Amnesty Hearings

CHAIRPERSON: Yes Ms Moodley.

MS MOODLEY: We're ready this morning to resume on behalf of victims who want to have an opportunity to give their versions of what happened on that fateful evening. I call the first person, Anna Khumalo, who is the complainant referred to on page 21 of the bundle of documents in Count 15 and the mother of the child in Count 16, the child Anna Khumalo.

CHAIRPERSON: Which bundle would that be? And you say on page 20?

MS MOODLEY: If could be given a minute, I think my bundle has now been unbundled, so I just want to get the correct number before I give it to you. It is the first bundle and it's page 21 and the attempted murder counts 15 and 16.

CHAIRPERSON: Ms Moodley is she just going to make a statement, or does she want to testify under oath, or what is the position?

MS MOODLEY: I think for purposes of ...(indistinct), I don't think we intend to lead evidence. Mrs Khumalo wants to be afforded an opportunity to share with the Commission events of that evening.

CHAIRPERSON: Then she would make a statement?

MS MOODLEY: Yes.

CHAIRPERSON: I just want to point out that to the extent that she wishes to persuade us one way or the other, what she says as a statement would not be ...

MS MOODLEY: For purposes of notice?

CHAIRPERSON: No, it would not bear on us in consideration of our decision, as heavy as it would have had it been under oath.

MS MOODLEY: I'm guided by your assistance in this matter and I think it might be expedient to actually then consider swearing in Mrs Khumalo and leading evidence.

ANNA KHUMALO: (sworn states)

EXAMINATION BY MS MOODLEY: Mrs Khumalo, you are the Mrs Khumalo mentioned in Count 15 and 16 on the counts of attempted murder in the matter of the shooting at kwaMakutha on the 21st of January 1987?

MS KHUMALO: That is correct.

MS MOODLEY: Would you now shere with us the events of that fateful evening?

MRS KHUMALO: Yes.

CHAIRPERSON: She's the person referred to in count 15 and her daughter I think is the one that's referred to count 16.

MS KHUMALO: It was late at night. My child tried to wake me up. As I was breast feeding the child. When I woke up I saw smoke and I alerted the people because I thought there was a bomb or fire. There was a sound like a thunderstorm. When I went down to the corridor, I saw this other man with his wife. We went back to the other bedroom. As we were trying to get out through the window, Mr Moshu was shot at and then he fell and I also fell on top of a box. I couldn't even scream there and I was carrying the child on my back and I heard gun shots. It was between 2 and 3 a.m. I couldn't move after the shooting and then I heard the people talking. I could hear them but I couldn't do a thing. I kept quiet until 5 a.m. I heard the neighbour's car and then I went out of the door. The door was already open. I met with Mr Thusini and who said to me: "I managed to escape the shooting." I went to the other lady to tell her that people died there and I didn't know what happened, but at least one bullet hit me on my thigh and then people came to my house. I didn't see the people who were shooting but I heard their car idling. I didn't see anyone. I just heard their voices.

Even now I'm still surprised because my child is very ill. He's about to undergo an operation. There is something like a lump on her head and I don't know whether she's going to die or survive.

MS MOODLEY: Mrs Khumalo, is there anything that you would like further to tell this Commission about how that incident impacted on your life and the lives of your children?

MRS KHUMALO: Even today I'm still disturbed. I cannot relax because I'm even scared of people because even these killers are out of jail.

MS MOODLEY: I think we've come to the end of what Mrs Khumalo would like to share with the Committee. We ask for her to be excused.

NO FURTHER QUESTIONS BY MS MOODLEY

CHAIRPERSON: I'll have to give Mr Nel an opportunity to ask question. Mr Nel.

MR NEL: Thank you Chairman.

CROSS-EXAMINATION BY MR NEL: Mrs Khumalo, were you notified of the amnesty application brought by one of the attackers of your house that night, a certain Bheki Khumalo? Was that application brought to your notice?

MS MOODLEY: No, I know nothing about that application, I'm hearing about it for the first time today.

MR NEL: I see from the record of that application, that 199 victims were notified. So you were not one of them?

MS MOODLEY: No.

MR NEL: There was a Mr Ngubane and a lawyer from Durban acting for the victims. Do you know Mr Ngubane?

MS MOODLEY: No, I do not know him.

MR NEL: You were present in the hall yesterday and listened to the evidence given by Mr Cloete, is that correct?

MS MOODLEY: That is correct.

MR NEL: Did you hear that he apologised to the victims?

MS MOODLEY: Yes, I heard his apology, but what is most painful is the fact that he was actually cleaning the house. Even today he is still cleaning up within me, as my child is very ill at the moment.

MR NEL: Mr Chair, I have no further questions. I don't know if my client has anything to say, if he would be allowed.

CHAIRPERSON: You can find out from him if he wants you to ask any questions.

MR NEL: Mrs Khumalo, my client has requested me to repeat his apology to you personally. Mrs Khumalo, I know I can't rectify anything that happened in the past, but I give you my sincere apologies for what happened on that fateful night. I hope you will forgive me. Thank you. That's all, Mr Chairman.

NO FURTHER QUESTIONS BY MR NEL

CHAIRPERSON: Anything more, Ms Moodley?

JUDGE POTGIETER: Mrs Khumalo, just one thing, if you can. You say that you heard, those attackers, you heard them speaking, talking. Could you hear what they were saying?

MS KHUMALO: I heard them saying ...(ethnic). I think that means their leader was telling them to stop.

JUDGE POTGIETER: Was that the only thing that you heard?

MS KHUMALO: Yes, that is correct.

JUDGE POTGIETER: Thank you for your assistance Mrs Khumalo.

ADV SANDI: Thank you Chair, just one question. Mrs Khumalo, did you personally or any one of the people who were killed and injured, belong to any political organisation?

MS KHUMALO: Are you talking about the people who were in the house? There was no one who was in any political organisation. Those who were the only people who were in my congregation. The other one was a priest and the others church members and one lady had asked for a refuge in the place who went there because she had a fight with her partner, therefore she had asked to spend a night there and she died there.

ADV SANDI: Thank you Mrs Khumalo.

CHAIRPERSON: Mrs Khumalo, can you tell us, did you stay at that house which was attacked that night?

MS KHUMALO: Yes.

CHAIRPERSON: I notice from the charge sheet that the people who died and were injured, held various surnames. One gets the feeling that there was some type of gathering at that house earlier that night, or some time in that time area. Was there a gathering of people there? You referred to congregation in your evidence. Was there a church meeting or vigil at that house during that period?

MS KHUMALO: Yes, we used to meet there. Sometimes they would go there for rehearsals, but the other gentlemen where there to submit their reports.

CHAIRPERSON: I see one of the deceased was also a priest.

MS KHUMALO: Yes, that is correct.

CHAIRPERSON: Do I understand correctly that the people there in that house that night, were there essentially for religious reasons, for no other reasons.

MS KHUMALO: Yes, that is correct.

CHAIRPERSON: Are you able to tell us why you think this event took place? Never mind what they say, the perpetrators, do you know of any reason why this would have occurred?

MS KHUMALO: I got a shock and I didn't even have a clue of what led to this incident.

CHAIRPERSON: At the time in Natal, we've heard many hearings related to Natal and what happened there during that period. Was this possibly one of those third force attacks, just to create confusion amongst our people?

MS KHUMALO: I do not know.

CHAIRPERSON: Now I see, or I understand that a person who applied for amnesty in relation to this event was a person named Mr Khumalo, is that correct Mr Nel? I don't know what his first name is. It was mentioned when you said it's the first time you heard of that application. What was that name? Bheki Khumalo. Is he perhaps related to you?

MS KHUMALO: No, not at all. I first heard about him during the trial.

CHAIRPERSON: Have you seen this person already? Did you see him at the trial?

MS KHUMALO: Yes, he was pointed out to me.

CHAIRPERSON: And you don't know him?

MS KHUMALO: No, not at all.

CHAIRPERSON: There were a number of children that were killed and injured that day, I'm talking the oldest of the children being about 10 years old. Do you recall that?

MS KHUMALO: Yes.

CHAIRPERSON: Was your daughter the only one that survived of the children, that attack?

MS KHUMALO: Yes.

CHAIRPERSON: I see there are five Thusini children that were killed that day. Whose children were they?

MS KHUMALO: Those were Mr Thusini's children.

CHAIRPERSON: Mr Thusini wasn't there that night?

MS KHUMALO: He was in the other house, the one that was outside.

CHAIRPERSON: I see. Him and his wife? What was Mr Thusini's name? Ernest?

MS MOODLEY: May I assist in this regard? Ernest Thusini is the next witness, the next victim and witness, that's going to appear before the Commission.

CHAIRPERSON: I'm just trying to correlate the family here first. Ernest Vususi Thusini as he is a person who is referred to in Count 17. Then in Count 18 it is Faith Norman Thusini. Is that ...(indistinct)

MS MOODLEY: It's incorrect. It should read Faith Nema Thusini, not Norman.

CHAIRPERSON: Then I understand now. It makes sense to me. Yes, thank you Mrs Khumalo, for your assistance. I hope ...(indistinct) with your daughter's operation. Thank you.

MS MOODLEY: I call Mr Ernest Thusini and ask that you swear him in.

CHAIRPERSON: Mr Thusini, what language would you prefer to use?

MR THUSINI: Can you repeat the question Sir?

CHAIRPERSON: Which language would you prefer to use?

MR THUSINI: I'll use English.

CHAIRPERSON: Are you comfortable with English?

MR THUSINI: I think so.

CHAIRPERSON: If you prefer to use another language, then I think you should use it.

MR THUSINI: No, I'll stay with English.

CHAIRPERSON: Fine.

ERNEST VUSUSI THUSINI: (sworn states)

EXAMINATION BY MS MOODLEY: Mr Thusini, you are the complainant mentioned in Count 17 and your wife is the complainant mentioned in Count 18 of this matter which appears on page 21 of the first bundle, as well as a number of your children that are now late, that appear in the various counts and I will list them. Count number 9, count 10 and let's give then the names. Nomofundu ...(indistinct) Thusini, Count 10 Punzile Thusini, 8 years old. Count 11, Bikile Thusini, 7 years old. Count 12, ...(indistinct) Sithembile - no not that one, sorry. Count 13 Mbusi Thusini, 6 years old and count 14, Senele Thusini, 4 years old. I know what I'm going to be asking you to do is traumatic, but it is important that the Commission has the benefit of the information that you can share with us this morning.

I want to take you back to that fateful evening again, on the 21st of January 1987. Can you related the events that took place there?

MR THUSINI: Thank you. I'll try.

I am Ernest Thusini, the father of the five children that were slaughtered on that same morning. I was fortunate enough, thanks to God, that the intention didn't get me and my wife that morning, fortunately, but unfortunately for everybody, they all died for what I could say, for no apparent reason because as far as I'm concerned, there is and there was no reason, because I was born in Lamontville, which is in Durban. I grew up there. It reached a stage where I got married, I got kids and then because in the family there were always fights between me and my mother, so I had to move out and also at the time I held the position in the Twelve Apostles Church, where all of us were members of. Mr Ntuli himself was a priest at the time and I was also a priest at the time, so I did relate the matter of my frustration at home to him and then he said no, I'm welcomed, I can come and stay with them, but then I will have to erect an outside building, which I did. I erected an outside building in the yard of the house and we stayed there.

While we were staying there and we were doing the normal everyday I was working and we were going to church every afternoon and of course there was a gathering of people every time in that house because it was a house where the leaders of the Church were staying, so people had to come there and they used the house really as a refuge if they've got problems at home, they used to come there for counselling and they would sleep over and things like that.

CHAIRPERSON: That phenomena that the house was the residence of the church leaders and that ever so frequently there would out of necessity have to be a gathering at that house, was that common knowledge in the area?

MR THUSINI: I would say yes, it was common knowledge because it wasn't something that was happening in secret but it was happening openly.

CHAIRPERSON: And did it happen very often, so that people it almost as a matter of rule, that would be the case?

MR THUSINI: Ja, people knew us very well and what happened then and of course Mr Ntuli had children and he had Victor and other children as well. I would say really, I wouldn't be naive myself because at the time the situation in the country clearly everyone knew what was happening, so even though I was a church person, but I wasn't naive in terms of what was happening around me, even though I wasn't involved, but the youth at the time, we knew that there was something that was happening, especially Victor, but the extend of the involvement, that we were not aware because he wouldn't do things like that at home because his father would kill him, because this is how Mr Ntuli was, he wouldn't allow anything like that because we knew at the time the volatile situation and the effect that will create in terms of us carrying on with the normal business of church in the community.

