with respect is another glaring aspect which I find improbable in his evidence. I would suggest that his evidence be rejected in toto and any corroboration that there is, is just coincidental. Other witnesses, and I will deal with them briefly, who implicate Mr Zulu, namely Mr Baloyi and Mrs Buwa, I would submit Chairperson, that there are two probabilities here, two scenario's rather, not probabilities, I will deal with probabilities later. The two scenario's are firstly, they are not telling the truth and the alternative is they are making honest mistakes. In order to do so, I would like to analyse briefly the evidence of Mr Baloyi. I see at page 2829 and I am quite certain about this page, and page 2876 of his evidence, that he never mentioned to the police the fact that he recognised Mr Zulu as one of his attackers. With respect, if one looks at the objective probabilities, the purpose of the investigation was to establish and not to cover up who was responsible for the attack because we know that this is so because the applicants were accused in a criminal matter, it was not in order to cover up by the police. There is no specific reason why the police would cover up any complicity by Mr Zulu, on the probabilities, there is nothing to suggest that they would want to do that. I find it therefore improbable that when the purpose of the investigation is to find witnesses who can say who was responsible for the attack, that Mr Baloyi never conveyed to them "one chap I know, and I know him very well", and he also has all this detail as to we lived together, we used to go to the dances together, etc, etc and he never mentions it. Chairperson, that I find with respect, improbable. The attack on Mr Baloyi and also Mrs Buwa in cross-examination, in summary amounted to the following, put briefly, this is a recent fabrication. How do you disprove a recent fabrication, you disprove it by stating inter alia or by leading evidence inter alia that there was a previous consistent statement, as a matter of fact, when that proof was sought, the contrary appears and regarding Mrs Buwa, and here I want to make the following point, one may argue specifically regarding her, that yes, she may not have been asked or maybe it was in a hurry, etc, etc and that is why she did not make mention of Mr Zulu, but Chairperson, her evidence is not that. The reason why there exists no previous consistent statement according to her, is because there was a deliberate and that she says unequivocally at 3354 etc, that is the crux of her evidence, she didn't use these words, but the crux of her evidence is that there was a deliberate negation of what she told the police and a twisting of the facts that she gave the police there, not a bona fide mistake, that with respect I find improbable. I find it improbable in the light of the purpose of the investigation and the fact that indeed, there were people charged as a result of what was told to the police and the State at that stage.
MR LOWIES: And 3354 is the relevant page, I think it starts at 3352 and it goes on, it is in that vicinity Mr Chairperson, if I can assist you. Chairperson, with respect, that I find improbable as well. This is my main argument, I will deal with another aspect which I also feel is relevant, and pertaining to the involvement of Mr Zulu, I would like to give you a summary maybe of what I have already said, point by point, and the first point that I would like to make is where he is not implicated by the applicants, could very well be because they were not always there at all the places, I have made the point. The second summary point that I would like to raise in summary is that none of them stated categorically that he was not there. The third point that I would like to make in summary is that the witnesses may have been mistaken or not truthful and then a very important aspect which I would like to deal with, is the role of the Culemani Support Group. I am not suggesting and what I am saying here must not be seen as a criticism for the existence of that group, my respectful submission is it was indeed a laudable from what I have heard what Mr Berger said to you, in argument, it was indeed a laudable attempt by various people, maybe social workers as well, to support people of wrongs that were committed against them in the past, victims. Chairperson, the human nature is a funny thing and the very last witness that we heard can be used as an illustration of this. Her evidence, as you can recall, she initially did not believe that the police were involved, even though she saw coyoko's there, it was only afterwards, in other words on the day of the attack she never realised and even when she made the statement, she never realised that the police were involved, but later on, she came to the conclusion and she now firmly believes and this is also what she conveyed to us here, that the police were indeed involved. What I am trying to illustrate here with the evidence of that witness is a human factor. The evidence was clearly before you Mr Chairperson, that the people were encouraged and I think it is part of the freudian school of thought, to talk about their experiences with others in a support group, the reason being it heals the wounds. I can understand that in this circumstances, and the evidence was clear that all the people whose names were supplied to us by Mr Berger and Ms Cambanis as possible witnesses, were part of that group, except with the exception of one person who in any event does not implicate Mr Vanana Zulu, and that is Chairperson, they were part or it is possible on the probabilities that they were part of a discussion whereby the consensus was the police must have been involved. That being the case Chairperson, I think that it is not such a huge quantum leap to come tot he conclusion that on reconstructing, if you are a normal person, they must have been involved. We see it with respect, if we analyse and if I say "we", lawyers and Presiding Officers and Judges, see it with respect that when witnesses are called regarding an accident just to use an example, and I would suggest it is human, they tend to reconstruct because the human mind is structured as such, you cannot live with yourself if you cannot apply your mind to aspects which are not clear and which you cannot explain. I would suggest that the power of suggestion in these cases, are probable and as a result my submission is, it could very well be that some of these witnesses decided that there was white complicity and by that I mean police complicity, and that Mr Zulu was involved. Why would they want to implicate Mr Zulu? Again, it is not far fetched to argue as follows - it is common cause that the township saw Mr Zulu as the leader of the kwaMadala hostel, as a matter of fact i can recall that Mr Berger specifically suggested to one of my applicants on whose behalf I appear, that nothing would take place without Vanana Zulu being known in this. There is an attack, it was an attack by kwaMadala and surely who sits behind this, the quantum leap to argue, Mr Zulu might have been involved in this, is not far fetched. As a matter of fact, I would suggest that for the normal run of the mill resident of Boipatong who has his ears on the ground, that would be a logical conclusion to make. That being the case with respect, Chairperson, if he is seen as the scapegoat, sorry no, if he is seen as the person who is responsible for this, it is not a massive quantum leap again, to implicate him and place him indeed on the scene where people who were involved with him, committed atrocious acts. Therefore my submission is, on the probabilities, I can very well see and therefore my submission is so that they would want to implicate Mr Vanana Zulu because he was seen as the person who sat behind all of this and who sent out his people or impi's or amaButhu to attack them. What I don't find with respect, is a plausible explanation and therefore my submission is improbable, why his name was not mentioned initially. I would submit that what we have here is the power of suggestion and the power of reconstruction afterwards and a decision taken afterwards or a conclusion arrived at afterwards, that he was possibly a leader. Chairperson, I am not suggesting in my argument and it should not be read as follows, that there was a deliberate intent by the Culemani group as such, to falsely implicate people, but what I would suggest and this is also relevant pertaining to police involvement, is a firm belief by the residents that two things happened, police were there, Vanana Zulu was there. Whilst we had a position where time elapsed and we maybe have a reconstruction, the possibility of a confusion of the police coyoko's that were seen on the night of the attack, the timeframe might have been moved in the minds of these people, maybe deliberately, maybe unintentionally, maybe bona fide wrongly, that the police were also involved on the night of the attack. Thus, I would suggest with respect Chairperson, that in the main there is not sufficient evidence to prove police complicity, alternatively, I would suggest that in as far as my clients are concerned, there is no sufficient evidence to say that they were part of and aware of the fact that there was police involvement. I would like to make certain other submissions briefly and there are only three or four left Chairperson, I won't be long, regarding why I find it improbable that Mr Zulu would be placed on the scene and why I find what he has done, and his conduct that he has done, improbable. I find it improbable on the version of the witnesses, Buwa and Baloyi, that he would firstly make his presence known, that he would specifically seek people whom he knows as victims. One can argue yes, but maybe because they are members of the ANC, but none of these witnesses had a leadership role in the Boipatong society, there was no evidence that they played a leadership part, that they were members of the ANC and leaders of the ANC. I am talking of these two now, Baloyi and Buwa, but the people that he actually wanted on that night, is also not Mr Buwa, but it is young people with whom on the evidence presented to us, he most probably had a very good relationship because they were dancing together and Mrs Buwa was specifically asked "did you ever have problems with Mr Zulu" and she said no. There was no suggestion that as such, these children of Mr Baloyi, posed any threat or that they were involved in anything which specifically made them a target for the attack. Had that been the case, of course my argument would not have held water, because then there is a motive, they played an active part, but there is no such evidence to suggest that. That being the case, my submission to you on the probabilities is the following and that is, I find it improbable that he would specifically sought out youngster, with whom he danced, with whom he had on the probabilities, a very good relationship to kill them or to attack them on the night, doesn't make sense. Again, also this aspect that came out here in evidence, is never mentioned before. Another aspect which I find improbable is, and Mr Strydom raised it, but I would like to make it part of my argument as well, Mrs Buwa, sorry Mary Baloyi, Mrs Baloyi gave evidence in the criminal hearing and it was also put to Mr Baloyi, and she never made mention of the fact that these names were called of the children, etc. One would have expected, I mean this is part of the attack, it is not just something on the periphery of the facts, one would have expected her to mention this, yet, there is no such mention made, and I submit that this is therefore also improbable that Mr Baloyi's evidence in this regard, could be correct. Mr Chairperson, in conclusion then, if you find that - sorry, there is a last witness whom I haven't discussed, Mrs Monokane. I would submit that merits no more than the following and that is, she only heard that the name Zulu was called, but it could also be a race and then we also know that there were various persons with the surname Zulu on the night of the attack. I don't think that her evidence takes it any further than that. If it supplies corroboration, it is so scant that it must with respect be completely ignored in the light of the specific denial of Mr Zulu and the other witnesses, that he was on the scene. My final submission therefore with respect Mr Chairman, that my two clients, namely Mazibuko and Mbele should qualify for amnesty and that it should be granted. Unless there is something specific that you would like to hear me on, I would gladly address you, but this is my argument, with respect.
