CHAIRPERSON: Today we’ll just be receiving arguments and submissions in the applications of Mkhize and others.
Mr Wills, have you been informed that your clients, I’m told, will be here shortly, around eleven I was told.
MR WILLS: ...(indistinct)
CHAIRPERSON: Yes, thank you.
Mr Stewart I’m told you will be commencing with your argument, but I think before we do that I’ll ask Ms Williams, she came to see us in chambers, just to put on record the attitude of certain implicated persons, through their legal representative, and she has a letter that’s been written to us by Mr Faulkner, who represented them, which she just wants to put on record.
MS WILLIAMS: Thank you Honourable Chairperson. This facsimile is dated the 5th of March 1999, and was for the attention of Judge S Miller.
"Dear Sirs,
RE: THE AMNESTY HEARING OF
1. D LUTHULI
2. B G MKHIZE
3. R M MBAMBO
4. I N HLONGWANE
5. Z DLAMINI and
6. B B NDLOVU
We refer to the letter from the Amnesty Committee dated 2 February 1999 advising that argument will be heard in regard to the aforementioned amnesty applications on 8 and 9 March 1999, at the Pinetown Magistrate’s Court.
We have represented certain person implicated by the aforementioned applicants, and who received notices in terms of Section 18 of the Promotion of National Unity and Reconciliation Act No. 34 of 1995. In accordance with the instructions of our clients, we, together with Advocate J E Hewitt, SC., attending the hearings of the applications for amnesty in this matter, when it was put on behalf of our clients, and in accordance with our clients’ instructions, to the various applicants, that they denied the alleged involvement in the criminal activities of the applicants, for which amnesty is sought.
We are instructed to inform you that our clients persist with this denial. We are furthermore instructed that due to various reasons, including inter alia severe financial constraints, our clients do not wish to place argument before this Honourable Committee in opposition to the applications for amnesty, and that our clients abide by the decision of this Honourable Committee. In the circumstances we shall not appear on behalf of our clients on the dates for argument. I respectively request that this Honourable Committee excuse us from further attendance.
Yours faithfully"
CHAIRPERSON: Thank you Ms Williams. Well, they’re excused. After Mr Stewart has argued, then Mr Wills will argue, then Mr Muller, and then if there’s any submissions to be made by the Evidence Leader, either in the form of Mr Dladla or Mr Mpshe, we’ll receive submissions from them as well. Mr Stewart?
MR STEWART: Thank you Mr Chairperson, Members of the Committee. In the hearings today ...(intervention)
CHAIRPERSON: Mr Stewart I think if you, you can stand if you want to, but you can also sit if you want to sit. And I think it’s very hot here, if you want to remove jackets, please do so.
MR STEWART: Thank you Mr Chairperson. In the nature of the work that I usually do, it’s ...(intervention)
CHAIRPERSON: It’s your habit to stand.
MR STEWART: It’s my habit to stand so you’ll excuse me if that’s what I do.
JUDGE KHAMPEPE: ...(inaudible)
MR STEWART IN ARGUMENT: Well in the event that I do, Honourable Member Judge Khampepe, I’m sure that you’ll put me straight.
Members of the Committee, we’ve heard over some five or six weeks of testimony last year, a trail of destruction, of murder, of attempted murder, which to all of us and indeed Members of the Committee who have sat in countless applications, I’m sure even for yourselves that much of what was heard was quite shocking. And of course in many, many other applications a similar history, a similar background, has been painted, and similar incidents and events have been committed and have been spoken about.
By way of seeking amnesty in this application, we found it particularly difficult to identify the specific offences, more particularly in relation to the individuals who were the victims of those offences, and Members of the Committee will see that what we’ve sought to do in the schedules attached to our Head of Argument, is to set out as best we can the various acts, omissions and offences in respect of which amnesty is sought. So far as we can tell through going through these schedules carefully we’ve covered all the necessary incidents. For example it might be recalled in the evidence of Mr Dlamini, he withdrew his request for amnesty in respect of one particular incident because he wasn’t able to clarify in his mind just which incident it was although it did appear in his statement and it got mixed up with some of the others. That incident doesn’t appear in these schedules, and we’ve done the best job that we can and we hope that they’re all in order. Those are the acts and offences in respect of which we apply for amnesty. They cover, as of course you’re aware, a number of years, commencing on the whole in 1986, when each of the three applicants whom I represent, received training, well two of them received training, one of them was involved in doing the training at the Caprivi, and then they returned, and from that time, from late 1986 until into 1993, they were involved in a whole range of incidents, as the Committee’s heard.
By way of comparative background, it may be worth giving some brief consideration to one event in the second world war, and I have alluded to this in my Heads of Argument, and I do it only to answer the vexing question as to whether the so called random attacks on civilians and in civilian areas, can be regarded to be attacks associated with a political objective, as the requirement of Section 20, sub 1, of the Act which covers these proceedings dictates. And it will no doubt be known to Members of the Committee and indeed possibly better known to you than to me because I’m no historian, that towards the later stages of the second world war Allied Bomber Command took a decision to deliberately bomb civilian areas in Germany, and more particularly in Dresden, being the more significant or well known of these incidents. And in February 1945, Sir Arthur Harris, who headed that bomber command and became known as Bomber Harris, was instrumental in taking that decision, and attacks were launched on civilian areas in the city of Dresden. In the first night alone 772 aircraft dropped bombs on Dresden, and it’s unclear but the estimates range between 50 000 and 250 000 people were killed in the ensuing weeks of attack. And that incident in particular has raised much moral controversy at the time and subsequently, as to whether that could have been justified, or was justified. And the way in which it was justified at the time, or the objective which was given, sought to explain that activity. There were many.