CHAIRPERSON: Well, it seems, as I understand the evidence of Mr Cloete, that the reason why Mr Ntuli was targeted was that he had something to do with the Treasury of the ANC or UDF at the time. Now, and that's why he was targeted. That's another consideration and debate that this Panel will have to enter into, but to answer or to clarify the situation with you, so that was what his evidence was. Carry on.

MR THUSINI: Thank you. Then it came, the fateful night, when all of a sudden, we were sleeping and then we just heard gun shots and we didn't know where they were coming from and I mean then fate prevailed on that day because, on my side, because what happened to me is something that when I relate it to somebody, they sometimes get stunned because they are not able to believe it, because during the shooting, because there was just noise everywhere, you didn't know what was happening and of course people were asleep. I was asleep and all of a sudden it felt to me like somebody picked me up and threw me right off to the side of the bed, that's how fast that happened and I just lay there, I didn't move, I didn't do anything, I just lay there and my wife rolled over and then she fell down and then she was screaming and then I told her to keep quiet. Until the shooting stopped, we just lay there. When the shooting stopped you could hear people talking and moving out and then I could hear what seemed like a kombi door, sliding door, you could hear the slide door and everything was just quiet at the time and we couldn't do anything and I tried to listen if there is any movement on the other side because the outside building was separated in two, so I was trying to listen if there was any movement on the other side where my kids were and then I realised that no, it's so quiet, but even then I couldn't do anything because at the time there were people who were outside on the neighbours, sitting and talking so I didn't trust anything, so I just lay there because I didn't know whether there was somebody who was maybe standing outside listening, if there is anybody who is still maybe living, so I just lay there, I just didn't do anything.

Immediately after that, one of my daughters, a twin daughter, I heard her screaming and running out and then I said to myself: "God, maybe they're going to get her".

CHAIRPERSON: Mr Thusini, you can skip that part.

MR THUSINI: And then, I then asked my wife to just go and check how are the kids and I said to her, you mustn't go outside, just peep there and see what's happening and then come back, which she did and we laid there until 5 o'clock, I think. I then stood up. I then, because the other neighbour at the back, normally at that time he will be washing the car, preparing to go to work, because I heard the tap running into - water running into the bucket and then I said to myself, maybe I should run up quickly and ask that guy to please take me away from there so that I can go and phone somebody for help. When I was running out, that's the time I realised that also Anna Khumalo was still alive, because she was coming out of the main house door, kitchen, then I asked her, I said: "You didn't die?" and then she said: "No" and then quickly I ran over to the wall because there was a concrete wall. I ran over. I went and asked the guy if he could give me some help. He said: "No" because the people were watching, so he can't help me. So I ran out, I ran down the street, I went to the other house, the other family which they called Cele. I then phoned. They gave me the phone. I phoned the Amanzimtoti police and then I went straight to the other member of the house and I stayed there and there they also helped me. I phoned my work place to come and pick me up. I told them the situation, what happened, and they came and picked me up. So I stayed there at work, I related the story, what happened and of course the story was already on the news and everything and I went back there. They took me back with their car, my workplace car, the company car. They took me back to kwaMakutha now, and when I reached there, there was a whole lot of people there, everybody was there, so that's as far as I can related to that story. They also took me to the police station, they did all the questioning and trying to find out if I was political and what have you, but ... ja.

MS MOODLEY: Mr Thusini, I want to take you back and ask you a couple of questions. I hope that it won't be too difficult. You made a comment about Victor Ntuli and the fact that his father wouldn't countenance any political activity at his home, but I think to be honest and make full disclosure ...(indistinct) as we all are about that before the Commission, would you like to contextualise for us a little bit more about Victor Ntuli for the benefit of the Panel? Because it has been alleged that he was a UDF person and that he occupied a particular position of paymaster.

MR THUSINI: I will try to answer that but I think the mother will be fitting well in order to maybe go into further details in terms of that, but in terms of my knowledge, as I have said, that the youth of the time, there were so many things that were happening, but nothing that could happen in terms of politics in that house because it's something that was a no go, because we wouldn't accept that situation understanding the political situation in the country at the time, so what we were interested in is to do the Church business and that was what we were concerned about.

MS MOODLEY: But the incident of this massacre had a profound impact on you. Did you think that was your baptism into politics so to speak?

MR THUSINI: Ja, as a result, to me it was sort of a fighting back situation because I didn't know what was happening and I said to myself then maybe one needs to get into politics and be active in politics because therefor it would somehow justify to me that my kids did not die in vain, so therefore I got into politics.

MS MOODLEY: Can you tell us again, or have you already told us, the denomination of the church that Mr Ntuli and yourself belonged to?

MR THUSINI: The Church is Twelve Apostle Church for Christ and we were both priests in terms of the position in the Church.

MS MOODLEY: The people that were at home that evening, they were all members of the congregation, were they?

MR THUSINI: Yes, because like the male that he referred to, he was a under deacon, a position below our position as priests.

MS MOODLEY: So by any stretch of any imagination, one could not term the people that had gathered there, any other gathering but a Church gathering or people who had remained over after events at the Church?

MR THUSINI: Ja that was basically what it will be because people used to come in and out at that place because we were leaders in the church. Of course there were other people who were leaders above us, but because we were there where the people are, you know, and then the people will come to us and then we will be counselling them and we will maybe try and advance the teachings of the church in terms of strengthening them and things like that, just general counselling.

MS MOODLEY: Mr Thusini, briefly about your personal circumstances now. You have had a fractured family, you've lost a lot of children, you've told us as much as what happened that evening, but there has been an everlasting impact on your life after this event, obviously. Would you like to say anything more?

MR THUSINI: Really the problem - well, my daughter, the twin daughter that survived, had a bullet at the back. She had to later on at a stage I took her to the doctors for operation which they removed the bullet and she's been in that situation. Right now she's 21 but she's still doing standard 8. It shows you clearly the impact of that situation, but what we also do at home, she would take photographs of sisters and brothers and try to you know find herself in that situation, but I would try and sit with her and talk to her, you know try - I've taken her to psychologists as well, to try and you know open up her mind in terms of making sure that she makes progress, but unfortunately I haven't seen any improvement. But personally, really, my family is, myself, that I'm talking today, that I'm the person that I am, I thank God for the strength that I am the person who I am today, maybe I should be crazy because I mean you cannot lose 5 children and be, you know ...

MS MOODLEY: Thank you.

NO FURTHER QUESTIONS BY MS MOODLEY

CROSS-EXAMINATION BY MR NEL: Thank you Mr Chair. Mr Thusini, I know it's very hard to sit here for you. There are just a few matters I would like to clarify, if you could assist the Committee. Did Victor Ntuli in fact stay in that house?

MR THUSINI: Ja he stayed in the house.

MR NEL: Now Bheki Khumalo, have you ever met him prior to this incident?

MR THUSINI: I don't even know who you're talking about.

MR NEL: This Bheki Khumalo who applied for amnesty in respect of this attack.

MR THUSINI: I don't even know the person.

MR NEL: Did you attend the criminal trial in Durban?

MR THUSINI: Well that's another sore point for me because I didn't attend the trial for the simple reason that in terms of what was going on, to me it was shambles, that's why I made the comment that it is a public relations exercise that failed dismally because as far as I'm concerned, there was no justice that was done, because as victims, we were never called in to testify, to put our version of what happened on that night. Nothing was said, we were not called in. I took my lawyer, we went to Tim McNally in Durban to say to McNally: "We are available if you must call us we are here" and he didn't. So the case itself to mean it doesn't serve me any purpose, so I didn't even attend it, so the person that you're asking me about, I don't know and I've never seen that person.

MR NEL: You also never heard about his amnesty application?

MR THUSINI: Well, I just heard about amnesty applications yesterday.

MR NEL: If Victor Ntuli was in fact involved in political activities and an outsider was doing a reconnaissance of this house, seeing people coming and going, would you agree with me that even a wrong assumption might have been made to the effect that this was a gathering place of political orientation?

MR THUSINI: I didn't hear that properly, because my sound does not seem to be - I didn't hear you properly what you said.

CHAIRPERSON: Let me paraphrase that for you. Because it was a house which very frequently entertained members of the Twelve Apostles Church of Christ congregation, do you think that it was a fair assumption on the part of a political reconnaissance person to think that those people at these gatherings, were not church gatherings or religious gatherings, but political gatherings? The question is, will it be a fair assumption on the part of the person who did the reconnaissance of that house?

MR THUSINI: I wouldn't comment about the fair assumption. I would say, as far as I'm concerned, it's out of thinking because I mean, how possibly would you just make an assumption that this will be the gathering which involved politics whereas you didn't do your homework properly because if those people did the homework properly they would have known, but they didn't do that, so therefore I cannot even assume, because I cannot understand their thinking.

MR NEL: Mr Thusini, I have noticed very clearly that this incident has in fact strengthened your faith, is that correct?

MR THUSINI: The incident strengthened my faith. I had faith. I survived because I had faith. I've still got faith. It's not because of the incident that gave me strength.

MR NEL: As a Christian are you prepared to accept my client's apology insofar as he has attempted to confess his role in this incident?

MR THUSINI: I don't know if I should call this a confession. As far as I'm concerned there's no confession. As far as I'm concerned I've lost time I should have been at the Tech, I'm studying, I've lost all that and I need to go back home now and try and make up because what I'm sitting here, I don't understand because clearly there is nothing that the man is saying. If he apologises, on what basis is he apologising, so I don't understand that. So even if I need to consider him apologising to me, for what? And then what?

MR NEL: I'm referring to the role that he has sketched, the role that he has played.

MR THUSINI: There are so many question that were asked yesterday. I sat here, I said to myself: "This is mad" because I couldn't get anything, so therefor I don't know how to answer that question because as far as I'm concerned, it's irrelevant.

MR NEL: Just to repeat, my client has asked me to convey his apologies to you once again for the role that he has played. That's all. Thank you Mr Chairman.

NO FURTHER QUESTIONS BY MR NEL

CHAIRPERSON: Have you got any further questions?

NO RE-EXAMINATION BY MS MOODLEY

CHAIRPERSON: Mr Thusini, from what you have described to us, that attack was typical. I'm not saying it is or it was, but it has all the ingredients of a third force attack. Am I correct in that?

MR THUSINI: I wouldn't assume anything because even at the time I couldn't assume anything. You know even now I live in fear. I don't know what were the reasons that my kids were slaughtered. I don't know. I cannot tell even now. Really, I cannot, for the life of me, make an assumption.

CHAIRPERSON: Yes. Thank you.

WITNESS EXCUSED

MS MOODLEY: I'd like to call Mrs Ntuli to take the stand.

MRS NTULI: (sworn states)

EXAMINATION BY MS MOODLEY: Mrs Ntuli, you were the mother of that home that was attacked in kwaMakutha on 21st of January 1987.

MS NTULI: Yes, that is correct.

MS MOODLEY: Fortunately you were not at home that evening.

MS NTULI: Yes, that is correct.

MS MOODLEY: But for the benefit of the Panel and all of us, we'd like you to tell us, and contextualise for us, a little bit about the family that lived there and about the incidents that followed this massacre at your home.

MS NTULI: I was not at home. I left on a Monday. The reason for me to leave, it was solely because weeks following that, we were going to have a very big gathering at eZimboweni. I told my husband that I was going there to make arrangements, but I was going to look for a school because it had become apparent that it was not going to be possible later for the children to go to school there in the area. I took my last born who was three years old at the time. I spent a night there on a Monday and then Tuesday I went to look for a school. I was to go back to that particular house after that, to go back to that house, the house that was occupied by the other people who were also in our congregation. On our way back, I told the lady who was with me that I'm scared of these people who were standing at the door. I felt like running away. I had this feeling that they were going to say something to me, but she assured me that nothing was going to happen, they were just standing at the door. I went past them. I went straight to the house and then this other lady was a resident in this house. Within a few minutes these people came to me and asked me about Mr Ntuli's name and I told them and then they all cried. They didn't tell me what happened. At the time they didn't know me in that area, but they always knew me as a person who would go there for church purposes. I told them to stop making noise and to tell me what was happening. I could feel that I was going crazy and then I grabbed my child, I took a towel and then I wiped here. I boarded a taxi to Durban. They followed me and they wanted to accompany me, but they didn't have enough money. I told them that I had some money because I went there to make arrangements for the gathering and I was also looking for a school for my children. I took them with. We went back to my home. When we got there, we saw the other members of the congregation trying to clean up the house, but there was blood all over the place. I realised that the father was not there. He was shot at. My daughter, Pomelele was not there. Pomelele's child, who was nine months old, she was found underneath Pomelele and my daughter, but the child was still alive but the other shoulder was injured, the right shoulder. I realised that Nunu and Sithembile were not there. Nunu was seven years and I heard that Nunu died. I heard that Mr Ngubane had died and a girl from the Ntuli family, the one that I left in my house when I was leaving, who was in my house because she had a quarrel with her partner, so she took refuge in my house and the same lady, I told her to wait there because my husband and Ngubane were on their way back and then he was going to solve their problem. When her husband came, their problem was solved, but they decided that this lady cannot go back to her house and then she had to stay there with the child, but this lady passed away and then the child was only injured in the one arm.