Mr Vanana Zulu and the complicity of the police on this specific night. I have mentioned the reason for the attack on page 4 of my Heads, I think it is set out clearly, that there was a war on in the Vaal triangle between the IFP and the ANC. It was not only restricted to Boipatong, it was also in Sebokeng, Sharpville and the other areas in the Vaal Triangle. It is my submission that there cannot be any doubt in the Committee's mind that this was a political attack. Nothing else was gained by attacking Boipatong. Then I must deal with Mr Victor Mthembu, who is the applicant whom I represent's evidence. He testified and he was under cross-examination for two full days. No other applicant, except Mr Nosenga, was scrutinised as much as Mr Mthembu was. Admittedly he did make statements on various dates, which goes back as far back as 1996, all that happened when he testified, was six years ago and I would like the Committee to take that into, that the Committee would regard that, that is was six years ago that all this happened. He made the statement that he thought that they did enter Boipatong through Umzimvubo Street, my submission is that he very clearly told the Committee that he did not know Boipatong, he did not know the streets as well because he did not come there. He testified that he was part of the attack, he never tried to distance himself from any of the other applicants as far as the attack is concerned. He was part of the Youth Brigade in the Boipatong hostel, he was Vice-Chairman of the Youth Brigade. It is my submission that he came, he told the Committee exactly what he did, he stabbed a man, he hit another man with a knopkierie, he broke a lot of windows and it is my submission that he was part of the attack and therefore he should be treated in the same way as the other applicants. He differs from the other applicants as to when Mr Zulu left the hostel, he says it was on the same afternoon. It is my submission that that cannot disqualify him from getting amnesty on the same grounds as the others. Then he gives evidence in contradiction to the other applicants, except for Mr Mkwanazi that Themba Khosa came and addressed the meeting after the attack and he told the meeting that they should burn the loot as well as the bloody spears and the clothing. I do not want to rely on Mr Nosenga's evidence as regards that because it is my submission that no reliance can be placed on Mr Nosenga's evidence at all, he was not a good witness, he could not have made any impression on this Committee and I will not rely on that. Mr Mkwanazi said that Themba Khosa was there, but it is my submission that is neither here nor there in regards to amnesty for the applicant, it happened after the attack and Themba Khosa was not part of the attack.
CHAIRPERSON: I think you can take it that we are mindful of those inconsistencies between the evidence of the various applicants on the one hand, and Mr Victor Mthembu on the other hand, in regard to the meetings and Themba Khosa and that yes, we are mindful of those, yes.
MS PRETORIUS: As the Chair pleases, I would leave it at that. Then the witness Hilda Monokane testified, Mr Lowies has dealt with that, that she only heard her husband saying "Zulu, what have I done to you when I worked with you?", that could mean any person with the surname Zulu that was there that night, so it is my submission that her testimony does not take the matter any further as to full disclosure whether Vanana Zulu was there or not. Anna Mbatha also testified, she testified in connection with a white person that was there. I will only go to page 12, where it was put under cross-examination, she made a statement to the police to which she admitted. That statement does not comply with the evidence she gave to this Committee. In that statement she said she saw a white and black policeman running towards the hut. Here she comes and she says she only saw the white policeman when he entered the hut and he entered the hut, she could only see his back. Chairperson, it is my submission that this is so unlikely that a person will enter a room backwards, that the Commission must take cognisance of that statement of hers. Then she comes and she says it was dark, because the policemen had a torch, which did not give sufficient light, they tried matches, they even tried a piece of tissue paper, so it must have been dark in the hut. It is my submission she could not see very well. She tells the Committee she is not conversant in Afrikaans, she knows a bit here and there, but she is sure that the person she heard speaking, was Afrikaans speaking. It is my submission that she will not be qualified to make such a statement. As regard to Mr Baloyi, there may have been some mistakes by Mr Baloyi, genuine mistakes, but there are a couple of contradictions that I would like to point out to the Committee. He said in his evidence in chief, he is sure a coyoko parked in front of his house, he could not see whether there were white or black people in this coyoko, it was only when Mr Lowies tested him, that he came and he said no, but the two - I would refer the Committee to page 18 where he testified
And he could also not identify the colour of the coyoko. That is on pages 2757 and 2758 of the record. He also testified that he saw this coyoko, but his wife came to the criminal trial and she did not testify the same. She said she did not hear, she was asked about the sound of heavy vehicles, for instance a casspir and he answer was -
He testified that he first saw the coyoko through the window and then he also made a statement that he went out to see and looked down the street. The problem with Mtwana Zulu in my submission, is he first of all said 500 people more or less were passing his house, then he told the Committee there were six or seven people coming from Mr Buwa's house and then Mr Buwa said there were about 60 people in the street. But what is strange, Mr Buwa and Mr Baloyi is looking at the same street, at the same scene, at the same time, Mr Buwa doesn't give any evidence at all at the criminal trial about Mtwana Zulu or the coyoko that was parked in the street. There must be doubt in the Committee's mind as to whether Mr Baloyi, either he did not observe properly and there we can take his age into consideration, he is an elderly man, he is 79 years old or that he is coming to tell this to the Committee as my learned friend, Mr Lowies, told the Committee that (indistinct) so often in Boipatong that some people started thinking that is what they saw, the things that they heard. It is my submission that there must be difficulties with his evidence in the light of Mr Buwa and his wife's evidence. For that, the Committee cannot take his evidence to rely on as regards Mtwana Zulu or the coyokos' presence at the time in that street.
The next witness that testified is Mrs Elsie Buwa. It must be mentioned that she and John Buwa were in the same house that night. She says she saw Mtwana Zulu in her house, he spoke to her and she knew him, but Mr Buwa never testified as to that in the criminal trial. But it is not only that that must make her evidence suspect, on page 33, paragraph 7.16 the statement that was made in Delmas was put to her. In that statement she said -
"... I cannot be able to identify the suspects, because I was scared and could not look at them properly."
It is my submission that Vanana Zulu to the police, at the stage when they were investigating this Boipatong massacre, must have been a very important role player. It is my submission that the probability must be there that the police would have asked these witnesses specifically "did you see Mr Zulu"? He was never charged, there was no mention made by any of these witnesses at the criminal trial that he was present during the attack.
Mr Chair, then there is the evidence of Diana Manyika, it is my submission that there must be some problem with her evidence. She is the first and only person who comes and testifies that she heard women ululating and that is why she thought there were women present during the attack. She also testified that she ran away and while she was looking back, she saw a coyoko that were between her and the attackers. It is my submission - then she says, in her statement she said no, her mother was also behind her, but that she never said to this Committee before she was asked about this. It is my submission that her evidence cannot be that reliable as to when she saw the coyoko and why she saw the coyoko. Mr Chairman, it is my submission that Victor Mthembu qualifies and I ask the Committee to take into consideration that that night we can sit here in cold, clear daylight and tell what everybody saw and did, but that night in Boipatong, must have been chaos, it must have been terrible to be a victim that night and it can be that you do make mistakes after six years, after you had gone through such a trauma. It is my submission also that many political parties denied any knowledge of any of these incidents, because it was common knowledge that after this attack, the CODESA negotiations almost came to a standstill, it would not be expedient for a political party to say but we said they must attack, but it is my submission that the IFP leadership did not know of this attack. This was a local decision taken by the IFP in the hostel because of what was happening to them and that the followers of the IFP followed the leadership. I would also ask the Committee not to look at each and every applicant, but that the Committee should look at the applicants as a whole and see what happened that night before making a decision. It must be a collective application this, Mr Chairman, because it is my submission to come to a conclusion, the collective application must be taken into consideration by the Committee. I will not go into the question of Sergeant Peens and Victor Keswa, I think it is quite clear that Mr Nosenga's evidence cannot be relied on.