The first was, and perhaps the most prominent, was that it was an attempt to lower the civilian morale in Germany at the time, and to try and ensure that German citizens removed their support for the Nazi war effort, and it was consequently to make the continuance of the war more costly for civilians. It was also described as a policy of dehousing, as opposed to trying to kill civilians particularly, but to dehouse them, because that then placed added demands politically and in the form of resources. And it was even regarded to be something of a retaliation for the ongoing attacks in London, although there was no equity there inasmuch as only some 60 000 people, civilians, were estimated to have been killed in bombings in England, and some 800 000 in Germany during the course of the war.
Now of course, the question or the issue before the Amnesty Committee is not one of morality, and the debate which has focused or centred on the bombings of Dresden, has been one largely of morality. But the Members of the Committee are not called upon to make a moral judgement as to whether the incidents in respect of which we seek amnesty were morally justifiable. And indeed in respect of some of them it would be very difficult to advance an argument that they were morally justifiable. But the way in which the Act has been structured, and the political compromise that was reached, is in my understanding and in my submission one which doesn’t pertinently raise that question of morality.
The Members of the Committee are asked to decide, amongst other things, whether those acts were ones associated with a political objective, and then there’re other considerations in particular which are set out, which would assist the Members of the Committee in arriving at their conclusions as to whether those acts were really ones associated with a political objective. And we submit that in each of the incidents, and we don’t intend traversing each one although we will draw specific attention to some of them, we submit that in each of the incidents it has been established with sufficient certainty that the acts were acts associated with a political objective, and that includes the so called random attacks, and I’ll get to those more specifically.
CHAIRPERSON: Indeed, on that question Mr Stewart, would it not also be relevant whether or not the perpetrators were acting under order?
MR STEWART: It would most certainly be relevant Mr Chairperson, thank you. It would most certainly be relevant, but ...(intervention)
CHAIRPERSON: What is the foot soldiers function to query the order of a superior?
MR STEWART: Well, exactly. Of course in the debate on morality the argument would be that a foot soldier has a moral obligation to question immoral orders, and possibly a moral obligation to disobey immoral orders. That as I’ve said doesn’t arise pertinently here, and where a foot soldier has been ordered to do certain things said to be for a political objective, and he does them, moral or immoral, then that would in my submission qualify as an act committed with a political objective.
JUDGE KHAMPEPE: That would certainly be covered by Section 20 subsection 3(e) isn’t it?
MR STEWART: If I understand the Committee Member correctly that’s particularly in relation to orders being given. Yes indeed, indeed. Of course, it’s my submission that it’s not a requirement, inasmuch as someone may be placed in a position where they have the authority to make the decisions, and to order and to command others to do certain things, and they’re not themselves acting under orders, yet they would qualify for amnesty, or the circumstances might be such that they would qualify for amnesty. And that applies in particular in the case of Mr Luthuli in these hearings, that there are occasions in which he didn’t necessarily have specific orders, he had general orders, and he had authority, and in, within the scope of that authority he then took decisions which involved either himself acting on things or ordering other people to do so.
So it’s in my submission not a requirement but that, where there are order from high authority, then it’s that much easier for the Committee to conclude that it’s an act associated with a political objective.
Now insofar as the various incidents are concerned, as I’ve indicated, we will draw particular attention to some of them, but it’s not, in our submission, practical to deal with every single one. We would be here for a week, and in respect of some it may not be necessary at all, and we would be wasting your time. But in the event that Members of the Committee have particular concerns or questions about any particular incidents, then obviously we would welcome the opportunity to address you on those particular concerns. It may be that we don’t ourselves have all the facts and the record immediately to hand, but we would be able to do so as quickly as possible.
Members of the Committee will notice that in the schedules that we’ve prepared there are cross-reference from the affidavits forming the applications by the members, and to them the places in the record where the incidents are dealt with.
CHAIRPERSON: Sorry Mr Stewart, just before you get into this, the position relating to Mr Luthuli, who was the commander, are you going to argue that he is involved in all the incidents, just because of his position, or only those incidents where he had direct dealings with the members who were involved in the incidents?
MR STEWART: Thank you Mr Chairperson. The position taken by Mr Luthuli has been one where he accepts moral responsibility for all the activities that the Caprivi trainees were involved in, even where he didn’t know what those activities were, or may not have given orders in relation to them. But that’s at a broader level. But in respect of amnesty in particular, he can only, in my submission, apply for amnesty in respect of offences which he, for which he himself might be convicted, and so where some of his Caprivi trainees have gone and done certain things that he knew nothing about and hadn’t specifically ordered them to, he would be a step removed, and the prospects of conviction on those things would be negligible ...(intervention)
CHAIRPERSON: So his matters re confined to those matters where he gave the direct order to, for the incident, or himself, he himself, participated.
MR STEWART: Or where he may, he may be found to be involved by the doctrine of common purpose.
CHAIRPERSON: Yes.
MR STEWART: So we’ve confined our application
...(intervention)
CHAIRPERSON: So for instance for, with regard to the Ermelo incidents, he’s got nothing to do with those at all.
MR STEWART: He’s not applying for amnesty in respect of those. Otherwise we’d find ourselves in the position of applying for effectively a sort of blanket amnesty, which the Committee has recently ruled is not something which is possible in terms of the Act.