I never got the opportunity to grieve like a person who had lost her husband. I had to go and sleep at other peoples places because of the confusion that was taking place in the township about Victor. Victor was not a talkative person. The way my husband was so strict with his children, there was no way for Victor to do anything that would be visible to us as parents, but something that I noticed during December before this incident that took place in January, a child from Mkhize family in our area passed away. He was shot at. I think the child was twelve years old. A neighbour came to me, Mr Mkhize, he is my next door neighbour from 1867. He told us that if he dies we must know that he was killed by Victor because when they went to identify the body at the morgue, Victor looked at him as if everyone was saying something about him and then he told us that he was coming from Mr Buthelezi to tell him about this and I asked him why he didn't go to the police to report the matter. He said he did not want to do that, but I said to him: "You grew up here in front of us. If there is a problem that you do not understand, why won't you come to us and explain and let us solve the problem?" he decided to leave. My husband was working night shift and apart of what was going to happen, I decided to go to Amanzimtoti police station and I told them what had happened. That was a sign that actually puzzled me. That was the very first sign. I related that to politics, because Mkhize came and did this strange thing and it was in December.

After the funeral I decided that I cannot stay there, I had to look for a place to stay. The Inkatha members came and occupied my house. Even when I wanted to come back, I couldn't, because the Inkatha members refused to leave my house. Even when I wanted to sell my house, people were threatened. Even today I'm still staying in the mountains. I do not have a place to stay. That is what is making matters difficult for me. What we are here for today, I do not believe that the gentleman who is asking for amnesty has forgiven me because of what I did to him. I am not sure whether he has forgiven me. I just want him to tell me if he has forgiven me because when he decided to take firearms and send people to go and kill the people in my house, I did not know what is it that I had done. He didn't know the damage that was caused by these firearms because I heard that he was not even there. I don't know whether that firearm has stopped releasing bullets if he has forgiven me.

It is very difficult for me because I do not believe that if you are being attacked you can just run away and leave your house and then you would turn your back again and go back to the attacker and tell the attacker that: "I am forgiving you" because you are running away. I do not understand that.

CHAIRPERSON: Is that all Mrs Ntuli?

MS NTULI: Yes, that is all for now. Unless I have forgotten something.

MS MOODLEY: Just one last question for clarity.

CHAIRPERSON: No, don't prod her memory please.

MS MOODLEY: Your home was a home where church meetings were held.

MS NTULI: Yes.

MS MOODLEY: Thank you.

NO FURTHER QUESTIONS BY MS MOODLEY

MR NEL: Thank you Mr Chairman.

CROSS-EXAMINATION BY MR NEL: Mrs Ntuli, this neighbour that came to you and told you that if he died, you should know that Victor would have killed him, did he have a political affiliation of which you were aware?

MS NTULI: I knew that he was an Inkatha member.

MR NEL: Why do you presume that he forecasted that Victor would be involved?

MS NTULI: As a person who was fed up, he couldn't explain anything to me as a neighbour and as a child to me, he just told me that and he left and I couldn't continue discussing anything with him because of the situation.

MR NEL: Do you know if Victor had any political affiliation?

MRS NTULI: There was no sign that could tell me so, except for what I have just told you, just before this incident, but I never noticed anything before that incident.

MR NEL: You say that you left your home prior to this incident. How many days prior to this incident was that?

MS NTULI: I had left on a Monday and this incident took place on a Tuesday at night. I spent only one night and the following day, I heard this incident, that it had taken place over night.

MR NEL: You heard that my client, the gentleman sitting here next door to me, or next to me, that he apologised for the role that he played in this incident when he gave evidence yesterday. Is that correct?

MS NTULI: I do not take that as an apology but I can take it as something that is a mockery.

MR NEL: Why do you say that?

MS NTULI: It is as I have explained. As he had instructed the people to shoot and then he decided to go on with his way and he doesn't know of what happened after his instruction in thirteen years. Now he's coming forward to ask for apology, but I do not think he has forgiven me, because what he did to me, even those people are still after me, how can he ask for an apology if he hasn't forgiven me. If I accept his apology, he's going to live a happy life with his family, but I am still living in the forest because I'm running away from his bullets. I had to run away, I had to go and stay at Ezimboweni in 1988 and then even during that trial in 1995, the people were still after me. He's living happily in his home, but the battle is still going on. They are even after me. I had to run away from ...(indistinct) because during the trial, the people were still chasing me. I do not know how can I solve this, I really do not know how do I accept this kind of apology while this same person is still after me. I'm not even at my home. How can I accept his apology? How do I say that: "I forgive you"? Please advise me.

MR NEL: Mr Chair in conclusion, Mr Ntuli, my client, just as a matter of interest, left the area a month after this incident, that's thirteen years ago and also to you he asked me to convey his apologies with regard to the role that he played in that incident thirteen years ago. That's all. Thank you Mr Chair.

NO FURTHER QUESTIONS BY MR NEL

CROSS-EXAMINATION BY MS THABETHE: Thank you Mr Chair. Mrs Ntuli, where is Victor Ntuli now?

MS NTULI: Victor was shot in 1990.

MS THABETHE: Was this part of the conflict that was happening between IFP and ANC, would you say?

MS NTULI: As a person who was living at eZingulweni, it was not accepted for me to have a child who was attending in the other school, because he was coming from kwaMakutha, he was not allowed to be at kwaMakutha and then I had to ask the other people to accommodate him to stay there and continue in his old school. I heard that they were called to make peace at ...(indistinct) in kwaMakutha, that is the youth. That is when Victor was shot. I received a telephone call from the neighbour that Victor was shot on the 7th January.

MS THABETHE: Maybe you missed my question. My question was: was he killed as a result of ...(intervention)

CHAIRPERSON: In view of her answer ...

MS NTULI: Not translated.

MS THABETHE: Sorry? Sorry Mr Chair.

CHAIRPERSON: Is she able to say? Is she able to answer the question in view of what she's just explained?

MS THABETHE: I think so Mr Chair.

CHAIRPERSON: How is she able to answer the question? She said she heard what happened at a school. How is she then able to answer?

MS THABETHE: Mr Chair she says there was a peace meeting, so I want to ascertain was the peace meeting between IFP and ANC, what was happening.

CHAIRPERSON: Can she answer the question? Was she there?

MS THABETHE: The meeting was called by the IFP. They had called the UDF or ANC youth to the peace meeting.

ADV SANDI: How old was Victor Ntuli Your son, when was he born?

MS NTULI: Victor was born in 1967.

CHAIRPERSON: Yes thank you Mrs Ntuli, you're excused.

WITNESS EXCUSED

CHAIRPERSON: Have you got any other witnesses?

MS MOODLEY: Can I just be given half a minute? Thank you for the indulgence. I'm going to ask Mrs Ntuli's son, Mbuso Ntuli who's here today, he wants to be forded an opportunity, it will be very brief, but to share some thoughts with the Commission, if you would indulge him.

CHAIRPERSON: Yes, ...(indistinct)

MS MOODLEY: I didn't hear.

CHAIRPERSON: What is he going to testify about?

MS MOODLEY: I think he's going to be able to shed a little bit of light around Victor himself. Mr Chairperson, I need to beg your indulgence. Mbuso thinks that this is something that he needs to do, that he wants to have not too much of the Commission's time. I understand the time constraints that we operate under.

CHAIRPERSON: Ja, I'm not too concerned about the time constraints because I live in this part, I'm just wondering what the purpose of this evidence is going to be. How is this evidence going to help us in any way comply with the Act? You see, by the facts of the matter, Victor was not at the scene of the attack and technically he's a victim because he was the target. If he were injured or killed at the time, maybe, what the next witness wants to tell us may have been appropriate. I'm in your hands. I don't know exactly what he's going to say and that's why I asked the question.

MS MOODLEY: I think, he is the younger brother of Victor Ntuli, he is a family member. He's walked a long way in kwaMakutha with the congregation and even as a youngster, he might be able to give a perspective to this Commission which hasn't actually been shared as yet, but ...

CHAIRPERSON: Well call him. I'm not sure of the value of the evidence, but carry on.

MS MOODLEY: Mr Mbuso Ntuli. He is sitting next to me and he's ready to be sworn in.

ADV SANDI: Sorry, just for clarity, is that the person whose name appears on count 13?

MS MOODLEY: No, that is a Thusini, we're talking about Mbuso Ntuli. Mrs Ntuli's son. The last witness's son. He doesn't appear on the papers at all.

MBUSO NTULI: (sworn states)

EXAMINATION BY MS MOODLEY: Mr Ntuli, you've asked for an opportunity to give evidence before this Commission. You think that you're able to actually shed light on advancing the interests and the objectives of this Commission. To that end I would ask you to be as brief as you can be to tell us a little bit more about this particular incident, if you have any of that information to share with us.

MR NTULI: I would like to say that I was always with Victor and I used to be involved in his affairs and during this incident I was with him in Lamontville. What I am trying to explain is the fact that there is no way that Victor could be a target, as it is described here. I believe that they had a certain motive. Maybe they wanted to scare the people in South Africa that were involved in politics, but there is no way, even his role in the township, we had a Youth League, but it was not UDF, it was just something that would be called a subsidiary of the UDF, we were trying to create packs in the township and he was not a permanent figure in that Youth League. There were other politicians who had better knowledge and there is no way that he was a political leader. When that question was raised that at my home people would go there and meet for political reasons, all the congregations have their own uniforms and the members of the Apostolic Church are always wearing white clothes. Women who would go to my home were not youth and even the rehearsals that they are talking about, it was not about the youth, they are talking about elderly people who would go there for rehearsals, married people, even the gentlemen there were wearing ties and jackets. You wouldn't see the UDI members toyi-toyiing wearing jacket and ties formally and you wouldn't see the elderly people wearing white hats, holding meetings as political leaders, those were the religious people. There's no way that the people would suspect that home was used as a place for political people.

MS MOODLEY: is there anything else you want to say?

MR NTULI: What I wanted to say about granting amnesty to Mr Cloete, I think this gentleman is living happily with his family. The people who were victimised, they do not have places to stay. We only managed to get a place to stay, during the time people were very scared and after this incident. This was not just a minor victimisation. Even the people were scared, they couldn't accommodate us, because they were scared of being attacked by the same people. Everybody would run away from you and you wouldn't know where to go. People would see you as a problem and you would bring troubles to his or her house. Then he was flying all over the country, going to Caprivi, going back home. We are here today and this Ndulana child does not have parents today because of him, then he's got his own family, he's living happily. What about the people who are going to say that he should get amnesty? What kind of change they are going to bring to the families' lives? It's not going to help us with anything. What's going to happen next? After losing my parents, I do not have a future, because I couldn't go to school and then he's here to ask for amnesty. What is that going to help us? I think he should reconsider that and even the role that he has explained, told us about here, it's not clear, it's a bit vague. You cannot prepare people to go and kill people that you don't even know whether those targets are children or elderly people. That is all.

MS MOODLEY: Thank you.

NO FURTHER QUESTIONS BY MS MOODLEY

CROSS-EXAMINATION BY MR NEL: Thank you Mr Chair. Mr Ntuli, were you present when Mr Cloete gave evidence yesterday?

MR NTULI: Yes.

MR NEL: Did you hear that he was not involved in the intelligence side of this operation or this incident, in the sense that he did not identify a victim, he in fact did not even know Victor Ntuli, did you hear that?

MR NTULI: Yes, I heard that.

MR NEL: The people who actually identified Victor as a target and who caused this attack, was one Bheki Khumalo who was on the intelligence side. Did you hear that?

MR NTULI: I do not believe that was the story. I heard him saying that but the person who could have been involved in this intelligence, even this gentleman, Mr Cloete, wouldn't prepare people to go and attack Victor only because he was also involved in training people as snipers, he could have done that alone, but he decided to embark on something that was called housekeeping.

MR NEL: But, do you know this Bheki Khumalo? Have you met him?

MR NTULI: No, not at all.

MR NEL: Were you also not aware of his amnesty application?