MS TANZER IN ARGUMENT: Thank you Chair. Chair, I submit that Nosenga's testimony, or Nosenga's application, I submit with respect that Nosenga's application and his testimony does qualify for amnesty in that just like Victor Mthembu and Wilson Victor Mthembu, Nosenga underwent cross-examination for seven days.
MS TANZER: He was scrutinised Chair to such a point that he was supposed to be called from one day to the next, everything that was said, each moment. Now, many allegations were put to Mr Nosenga and the most important allegations being that he was an ANC spy, planted in this hearing to come and basically disprove what his fellow applicants were saying.
MS TANZER: As you can see from my Heads and I think the Heads speak for themselves in that regard, if Nosenga was primed as an ANC witness, then he was a terrible witness, there were too many contradictions for somebody who would have been well versed and well primed in what he had to say at these hearings. Mr Nosenga, firstly was a young man, he was a youngster, he was in his teens when he joined the hostel. His age is of relevance, because as he said he left his home under a traumatic condition and he fled to the kwaMadala hostel. Chair, at the hostel okay, he participated in many events, okay, many attacks as he claimed and he certainly alleged that he participated in the Boipatong attack. The information that he testified to, although contradictory at many times, was corroborated to a large extent or to, yes to a large extent, by many of his co-applicants and also by the victims. As I said, Nosenga, he stands alone in his testimony, but his testimony is certainly corroborated at every point, by different people.
MS TANZER: Chair, what I am asking of this Committee is to deal with what he has said that has been corroborated. The gist of his application, the gist of his evidence is certainly corroborated by what was said by his fellow applicants and by the victims. The man is uneducated, he has never had a formal education. Chair, a very important issue is he was never convicted of the crimes for which he is seeking amnesty, the man has, this is the first time in which he has come to a hearing and told the hearing about his participation in Boipatong. His fellow applicants have all had the opportunity of appearing in a criminal trial and of defending themselves and of undergoing the scrutiny of cross-examination and examination in chief at the criminal trial. To say a motive was that he wanted to revenge Peens and revenge Chaka and other policemen that had arrested him, there is no evidence to that effect, on his own version, he had no grudge against them, they were doing their duty he said. In fact when Mr Nosenga came and gave evidence, he basically indicated he had no grudge against anybody, he did not participate in the attack for any personal reason whatsoever. He tried to the best of his ability to tell the version Chair, as he remembered it and as it occurred. There can be no reason or motivation for his having brought an application of this nature, if he did not participate in the attack. Chair, as you heard from - interestingly starting from the application of Mthembu, going right down to the last application of I think it was Kubheka, the versions of the applicants started to, they started to become, they were unisome, they started to follow a certain trail. You see, interestingly Victor Mthembu to a large extent, he tells a similar story to that of what Nosenga told, the fact of Themba Khosa's present at meetings at the hostel and the meeting subsequent to the attack on Boipatong. Also interestingly is that all the applicants or most of the applicants, all place Nosenga at the hostel, the kwaMadala hostel after the attack. One applicant Chair, and it is the first applicant that mentions, the question of Nosenga was put to, claims that Nosenga was at the hostel prior to the attack and that was Vincent Khanyile. This is when Nosenga's application was actually presented to this Committee. Vincent Khanyile recalls that Nosenga was at the hostel before the attack. After Vincent Khanyile's evidence, the rest of the applicants all come and say Matanzima, of course they know Matanzima, he is a Sotho speaking man, and he never was at the hostel, he joined the hostel after the attack, he was a strange man, he was taken to a Committee, the Committee decided to let him live there, to reside at the hostel and then he was taken to Ulundi and paraded at Ulundi. Chair, interestingly, even in the affidavit of Prince Vanana Zulu, he confirmed that Nosenga was taken to Ulundi and that he was paraded on the stand at Ulundi as a ANC spy who was planted in the kwaMadala hostel to look for a place where he could plant bombs.
MS TANZER: Chair, another issue which I did put in my Heads of argument as well, as you know is that besides Vincent Khanyile corroborating the fact that he was at the hostel prior to the attack, is also that he was part of a drive-by shooting that took place two days before the attack in Everton.
MS TANZER: Yes, I will come to that, yes, but that is the one in which he is convicted, and he is incarcerated. Chair, you heard evidence from Mr Nosenga that he falsely implicated two people, Papie and Mzwakhe. He gave an explanation for why he falsely implicated these people, he told the Chair that he was aware of the relationship between the police and the kwaMadala hostel during that period. He certainly was aware of the relationship between Victor Keswa and the police. According to Nosenga in fact, there was an ongoing relationship, in fact as you also see from my Heads, I think it was Vincent Khanyile himself who also states that if there was a problem or if they had to discuss something with the police, Victor Keswa was used as the middle-man, if the police wanted to relate some information, they would give it to Victor Keswa and the same thing, if the hostel wanted to discuss with the police, it would be via Victor Keswa. When he, on his version, when he was tortured and he was forced to give names, he was scared to give the names of the people who were with him in the car in which he partook in the attack, the drive-by shooting at Zone 12, Sebokeng and Everton for the simple reason that he was scared for his life. You heard that evidence that Victor Keswa was known as the Vaal Monster, he was part of that hitsquad, he was a member of that group that went on these attacks and therefore he decided to take a decision and to implicate two people which he admitted here, were not actually involved in the drive-by shootings. In the end, those two people were acquitted because there were no proof that they were involved in the drive-by shootings.
MS TANZER: Even in that regard Chair, he made the full disclosure, he admitted that he falsely implicated, he did not try to deny the fact, he did not try to hide the fact either that such, that the two people were falsely implicated or not falsely implicated. Chair, regarding the issue of the four casspirs, well, as you heard the evidence ...
MS TANZER: I just wish to state Chair that Mr Nosenga should not be written off as an incredible witness and a person that's version is impossible because surely Chair, as you see from my Heads and from the record, his version is possible, his information has been corroborated. As I said, the man was confused, it happened six years ago, he is uneducated.
MS TANZER: Chair, there were two issues really that the fellow applicants attempted to do with Nosenga, firstly it was to say that Nosenga was not at the hostel, which I think I put to you already and that secondly Nosenga did not partake in the attack on Boipatong. Now regarding the attack on Boipatong, either Nosenga is brilliant and he obtained the information via different applicants, listening to their stories and built a picture of what happened, and came here and told the story or he was there.
MS TANZER: That would be correct Chair, considering the cross-examination, that is usually the case. I mean when a statement is taken and when you cross-examine somebody, then information is going to get progressively more detailed.
CHAIRPERSON: Yes, thank you. Mr Da Silva, we have had a look at the submissions in regard to the presence or otherwise of the South African National Defence Force and is there anything that you want to add to these submissions?
MR DA SILVA IN ARGUMENT: Mr Chairman, I adhere to the Heads of argument unless there is specific aspects you would require me to deal with. There is one aspect that I would wish to stress in the light of the allegations that have been made, you will note in paragraph 12.2 of the Heads, I request the Committee to make a specific finding that the SADF was not present in the light of the submissions that are being made, Mr Chairman.
CHAIRPERSON: I think the question is whether the evidence before us, is sufficient for us to make a positive finding that the Defence Force was not present or whether it maybe permits a finding that sufficient evidence, there is insufficient evidence to indicate that the Defence Force was present.
MR DA SILVA: Mr Chairman, in the light of the allegations that were made and in the light of what the victims' attitude has been, there is no evidence in fact being placed in front of this Committee, but I won't press the issue Mr Chairman, I will leave the issue in your capable hands.
CHAIRPERSON: Yes, indeed we hear you, we hear, thank you. Very well. We have run so fast, that we have been overtaken by the time. Shall we perhaps, I gather it is but quarter to twelve, is it? Quarter past twelve, okay, shall we perhaps take a 15 minute break and then come back and then you can come, so that we can see whether we can finish before lunch?