Now I don’t want to dwell, or spend too much time, on the background to the conflict. The Members of the Committee are well aware, having sat through many applications, but it is nevertheless a critical point to traverse, and that’s the background to the political conflict between Inkatha or the IFP, I’ll use the terms interchangeably, on the one hand, and the ANC, UDF on the other, and that’s well documented and indeed there have been findings by the Truth Commission itself in respect of that conflict. And I’ve set out extracts from some of those findings in my Head of Argument. Indeed the findings, or the chapter dealing with KwaZulu Natal in particular and the findings in relation to that, give even more detail than what I’ve set out here. And for that reason I’m assuming that the Members of the Committee, and perhaps wrongly and I hope not presumptuously, I’m, assuming that the Members of the Committee accept that there was that conflict and it was particularly intense and it was particularly ... (intervention)
CHAIRPERSON: I think you can be assured of that. We’re fully aware of that. There was in fact a conflict.
MR STEWART: Thank you, thank you Mr Chairperson.
That then takes me to the role of each of the individual applicants in broad terms. The Committee of course is well familiar with these as well, so I won’t traverse it in detail.
The important point insofar as Luthuli is concerned, is the way in which he, on being released from prison having been there on charges related to ANC activities, then wore two hats for a period, ANC and IFP. And that was a period in history where that, the relationship between the two organisations allowed that, and indeed encouraged it. And then shifted his allegiances over a period of time to the IFP and became involved intensively in IFP activity. Initially in organising the formation of the trade union Uwusa and then on being recruited into this role as political commissar in the Caprivi, and subsequently to being the commander, or what he described as the overall commander of the Caprivi trainees on their return and their deployment in KwaZulu Natal.
Now at this point it’s worth digressing slightly to try and develop something of an analysis as to what happened in that time period. It was clear, in my submission, that on the Caprivi trainees returning to KwaZulu Natal there were structures in place, there was quite a sophisticated idea at least as to how those structures should work. The Caprivi trainees were split up into different groups, as the Committee is well aware, the offensive group, defensive group, contra mobilisation, and so on. And they were each supposed to have their own roles, and they were commanded, below Luthuli, by particular people, and there was the planning committee with the ongoing liaison between the IFP people responsible on the one hand, being chiefly NZ Khumalo and Mr Luthuli, and on the other hand the SADF and the SAP. And Luthuli speaks about the first meeting of the planning committee, which he attended.
And at that time it seems that there was an attempt to implement those structures, and ensure that those groupings worked in the way in which it had been planned that they would work.
And the kwaMakutha massacre which took place relatively shortly after the return of the Caprivi trainees, and which was perpetrated in, initially at least, a model way inasmuch as it, there was prior surveillance, there was a reporting back, there was proper planning, there was a proper liaison between the military and military intelligence and SAP security branch on the one hand, and the Caprivi trainees on the other, and then the move in to hit the house. It turned out that it may have been the wrong house, but certainly it turned out that it may not have been planned that so many uninvolved people were murdered. But prior to that it seemed that it was implemented in the fashion that had been intended.
But we also know that, from what Luthuli has told the Committee, that he became, on returning from Caprivi and attending the first planning committee, and seeing the involvement of the SADF through military intelligence, and the SAP through the security branch, he became concerned about the extent to which, as he put it, the boers were directing things, and the extent to which Inkatha was dependent on the boers. And he then didn’t attend planning committee meetings thereafter, save for one which he was called to, to attend to explain a certain incident.
And so right from then the channels of command started to disintegrate, and although we have statements in the affidavits and on record about how things were intended to happen, and how things were intended, and how orders were intended to be relayed, that as time goes on we see that those structures were operating in the initial planned fashion less and less. There was a level of disintegration, there was a level of informality, whereas at the beginning, for example, reports to NZ Khumalo were done only through Luthuli. It happened fairly soon after the kwaMakutha massacre, for example, that some of the Caprivi trainees were reporting directly to NZ Khumalo themselves. They were going direct to NZ Khumalo themselves to get weapons. And that sketch of an analysis as to how things became less formal, and the lines of command became less formal, explains, in my submission, how it is that in certain circumstances there were attacks where there hadn’t been specific instructions. There were general instructions, about fighting the ANC, about clearing ANC people out of certain areas, and so on, but no necessarily a specific instruction from the highest command.
And we saw also then an attempt to integrate the Caprivi trainees into first, well at one time into, well let me not use the word integrate. There was an attempt to offer the Caprivi trainees some sort of cover under the auspices of the KwaZulu police by the issue of appointment certificates, and even by the stationing of certain of the Caprivi trainees at KZP police stations. Mr Mkhize, my learned friend Mr Wills’ client, being stationed at the police station in Izingolweni for example. And then, we saw an attempt, and now I use the word integrate, to integrate the Caprivi trainees into the special constable forces of the South African Police, and we have that particularly from Mr Khumalo and Mr Dlamini. Mr Khumalo explains how they were trained at Koeberg, they returned to Pietermaritzburg, they had certain duties there, but in respect of themselves and some of those that were with them, that only lasted a month or two and then they became disgruntled and they left. But all of that is an indication, in my submission, of this lack of formality in the lines of command, and the cross over in areas of responsibility between the formations of the South African Government on the one hand and the formations of the KwaZulu Government and the IFP on the other. And as I’ve suggested it explains that in certain circumstances the strict lines of command, or channels of command, weren’t necessarily followed.