MR NTULI: I just heard that yesterday.

MR NEL: You - how old were you, or how old are you?

MR NTULI: I am 28 years old.

MR NEL: So 13 years ago you would have been 15 years old?

MR NTULI: Yes, I think I was between 14 and 15.

MR NEL: And Victor at that stage was 20 years old?

MR NTULI: I believe so because he was older than me. I think he was 19 at the time because he was doing standard 9.

MR NEL: Did you move in the same circles, or did you have - or did you not?

MR NTULI: What do you mean when you say same circles? Do you want to know whether I was involved in his affairs or not?

MR NEL: Yes.

MR NTULI: Yes, I was always with him, even during this incident we were together in Lamontville. He used to love me very much.

MR NEL: This neighbour that came to your mother and actually forecasted that when he died, your mother should know that Victor was involved, did you know this neighbour?

MR NTULI: Yes, very well.

MR NEL: Could you offer a reason as to why this neighbour would convey this type of message to your mother?

MR NTULI: There are so many reasons. This person was training us in Karate in the area, when he joined the IFP and the other young boys, because there was this Youth League and the others who were in the soccer team, most of the young boys who were involved there and some of them, most of them were in the Youth League, so we were always threatened. After threatening them, he went to my home to threaten us and the IFP members were scaring people and then he would always be after this soccer team. He was an enemy but not to the parents and he would even chase me during the night when he sees me. I would run away whenever I see him.

MR NEL: Why do you call him an enemy?

MR NTULI: When I say he was an enemy, he's a person who was staying ...(indistinct) to me because he would chase me whenever he sees me and even during the night he would try and do something to me. I am not saying that I knew that there was something that I could do to him.

MR NEL: You were clearly political opponents, not so?

MR NTULI: In his eyes, in his mind. To me he was just a neighbour and a person that I grew up while he was in the community, but in his mind we were his political opponents.

MR NEL: How did UDF people toyi-toyi?

MR NTULI: There was no UDF in our township, we only had kwaMakutha Youth League.

MR NEL: You said that UDF people - or you would never see UDF people toyi-toyi with ties. What did you mean by that?

MR NTULI: I was trying to say the people who were involved in the liberation movement, people who were in the liberation movement would be called UDF. Even if they were doing that, that would be youth, not elderly people in the community. You wouldn't find elderly people in my home, coming to church and those people would be referred to as UDF, those are two different things. The way those people used to dress in white clothes, they were totally different from politicians.

MR NEL: Just to conclude, I also wish to convey to you my clients apologies for the role that he in fact played in this matter. That's all. Thank you Mr Chairman.

NO FURTHER QUESTIONS BY MR NEL

CHAIRPERSON: Ms Thabethe, have you got any questions?

NO QUESTIONS BY MS THABETHE

ADV SANDI: We have heard evidence here from the applicant that Victor Ntuli was handling monies for the UDF, do you know if he was handling monies for any political organisation?

MR NTULI: I was always with him, that was not possible. If we are talking about money, that is not true.

ADV SANDI: Thank you. Just going back now to these church people, well what I've seen sometimes when Church people get together as a group, there would be a lot of singing. Would this have been the situation with this church group of people at the time?

MR NTULI: Not always. That does not mean that the members of the Apostolic Church when they gather they sing, but on Thursday would wear blue uniform, blue and white uniform and they would start singing, but it's not always and the church songs are different from liberation songs. Sometimes if there is counselling, they would be there and discuss the issues. That's all.

ADV SANDI: But the important thing is that when they get together, they would sometimes sing church songs.

MR NTULI: Yes, that is correct.

ADV SANDI: But do you know if the UDF people would do the same when they got together? Do you know if they would sing church songs?

MR NTULI: First of all, there was no UDF in my township and the politicians, I do not think that they sing Church songs when they meet.

ADV SANDI: ... (inaudible) an issue. When were you at Lamontville? Was there any particular reason why you had to go there?

MR NTULI: There was a problem. I found myself in some minor problem. This problem, a house was attacked while we were camping, we were about to play for the Chappies League, the new team in our area. We had gone to a main hostel which was just across the street. We went there. People attacked there and a house was set alight. I took cover under the bed because when they broke the window, they poured petrol on this bed that I was underneath and then they lit the match. When they got in they turned over all the other beds but I escaped and this other neighbour of mine, Thulani Mkhize who was killed, his private parts were removed. I saw him taking red meat somewhere and he put this meat at the door and I don't know what happened, it was a very strange act and then I saw him with human body parts and he was a well-known IFP person. My neighbour person was a well-known IFP person and then he was chasing me because I had seen that act, that's how I got to Lamontville.

ADV SANDI: Thank you for your very long answer, Mr Ntuli. Thank you Chair.

CHAIRPERSON: Yes thank you, you're excused.

WITNESS EXCUSED

CHAIRPERSON: Any other witnesses Ms Moodley?

MS MOODLEY: No.

CHAIRPERSON: Is that the evidence? Ms Thabethe are you going to call any evidence? Nothing. Mr Nel, have you got any submissions?

MR NEL: I do, thank you Mr Chair.

MR NEL IN ARGUMENT: Mr Chairman, my client applies for amnesty in respect of the murder of 14 people, plus the attempted murder of 4 people as set out on page 21 of bundle 1 and also any offence relating to the above incident.

JUDGE POTGIETER: Is there any application in respect of Mr Ntuli?

MR NEL: Victor himself? No, Mr Chair, but I did say any offence relating to the above incident.

JUDGE POTGIETER: That's why I'm asking you whether - but you say no, the application does not relate to Mr Ntuli at all.

MR NEL: Mr Chair insofar as any offence may have been committed with regard to Victor Ntuli, I trust that the rider to the application would cover that.

JUDGE POTGIETER: Ja but you don't want to make any particular submissions on that score? You're not making a specific submission, you are just throwing it in as a sort of a catch all, so I wanted to know if you have any specific submission in respect of Mr Ntuli.

MR NEL: Mr Chair, there was clearly a conspiracy to murder Victor Ntuli and my client has testified about that and I would beg then that this conspiracy to murder him would be included in his amnesty application.

JUDGE POTGIETER: Is that the only offence in respect of Mr Ntuli, the conspiracy?

MR NEL: I would say yes, yes Sir.

JUDGE POTGIETER: Thank you.

MR NEL: Mr Chair I wish to submit that one cannot properly evaluate the application if very careful consideration is not given to the following two aspects. Firstly the nature of Operation Marion, of which this incident forms a part and then secondly the nature of a military command structure of which my client was a subject. Now as far as Operation Marion is concerned, insofar as most of that is not common cause at this stage, the Committee heard the evidence of the applicant as to what he considered Operation Marion to be. I wish to refer the Committee specifically to a very useful summary by Director-General McNally of what Operation Marion was in this regard.

CHAIRPERSON: Can we rely on anything he says?

MR NEL: It's a summary.

CHAIRPERSON: You want us to rely on his summary. I'm asking you, is there anything we can accept, or rely on anything that gentleman had to say?

MR NEL: Mr Chair, much of the background of Operation Marion was rehashed in the relevant criminal trial, the kwaMakutha trial and I would trust that at this stage it was fairly common cause that Operation Marion was a government sponsored at least destabilisation programme of supposed opposition. Director-General McNally does make a summary of this operation and insofar as some of it may be acceptable to you, I would ask you to refer to it. I'm sure at this stage you've heard much more about Operation Marion than I or Director-General McNally may have heard.

CHAIRPERSON: Yes, that's what he says.

MR NEL: Mr Chair, I would submit that it's clear from - it was at least clear that Operation Marion was a politically motivated operation, with clear political objectives and that was to destabilise the nominal opposition by whatever means possible, which obviously included murder. This operation was not thought out by my client. The orders he received were from his direct superiors and were obviously in furtherance of this project.

Mr Chair, nobody has contested that my client's application falls full square within the framework of Operation Marion and as such I would submit that it was an act in the furtherance of a political objective. What is furthermore important is the very nature of what Operation Marion was, put into practice ...(intervention)

CHAIRPERSON: What would be the position of your client if he acceded to the whims and fancies of his Commanders under the guise of Operation Marion and he produced all these arms and trained people to do certain things, which was used in order to commit a bank robbery in the ordinary course of committing crime, would your client then be entitled to amnesty?

MR NEL: Mr Chair, I would say that if, in the context of Operation Marion, if it was conveyed to him that this was part of this destabilisation programme, if the intelligence conveyed to him was that the orders are to do the following because he would not even have to consider what the effect would be, that was not his job, if somebody would come to him and say: "Part of this programme is the following, we are going to break into a bank", then his job would be, I would suppose, to train the people to go into the bank, to train a sniper to sit somewhere, that type of involvement.

CHAIRPERSON: How can he hide behind the protection of having followed instructions merely to commit an ordinary crime, not a political crime? If he were to be told: "Look, you do this, that and the other" and it's not a political crime, can he then get amnesty because he thought that it was a political manoeuvre of which he was not informed?

MR NEL: Mr Chairman, I think that's the point I'm trying to make, subjectively, the matter must be looked at subjectively insofar as he would be under the impression that this was part of this operation, that is why he went to Caprivi. This is why he trained 200 people. That was conveyed to him along that basis. I would submit that he would be entitled to, because he would subjectively believe that he was involved in a matter with a political objective.

Mr Chair, to carry on the subject that I started off with, I wish to submit that everybody who was involved in this operation, foresaw right from the start that the practical achievements of the objectives of this Operation Marion, could only amount to State sponsored, Government sanctioned, what I would like to call aberatio ictus. That is what happened here. They got these people together, they trained them, they sent them out in the community, everybody knew right from the start that people are going to get killed and that innocent people were going to get killed ...(intervention)

CHAIRPERSON: Isn't that your problem? Isn't that your difficulty? We have five victims here who died, all aged 10 and under. How does that fall within that political framework, whatever it may have been at the time? How does that advance the political agenda of the Nationalist Government Party? How did that advance the political agenda of let's say the IFP? Is the death of five children, how can it be described as politically motivated?

MR NEL: Mr Chair, once again I must refer back to this Operation Marion. The whole objective of this operation was to destabilise in whatever form, the opposition. It was, as my client has described it, urban counter-terrorism. We know what terrorism is. Terrorism is to put fear into your opposition. It's like throwing a bomb into a bar. There doesn't have to be anybody inside, but next time nobody goes into that bar.

CHAIRPERSON: Did your client refer to this episode as counter-terrorism?

MR NEL: Sorry, Mr Chair, he referred to it as urban ...(intervention)

CHAIRPERSON: I would have thought that the appropriate description would have been terrorism itself.

MR NEL: I would agree with that, but this was sponsored terrorism, it was directed at destabilising the opposition in whatever form.

JUDGE POTGIETER: So it wasn't aberatio ictus, it was terrorism aimed at specific vulnerable groups, at children and women, so as to create maximum propaganda, is that the submission?

MR NEL: Or maximum fear, Mr Committee Member, maximum fear, destabilisation of the opposition. "Don't belong to that party. If you belong to that party, you get hurt", that type of thing.

ADV SANDI: Do you achieve that objective by killing four-year old children, six years old, seven years old, seven years old, eight years old, women also? How do you achieve that political objective of destabilising your political opponent?

MR NEL: It's the same with throwing a bomb. You don't know who's going to get killed, but you frighten people, you terrorise people.

ADV SANDI: You see one of the major problems here is that there's no evidence from the applicant that at the time they were about to carry out the attack, there was evidence to the effect that any one of the people who subsequently got killed or injured, belonged to the other side in the political conflict. They were not conceived to be political opponents or enemies. There was no evidence of that sort.

MR NEL: I think, Mr Committee Member ...(intervention)

ADV SANDI: The aim, as I understood his evidence, was to kill a 20 year old youth, Victor Ntuli. In the end they kill a whole lot of people and these people are children and women.

MR NEL: Then we must look very carefully at my client's role. It's very easy to over-estimate or under-estimate his role. We must go back right to the start. We must go back to the training in the Caprivi and this is borne out by the record. The training done in the Caprivi, when it came to house clearing in this specific instance, was to clear the house of everybody inside. We all know what that means. That was standard operating procedure, it was not something - that was where he was involved and that's it. He was not involved in the identification of the victim, or who were inside the house. He was, as I said yesterday, he was presented with a baked cake. It was put in front of him already. He had not gathered the intelligence, he had not identified the victim at all, he did not determine that there would be 10 men, he did not determine that there would be 10 guns, it was given to him on the scene. All he had to do was to drill them. He was a drill sergeant.