MR BERGER IN ARGUMENT: Thank you Chairperson. Chairperson, like our learned friends, I do not intend to go through every paragraph in the Heads of argument, but what I do want to do is to proceed with the argument along the course set out in the Heads. The two applicants whose applications have
fallen away, have already been dealt with and I move to page 3 of the Heads which are the facts which are common cause. Chairperson, those are facts which are common cause between the victims and the applicants, the SANDF also put in a memorandum disputing certain points, but there is really no dispute between us and the SANDF as you will see from my Heads of argument. The real dispute is between us and the applicants and that is why we have done this analysis. What we have done in paragraph 6 is to set out only those facts which are common cause and we did this for a number of purposes, (1) is that you will see that it is common cause that you will see that AK47's were used, that is in paragraph 6.1 and 6.2. In 6.3 it is also common cause that the attack was indiscriminating and that will become relevant later. That is also apparent from the victims who we describe and whose injuries we describe in the various paragraphs of paragraph 6, not all the victims are mentioned there. We have emphasised the children and the old people and pregnant women, to emphasise a point that most of the deceased and injured, were not people who ordinarily might be considered to be members of Self Defence Units. The other point for putting in this analysis of common cause facts, is to show that it is largely common cause, the main routes upon which the attackers went. If you compare that with what the victims who testified, said about where they saw State vehicles if one can loosely describe them as that, you will see that the observations of the witnesses coincide with the main routes taken by the attackers. The suggestion that perhaps the victims were confused and that they saw these vehicles after the attack, is with respect highly improbable. Firstly, the routes of the attackers coincide with where vehicles were observed, but secondly and we come to it in due course, the observations of the witnesses who testified on behalf of the victims, was that they often saw these vehicles in the presence of attackers. Mr Baloyi saw vehicles both before and after the attackers passed his house. Diana Manyika was running from attackers when she saw State vehicles.
Chairperson, I move then to page 7 of the Heads, failure to disclose an offence or a delict. It is conceded now that our paragraph 8.2, which is on page 9 and paragraph 8.3 on page 10, the applications of Mr Mthembu, that is Mr Moses Mthembu, the 9th applicant and Mr Petrus Mdiniso, the 12th applicant, that those applications are invalid and I am not going to take that any further. My learned friend, Mr Strydom continues to argue that Mr Qambelani Buthelezi, the 1st applicant, on somehow or other basis qualifies for the granting of some sort of amnesty. The fact is that in his application and we deal with this in paragraph 8.1 of our Heads, he says he was not part of the group, is the first point, he is asked at page 50, paragraph 6 -
"... give details of when you first came to know of a pending attack to be launched by residents of kwaMadala."
CHAIRPERSON: The inconsistencies between his evidence and the information supplied in his applications, those speak for themselves and I think you have set those out. I think the argument that you have not dealt with here is on the assumption that, against you on everything that you have said of and concerning him, so that we are satisfied that what he has told us, that he is to be believed when he says that he was not there. The question being whether his evidence before us, that is "I was part of the agreement, I took part, I wanted to be there but couldn't because I was sick", does that rise to the level of any offence because if his conduct doesn't raise to the level of any offence, you know, that will be the end of the matter as I see it.
CHAIRPERSON: There are two suggestions as I understand it, one is that it amounts to a conspiracy, alternatively it faintly in the beginning but somewhat towards the end, it amounts to common purpose. Okay, do you want to deal with those?
MR BERGER: All right, we deal with the question of what is Mr Buthelezi's actual evidence about let's call it his latest version of his involvement and we deal with that in paragraph (g) on page 8. If I could just read to you what he says, he says at 1126 - by the way Chairperson, our references in our Heads, are always to a page number and then line numbers following, although we don't say for example 1126, 1 - 23 is the page, then the line. He says at the top of 1126
"... as a leader, I realised that we were losing our members because they were now intimidated. I personally felt that the people of Tserela should be attacked, I even told my colleagues that these people should be attacked."
"... I should explain that I discussed the matter with Mr - (this must be) Choncho - and suggested, I suggested that they should be attacked."
"... Mtwana was not present, we were discussing this as leaders. It was a caucus of IFP leaders but Mtwana was not present."
His evidence is that this was an informal meeting, that there was a suggestion that Boipatong should be attacked, that there was no decision taken at that meeting that Boipatong would be attacked and Chairperson, you will recall that he had no further involvement after that meeting. That was his only involvement, so he says. We would submit that - let me take the second leg first of whether there was an act of association in a common purpose.
MR BERGER: Chairperson, quite simply it cannot amount to a conspiracy because there is no agreement at that stage that there should be an attack and as you point out, a fortiori, there can be no act of association. Of course Chairperson, we also make the point in (j) on page 9, that is the point that I have already argued, that his oral evidence is not sufficient to render him guilty of any offence. I have dealt with that point already, and then paragraph (k) on page 9, even if he was to be guilty of a conspiracy, that is not the offence for which he has been convicted.
CHAIRPERSON: But that is of no consequence because I would have thought that what we would have found if we were satisfied that he was guilty of conspiracy, is to grant him the amnesty in respect of conspiracy.
MR BERGER: Indeed, yes. Chairperson, the next heading that we deal with on page 11 is the different versions put forward by the applicants. That speaks for itself. The submission that we make is that there is Mr Nosenga's version, there is Mr Mthembu's version and then there is the third group, and the timing of the applications, when the applications were submitted, is significant. Mr Nosenga was first, Mr Mthembu followed and then came the third group, and that is why there is this difference between Mr Mthembu and this group. It is only when Mr Mthembu gets to the hearing that he realises that he is the odd man out and now all of a sudden, he's got to marry his evidence with the evidence of the third group and that is when he runs into problems. It is not good enough, we would submit for my learned friend, Mr Strydom to simply assert that Mr Victor Mthembu was a terrible witness and he should be written off entirely. He was a bad witness because he had this problem, he had clear unequivocal statements in many documents which he signed under oath which contradicted and continue to contradict the version of the remaining applicants. On what basis is it that one cannot accept what he says in his various affidavits and ...
MR BERGER: Mr Victor Mthembu, yes. Because he made those affidavits at a time when his co-applicants hadn't yet applied for amnesty, he was on his own, and that was the time when he focused on the material facts that he wanted to disclose before the Amnesty Committee.
CHAIRPERSON: (Microphone not on) Will you deal in some detail with the reason why the evidence of Mr Baloyi, the evidence of Mrs Buwa and Mrs Monokane ought to be preferred to that of the applicant and also to the assertions of them, yes, I think that argument speaks for itself, but I think the issue which is not addressed here, is one that I have raised with the applicants, that is assuming we are with you on the proposition that Mr Zulu was there, how material is the non-disclosure of his presence so as to undermine the applicants' applications?
MR BERGER: Chairperson, before I answer that question, can I make just one submission in relation to the conflicting evidence, it is all set out and I don't intend to go through it again, but our learned friends make two fundamental errors in our submission, when it comes to analysing the evidence. The first is that the leave, the question of the leave over that period and the Iscor reply, my learned friends will recall that we specifically asked them in chambers whether they accepted the contents of that Iscor report or whether it was necessary to lead any evidence from an Iscor official and my learned friend, Mr Lowies, specifically said that the contents of the Iscor report were not disputed. That is the first point, but secondly and more importantly, is that we have the evidence of Mr Baloyi, Ms Buwa, Mrs Monokane which is, whatever criticisms and we don't concede those criticisms, but whatever criticisms my learned friends want to level against that evidence, that evidence is direct oral evidence and against that, we have, we don't have Mr Vanana Zulu's denial as was argued this morning. Mr Vanana Zulu was present every day, who is present today, never got into the witness box to deny it, and his affidavit is worth the same as any other untested evidence which is placed before this Committee, in the face of direct oral evidence with respect, it is worthless. To answer your question Chairperson, the Act doesn't assist particularly in this regard because it talks about disclosure of relevant facts and what is a relevant fact? The proforma application for amnesty which was promulgated in terms of the Act, asks in question 9(a)
"... furnish sufficient particulars of the act or acts, omission or omissions, offence or offences associated with a political objective in respect of which amnesty is sought including dates, places and nature thereof and the names of any other persons involved."
CHAIRPERSON: I suppose the rationale for that is to test the evidence of the applicant, because if you implicate other persons, those other persons may well be, may well come up and say well, he is not telling the truth, we were not there, or he is telling the truth, we were there, yes.