I’ve dealt briefly with the position of Luthuli, but to add to that, and it fits into the picture I’ve tried to portray, whereas Luthuli was initially regarded as being the overall commander, really responsible for the deployment of all these people around KwaZulu Natal, and telling them what to do, not long after he returned from Caprivi he was sent by NZ Khumalo to Hammarsdale Mpumalanga specifically to take care of problems there himself, and he resided there, and he was involved in attacks on people’s houses and so on, as it is documented. And that’s not consistent with a continuing role of an overall commander. Or it’s not entirely consistent. He continued to play something of an overall commanding role, but as I’ve suggested NZ Khumalo was playing more of a hands on role, and indeed many other people he mentioned. Captain Langeni, and others. And once again that explains in at least part why certain lines or channels of command may not have been followed. Perhaps it can be, perhaps also it can explain why, in my submission, it’s inappropriate to try and place each incident into a model framework, a model framework which had been intended to operate at the beginning, but which clearly didn’t operate for very long.
In respect of Khumalo, his history is set out, how he became involved in the IFP, thought he was going to be a policeman, he got taken off to the Caprivi, he was trained along with Dlamini in this very intensive counter-revolutionary or guerrilla warfare, urban guerrilla warfare, with explosives, high powered armaments, and so on and so forth. And then coupled with that was the political indoctrination and training about who is the enemy, who are we going out to kill, what our job is on returning to KwaZulu Natal. And that sets up a background for him, which indicates that unless there’s some clear indication to the contrary, the various hits that he was involved in, the various incidents that he was involved in, were in pursuance of that overall political objective which he had been instructed to pursue when he came back to KwaZulu Natal. We know as well that he was one of the witnesses in the case of the State v Msani, which was the so called Malan trial, and indeed has given in other cases, and on Luthuli’s encouragement, he told his story to the ITU and he was then placed in witness protection, and has given statements explaining various incidents.
It’s not a case, and by this I don’t mean to detract from the validity of the applications of Mr Wills’ clients at all, but this is not a case of someone who’s in prison, whose been convicted of something, and who’s now seeking to get out and this is the one hope there is, is amnesty.
The Committee, Members of this Committee and indeed Members of other Amnesty Committees that have sat, have on occasion refused amnesty where clearly those were cases where someone’s been convicted of something, they try and dress it up in political clothes in order to try and get out of prison. These in respect of those applicants that I represent, that doesn’t apply. And in respect of most of the incidents, or certainly many of the incidents that they’ve been involved, they have been the only sources of information in the hands of the State, broadly speaking about these incidents. It’s not as ‘though they faced imminent prosecution. They’ve come in a genuine effort to tell their whole story. Khumalo was also issued with a KZP appointment certificate and, as I’ve indicated, he did spend some time as a special constable.
By way of cross-reference, as it were, the Committee will be well aware of the amnesty application of Brian Mitchell, in which Brian Mitchell was granted amnesty, were some detail is given as to the purpose of the training of special constables, and the incorporation of Caprivi trainees within the special constable force of the SAP and the deployment of them to various areas, and the involvement in fighting the ANC, taking that fight to the streets of township and rural areas.
Insofar as Dlamini is concerned I must, at the outset, make the apology that I’ve made the error of putting an H in Mr Dlamini’s name when it shouldn’t be there. His name is D L A M I N I, not D H L, so I apologise to Members of the Committee for that.
At the time that Mr Dlamini was sent to the Caprivi for training, he was only 16, and in the years before that he had already been involved in violent conflicts between Inkatha and ANC or UDF supporting youths, and he had come from that politicised background at the hands of Zakele Mkehle in the Hammarsdale area, and also on the understanding that he was now being trained to be a policeman he was sent to Caprivi, and received the same intensive military or para-military training that the others received. And really, that’s all he’s known from that age until now. And all that he’s been involved in, as documented in these papers, stems from that background. He also was issued a KZP appointment certificate at one stage, and was trained as a special constable. And once again, on the encouragement of Luthuli, he left where he was at the time, which was essentially gun running for Themba Khoza in Johannesburg, and he left on Luthuli’s encouragement to come clean, as it were, and to tell his story.
That takes me then to, I’m on page 15 of my Heads of Argument, it takes me then to the specific requirements of the Act insofar as amnesty is concerned, and the first one which I seek to deal with is the one of full disclosure. Now it’s not uncommon in amnesty applications for applicants to apply for amnesty but to seek to limit their culpability in certain respects, in particular to limit it to what information might be otherwise available to the Members of the Committee or available to the Prosecution Services. And one’s seen, in my submission, in certain case, attempts by amnesty applicants in that way really to say I’m applying for amnesty for a incident that I was involved in, but I was not involved in anything else, where we know that it’s simply not credible for that claim about non-involvement in anything else to be, simply not credible to make that claim. But because there’s only public information about their involvement in incident A that’s the only one that’s applied for. Now these applications, those of my clients and those of my learned friend Mr Wills, really are in an entirely different camp, in my submission. One has a situation here where they may indeed be criticised, and I think Mr Hewitt may have criticised them for this, for saying too much rather than too little. They’ve, in my submission, really made an attempt to say, look, these are the terrible things that we’ve been involved in, and they stretch over a long period of time, and we’re now ashamed of them and we seek forgiveness for them from the communities concerned, and we seek amnesty for them from the Committee. ...(intervention)
CHAIRPERSON: Yes I think we probably have to go right over the top to find that they tried to play down their roles.