JUDGE POTGIETER: But Mr Nel, you know, you're confusing me because you see, unless I misunderstood your client completely, as my colleague indicates to you and that is my recollection of his version as well, was that they were primarily going to kill Mr Ntuli, that was the objective and this question of a house clearing and that is part of my confusion in view of your submission, part of the house clearing, or the question of house clearing only came into the picture if Mr Ntuli was indeed a victim and he was indeed present in the house. If he was there then they would execute the order to eliminate him and they would wipe out everybody else who could constitute a possible threat to the perpetrators in the sense of exposing them, having them arrested, having them successfully prosecuted and so on. So that is how I understood your client's evidence. The house clearing was conditional on Mr Ntuli being the primary victim and being present there and him being attacked in the process. Unless I misunderstood it completely.

MR NEL: Thank you Sir. Just to come back. The important aspect here is the dependence of, not so much the dependence but the intelligence side of this to which my client was not a party. The intelligence was to the effect that Victor Ntuli would be in this house and the house must be cleared, those were his orders. "Victor Ntuli is inside the house, go clear the house." He then goes, all he does, that's all what his job in this whole affair amounts to, is to drill the people., the same people that he drilled up in the Caprivi, he now has a rehearsal with them. He's a drill sergeant, he makes sure that they know how to handle their guns. He is not concerned with Victor Ntuli's presence or not. That's not for him to decide. He is told he is going to do it.

JUDGE POTGIETER: No, no, I follow that. That's a step further in the process. I'm still a little bit back. Did I understand your client's testimony correctly that the house-cleaning element only came into this operation if Mr Ntuli was indeed part of the victims? That is how this thing was conceptualised. Ntuli is going to be killed. They will wipe out whichever unfortunate people find themselves in his presence. Is that understanding correct? That's where on starts building up - evaluating your client's application, so unless I'm mistaken about that, then of course you know I've got a difficulty in building it further.

MR NEL: Thank you Sir. I understand it slightly differently. I understand it that once he has received this intelligence that Victor Ntuli is in the house, then he just carries on and tells the people.

JUDGE POTGIETER: No, no, no, I might very well agree with you on that score. I'm still a bit back. I mean the whole operation, I'm talking about the operation, how it was conceptualised, how did they work it out? It was worked out on the basis that they're going to kill Mr Ntuli and they're going to wipe out whoever is found to be in his presence, in his company. Is that a proper understanding of what your client was telling us?

MR NEL: I think that is correct, but on the assumption, or presumption, whatever, that Victor, he subjectively accepted Ntuli is there, the Intelligence guys told him Ntuli is there, he tells his soldiers,: "Okay, this is what you do, this is how you clear the house", he does not concern himself further whether he is present there or not.

CHAIRPERSON: You see Mr Nel, I think you have become a victim, like I have become a victim on many occasions. In all these for former Security Police, they ...(indistinct). You submitted here that actually this whole event was an act of terrorism to create fear in the minds of the victims, correct? That was never the evidence of your client. The client came here and said: "Look, the rationale behind this attack was to kill Victor Ntuli and in doing so we house cleaned of all witnesses. We leave no prisoners, we don't want any people to say who did this." Isn't that what he said?

MR NEL: That's correct, Mr Chair.

CHAIRPERSON: In my mind then, if that is the rationale, there can be no other rationale like an act of terrorism, like planting a bomb, this was a specific act that was committed on a specific rationale, to kill the target Mr Victor Ntuli and in doing so, you house clean, that's how I understood his evidence. Now this other story of what happened there was an act of terrorism, that's what confused me, because he can't have two reasons for wanting to attack that house. Now going further, that's why I asked you the question, is your client entitled to hide behind this veil of having acted under orders? Surely not. He himself testified that he was told that Victor Ntuli was the paymaster, or something to do with the UDF Treasury and that's why he was a target. He was then asked to prepare the attackers. He was asked on a number of occasions by the Panel I think and by Ms Moodley, if that be the case, why was it necessary to prepare 10 people and equip them with 10 AK 47 rifles? He then told us that look, it crossed his mind and then he proceeded and said: "Yes, he did think of other people being in the house". He had difficulty explaining how that could be attached to the political motivation if he didn't know whether there are going to be people in that house and who they were. That's the trend - in Afrikaans we say: "Dis die trand van sy getuienis", now it's on that basis that we are here to determine whether he's entitled to amnesty for that act, or not. By the way, before you carry on I wish to remind you also that he conceded that based on the evidence that he's given us, he's stuck with what those attackers did and if they committed some act negligently, he's stuck with it because he's relying on what they did and those are the difficulties we have.

MR NEL: Mr Chair, I will attempt to answer. I referred earlier to an act of terrorism, it was always by way of example. The rationale behind the form of attack, or the way the attack is planned, was not worked out by my client. He never determined that 10 people would go to this house. He never determined that there would be 10 rifles. That was not his part of the operation. That was predetermined.

ADV SANDI: He never objected to that predetermination of 10 attackers to be involved in the operation and the same number of AK47s. He seems to have gone along with that predetermina-tion.

MR NEL: It was not his place to object Sir, with all respect.

ADV SANDI: ...subsequently did the rehearsal which was part of the planning, a very important part of the planning, shortly before they went out to effect the attack.

MR NEL: I think we are stretching the term "planning" here. The planning had been done at the time my client arrived at Ulundi, the planning had been done. The ten people had been arranged and he didn't ask for them. The ten guns had been arranged. That was Intelligence that determined that 10 people would partake in this attack. It was not his decision, he's the drill sergeant. It had already been predetermined. It was not for him to say: "We only need five", "we only need one", or "we only need two". It was a given, he had to accept it. His Captain says: "Here are the ten people you have to drill to attack the house", so he drills them. That's what happened. It's not for him to object.

ADV SANDI: Wouldn't it be a very artificial situation where you say someone who gets involved in the rehearsal immediately before the attack is carried out, was not involved in the planning of the attack? It sounds very artificial to me. Anyway, you can carry on with the trend of your argument.

MR NEL: Thank you Sir.

CHAIRPERSON: Are you going to be much longer Mr Nel? Well shall we take a break then to allow the interpreters a rest? We adjourn for fifteen minutes.

COMMITTEE ADJOURNS

ON RESUMPTION

MR NEL IN ARGUMENT: (cont)

Mr Chairman, coming back to Operation Marion, the context within which my client acted, I would say the intention behind this operation was clearly insofar as specific incidents were carried out, like in this instance. It was at all times foreseen that people associated with such identified opponents would be killed in the process. The training, this was described my client, was not designed by him, but it was aimed they had to eliminate everybody, to leave no witness, so that no fingers could be pointed back at the bosses. The orders received by him, taken by him not given by my client, were to eliminate everybody. Once again, no witnesses to be left, no fingers pointed to the bosses and I wish to submit when proportionality is therefore considered that it only becomes a factor once it is established that my client has not done exactly as he was ordered to do and trained to do. In this regard, I wish to refer to Judge Hugo's Judgment in this matter, where he pertinently found that my client's version is the most likely version of all the evidence that he heard over the period of so many days, if not months in that matter and I will refer back to this when I deal with the bundles, where he found specifically that my client's version, that was in fact the order in terms of the training, it was the most likely version.

I referred earlier to the military command structure. I think it's important to consider the position of my client at the time. He was a sergeant. Attempts have been made to romanticise or to fantasise an enhanced role for him, but there's nothing to support such a fantasy, with respect. Now if one is ignorant of a command structure between or that was in existence between my client and Capt Opperman, or choose to ignore my client's effective role in the incident, it is easy to look for probabilities which are in fact improbable in a military command structure, the client's evidence is that he simply trained the participants in the attack, firstly in the Caprivi and in accordance with standard operating procedures and secondly insofar as it is relevant to this application, before the attack by rehearsing their drill with them, nothing more. That is how he was involved basically, if we cut the ...(indistinct)

He did not determine that there should be 10 participants, that was not part of his job, that was Intelligence. He did not determine that there should be 10 rifles, once again not part of his job. He did not have to know what the opposition was or necessarily who the victim was to be, it did not concern him, it was not part of his job description. His job was to ensure that the participants were sharpened up to do a job which had been predetermined and not by him. The latter were his orders and basically all that he was concerned with, he did not need to know more, because the very nature of his job was simply to drill the participants, as I've already said. Once again, on this aspect, it is very interesting to note that Judge Hugo pertinently found that my client's version is to be preferred. I will refer to this later again.

With your permission, I would like to refer to the bundles because I find a lot of corroboration for my client's version in the bundles. I would try to keep it short. But just before I commence therewith, there's one aspect that should also be considered and that is my client did not actually even have to have been on the scene to have been involved in this matter. He did not even have to be the drill sergeant of the day because he had already given these training, the type of training, in the Caprivi. For that matter, if they were sharp enough and Intelligence felt that they were sharp enough and there was a later case and they were asked the question: "But why did you do the house clearing on this basis?", their answer would have been: "But that is the way we were trained by Sgt Cloete" and he would have been involved. It so happened now that because he was on the scene hours before the incident, he is perceived to be more involved. That's why I say it's very easy to over-emphasis his actual role in this matter.

With your permission Mr Chair, just briefly referring to evidence described, if you refer to the bundles as well, I find some corroboration in the bundles for my client's version. Bundle Number 1, page 1609, his evidence there that he was not part of the actual attack plan, that he was only involved with the training relating to the penetration of the house based on what the Intelligence was at the time. Page 1616, it's clear from the evidence there that everything was arranged beforehand. Page 1619, it's clear that there were no military plans worked out as in normal circumstances. Also on page 1621 and 1622, he was extensively questioned as to why there were no set plans. The simple answer to that Mr Chairman, that this was not a normal military operation, there were no plans as such. In referring to bundle 2, the evidence of Mr Opperman, Opperman gives a description himself of what is understood by house-clearing on page 238. He gives an exact description of house-clearing that my client gave. From page 274 and 276, it's very clear who was in charge of this operation. It was Opperman and nobody else. For instance he decides who shoots, he decides who's the driver. The same on page 275. Page 277, Opperman's evidence, the second-last paragraph:

"My Lord, after I had given my order on how to execute the operation, Cloete took the offensive group through a couple of dry runs to ensure exactly that they understood when the target is hit, how to go about it. When that was done, we packed up and left."

It's basically a summary of his evidence, but he took control, he worked out the plan, he decided what would happen.

Very interesting to note that on page 281 at the top his answer to a question there which relates to the prior information that would have been given to the operatives or the participants:

"My Lord, I wouldn't have given them the exact details of the operation. Any military operation, you do not give the exact detail to people who are not specifically involved in that operation. We do not."

He emphasises that. That corroborates my client's version that he was not earlier aware of who the exact victim would be.

In his evidence on that same page at the bottom, the second last paragraph, he also refers and I will quote, he says:

"My Lord, a sweeper in any operation is a person responsible to ensure that there is no evidence left behind. There's nothing that can point fingers to any organisation who might have done the opera-tion."

Mr Chair, I once again seek corroboration there for my client's version in that house clearing was the instruction, determined by Intelligence and that it was the drill that he went through and nothing more than that.

Page 316 and 318 once again the emphasis on secrecy, emphasised by Opperman. The only person who was prepared to admit all along what house-clearing in effect really meant, was my client and I would request you to give him credit for that. He was really the only person who admitted what house-clearing was and he never tried to hide behind fanciful words and ideas in this regard.

On page, for easy reference, page 467 to 469 you'll find a very brief summary of what exactly happened there in Opperman's own words, which once again corroborates my client's version.

JUDGE POTGIETER: Which bundle is that Mr Nel?

MR NEL: That's also bundle 2, Sir, 467 to 469 and on page 470 at about line 20, it's very clear that this whole operation was Opperman's operation. You'll see there, the question asked him

"Maar dit was u beplanning tog, die wapens, die dubbelmagazyn, vasgetape aanmekaar, tien operateurs, dis alles u beplanning, nie waar nie?"

"Nee, dit erken ek, U Edele, but the specific events I do not know of."

"The weapons choice was also yours?"

"Yes, Your Honour."

"The amount of weapons was also part of your plan?"

"That is correct."

Mr Chair, I'm referring to this simply to find corroboration for my client's version in that he was only the drill sergeant and that was his role and with respect, you can follow the questioning there right up until page 473 about half-way through, which really makes very interesting reading.