MR BERGER: Yes. So that is the first indication that the absence or presence of others involved, is a material and relevant fact. Our learned friends argue that what is sufficient for the purposes of granting of amnesty is simply an applicant must come along and say "I did X" and as long as he discloses what he did, that is the end of the matter, and he is entitled to amnesty. With respect, that cannot be correct, because that would mean that those who carried out attacks which were ordered by P.W. Botha for example, don't have to disclose that P.W. Botha was involved, they only have to say what they did. Those who tortured people in police custody, don't have to say that Sergeant Benzien was with us, they only have to say what they did, and to give you an example of what is relevant and what is not relevant, we have referred to it in our Heads, it is the decision of this Committee in the Januz Walus/Clive Derby-Lewis matter and we rely on this decision for a number of reasons, but apropro the question that you have asked me Chairperson, Mr Walus and Mr Derby-Lewis both admitted that they were, well Mr Walus said "I shot and killed Mr Hani", Mr Derby-Lewis said "I was involved in the plan to shoot and kill Mr Hani". On our learned friend's argument, that is it, that is sufficient, they have made full disclosure of all relevant facts, of their participation in the killing of Mr Chris Hani, but instead the Amnesty Committee in relation to full disclosure at page 12 of the decision says
"... did the applicants make a full disclosure of all relevant facts as required by Section 20(1)(c) of the Act with specific reference to (1) the purpose for which the list of names was compiled. (You will recall it is the so-called hit list), the purpose for which the names were prioritised on the list.
CHAIRPERSON: Yes, I understand what (microphone not on), agree broadly with the proposition that the disclosure of implicated persons, is a relevant consideration, it seems to me that broadly speaking, the question of relevance is a question of fact, the question really is whether, having regard to the facts of this particular case, you know, is it relevant? Was he present, was his presence relevant? When we are dealing with a hit list which presumably could not emanated from two individuals, somebody must have compiled that list because there is a broader conspiracy, so if you don't disclose who else was present, you are not making a full disclosure, no, I understand that, yes.
MR BERGER: Chairperson, yes, and it goes a bit further. Relevance is a question of fact, but what is the question of law in interpreting the Act is are my learned friends correct when they say that in any case, it is simply sufficient for an applicant to say "I did X" and to leave everything else out of consideration. I submit that an interpretation of the Act would say that that is a far too narrow approach. As far as the facts of this case is concerned, we are talking about a failure to disclose the presence of the most senior IFP official in the hostel at the time, whether he was present and participated in the attack and just like in Walus and Derby-Lewis, if Mr Vanana Zulu was present, it has a relevance greater than the mere fact that he was present, because it then means that the IFP leadership was there, approved of the attack and therefore it was an attack which would fall within the requirements of Section 20(2) of the Act, so it goes way beyond his simple absence or presence during the attack. Of course it may then mean that if he was there and he approved of the attack, that more senior structures in the IFP were aware of and approved of the attack. It is a highly relevant fact. The fall-back argument then of my learned friends is "well, if it is relevant and if he was there, then the applicants did not see him." Chairperson, that is not their evidence, you will and I might as well deal with both points now, it is the same argument, if the police ...
CHAIRPERSON: (Microphone not on) ... it is a question that the evidence of the applicants was not uniform you know, when it comes to his presence. There were those who claimed that they saw him leave the hostel and they never saw him again until after the attack, who were adamant that had he been there, they would have seen him whereas there were others who put it at no higher than you know, to say that they did not see him, which does not exclude the possibility that he may have been there. I think again, there one has to look at two, the import of their evidence in so far as - yes, I understand that.
ADV SIGODI: Mr Berger, some of the applicants as far as I can recall, mentioned the fact that they were aware that the attack was not part of the IFP policy, so could you address us on that aspect and say what effect that allegation would have on their application?
MR BERGER: Adv Sigodi, we do deal with that further in our Heads on political objective, but the short answer I would submit, to your question is that if the applicants were aware that the attack was not in accordance or contrary to the policy of the IFP, then that is fatal to their applications quite simply because of the provisions of Section 20(2) of the Act and I will deal with it now. The only possible Sections that the applicants could seek refuge under would be Section 20(2)(a), which says
"... finally Mr Mbele, (this is at the bottom of 871) what political objective of the IFP did you think you were furthering when you launched the attack on Boipatong?
"... I respond briefly to that question, when I went to Boipatong, I was not furthering anything for the organisation (inaudible) for myself, because I was living under unbearable conditions because of the organisation."
"... any member of a publicly known political organisation on behalf of or in support of such organisation ..."
They have problems even on that one because of the indiscriminate nature of the attack. Mr Tshabangu for example, I will come to that as well, said that he would have killed his own grandmother if he had come across her. Many of the applicants and we deal with it in our Heads of argument, emphasised that the attack was a revenge attack against the community of Boipatong. When I asked Mr Victor Mthembu "why was this woman who was sleeping in her bed, killed", when I asked Mr Mthembu "why was this woman who was sleeping in her bed, killed", his answer was and we've got the references in the Heads, his answer was "because Mr Berger, she was sleeping in Boipatong." Adv Sigodi, in answer to your question, the answer to that evidence means that subparagraph (2)(a) is not applicable. Subparagraph (b) is not applicable, subparagraph (c) is not applicable because none of them were employees of the State. Subparagraph (d) is not applicable because it requires of the applicants to be acting in -
So again, they are disqualified on (d), (e) is not applicable because it wasn't a coup d'etat, and (f) is not applicable for many reasons firstly because there was no expressed or implied authority, but more importantly because it has to refer to a person in (b), (c) and (d) and they don't fall under (b), (c) or (d). That is the long answer, the short answer is, it is fatally defective to their applications. Chairperson, I think I have dealt with Mr Vanana Zulu.
CHAIRPERSON: (Microphone not on), to mean that the subject to the facts we are finding of and concerning Mr Themba Khosa, the argument in regard to the relevance of his non-disclosure is applicable there?
MR BERGER: Yes, save to make these points. Our learned friends, I forget which one, I am sorry, but one of my learned friends made the point that Mr Themba Khosa's participation is irrelevant because he only participated at the end, or after the fact, it was Adv Pretorius, that is right, but that is not correct because the evidence clearly shows even on her own client's version, in fact because of her own client's version, that Mr Themba Khosa was involved in the Sunday meeting before the attack and the probabilities are overwhelming if one has a look at what we say in paragraph 25 and 26 of our Heads of argument, the probabilities are overwhelming that at that Sunday meeting, Mr Themba Khosa authorised an attack on Boipatong.
MR BERGER: In fact, Mr Mkwanazi says as much that at that meeting it was known, it was already known at that meeting that Boipatong was going to be attacked. Just to pick up on Ms Tanzer's argument about Mr Nosenga, we don't contend that Mr Nosenga was a star witness, it was patent to everybody that after six days in the witness box, he couldn't remember very much, but it must be borne in mind that he was testifying about a great number of facts and he got confused, there is no doubt about it that he got confused and he is not a highly educated man, like for example Mr Mthembu is. But the interesting thing is, and we say to this Committee if there is corroboration for Mr Nosenga's evidence, it can't be coincidence, the argument from Mr Lowies that it is pure coincidence that he is corroborated, is with respect not founded on any facts. Let me give an example, we deal with that in paragraph 29, page 17, Mr Nosenga talks about the meeting of the 14th of June 1992, he spoke about that in his affidavit which he gave Mr Kjellberg, that cannot be coincidental. Number one, it is an objectively ascertainable fact, we know because we were all here that, and we know what was broadcast on SABC TV, we know that the meeting of the 14th of June was not part of any information which Mr Nosenga could have known before he deposed to the affidavit before Mr Kjellberg, he couldn't have known that, and it can't possibly be coincidence that he can talk about a meeting on the 14th of June 1992, where the attack on Boipatong was discussed and planned. Which must mean that he was there, because none of the other applicants spoke about that meeting except for Mr Mkwanazi and of course Mr Mthembu, yes. Where did Mr Nosenga get that evidence from? He definitely didn't get it from the TV and he wasn't here when that evidence was given. The issue of police presence in Boipatong, where did Mr Nosenga get the evidence that Sergeant Peens was in Boipatong on the night of the attack? He definitely didn't get it from Riaan Malan, he definitely didn't get it from any of the applicants, and we know that Sergeant Peens was in Boipatong on the night of the attack. We know or we can argue that his, from Exhibit FF that his explanation for being in Boipatong on the night of the attack, is not acceptable, he had access to AK47's which were used in the attack, he disposed of them. His explanation is unacceptable, and we submit that the only inference which can be drawn from the transcript is that Sergeant Peens was in Boipatong on the night of the attack for an ulterior purpose, the only purpose can be that he was part of the attack. Where did Mr Nosenga get that if he wasn't there? Chairperson, the significance of Mr Khosa's participation appears from our Heads of argument and I am not going to take that any further.