MR STEWART: Thank you, thank you Mr Chairperson, I won’t then dwell on that. I would like, though, just to make, in a way to take us out once again from this sorry morass of murder and mayhem that we’re in, to make one reference again, and I’ve said again I’m not an historian, but to make one reference again to what was said by Simon Wisenthal who was a well known Nazi war crimes prosecutor, and had spent much time in concentration camps in Nazi Germany during the second world war, and he was in a concentration camp when the war ended. And he and his colleagues were emaciated and had no strength, and they invariably, they had to stay for some time in the camp, at least a few weeks afterwards, to try and recover before they could make arrangements to go to other places. And the comment he made in his book, Justice not Vengeance, is particularly telling, and it was a comment about the local civilians who had really, in effect, been supportive of or complicit with the Nazi war machinery, and that they then, after the war, came to the concentration camp to see the people who were held there, and made the claim that they did not know what was going on, and they tried to really reduce themselves, or remove themselves, from the conflict. And the quote is very short. What Wisenthal says is, he says, "...for the first time in my life I saw what enormous cowards these people were. How instead of dealing with their guilt they tried to deny it, to suppress it insofar that in the end they couldn’t see it themselves. We didn’t feel like talking to these people but we realised one thing, that the Germans and the Austrians would not simply acknowledge with shame what we had experienced, they would dispute it." And as the Chairperson has indicated, the case of the applicants here today is really quite different. They’re not coming and disputing an involvement, quite contrary.
What I have sought to do this, from page 17 onwards, and dealing with the question of acts associated with a political objective, what I’ve sought to do is to try and categorise some of the different acts and activities that the applicants have been involved in in different ways.
The first category there is the assassination of identified targets, and those are in a sense easier for the Committee to deal with. Questions have been raised as to whether the particular targets in some cases were political targets, and that’s a matter that can be debated, but examples are, as I’ve said there, the murder of Zazi Khuzwayo, the attempted murder of Pearl Tshabalala. And there are many others I can refer to, the murder of Nagtval Khumalo, that’s Dlamini incident eight, the murder of Natie Gumede, Dlamini incident 11, the murder of April Khayiwe, Dlamini incident 12, the attempted murder of Welcome Ntumkulu, Dlamini incident 15, the murder of Mrs Thaba, that’s Khumalo incident eight. The numbers I’m referring to of course are the numbers in the schedules.
In each of these cases the targets were identified as being prominent members of the ANC or UDF or of playing a significant role in the conflict on the other side. Arguments may be raised well that perhaps those people weren’t, or perhaps insufficient double checking was done to ensure that they were prominent members, but on my submission there’s no credible suggestion on the evidence before the Committee, that the belief the applicants had that those were prominent people, that did need to be murdered, or were within their instructions to murder, or assassinate, there’s no criminal suggestion that they didn’t bona fide believe them to be so.
If we deal with the case of Zazi Khuzwayo, for example, it was suggested, or an attempt was made in cross-examination to suggest that perhaps this was just an attempt by Samuel Jamile to eradicate one of his business opponents as opposed to political opponent, and thereby secure a business advantage in Claremont, and in that sense it wasn’t a political assassination.
Now in the first place I would submit that it’s clear that Zazi Khuzwayo did play a prominent political role in Claremont. That’s been detailed in the amnesty application of Mr Hlope, where Mr Hlope if I remember correctly was granted amnesty in respect of that murder. It’s been detailed, for example, by his lordship Mr Justice Hurt, in the case of the State v Mshengu, and others, where Pumulani Mshengu Bengu and Thlangani Pani Jamile were accused of the murder of Zazi Khuzwayo, and Mr Justice Hurt detailed there the political background to that murder, and that one of the main problems that faced the State there, I beg the Committee to bear with me but I’ve got the wrong, ...(intervention)
JUDGE KHAMPEPE: Whilst you’re on that point Mr Stewart, shouldn’t we confine ourselves to the evidence that is before us, that’s coming from your client, inasmuch as we are aware that in the case of Mr Hlope a different perspective was given in relation to the leadership that Mr Khuzwayo played in Claremont. Shouldn’t we begin by what we have been given by Mr Luthuli so far as his significance as a political activist in Claremont is concerned. Shouldn’t we actually stop there without having to go into something that is not before us.
MR STEWART: Thank you Ms Committee Member. Indeed, that is the starting point, insofar as any of the other documentary reference are concerned, those are only corroboratory, and that, but that they are public documents and in that sense can be placed before you. The other amnesty decisions and the decision of Mr Justice Hurt and so on. But in Zazi Khuzwayo’s case, yes indeed the evidence before the Committee is that he was a prominent political leader in Claremont. The problem that he represented for the IFP is that he was resisting, or leading the resistance to the incorporation of Claremont into KwaZulu and played a prominent role in that respect, and he was clearly a political opponent of Mr Jamile and indeed of the IFP in the area as a whole. And the IFP was weak in Claremont at the time. We know that from the evidence of Mr Luthuli and Mr Khumalo who was also involved in that hit.
But in any event, even if Jamile’s motives were that Mr Khuzwayo was a business opponent and should be eliminated on that basis, there’s no suggestion that in the minds of Luthuli and Khumalo, who were involved in this murder, that they thought that their involvement was on the basis of him being a business opponent to Jamile. They thought that they were pursuing a political hit against a prominent ANC or UDF community leader, and that’s what they were involved with. And the same goes, my submission, in the case of Pearl Tshabalala, notwithstanding that she was a business person in Claremont. She was clearly a leading political figure in Claremont, and a political figure in the opposition, and there’s certainly no evidence before the Committee to suggest that her businesses were the same of Jamile’s and that they were in conflict in some way, or in opposition to one another in any way, in fact and very similar explanations in respect of each of the other targeted assassinations that I’ve referred to.
JUDGE KHAMPEPE: So your argument is basically that the belief that they had was reasonable, that the targets were political targets, and that’s why they carried out he instructions of Mr Jamile.