Then as far as bundle 4 is concerned, I wish to refer you to page 8 which is a summary of the Judgment of the Judge, where in the summary reference is made to the fact that my client's version was preferred. Page 12, there were two findings made in favour of my client's version, firstly as to what house-clearing meant and what the order was, in that he was ordered by Opperman in terms of the intelligence, to effect the house-clearing and drill the participants in accordance with that order. That was a finding specifically made in his favour and then page 12, a further specific finding made by the Judge that it was more probable that my client never knew beforehand who the victim would be and with respect, the Judge did have the opportunity to listen to the witnesses at length, Mr Cloete, Mr Opperman, Mr Khumalo, I think they jointly spent about 20 days under cross-examination. So even if it sounds improbable my client didn't know beforehand, I would submit that he made a full disclosure and that he told the Committee the truth when he said that he didn't need to know who the victim was beforehand because that was not part of his, he did not need to know that, simple as that, in terms of the military structure at the time.

Also corroboration for that in bundle 1 you'll find that cross-examiner there puts Khumalo's statement - if you'll bear with me a second. I'm not sure which bundle I'm referring to, but I'll disregard that, but with reference to Khumalo's application itself, that is bundle number 3, the note on page 17 and reference is made by Khumalo in his application to the meetings that he had with Opperman, no mention is made of Cloete. I cannot find the exact reference to which I earlier referred, but Khumalo's statement was also put to Cloete at one stage, the whole statement was put by the cross-examiner and even in that statement, no reference was made to the presence of my client at these meetings when the identifying of the victims was discussed.

JUDGE POTGIETER: Mr Opperman JP?

MR NEL: That's correct, Sir. Then in this application of Khumalo himself, if you would refer to page 20, where Khumalo describes what happened at Ulundi, where the drill took place, in the middle of the sentence

"MR STEWARD: Alright, if you - carry on Mr Khumalo.

MR KHUMALO: When we arrived at Ulundi, it was just a crossed C (I don't know exactly what that means) and there where we found JP, that's Opperman, Kevin (that was my client, his alias), Machobane (being as I understand Mr Ntuli), were standing there and then we jumped off and JP came to us, that is to myself and Punwane ...(indistinct) and actually he told us that we must brief the offensive group about what we discovered there."

Even in his evidence it's clear that the intelligence relating to this whole operation was only conveyed there on the scene at Ulundi.

And then very interestingly on page 24, which also corroborates my client, in the middle, the cross-exam, or the person acting for Mr Khumalo, Mr Steward, says the following:

"Mr Khumalo, sorry to interrupt you. Just before you get to that, at the time when you were now leaving, what was your understanding of what the objective was of going to Victor Ntuli's house?"

MR KHUMALO: What I knew was that we were just going to destroy everything and attack everything that is there."

Mr Chairman, I wish to submit that my client made a full disclosure of the role that he played in this incident, that he was a drill sergeant and nothing more, that the orders taken by him were to drill the people in accordance of the predetermined method of attack, the predetermined method as determined by the Intelligence group, which in this case would have to be a house-clearing, but he did not have to consider the matter any further. He may even not have been on the scene if the people knew exactly what they had to do. He was there just to sharpen them up and nothing more. That the motive was clearly to serve the government, that the context in which he did was clearly the political activities of the government or the SADF at the time. We all know what the nature of the act is at this stage. It was the murder or attempted murder and various other offences committed in the process aimed at political opponents, or in the very nature of the framework within which they worked, this Operation Marion, a destabilisation of a political institution like the ANC.

I wish to submit it is clear that he committed the offences in the execution of an order, clear it was not for personal gain or out of malice, he basically got his salary at the end of the month and nothing more. I wish to submit that his application complies with the Act. I also wish to emphasise that in the application, we did refer to the kwaMakutha trial, which was common cause at that stage. The records were available. It was not available to client, but he did refer to that, so I would submit that there cannot be any criticism insofar as the form itself does not contain enough detail. There were further particulars given on more than one occasion.

I wish to submit that subjectively he believed that he carried out a valid order based on the intelligence given to him and that as far as his role in this whole matter is concerned, that he should be granted amnesty. Thank you Mr Chair.

MS MOODLEY IN ARGUMENT: I think the task for me today is going to be confined by Section 20. My instructions have been to oppose this application for the granting of amnesty. I will deal shortly with Mr Nel's submissions, but I want to deal

briefly firstly with the requirements that an applicant seeking amnesty would have to pass muster and I think in that regard, Mr Cloete's going to have a fair amount of difficulty in satisfying a couple of these requirements.

In particular I think Section 20 (b), whether the act, omission or offence to which the applicant relates, is an act associated with a political objective committed in the course of the conflicts of the past and in accordance with the provisions of (2) and (3).

The political objective we cannot find for Mr Cloete, in terms of my instruction. Certainly if Victor Ntuli had either been, had he been killed or had he been victim number 14 on the indictment, then...(indistinct) to consider an application for amnesty. But what do we have here? We have 13 murders, this is a mass murder and a mass murderer asking for amnesty in relation to senior men, old men, women and children. It is very easy to talk about declaratory theories about what my job is and what my job entails, but let's go to the paperwork in regard to Operation Marion. I do not want to bore the Commission unnecessarily or burden you unnecessarily with reams and reams of documents that you have already seen, but I'm going to refer briefly to a submission made already to the TRC or about August 1997, in regard thereto on page 3 of that submission, there is comment made on Operation Marion documents and this particular paragraph on page 3 reads:

"Offensive actions must only be carried out by trained cells under strict control. Authority must be granted by DST 2 beforehand. Targets must be approved by Reba, which would be M Z Khumalo, SAPS and SADF. Criminal prosecution of participants must always be taken into account."

At the foot of this page there is a note, number 2, which says:

"Top Secret memorandum of October 1988 from Chief of the SADF to the Minister of Defence titled Operation Marion liaison."

So to suggest that this applicant did not know that what they were busy with was pure murder and not implementing the objectives that Operation Marion is too rich to expect a Commission to accept as something that would be sufficient to satisfy a political objective and I think Mr Cloete's application falls short in that regard.

When issues of house-clearing were raised with both Mr Cloete and Opperman independently at the trial, there were various versions given at different stages of the record. The record cannot be read selectively, one has to have the benefit of the entire record before one begins to make opinions about who is the better of the two liars. I have a problem with taking out selected pieces of the record in support of the contention that what Mr Cloete said at the trial was that he was only asked to train Caprivi trainees out in South West and all he did was to bring them back and then train them again before they went out on their operations.

His evidence at the trial never read coherently as one piece and I think it would be - we would actually be committing a bit of mischief if we allowed selective portions of that record to actually be presented to the Commission without the benefit of the full record. But be that as it may, I move on and I go on to the next point of (c) Section 20, whether the applicant has made a full disclosure of all relevant facts.

It is my client's instructions that they do not believe that Mr Cloete has been totally honest about what his role in this whole operation has been. Mr Cloete has said so and it is there in the record again, that his job was to eliminate whatever he found at a particular home that was earmarked for attack. Today he says that he's very sorry for what has happened, but there seems to be a lot of forgetting with being very sorry. You've still not told us exactly what has happened in relation to this incident.

Mr Nel spoke about Director-General McNally providing a summary of operations at this trial. I must tell you that my clients view the trial as a means afforded to the senior political leadership of this country where deception continues in courts of law and the overstretched prosecutorial services are not able really to get their act together to bring about thorough and effective prosecutions. A lot of people that have actually submitted themselves to this trial, relied on what can be referred to as plausible deniability, or the blind eye syndrome. They choose not to rely on - to rather rely on the unlikelihood of an adequate or decent and reasonable prosecutorial service never happening. A lot of them place distance between the acts on the ground and the decisions taken at the highest level and of course, some people will argue that the applicant in this matter is possibly a foot soldier because often we've heard him being described as a drill sergeant. We beg to differ. This was no ordinary drill sergeant. This was a person who was intimately involved with the training of recruits in the Caprivi, who should have known better. He was not just a rotten apple that surfaced. He knew what his job entailed, he had an agenda and he implemented that agenda. It's easy to say all he did was his job, but at Nuremberg lots of people said all they did were their jobs, but you don't do these jobs by being detached from your circumstance, you live in a society, you know women and children in any situation, even in war, women and children are sacrosanct, I mean they are casualties, but you don't actually orchestrate, engineer, plot with a view regardless of who is going to be in a four-roomed house in a township in South Africa, because you know full well the likelihood of there being women and children is very real.

There is an impression that has been created here today that this Operation Marion was an operation of such great secrecy that every person involved in there, only knew as much as he was told, but I think that is being economical with the truth, and it's not about being romantic or romanticising the role of the applicant, it's just being as honest and blatant as we can be about the fact that before he left the Caprivi, he was, despite being the drill sergeant, well connected with Col Blaauw. Col Blaauw ultimately left the service under the dark cloud. When the applications were being considered for the employment of people in KwaZulu Natal, only two people made it and only two people knew about this, it was Opperman and Cloete. If I turn to the bundle now, bundle 2 on page 242, third paragraph, Opperman says:

"At the stage of the passing out parade the question is, was it still secret between you and Cloete that you were going to go back with the trainees to Natal?"

"No, My Lord, at that stage it was known that only Cloete and I were going to work with Operation Marion in Natal."

This was an operation that a lot of people wanted to get into. The barometer of where our country has been, the fact that both of your made it, speaks volumes about the profile we're dealing with and the character we're dealing with and there must be acknowledgement for that. One can't wish that away. So I take ...

Mr Nel talked about a political objective that his client had. Considering all the facts in this matter, there would have been political objective, but there was also room and space for malice ...(indistinct) and also gain. Gain I won't deal with now because in fact that is the area for Col Blaauw and the stories that go around him, not for today, but for today we can talk about the applicant and about what was going through his mind when he was preparing 10 people. We've heard it being said that he was just given 10 people. I beg to differ. Ten people were sent in with a view to eliminating anything that moved and that was not military procedure. Military procedure, when questions were put to the applicant by Mr Maritz, the answers in relation to what kind of attack would one launch if there were children in the house, if it was a hospital that you were going into. The responses were that if people couldn't return fire, then you wouldn't kill them, but if people were in a position to return fire, that's when you would want to have to clear the house out and my submission is that there was no scenario here requiring the house to be cleared out.

To address the issue of subjectivity and to take the applicant as you find him, I think one has to be mindful of the fact that if you would start talking subjectively, then you're talking about biases that one needs to then bring before the Commission and that bias would lead one to say that you didn't value black lives, for you it was immaterial whether there were going to be 20 children, or 5 children, or whatever. If you have to be judged subjectively, it could work very harshly and not in your favour, but that is what the position is. We take you as we find you, warts and all.

The objective of the National Party at the time, in terms of a political framework, was certainly about containing an onslaught, but nowhere would it have authorised or enabled you to actually continue on a crazy mass murdering basis to eliminate people. I think the applicant falls short of that kind of cover that he would seek to hide behind.

The issue of urban counter-terrorism, I don't think I'm even going to address it because I don't think it's appropriate or in point. I think we're dealing with an attack with a particular motive and a target and not any kind of urban counter-terrorism. We must remember there was a high moral ground, in my client's opinion, was held by those that were denied the vote, not by those that had the coffers, the access to means, resources, to retain the status quo, so one must be guarded about talking about objectives of the National Party. The moral high ground was the high ground in part, the liberation struggles and you don't have to be in a political party to be a liberator. If you were black in this country, it did make you one - put you on the moral high ground, not automatically, but for the fact that if you had the force of the government who was able to play with the lives of people, as they did, the applicant can't sit here and think that all these circumstances that informed society, informed the country, just goes out of the window. It can't.

Going back to Section 20 paragraph (3) and (f), it reads:

"Any person referred to in paragraph (b) (c) and (d) who, on reasonable grounds, believed that he or she was acting in the course and scope of his or her duties and within the scope of his or her express or implied authority, should be granted amnesty."

In terms of my instruction, we believe that the applicant acted beyond his course and scope of the call of duty and had no implied authority to do what he did.

We are now down to the bottom of the barrel, as I've said before, where we're looking at ill-will or spite directed at victims of the act. The applicant might not have known the particular identities of the deceased in this massacre, but he was certainly mindful that there was going to be loss of life and he was reckless and non-caring about that real eventuality.

Turning to the record and in particular to the Judgment of Judge Hugo, as I have said before, we have a difficulty coming to the same decision in regard to the reliability of one witness, particularly the applicant, over Opperman. Would you bear with me for a minute please?

I turn to bundle 4 and page 11 where Judge Hugo describes Andre Cloete as:

"Andre Cloete is not an impressive man, he is of medium build and overall comes across as a nondescript person. He was well, if somewhat shabbily dressed. If one thing characterised his demeanour, it was weakness."