At page 19 we deal with the question of the identity of co-perpetrators. Chairperson, at the least there were 300 people involved in this attack, 18 people have applied for amnesty. The only people who get identified by the applicants are either co-applicants or dead people. The significance again is that the Act requires, we would submit, a proper interpretation requires you to identify your co-perpetrators. I invited the applicants, they were all here, I invited them right at the beginning to get together and submit a list of people who they could remember by brain-storming, who else was there who isn't dead or an applicant? Even people who were acquitted in the criminal trial, which of those who were acquitted in the criminal trial, were actually there, I am sure there were lots of them. We never saw that list. Chairperson, I forgot to mention just on the question of whether the applicants knew that Mr Vanana Zulu was there or not, even if they didn't see him during the attack, the key leader, if they didn't see him during the attack, they would have seen him back at the hostel after the attack. They would have seen him the following day when the goods were burnt. They would have consulted with him, what do we tell the police, but they were all adamant that they never saw him, he wasn't there. When we come to the question of ...
MR BERGER: None, and that is because the applicants have come together and decided, we submit, that Mr Vanana Zulu was not there, and the constant theme, we put it to them in cross-examination, the constant theme was he wasn't there, he wasn't in the province, he was in kwaZulu Natal.
CHAIRPERSON: You do deal in somewhat detail with the involvement of the police, analysing the evidence of each of the witnesses, such as Mr Rahantlhane, Mrs Moleti and I suppose the real issue here is one of just looking at their evidence and to determine whether on the record, it can be relied upon and also the issue of the opportunity for making observation in terms of who they claim they saw, white men, but one thing that concerns me and it is with regard to your very last, the very last witness, Ms Manyika I think it is, yes, in regard to her having heard women you know, ululating during the attack, you know, what is your submission in regard to that, to that evidence?
CHAIRPERSON: Because one thing that one, in terms of the timeframe, are we dealing here with an innocent mistake as to who the noise was coming from, or whether one is dealing with a person who is deliberately misleading the Committee in regard to that aspect? The objective fact that one has to bear in mind I suppose, is that presumably shortly after the attack, there must have been screaming of people which would include women, mourning the loss of their relatives, the injured and so on. Could the female noise that she heard, could it have been mistaken for those screams?
MR BERGER: She was accurate on many other things that happened, and we know what happened at the corner of Hlubi and Bafokeng, the tyre being thrown through the - the fact that the attackers, we know, from the common cause facts that the attackers moved along Hlubi and along Bafokeng Streets.
MR BERGER: Chairperson, if she was a witness on her own, if she was a single witness, one would have to concede that there is a possibility of error, that she is making a mistake, but we deal with it elsewhere in our Heads, but perhaps I should deal with it now. It is dealt with at page 27, it is the very next point, Exhibit DD, the report of Mr Kjellberg. He states that, this is on page 19 of the Exhibit, and it is page 5 of his actual report, at the bottom he says
"... of interest is however that an examination of the docket shows that it included 31 statements obtained by the police during their investigation, referring to whites, the police, the army or all three as part of the attackers in Boipatong. A summary of the contents of these statements, and copies of the statements are attached. It should be noted that at least 27 of these statements have been signed after the Waddington report was presented and at least 28 of these statements were signed after Davidson made his first submission to the Goldstone Commission."
The point is that Ms Manyika, the victims who testified, don't stand alone. The point is that shortly after the attack, residents of Boipatong came forward and made statements to the police in which they implicated the police or whites or military vehicles.
MR BERGER: Yes, but what I am saying Chairperson is that there were 31 statements taken from residents which did make mention of that, and of the victims who testified before you, the one observation which one makes consistently is that even in their statements, there is mention of either police or whites or police vehicles being present.
CHAIRPERSON: ... it cannot be established within a degree of certainty that the, that any of the vehicles that were seen during the attack, assuming they were seen, belonged to the South African National Defence Force?
MR BERGER: Chairperson, I am not there yet, if I could just finish with the involvement of the police. What I want to say, our learned friends argue that, this is one of their alternative arguments, that if the police were there, then their clients didn't see them. Chairperson, the evidence is that the police vehicles were observed all around the township, the probabilities of the applicants not seeing any police vehicle during the attack, are so remote that they can be discounted. My learned friend, Mr Strydom, says and this is a point that one needs to address, he says what have the applicants got to lose by disclosing that the police were present, if they knew that the police were present, why would they deny it, and the argument about fear is an argument which can be discounted. But with respect, it cannot be discounted, and I will submit why. There were two policemen who testified to the Goldstone Commission about seeing police involved in Boipatong, their names are Mr Xaba, Mr Monare, they are dead. Mr Keswa died under mysterious circumstances which relate to Sergeant Peens. Mr Themba Mabote fell out of a police truck and the car behind him, rode over him, Mr Peens was in that car, mysterious circumstances he died. If the police were involved, then it means that the IFP leadership or the leaders of the attack, must have been consulted or must have consulted the police. If Mr Bheki Mkhize was indeed the leader of the attack, he couldn't have gone on that attack without knowing that the police were involved if they were involved, there had to be discussions between him and the police. If there was discussions between him and the police, which other members of the IFP were involved, was Mr Themba Khosa involved? Was Mr Vanana Zulu involved in those discussions? The minute the applicants admit to the involvement of the police, it opens up a can of worms as to who else knew and I am talking about who else in the IFP knew about the presence of the police, it is not so simple just to admit the police were involved and think the questions are going to stop there. I can't do any better than, and I beg your indulgence just to read two pages from the record of the Goldstone Commission, it is a closing address by Arthur Chaskalson as he then was, an Advocate. It is at page 481 and he said the following and it is in answer to my learned friend, Mr Strydom, in the middle of page 481, he said, he is talking about the attackers
"... that they were able to get out of the main gate where the persons in charge must have known that they were going, and what they were about, that they can cross a well lit public road where they must have been seen and indeed were seen, that they can go into a township where there is a police station within one or two minutes from where they are and systematically rampage through that township, killing people, murdering infants, murdering women, murdering men, breaking the windows of houses, damaging and plundering property, shooting in the vicinity of factories around them, it is in an area which on the evidence is subject to patrol by the Security Forces. That they can go through that over a period of approximately one hour, where they are seen by people of the South African Defence Force, where they are seen by people of the police, where they are seen by people in the factories, or heard by people in the factories, where people phone police stations all around the area complaining about what is happening, that they can gather together approximately an hour later, that they can cross the well lit public road where they are again seen by people, that a military vehicle blocks the one road as they cross, a police vehicle blocks the other road while they cross, that they go back up the main road, through the main gate, back into the hostel and nothing happens. Now, what is this, what is this that gave the attackers the confidence to commit that brazen act of terror so openly, so publicly under the eyes of the police and the army? Surely, surely they must have known that they would have been seen, that they would have been heard, why were they so confident that they could do it without being apprehended? Why were they so confident that they would not be followed into the hostel where they would be caught with blood on their hands and with stolen property? How could it be, what is it that makes it possible for an armed group of 500 men to plan, to mobilise, to undertake a mission of this nature, a mission I am going to describe to you later, to carry it out publicly, openly, over a period of one hour? How did they know that they would get away with it, without being stopped and indeed, how were they able to get away with it without being stopped? What does it mean, does it mean that they knew that the Security Forces were so grossly incompetent that nothing would happen to them, that they knew that they had done it before and had got away with it and could do it again and get away with it or does it mean that they knew that nobody would act, that they would be given the space of time to do this job and they would be given the space of time to clear their tracks and that this would be another sort of incident like those that are referred to in the correspondence?"