MR STEWART: Yes, indeed Ms Committee Members, although really my argument, the first step of my argument, is to say that they were political, political figures, opposition political figures. They were in fact that and that fact emerges from these hearings. But in any event, and aside from that, I can also argue, as I do, that it was a reasonable belief on their part that they were pursuing a political hit pursuant to instructions to Mr Jamile who was the KwaZulu legislative assembly member in the area, and they had been instructed to go and assist him in the problems that he was having with the ANC in the area.
JUDGE KHAMPEPE: It’s not Mr Luthuli’s evidence that he knew that Mr Khuzwayo was an activist. He was new in the area, he had been instructed to come down to Durban by Mr Jamile, is it not his evidence? That’s how I recall his evidence.
MR STEWART: His evidence as I recall it, and I can dig it up of course, is that he was instructed by NZ Khumalo to go and assist Mr Jamile, and he was then told that, look, the first person that we have to eliminate on the list of prominent opposition people is Zazi Khuzwayo, so it’s not that he had some independent knowledge of Zazi Khuzwayo’s role, but he was told what that role was.
JUDGE KHAMPEPE: And he reasonably believed that Mr Khuzwayo was a prominent member of the ANC who needed to be eliminated. He didn’t know as a fact that Mr Khuzwayo was a prominent man. He was told by Mr Jamile that he was, and he believed that Mr Jamile was saying the right thing about Mr Khuzwayo. That should be the end of your argument, shouldn’t that be?
MR STEWART: Thank you Ms Committee Member, indeed that then is the end of it on that point.
The next area which is the one where there is some more difficulty perhaps, is in the area of random attacks, so called random attacks to call this terror. And one had for example the Clewer(?) incident, where Luthuli and others were travelling in a car, some pedestrians said something insulting about Inkatha recognising the car, and that knowing that it was a car associated with Mr Jamile, and consequently Inkatha, and they stopped, and on Luthuli’s instructions they went and they fired into the pedestrians. That was one of the so called random attacks one might refer to. The others being, perhaps falling into the next category, but these categories overlap very much, is into the area clearances of identifying a particular area as an ANC area and then going and burning houses, firing on people, and so on, in those areas. And I’ve already addressed, to an extent, the background to that, but what I’ve sought to do as well is to identify specific motives, or rather objectives, in those attacks, and these objectives emerge from the explanations given about those attacks in the evidence before the Committee. And I’ve set them out here, I mean the first one is, this is on page 20, is the objection of creating terror in ANC areas thereby making political organisation there difficult and dangerous, making people scared to live in those areas. That obviously supports an IFP cause at the time.
Secondly that demonstrating that those areas are vulnerable. Thirdly demonstrating that the ANC to be incapable of defending its people in those areas. Fourthly demonstrating the continued resilience and strength of Inkatha. And fifthly making it very risky for people to support the ANC or UDF or to live in areas where there were many supporters of the ANC.
...(intervention)
CHAIRPERSON: Mr Stewart with these objectives that you’ve just mentioned now, would you submit that they would also apply in the Clewer incidents, where it would seem that, correct me if I’m wrong, that that shooting took place as an angry reaction. It was spontaneous, unpremeditated. There’s an insult and then there’s a hit, sort of an act in anger, as such. But would any of these apply in that sort of circumstance?
MR STEWART: Yes indeed Mr Chairperson. I would submit that they do, and that is the explanation given by Mr Luthuli about that incident, is that in particular that was a demonstration. That was in Claremont, it was an IFP area, or at least an ANC area, IFP was very weak in that area, and that was a demonstration that, we are still here, you can’t mess about with us and we won’t be insulted, we have a presence and you must watch out. That’s very much the kind of explanation that was given, and perhaps I can ...(intervention)
PROBLEM WITH MICROPHONE
ADV MOTATA: Whilst looking, that we know that the ANC in this area was prominent, and IFP being least. In the process, I would want to know that this reaction of Dover was it not in the extreme, or would you say it fell under the discretion Luthuli had as the overall commander?
...(tape blank)
MR STEWART: It certainly, in my submission, falls within his overall authority. The question which arises, though, is whether or not that specific incident can be justified as being one as an act associated with a political objective, and even, even if. Well, let me put it like this, it was in my submission, within his overall authority and objective to create terror, to shoot ANC supporting people and so on. But in, the suggestion has been made, this specific incident may have been merely an angry outburst, and the way in which Luthuli described it on one occasion under cross-examination by Mr Hewitt, this is at page 153 of the record, towards the foot of the page, he was asked
"...Now can you explain to this Committee what possible political objective you could be achieving for your masters, for your party, by doing that"
and the incident referred to is the Clewer incident. And Mr Luthuli said:
"...I will explain that in Claremont the IFP no longer existed. Mr Jamile wanted by all means that he IFP’s strength should be clear and be evident at Claremont. This group of people and this remark that you are talking about from the IFP side, the person who makes this remark provokes the IFP, was is showing the people that he is with that here is somebody belonging to the other side, something must be done to him. Therefore, what happened at this incident was to show that he IFP at Claremont is there. Such remarks shouldn’t be used anyhow. That was helping Jamile at Claremont."
And I don’t deny that, or don’t seek to deny that there may have been some anger or some level of insult being felt, but this falls within what Luthuli has described, if anything, as retaliation rather than revenge. And the Members of the Committee will recall that that was a distinction that was drawn by him. Revenge, he said, would be where if his brother was killed and he felt the need to revenge that death. But retaliation he put very much in a political context. Someone attacks us, we must go and attack them. It’s a means of defence, it’s a means of showing that we’re not vulnerable to such attacks, that we have some strength, and it may indeed be done in anger but that doesn’t put it within the category in the Act of spite, of motive of spite for example, it doesn’t remove it from the realm of being an act with a political objective.