I don't know how this absolves anybody from accountability and blame because his character, his demeanour is characterised by being weak. My clients' instructions are that can certainly not be the last word on the character of the applicant before this Commission. Our difficulty, as we have alluded to before, is that you have here two unreliable witnesses and I say unreliable and I hear too and I take the point that my colleague makes, that Opperman, as Judge Hugo measured him, would have been a better liar than Cloete because he says Cloete's evidence is to be relied upon more than Opperman.

I turn now to page 4 ...(intervention)

CHAIRPERSON: Ms Moodley, we're in no way going to rely on Judge Hugo's findings as to credibility or character findings, we are going to make our own.

MS MOODLEY: I'm grateful for that, but I just want to finish off very quickly then in regard to page 4535, the last page of the Judge's Judgement, which is very indicative. It says

"It is the opinion of the Court that the three accomplice witnesses concerned did not answer all the questions put to them frankly and honestly and they are therefore not discharged from prosecution."

I'm going to suggest to this Commission that is one of the reasons that the applicant is before this Commission. There is this sword hanging over him, a possible sword coming down, prosecution.

I think I've said as much as I need to say, unless the Commission wants me to address them on anything else.

CHAIRPERSON: Ms Thabethe have you got any submissions?

MS THABETHE: Mr Chair, I would exercise my statutorial right to remain neutral and I leave that decision in the capable hands of the Committee. Thank you.

NO ARGUMENT BY MS THABETHE

JUDGE POTGIETER: Sorry Ms Thabethe, I'm going to infringe your rights. Mr Nel submits that insofar as the issue of proportionality is concerned, provided the applicant can show that he acted within his orders regardless of the extent of the consequences, he's covered insofar as the issue of proportionality is concerned. What are your views on that? Is that a proper submission, or will you remain neutral on that too?

MS THABETHE: My opinion, Mr Chair, based on the Act and also on the evidence, I would submit that the person following orders cannot be held liable for consequences of the actions with regard to those orders, unlike the person who issues those orders, he would be liable for the consequences of the orders and thereby would be liable for the proportionality thereof. That would be my submission.

JUDGE POTGIETER: Even if the perpetrator subjectively foresees that what he's called upon to execute, is out of all proportion, to kill a whole crèche full of children to make a public statement?

MS THABETHE: Well Mr Chair, I'm not very familiar with the structure of the Military Intelligence, how one in his rank has powers to exercise his opinion as opposed to following orders.

CHAIRPERSON: Don't become a slave to the idea that everybody must follow orders. The law, the common law is that if you're ordered to commit a crime, then you're entitled to refuse. Argue it in that sense.

MS THABETHE: In that case, Mr Chair, as I've indicated before, I'm not very familiar with the Intelligence structure, but taking into regard the common law as you have indicated it to me, if a person can foresee that an offence is about to happen and does have powers to refuse, not to follow that order, then I would say he has an obligation to refuse. If he does or if he can, he does have powers to refuse, the he would be obliged to refuse, especially if he has foreseen that.

CHAIRPERSON: If he didn't then answer the question that my colleague has put to you. If he didn't refuse, how does that impact on the issue of proportionality?

MS THABETHE: I think he would be liable, as the superior who gave that order would be liable as well.

JUDGE POTGIETER: Yes, because are we not called upon to assess the individual application? We have to assess what is placed before us and that is why there is no provision for collective applications and that sort of thing.

MS THABETHE: Yes, I would say so Mr Chairman, except that in the evidence it is not clear with regard to the foreseeable issue.

JUDGE POTGIETER: Well the submission, as I understand, the submission is well look, all these women and children got killed in this incident, yes, it is a terrible thing, yes the applicant says that if he was in charge here he would never have gone through with this operation, applicant says it's an absolute failure from that perspective. The submission is that well, in spite of all of that, you can't hold any of this against the applicant, the fact that there are how many children killed and how many women killed and injured and so on, you can't hold it against him, you can hold it against whoever conceived of this attack and I think that's the thing that - that is how I understand the submission. I'll hear what Mr Nel says further about that.

MS THABETHE: I think as well, the Committee will have to really consider the issue of whether you can separate the whole purpose of Operation Marion as a whole, because when we look at the purpose of Operation Marion as a whole and the concept of house-cleaning, it does put a question mark on the proportionality. Now, I don't know whether the Committee is going to separate between what the Intelligence had to decide and the role players in the whole operation and their liability to that effect, because I think that's the gist of the applicant's application, that he is saying: "Separate the two role players", that is the Intelligence on the one hand and the role players on the other hand and I don't know what stance the Committee Members are going to follow. Are they going to separate the two? Are they going to look at the Operation Marion as a whole and the whole purpose of Operation Marion as having been disproportional in the sense that it supported or it's intention was to house-clean, irrespective of who the target was.

CHAIRPERSON: Ms Thabethe, let us forget all the legal niceties. Here the applicant was party to an operation to kill Mr Ntuli and to house-clean. Mr Ntuli was not there. The result of their activities, a lot of women and children were killed, left in the trail of devastation after what they did. How proportionate is the results of their activities to the aims of Operation Marion? Is it proportionate?

MS THABETHE: Mr Chair, it's very difficult for me to answer that question and I'll tell you why it's difficult, because I don't know whether Mr Chair is suggesting that Victor Ntuli was in the house, then it would make it proportional, the fact that children and innocent people were killed, or Mr Chair is suggesting that the people who went there to kill, should have ensured whether Victor Ntuli is in the house or not before house-cleaning.

JUDGE POTGIETER: No Ms Thabethe, the facts that - the Chair is putting the facts to you. We must decide it on the facts of this case. We don't need to speculate about this. The fact of the case is that the primary victim was Mr Ntuli. Mr Ntuli wasn't there. They ended up killing all these people. By all accounts, there can't be any doubt in anybody's mind, innocent people, not even people, it's innocent children and women. Now the question is and to my mind there are two questions. The first leg is the one that the Chairperson has touched upon now, is it proportional, one, two that's the submission - where the submission of Mr Nel comes into it, can the applicant be heard to say: "Well, even if it's not proportional, I had been acting within the orders that I had and therefore you can't touch me", that's how I understand it, you know.

ADV SANDI: Ms Thabethe, sorry, just before you answer that. In addition to the flurry of questions my colleague has just asked you, can this type of action be classified as an action against a political opponent, a political enemy? Isn't it envisaged in the Act, when you look at Section 20(3)(d) that the action must have been taken against a member or a supporter of an opponent political organisation in the cause of the conflict that was taking place during the period in question? We had evidence here from the applicant that he did not even know who was going to be there, let alone the political affiliation of those people.

MS THABETHE: I would submit that if Victor Ntuli was the target, killing innocent children in his absence, is not proportional.

ADV SANDI: There was also no evidence that attempts had been made at some other time or places, to attack or kill Mr Ntuli and that this was the only place where they could find him and kill him. There was no evidence to that effect.

MS THABETHE: Yes.

ADV SANDI: ...I does not seem to me that it was ever given a thought to attack him at some other place where they would not kill innocent people who had nothing to do with the political activities of Mr Ntuli.

MS THABETHE: At the same time there is a question about the subjective view, that is the belief of the people who went to attack them.

CHAIRPERSON: Surely proportionality can't be subjective. How do you measure proportionality on a subjective basis?

MS THABETHE: I have indicated that it was not proportional, but I'm saying on the other hand there's an issue about the belief of the people who went there, which is a subjective view.

CHAIRPERSON: What ...(indistinct) belief?

MS THABETHE: A belief that Victor Ntuli was in the house, that's the belief I understand that they had, that Victor Ntuli was in the house.

ADV SANDI: Yes, but if an applicant says: "I had a subjective belief that X, Y, Z was the situation, isn't he supposed to lay a foundation for that belief? He can't simply make a statement and say: "This is what I believed". He's got to try and justify why he had this type of belief in his mind.

JUDGE POTGIETER: And in any case Ms Thabethe, the Chair has pointed out to you that what is the relevance of subjectivity in the test of proportionality. Isn't that a test where one weighs up the facts of the matter? We as Panel, in terms of what the Act says, we weigh up the facts of the case. That's it.

MS THABETHE: I was referring to the question about whether Victor Ntuli was there or not. I'm saying, according to the applicant's evidence, he says he was informed that Victor Ntuli would be there and he was given orders to prepare these people on the basis that he would be there and I'm saying the belief is that he prepared them knowing that the target would be there and the fact that he wasn't there, the people who went there believed that he would be there, I'm not talking about the proportionality as such, but I'm saying on the other hand the Committee has to consider that point.

CHAIRPERSON: Ms Moodley, can you tell me, Pomelele Ndlovo, who is a deceased, count 6, is that person a male or female?

MS MOODLEY: It's the daughter of Mrs Ntuli.

CHAIRPERSON: Ms Thabethe, following on the point you're making, there this gang goes there, armed, they're looking for a 20 year old male. There's no one who was a victim as listed in the charge sheet, that comes close to a 20 year old male. Why didn't they just abort then? They're looking for a 20 year old male person to shoot. There's no one like that there, but while they're there, they might as well clean the house up and shoot all these people, some of whom were probably sleeping like the children. There's no question, or no doubt in my mind, that those children would not pose a threat to them subsequent to the attack. How were they going to identify the attackers?

MS THABETHE: That's why, Mr Chair, I said the attack was not proportional because for one, if the target was Victor Ntuli, there could have been other means to attack Victor Ntuli and save the father, the mother, everybody who was in the house. I concede that the act was not proportional, hence I said at the beginning, it goes back to the whole Operation Marion and its purposes of house-cleaning and also of the people who were involved in the surveillance of this incident and the people who gave orders that there should be house-cleaning. It goes back to all those people, not only the applicant, as to why they didn't consider the other options.

JUDGE POTGIETER: You've answered the first leg of that point. Thank you Ms Thabethe, but is it open for the applicant to now say: "No but those were my orders. I'm sorry, it was my orders, I've done exactly what I was ordered to do, so that's the end of the inquiry." Yes, even conceding that this was a terrible, as I've heard, I think I've heard the applicant saying that this is something that he was in charge of. He would never have ordered this thing to happen. So in spite of all that, is it now open for an applicant to come and say: "Look, in spite of all that, you've got to accept that I executed an order, I did exactly what I was told to do and that's it"?

MS THABETHE: I think Mr Chair, I would like not to answer that question and maybe my learned colleague representing the applicant would like to answer that one.

JUDGE POTGIETER: I won't infringe your rights any further Ms Thabethe, but that you very much for your assistance. Obviously these are questions that we have to exercise our minds on and we need whatever assistance we can get. Thank you.

CHAIRPERSON: Mr Nel, on the last issue, do you want to add anything?

MR NEL IN REPLY: I think that the role that my client played must be considered before all else. He relied on certain intelligence, that is all that was available to him. He did not order ten hit men to come and attend to this drill, this had been determined prior to his I would almost want to say getting involved on a specific day. These people that attended the drill were the trainees that he had trained in the Caprivi and that is the reason why he was required to give this refresher course. The intelligence is all that he knew and that was, in this case, a ten man hit squad is required to exercise this job. This was given to him.

ADV SANDI: Sorry, if I can interrupt here. Do you concede that the applicant was not really a small actor or a small fish in the occurrence of the events we are referring to here? He trained those people in Caprivi, he came back into the country with them, he was involved at the time they were about to execute the operation. He wasn't just you know like the normal foot soldier who was told to do this and that is all. That doesn't seem to me to be the type of so-called foot soldier we're dealing with here.

MR NEL: With respect, I cannot agree with that at all. Corporals and sergeants drilled people, that was their job in the army and lieutenants and captains drilled people. In any army set-up corporals and sergeants do the drilling.

Somebody had to drill them and that was his job.

ADV SANDI: He was involved in a major operation, Operation Marion.

MR NEL: As the drill sergeant, nothing else. Nobody seems to want to accept this. He was the drill sergeant. He drilled them up in the Caprivi and it was his job to drill them at all times.

ADV SANDI: He had a close relationship with Mr Opperman, who was high up in the army, they went around together most of the time. I read somewhere in these documents that at some stage at the trial Mr Opperman testified that he was with the applicant almost 90% of the time he went around meeting people in KwaZulu Natal.

MR NEL: They obviously worked together so I assume they would move together. The exact relationship I wouldn't know. I recall my client having said that sometimes they got along, but they were still in a - remember above a sergeant you get a staff-sergeant, above a staff-sergeant you get a one stripe blue, then a two stripe blue, then only a captain, I mean two starlets, so the ranks were far removed, but that's not the point I'm trying to make. The point is, if the intelligence was to the effect that in this instance we need a sniper, then my client's job would have been to rehearse with the sniper. The intelligence was foremost upon what he depended upon. He did not make any further decisions. He decided, okay we've got ten people here, I've been told to drill them, I'll drill them. Not for me to decide what happens on the other side and that is the submission I'm trying to make. That was his role and nothing more.