"... And if not, what is the explanation for this conduct? This is a question which the Commission has to address ..."
and he goes on. Chairperson, those answers, the answers to those questions are to be found in the Heads of argument of my learned friend at the criminal trial, where he said and he submitted that this attack was executed with such precision that it had to have been planned well in advance and that there had to have been assistance by the military or the police. Chairperson, I am going to move to page 28, paragraph 49 of our Heads. What we are saying there is that all the identification of police and military vehicles which the victims have testified to, it can't all be a mistake and it can't all be confusion. And so then it must mean that the victims are part of a conspiracy and that this conspiracy was formed within hours of the massacre. My learned friend, Mr Lowies, hinted that the Culemani Support Group is evidence of such a conspiracy, but he didn't, he wasn't bold enough to make that submission straight out. Chairperson, I submit that there is nothing on the evidence to support such a finding. The Culemani Support Group, the evidence is a group for survivors of many acts of violence which have occurred in Boipatong from the early 1960's until the 1990's, it is not specifically the attack on Boipatong and it is not limited to Boipatong either.
We deal with the SADF, I have already made the submission. Exhibits L3, L4, L5, L6 are just the affidavits of the soldiers who say that they were outside Boipatong and they heard shooting still continuing whilst they were outside Boipatong. I submit Chairperson what can be said about the military, the army, is that they were outside, at the very least they were outside Boipatong at the time of the massacre and chose not to intervene. Political objective, I have deal with the Derby-Lewis/Walus judgement. Chairperson, the other judgement, the decision in the Hlengwa, which is referred to at the bottom of page 28, I have a copy of that decision, I don't know if the Committee has one itself, I can hand it in if you wish. It is a two page decision, but it is very instructive. It had to do with killings in kwaMakutha. The Trial Court accepted at the time that there was a climate of violence in kwaMakutha and the reason we cite this judgement is because, this decision, is because it is so similar to the facts of this case. There were attacks and counter attacks between the IFP and the UDF and the applicant in this case says that one night in April 1990, his house was attacked by unknown people who attempted to set it alight, and he believed the attack, he was IFP, and he believed the attackers were UDF because he heard them singing and chanting UDF slogans. And then the decision says the applicants says that as a result of this incident, he resolved to avenge himself and I underline the word "avenge" and so he decided to kill UDF members or supporters. He went to a shibeen which he believed was frequented by UDF supporters, he saw, when he got there a saw a certain Sineso Msomi, he opened fire, Msomi was shot but not killed. He then saw a Mr Maholeli Makhanya whom he knew was a member of the UDF, he shot and hacked him and killed him. The decision ends as follows -
"... it was argued on his behalf that the killing of Makhanya and the shooting of Msomi were acts committed with a political objective. Whilst we accept that at the time of the commission of the offence, there was evidence of political violence in the area, it does not ipso facto follow that all crimes and offences committed during that period, were necessarily 'acts committed with a political objective.' The same also does not automatically follow merely because the applicant was an IFP member or supporter at the relevant time as he suggested, and the victim, a UDF member. If his house was attacked as he says it was, then it is patently clear that in murdering the deceased and shooting Msomi, the applicant was driven by anger and the desire to avenge the injury and loss he had sustained. The evidence before the Committee does not indicate anything to the contrary, no political objective has been indicated."
Chairperson, I have the decision available if you want it. As far as the decision in Walus and Derby-Lewis is concerned, I won't read from it, but I make this point, my learned friends with respect, rather glibly talk about a political objective. The applicants have disclosed a political objective, but it is not sufficient for the act to be political. When Walus and Derby-Lewis who were anti-communists killed Chris Hani, there is no doubt that they killed him because he was a communist, the act was political, but the act did not qualify as an act associated with a political objective within the meaning of the provisions of the Act, similarly in the Hlengwa decision, simply because there is political conflict does not make the Act an act associated with a political objective. We summarise in 53 on page 29 what the applicants say about why they attacked Boipatong and then in paragraph 55, I am jumping now to page 30, we deal with 11 of the applicants who talk about why they attacked Boipatong. I am not going to read the references, they are there, but it is clear number one, that from Mr Mthembu and from others, that the attack was indiscriminate, that the entire community was targeted, men, women, children, old and young and that the attack was a revenge attack. Mr Dlamini says -
Mr Mbatha reveals spite which is an automatic disqualification. Mr Magubane talks about revenge, Mr Khanyile, the applicant whom my learned friend Mr Strydom, said was the star witness for the applicants, well, if one accepts his evidence, he says that he wanted to avenge the killings that were ongoing. He says -
He understood that the attack was for revenge or retaliation. The leader of the attack as he claims, Mr Mkhize, talks about avenge as does Mr Mazibuko, as does Mr Mkwanazi. That is why we make the submission in 56 et page 32 Chairperson, that on the applicants' own case, the attack on Boipatong was an act of revenge and retaliation. I gave Mr Mkhize the opportunity to admit that the attack was, in fact did have a political objective and that it was part of a wider IFP plan to derail the constitutional negotiations then under way. The reference is there in 56. He said to me that that is an insult. He specifically rejected that as a reason for the attack. If the applicants want to say that the attack was for revenge or retaliation, then one must accept that from them and that disqualifies them for the granting of amnesty. That is not a legitimate political objective, we submit, within the meaning of Section 20(2) and (3) of the Act. 57, my learned, Adv Pretorius says that all political parties denied involvement in violations of gross human rights, well, at the time, yes, but subsequently for example the PAC, they have come out and admitted that those were acts committed in their name. The IFP has not done so, in fact the IFP have distanced themselves consistently and to date, from this attack. If Mr Mkhize says that Prince Vanana Zulu specifically told him that he should not launch an attack and he should wait for negotiations to achieve a result, if Mr Mkhize says that he knew at the time that this attack was contrary to the policy of the IFP, well then on his own version, the attack was not authorised. He said at one point that he was the leader of the amaButhu and he had authority to launch this attack. The amaButhu are not a, it is not a political organisation, it is not a constitutional unit of the IFP, the amaButhu do not appear anywhere in the IFP's constitution, but what undermines Mr Mkhize's evidence is that whether or not he was the leader of the amaButhu, whether or not he was a warrior and could go on attacks, he knew number one, that the most senior leader of the IFP at the hostel at the time had said "don't go on an attack", and he knew that such an attack was contrary to the policies of the IFP. There is no way in which he could have believed that that attack was furthering the aims and objectives of the IFP, which is a requirement of the Act. On his own evidence, the act was not authorised. That goes for all the applicants who knew that the IFP leaders would not have approved of the attack, they said they never admitted to Themba Khosa that they were involved in the attack, because they knew that he would disapprove. Well, if that is their evidence, then they knew that it was contrary to the policy of the leadership of the IFP. Chairperson, as far as Mr Kubheka is specifically concerned, he cannot be relied upon to have disclosed everything that he did in Boipatong. In any event, we submit that when an applicant applies for amnesty, he must be truthful from the beginning. He has to make full disclosure in respect of an act that he applies for. Mr Kubheka didn't apply, didn't disclose that he killed anyone in his application. It can't possibly be a situation where a person applies for amnesty, is shown to be a liar, says well "yes, I am a liar, but you have now discovered the truth", and then he gets amnesty, that cannot we submit, possibly be the intention of the Act.
CHAIRPERSON: Yes? I am just putting the proposition that in general, that if a person makes an inconsistent statement, one doesn't readily just dismiss that, one must give the person the opportunity to explain the inconsistencies and if there is no credible explanation for the inconsistency, then one rejects it.
CHAIRPERSON: What I am putting to you is that, that there are two inconsistent statement in and of itself, is not (indistinct), one must always look at whether there is any credible explanation and if there is no credible explanation, then you reject that.
MR BERGER: Yes, and one must also look, we must also look at whether the particular applicant desired to make a full disclosure from the beginning. The whole, we would submit that the context of an amnesty application is you come forward, you make full disclosure, the quid pro quo is you don't get prosecuted. If you apply for amnesty on a dishonest basis, and you know that it is dishonest when you make the application for amnesty, I submit that that would disqualify you. Chairperson, I am almost done, I am just trying to mop up some points, as far as - again, back to Mr Nosenga, I believe it was Mr Strydom who said that Mr Prior said that the unsigned affidavit was received at some other stage. There is no evidence to support that, the application, Mr Nosenga's application itself refers to an Annexure. Again on Mr Nosenga, the question of Ulundi and the minutes, Chairperson, you know the contents of Exhibit T where we wrote a letter to the IFP, the responses that we got, those minutes were never, no one came to testify about the minutes, the whole version about Mr Nosenga being exposed as a spy in Ulundi, I submit was an afterthought to explain Mr Nosenga's presence. If he had been exposed as a spy at Ulundi, the General Secretary of the IFP would have remembered it, and we wouldn't have got the letters that were sent to us.