JUDGE KHAMPEPE: Would it not be too disproportionate? You insult me as an IFP and I respond by killing you.
MR STEWART: Thank you Ms Committee Member but the proportionality, in my submission, is not to be weighed by the insult on the one hand, against the murder on the other. The proportionality is to be weighed by the objective on the one hand and the act on the other, and the objective was an objective, as I’ve suggested, of saying that the IFP is here, we’re not, you must know we’re here, we won’t be insulted in this way, you people must be aware that this is not just an ANC area. In broad terms that’s the objective, and that in the context of this war and the context of what took place in KwaZulu Natal broadly and in Claremont in particular, that response was not disproportionate to the objective. The act was not disproportionate to the objective, in my submission. Those are the things that are being compared, as opposed to the insult.
There are, it arises in particular for reference of the Committee, Mr Luthuli’s explanation of the objectives in these incidents arise in particular in the cross-examination of Mr Hewitt, that section of the record. There are explanations in other sections of the record as well, and in his affidavit. As the Members of the Committee will recall, the way in which Luthuli’s evidence was handled at the hearing by myself was rather than deal with the details of each and every incident, what we said is, we rely on what’s in the affidavit and we’ll now deal with some of the incidents specifically and we’ll deal with some of the overview. And we really only for considerations of time and convenience didn’t deal with each one in a lot of detail. But much of that detail was then picked up in cross-examination, and where it doesn’t, where it’s not in the cross-examination, then it’s in Mr Luthuli’s affidavit itself. ...(intervention)
Sorry Mr Committee Member.
ADV MOTATA: I said before you proceed on that point, I’m particularly worried that when we look at the Claremont incidents, and we look a Jamile for instance, that we would say was it not in trying to eliminate business opposition, because whatever acts they carried out he would reward them with couple of hundreds of rands. Every time for every incident. And if we are, I understand the evidence in its totality, it was that no, we were making the presence of the IFP felt, but every time they would get a reward from Jamile in these particular incidents in Claremont.
MR STEWART: With respect Mr Committee Member, I don’t see the necessary connection between the rewards on the one hand and the business objectives on the other. That the rewards, such as they were, can be equally consistent with the objective being a political objective to eradicate the ANC in the area, to assert the IFP’s presence, to try and further their campaign for the incorporation of Claremont into KwaZulu, and so on. That Jamile was a political leader inasmuch as he had businesses, he was a political leader, he was a member of the KwaZulu legislative assembly, he was later a cabinet minister in KwaZulu and he had political objectives. And the fact that he rewarded people for assisting him in his political objectives is not inconsistent, and not only consistent with a business or eradication of business opponents kind of objective. That would be my answer and my submission in that regard.
Some of the justifications and explanations in regard to these incidents and attacks also occur in the cross-examination by my learned friend Mr Wills of Mr Luthuli. And indeed by the Members of the Committee. The cross-references, much of the cross-referencing is already in the schedules, but that, those refer on the whole to evidence in chief rather than the cross-examination, but it is there and in my submission falls into those particular, particular incidents, or particular justifications.
Now, the Honourable Member Ms Khampepe has pointed out to me that in the first instance the most reliable place to find answers in this case is the record of this case, rather in other cases, and I’m equally mindful that in a particular case the Honourable Member gave a dissenting opinion or decision, but in a sense, the amnesty decision in the case of those who were involved on the attack, the AWB attack on a bus, which I think was on its way to Inanda, if I remember correctly, falls into a like kind of category. So too in a sense the attack on the St. James church in Cape Town. I don’t come before the Committee to argue in support of those decisions, but only to suggest that those decisions do offer some support to amnesty being granted in respect of the incidents which fall into this category here, of so called random attacks, or attacks on innocent or unidentified civilians but nevertheless pursuant to an overall political objective or motive as I’ve suggested. I appreciate of course that in the case of the AWB bus attack there’s some very different considerations as well, if anything that case is much worse. It’s far more retaliatory. It’s far more out of anger. It’s far more out of racial hatred, than any of these cases before the Committee today, but it, because of the extremity of it it does offer some support to the amnesty applications here today.
CHAIRPERSON: With regard to these random attacks as well, then one cannot even begin to look at these various conventions of war. Geneva Convention, etc. I know that some of the amnesty decisions have been criticised because of that.
MR STEWART: Because they don’t, they don’t refer to those?
CHAIRPERSON: Yes.
MR STEWART: Well in my submission ...(intervention)
CHAIRPERSON: Like shooting a group of people waiting at a bus stop. That sort of attack.
MR STEWART: It’s my submission Mr Chairperson that no, that those conventions don’t offer assistance in this particular case, or indeed in the case of amnesty applications under this Act. And they don’t offer assistance because this Act is not seeking to, it’s not seeking to question the morality of the tactic that were employed, which, in my understanding, the international conventions seek to do. They seek to set an international standard of morality, which says there will be warfare in our world, unfortunate as it is, now let’s all agree that we’ll conduct warfare within certain moral boundaries, and that isn’t something which this Act requires to be done. There are very specific requirements that need to be met and if those are met then amnesty, in my submission, has to be granted. If they’re not met, then it has to be refused.