JUDGE POTGIETER: ; Was this proportionate or disproportionate what happened here in this incident?

MR NEL: In hindsight Sir obviously it was not proportionate, but it could not come to my client's knowledge, I mean he had no control over that aspect. It was, as I say, the intelligence determined 10 people do the house-clearing in this instance. He executes his orders. Okay fine chaps, let's go through the drill. If it was a sniper, a single person, he would have done the same. If it was a two-man squad, he would have done the same. But I want to submit as far as his role is concerned, he cannot be held liable for the proportionality or not of the act, unless he went clearly outside his instructions and I wish to submit that is not the case in this instance.

JUDGE POTGIETER: No matter how unreasonable his instructions were, is it your submission that as an absolute position a person in the position of your client, provided he moves within the ambit of his orders is untouchable as far as proportionality is concerned?

MR NEL: I think you touched on it earlier Sir, the question of subjectivity. I think unfortunately subjectivity must come into it at this stage because only if he had the means to know that the intended action may be out of proportion, then one would expect him to do something about it.

CHAIRPERSON: Mr Nel, whether we like it or not, proportionality is part of the Act and it is a matter to be considered, not so? It's specifically mentioned in the Act. By the nature of that concept of proportionality as I understand the English language, in order to establish whether something is proportional to another, you must measure it against something else. If you were to measure it on a subjective basis, then everybody would be in a position to say: "What I did was proportional". Isn't the truth of the matter that we must measure that part of the act on an objective basis? I'm suggesting there's no other way to measure it.

JUDGE POTGIETER: And if your client, if an applicant in the position of your client is prepared to participate in an incident that turns out like this, then he is judged in terms of the Act. His application is judged individually, it's judged on what he places before us and we have to be satisfied that what happened is proportional or not.

ADV SANDI: In fact if you recall his evidence, I asked him specifically if he had any suspicion that there might be women and children in the house and his answer was in the affirmative and I asked him what did he do about his suspicion, he did nothing.

MR NEL: Once again I come back to what his instructions were. Intelligence side said ten men, house-clearing squad, you go out you give them a dress rehearsal. That was it, that was his role. As far as the proportionality is concerned, I would liken this as to an inquiry as to whether a person has acted in self-defence. I would submit that it would be of a similar, the inquiry would be of a similar nature. It would be an objective determination of what the person subjectively thought at the time and whether he acted - it's an objective determination of the subjective attitude of a person at the time when he defended himself. I would say that the question surrounding proportionality would have to be subjected to a similar approach.

ADV SANDI: Surely that would exclude the idiosyncrasy of hypersensitive individuals? One has got to lay a foundation for a subjective belief, you don't simply make a statement and say: "This was my subjective belief", you've got to justify it with facts.

JUDGE POTGIETER: You can't say that I subjectively believe that it's proportional, therefore it is proportional, therefore I complied with the Act. That can't be.

CHAIRPERSON: It's not for him to make that decision, it's for us to make that decision and we unfortunately can't get into his brain.

MR NEL: Sorry Sir, that is why I say that the command structure must never be forgotten here, the intelligence part of it, the dependence of a person in an army set-up, the dependence on the intelligence cannot be disregarded. If he is confronted with a certain set of facts, like in this instance whereby he's told to drill ten people, it does not go beyond that. Within the army command structure it's not his place, it's a given, the cake has been baked, he must now eat. That's why I say, if the intelligence amounted to a sniper having to be used, then he would have given different training.

JUDGE POTGIETER: Mr Nel, that's exactly the point that the Chair made to Ms Thabethe. The cake was baked, he wasn't forced to eat, but if he decided to eat and there was poison in the cake, that's it. He takes it as he finds it.

CHAIRPERSON: You see Mr Nel, I don't know if we're meeting each other's minds here. He's applying for amnesty in respect of offences committed by others whom he trained and prepared, call it what you want to, that's how he is linked up to these offences. Now if he's relying on that, then he is stuck with what they did. He was party to the command structure to send out this gang, to do what they were told to do. The fact that he wasn't there, or that he only prepared them, if he wants to say that: "I only prepared them", then I'm asking the question: "Why is he applying for amnesty in respect of 14 murders:, if that's his attitude? Isn't his application such that imputes liability and if he's connected to those murders, then the Act must be applied.

MR NEL: Thank you Sir. As I said earlier, it would in fact have been immaterial as to whether Mr Cloete was at the scene on that particular day because he had trained these people in a specific way in accordance with standard operating procedures. Nobody has denied that. If these people at some later stage had turned around and confronted and said that they did the house-clearing on that particular basis because that is the way they had been trained, he would have been in exactly the same spot as he is today, because his role on the particular day did not digress that much from simple training in Caprivi. He trained the people. He was not part of the command structure. I wish, with respect, to differ. Opperman makes it very clear that whole operation was his own, it was never Mr Cloete's operation. Opperman gave the orders.

CHAIRPERSON: Then Mr Nel, surely he wasn't just, he didn't go on the operation for a joy ride, he coached his people, to use a term, he provided the arms and whatever was used there, he went to Durban to wait for the return, collected the arms that they had used and had them, delivered them for ...(indistinct) but that's not a joy ride, especially in the middle of the night. He was an integral part of this whole operation. He coached them, he gave them a dry drill and I assume because nobody has said otherwise, that a dry drill assisted those operatives to succeed in what they did. Isn't that so? So it was part of preparing them, otherwise they probably would not have been able to do what they did.

MR NEL: Sorry Sir, you are correct in the sense that he provided, he transported the weapons from Fern Tree to Ulundi, so he played a role, that's why he has to apply for amnesty.

CHAIRPERSON: He waited with Opperman for them to return and collected these arms from them and then disposed of them afterwards, so it's not a matter that he performs some small insignificant part in this whole operation by merely coaching them, he went much further.

JUDGE POTGIETER: Why did he wait if he was just a drill sergeant?

MR NEL: I'm still - I mean his role, as I was trying to say, his role was not only, I was trying to what's the word, concentrate on the most important part of his role, which was the drill. He did provide the rifles, he did dispose of it afterwards by handing it over to Victor at Natal Command, but what I'm trying to say is the most important part, I may have missed the other parts, but I've concentrated on the drilling of the trainees as being his most important contribution to this affair. The role that he played is clear, I have no problem with that, I think it's pretty clear the role that he played. All that I can end off with as far as your inquiry's concerned as far as the proportionality is concerned, I repeat that insofar as he did not determine the victim, he did not do the intelligence, he did not act outside of his orders, I would submit that proportionality would then have to be considered on a - objectively looking at it, a determination of subjectively what was his knowledge about what would take place eventually, considering the fact that he was never involved in the intelligence side of this. Nobody has ever tried to say that he was involved in the intelligence side of it, that was Opperman's job, he was the intelligence officer. I will refer you to the bundles. Opperman describes in glowing terms what a wonderful intelligence officer he was.

ADV SANDI: I thought you were going to add that during the time he was giving training to these people, he didn't teach them to be careful not to kill innocent people when going for what they see as legitimate targets. I thought you were going to mention that.

MR NEL: I'm very grateful to you for raising this, but this is exactly the point. That was not his training. That was not standard operating procedure. House-clearing amounted to cleaning out and those were his instructions. Clean out, 10 people here trained, they must clean out.

CHAIRPERSON: Children also?

MR NEL: Sorry Mr Chairman, he was not involved in intelligence.

CHAIRPERSON: ... cleaning out, irrespective and I ask, did that include children?

MR NEL: Standard operating procedures included children.

JUDGE POTGIETER: How could it? How could it, on his own evidence, the purpose, the objective of so-called house clearing is to eliminate any possibility of incrimination, or comeback at the operatives. That's all that they were doing, they were just wiping clear their trail. Why must you ...(indistinct) under those circumstances. Yes, indeed, in all likelihood between 1 and 2 in the morning, asleep in bed.

MR NEL: It makes no sense Mr Chairman, but we did not write the handbook.

JUDGE POTGIETER: No, no, but that's exactly our debate, that's not what your client said. Your client said the purpose was to eliminate any possible incrimination, so the question is and that's the question that the Chair asked you, does it include children? You say yes, it does, in terms of the textbook, but that's not what your client testified. According to his testimony, a four year old child, more than likely asleep in bed at 1 o'clock in the morning would by no stretch of the imagination fall within the realm of persons who could incriminate the perpetrators, how could it?

MR NEL: I can only answer that in the sense that when you do house-clearing, under the circumstances prevailing at the time, one can surely - often it's dark, often you don't know what you are actually shooting at, you're dependent on your intelligence, your order to go into a house and clear it, you're probably not in a position to discriminate and as far as he says that children should not be shot, that's an obviously good example of what you would do under circumstances when you can pick and choose your victims. I would assume, I was not part of the army, but I would assume that under the circumstances prevailing, they consider it an easier approach to wipe out everybody.

JUDGE POTGIETER: No, that's the operative circumstances. We were talking and your submission was this was standard procedure and we were saying to you, but that is not according to the testimony of your client, that standard procedure would not include a four year old child and that's the debate that we're having. Forget about what they did eventually, we are just concerned about what this so-called textbook says on which testimony he couldn't have included a four year old and that's all, that's the only point that I'm raising with you.

MR NEL: Sorry Sir, I didn't understand him to say that. Also with reference to the evidence as it appears in the bundles, it's abundantly clear that when these people meant house-clearing, they meant anybody.

JUDGE POTGIETER: Yes, thank you. Have you got any other submissions?

MR NEL: Just in a brief response to my learned friend's argument. The documentation that she referred to, the duty sheet as it was called, of Mr Opperman, I would invite you to read the relevant bundle, bundle 2, pages 314 and 384 and it's clear that this was a duty sheet, if I interpret the evidence correctly, drawn up by Opperman afterwards, not at the time of this incident, it was not in existence at the time, it was drawn up subsequent to the incident and according to the evidence as it appears from the bundle, clearly done to enhance his own position, so insofar as my learned friend uses the existence of this document and the transgression of the terms thereof to argue that my client did not act within the scope of his orders, I would simply bring to your attention that document was not even in existence at the time. My learned friend intimated that my client had scant regard specifically to black lives. I would just object to that, but refer to the evidence of my client himself that under the circumstances if the then Prime Minister was present in the house, he would have been taken out as well, no matter what his colour was.

JUDGE POTGIETER: How serious was that?

MR NEL: I think very serious, Sir, under the ...

CHAIRPERSON: Mr Nel, do you expect us to believe or accept that if P W was in that house, they would have shot him?

MR NEL: Yes, Sir, because that is what he says they were trained to do.

CHAIRPERSON: They were not robots Mr Nel. I think if Mr P W just showed them the finger they would have all run out there.

ADV SANDI: Maybe the question, the last point the Chair raises, is the question whether a soldier - does a soldier have a duty to carry out a palpably reprehensible order? isn't there a limit to the role?

MR NEL: Sorry, Sir, is this with reference to my client, or a soldier in general? Does the question relate to this incident, or to a soldier in general?

ADV SANDI: A soldier in general. Isn't there a limit to the role? He surely can't be exonerated for anything he does under the cloak of being a soldier?

MR NEL: Certainly not, I agree with you, the common law is very clear on that, but coming back to my client's specific circumstances, I don't think it's applicable.

CHAIRPERSON: Is that all, Mr Nel?

MR NEL: That's all, thank you Mr Chair.

CHAIRPERSON: We are going to reserve the decision on this matter and we'll deliver it in due course. Before we adjourn for lunch, Mr Ntuli, no, Mr ...

MS MOODLEY: Mr Thusini.

CHAIRPERSON: With the other victims that have attended this hearing, I wish to say something on behalf of the Commission, but in particular to you. I don't think there's anybody that can appreciate the loss that you and your colleagues have endured and suffered. To lose 5 children in one go at the hands of thugs, must be even more hurtful and really I can't think of how you were able to withstand that kind of loss, but your resolve in continuing your life thereafter is to be admired. It is to be hoped that you, your wife and your surviving child, together with the others who have similarly lost people, dear ones, are able to go from strength to strength and find comfort in whichever way you can when you think of your lost ones. There's very little people can do, outside your family and one can only be thankful that you are able to hold your head up high still with pride and to comfort your wife, as you did that very day. As I said, we hope that from now on, that you've got everything off your chest, you are able to proceed with life and everything of the best with your studies. Thank you.

We'll adjourn till half past two.

COMMITTEE ADJOURNS