CHAIRPERSON: (Microphone not on) What I am saying is, wasn't the evidence to the affect that he was not caught in Ulundi as a spy, but what happened was that he was taken to Ulundi to be paraded as an ANC spy who had come and confessed that he had been sent there?
MR BERGER: Chairperson, we are talking about 1992 at the height of conflict between the ANC and the IFP and constitutional negotiations and the General Secretary, Mr M.Z. Khumalo, writes a letter to say
"... I was personally present at the conference referred to in your letter and cannot recollect anything anywhere near what Mr Nosenga describes, occurring there."
If an ANC spy had been paraded at an IFP conference, National Conference in 1992, the General Secretary would have remembered it, I submit. Chairperson, about the victims not being able to identify Afrikaans if they can't speak Afrikaans, I can't speak Zulu and I can't speak Sotho and I can distinguish when a person is speaking Zulu or Sotho, I think that this Committee can take judicial notice of the fact that one doesn't have to be conversant in a language to know what language is being spoken. Chairperson, I have dealt with Section 20(2) of the Act, if I can briefly deal with Section 20(3) of the Act, (3)(a) motive, I have dealt with. The motive of the attack was to avenge, it was retaliation. The context of the attack again, it was in the context of attacks, counter attacks, revenge. The legal and factual nature of the act, I submit that that is relevant only in this respect, that the applicants who admitted to being in Boipatong the night of the attack, have admitted to a common purpose and so that the acts of every one of them, each one of them, is attributed to the other and so all of them, are legally responsible for the hacking, for the shooting, for the plundering which occurred: (d) the object or objective of the act, and in particular whether it was primarily directed at a political opponent, we know from the applicants' own case that it was an attack directed against each and every resident of Boipatong, no matter how young, no matter how old, no matter if it was a baby as Mr Victor Mthembu said, or a grandmother as Mr Nana Tshabangu said, it didn't matter, as long as the person was in Boipatong; (e) whether the act was committed in the execution of an order or with the approval of the organisation, the applicants' cases, it was not done with the approval of any IFP leader, in fact it was done contrary to the instructions of Mr Vanana Zulu and it was done knowing that it was against the aims and objectives of the IFP and finally (f) the relationship between the act and the objective pursuit and in particular the directness and proximity of the relationship and the proportionality of the act. Chairperson, we ran out of time when we were drafting the Heads and that is why we hadn't dealt with the issue of paragraph (f) in more detail, but it cannot be understated that this was one of the most horrendous and brutal attacks of our history. The sheer brutality defies description. It is an understatement to say, and I can't express it strongly, more strongly, to say that the Boipatong massacre was totally out of proportion to any objective the applicants might have been seeking to achieve. It was so disproportionate that it defies description. Chairperson, and members of the Committee, we submit that for almost every provision of Section 20(2) and 20(3) of the Act, the applicants are disqualified for amnesty and although we concede that Mr Nosenga attempted to make full disclosure of all relevant facts, his application too, must fail for lack of a political objective as defined by the Act, and so we submit that all the applications for amnesty that remain, ought to be refused. I thank you.
MR MAPOMA: Perhaps I might just deal shortly with the issue on proportionality Chairperson. Chairperson, it will be remembered that in their applications, the applicants during their testimony generally, was that when they left Boipatong, I mean the hostel, the primary goal was to fight with the SDU's and in fact, when they reached the township of Boipatong, the SDU's were fought against because shots were fired at them and the SDU's fled away. This act now of getting into the houses and attacking women, children and so forth, I submit Chairperson, tends to be disproportionate to that intended purpose of fighting against the SDU's. I am saying this Chairperson, conscious of the fact that there were generally, there was generally conflict between the ANC and the IFP, there was generally again a conflict between the township and the hostel, but clearly Chairperson, those IFP members who were attacked in the township, were attacked by the comrades, that is their evidence, and the SDU's, these names were used interchangeably and their stated objective was to fight against those SDU's. Chairperson, I submit that looking at the gravity of the act, the gravity of the act must be weighed against the intended objective and in the circumstances, it is my submission shortly that the act of killing those people in Boipatong was disproportionate to the intended alternative. I rest it there Chairperson, thank you.
CHAIRPERSON: Well, either you have to do so or you don't do so, because if you have to do so, you know, I would like to give directions as to the filing of those supplementary Heads within say about 10 days from now on, so that you cover any aspect that was not fully covered in your argument. Mr Berger for example has indicated that they ran out of time and there was an issue which was not fully covered.
CHAIRPERSON: I think we could either address the issue that have arisen here now, or Counsel is afforded an opportunity to deal in supplementary Heads with some of the issues in particular the legal issues that have been raised here.
CHAIRPERSON: Because I have not heard any of you referring to the opinions to the decisions given by the Committee. I don't know whether you have considered those matters and if so, what your submissions are in regard to those decisions. Do you understand what you are saying?
CHAIRPERSON: Okay, very well, but if the, if you have to file those supplementary Heads of argument, you would have to serve them on the representatives of the victims, so as to give them the opportunity to respond to further submissions that you may make in regard to those additional issues and where do you stand Ms Tanzer?
MR LAX: Sorry Mr Strydom, just something that has occurred to me with regard to Mr Buthelezi, Qambelani Buthelezi and you might want to just address it in your Heads, I don't know if you necessarily need to do it now. It is an issue that does his admission that he lied in his application form, and that he actually did kill somebody, does that not amount to the introduction of a new act?
MR LAX: Sorry, I beg your pardon, Mr Kubheka, humble apologies, the introduction of a new act for which he is now applying for amnesty, does that not amount to an amendment of his application form, after the cut-off date?
MR STRYDOM: I think I can answer that straight away, what I submit is that he applied for amnesty for being in Boipatong and being involved in the massacre with all the other people, certainly any Court would have found him guilty on a common purpose basis, in relation to the killings, he only went further now to admit that he personally killed somebody. On that basis I would say he was applying for the murder of people from the word go.
Very well, a great deal of evidence - is there any other matter that Counsel would like to place on record? Okay very well, yes, a great deal of evidence has been led before this Committee. The representatives appearing for the applicants have asked for an opportunity to file supplementary arguments to deal with some of the issues that have been raised by the representatives appearing on behalf of the victims.
For its part, the Committee would also take some time to consider the matter and thereafter render its decision. It is therefore not possible at this stage to indicate when that decision will be rendered, but we will do our utmost best to expedite the matter.
I want to place on record how much the Committee appreciates the assistance that it has obtained from both legal teams appearing for the applicants and the victims and also those legal representatives appearing on behalf of the implicated persons, Mr Da Silva, in particular.
In addition to that, we would like to record our appreciation for the sterling work done by the Interpreters who have had to put up with somewhat long hours that we have been compelled to work, in order to ensure that the matter is brought to finality and also members of the media present here, staff of the TRC which has ensured that each time there is a venue for us, to hold these hearings, and perhaps more importantly, to make sure that we don't only have the venue, but also that there is food for us to eat, so as to regain our strength and from time to time, I have observed members of the community who have been assisting members of the audience with providing them with support and also with water, from time to time. Let me record our appreciation for their cooperation in that regard.
Members of the Police Force who have ensured that we occupy a venue which is secure and safe, members of the audience who have persevered throughout these hearings in what has been a most difficult time, when they have to relive some of the sordid events that they had to go through many years ago, and we thank the applicants for ensuring that they attend these hearings and to tell their side of the story. It now remains for this Committee to make a decision on these issues.
Members of the Prison Service who have ensured that the, those of the applicants who are in prison, are brought here in time, we want to thank them for their cooperation in that regard and we would like them also to convey our special thanks to their superiors for ensuring that the prisoners are here in time. Members of the Protection Service, who have protected some of the witnesses and some of the applicants, were possible, we would like to thank them as well.
The sound system, the microphones were provided by the tireless effort of the person who is responsible for the sound and we would like to thank them for that as well. It is very difficult when so many people have come together and cooperate in ensuring these proceedings, to mention everyone by name.
And finally let me thank my members of the panel who have been willing to come and sit sometimes long hours in order to ensure that the work of the TRC in these hearings is proceeded with efficiently and to the best of our ability. The Logistics Officer ensured that everything associated with these hearings, has been done; Instructing Attorneys.