By just way of example, and I, this will be my last reference, I hope not to bore the Committee with references to the second world war, but by way of example, before the second world war the United Kingdom participating in the discussions which led to the Geneva Convention, originally had the position that there should be no bombing at all, not even of, this is air bombing, not even of oil installations or military factories or whatever. That position was then abandoned in recognition that there will be bombing, but at the beginning of the war the bombing that was embarked upon was only on so called military targets. By the end of the war the position had shifted and it was bombing for military objectives on civilian targets. And I raise that only because the circumstances there determined for the people involved the particular tactics that they would employ, and indeed there’s severe debate about the morality of some of those tactics, and in this case there may be less debate about the morality only because some of these attacks are so clearly immoral or morally unjustifiable. The point is, were they acts associated with a political objective, and in my submission the answer to that in each case ultimately is yes, regardless of whether they’re within or without the norms set in the Geneva or other international conventions on warfare.
JUDGE KHAMPEPE: You make a reference to the matter of our decision in the Botha application. I don’t understand how you can think it akin to your matter. From the totality of evidence and from objective facts, the ANC has always been fighting the IFP, and vice versa, the IFP fighting the ANC. And in this particular incident the perpetrators concerned, the applicants, sought to implement an instruction, which allegedly had been given to them, to revenge against people who were perceived to be black whenever a white person had been killed. Is your analogy an appropriate one?
MR STEWART: As I’ve indicated, that case is one which is, in my submission, particularly extreme, and it’s only the analogy is a very limited one, and it’s only a valid analogy insofar as it is civilians or ...(intervention)
CHAIRPERSON: It’s unknown victims. Random killing.
MR STEWART: Indeed, thank you Mr Chairperson, that’s really that’s the limit of the analogy. That it’s, there are so many other differences, but it is unknown victims, unidentified, not necessarily having a clear political persuasion, or in fact not having any clear political persuasion, but in that instance targets were because they were black. In these instances, in this application before the Committee today there are cases where the actual political persuasion of an individual who became a victim may not have been known as a matter of fact. But there was an association, they were in an ANC supporting area, an area which was regarded in a particular way, or they were emerging from a school where there was a meeting where there was an ANC aligned meeting happening, that kind of, that kind of thing. So really, in my submission is that I’m on far more solid ground today in relation to these sort incidents. ...(intervention)
JUDGE KHAMPEPE: Because in that particular case, it was the evidence of the applicants that they had good relations with organisation like the IFP. And it was not their intention to attack the IFP, but they had to attack a particular grouping of a particular organisation, which was the PAC. The fact that you are black does not make you be a PAC, you could also be an IFP.
MR STEWART: Thank you, Ms Committee Member.
CHAIRPERSON: Mr Stewart would this be a convenient time for a tea adjournment? We’ll take a 20 minute tea adjournment then.
COMMITTEE ADJOURNS
ON RESUMPTION
MR STEWART IN ARGUMENT: (Cont)
...(tape blank) in addition to which Mr Luthuli and then Mr Mbambo in particular, and some of the other applicants too, discussed really what they saw as the two faces, the private and the public face, to IFP policy. And the public face being one which said, we’re a peaceful organisation, we embark only upon peaceful tactics and objectives. But the private face, the one being propagated from the meetings of the cabinet of the KwaZulu homeland through to public meetings, mass meetings, was one of anger and of revenge and of attack, and that was the very real experience of the applicants in the way in which they explained it to the Committee, that public and private face.
And so their understanding is that that was the policy that was being embarked upon and they had it confirmed to them in so many ways. In addition to which it was confirmed to them inasmuch as they were hidden and protected when the arm of the law was able to reach out to them. So in instances where Mr Khumalo was arrested, where Mr Dlamini was arrested, he was whisked out of hospital where he had been lying with his leg up in a sling and he was pulled out of hospital and taken away in a car and then hidden for a long period of time in different places including in Venda and in the Mkuzi camp.
The same with Mr Khumalo when it appeared the police were on his trail, in fact on the one occasion he was arrested and bail was paid, and then he was hidden away and instructed not to go back. And those activities, in hiding and protecting the applicants from the law, in those instances, that was done by senior members in the IFP itself and in the KwaZulu police, and that gives credence to their claim that this was the policy and this was how they understood the policy to be, that these are the things they should be doing.
Mr Dlamini in particular makes really an impassioned statement towards the end of his evidence in, I think it was his evidence at Mpumalanga and it also happens to be quoted in the Truth Commission final report, where he talks about the betrayal that he felt that all these years he did al this, he did so much for his organisation, and he did what he was trained to do, and he did what he was instructed to do and he really sacrificed so much, and now at the eleventh hour he’s deserted, and those people who had told him that he should do these things and those people who had trained him to do these things are now denying it, and denying any involvement, and denying that he was acting on any instructions.
And indeed my submission is that the evidence both from here, from these proceedings, and indeed in other proceedings and elsewhere, is quite clear that there was indeed that private face of fighting a war, and a particularly ruthless war at that.
Another category of incident would be that of defending individuals and property. Now this would seem to me to be relative uncontroversial. That there’re incidences, Mr Dlamini’s incidences two and three, Mr Khumalo’s incident five, where really the applicants were involved in defending people and property. Dlamini two and three is where he was involved in shooting a policeman where he was guarding a house and they came under fire and they retaliated, and he found he had shot a policeman, and they subsequently discovered that the policemen and themselves considered themselves to be on the same side, but nevertheless he had shot that policeman. Three was the defence of Mgwabe’s house at Natingi, and Mr Khumalo’s incident five is that same attack at Natingi. And there, as I’ve said, relatively uncontroversial, what’s been done there was defending from attack and that that involved itself a certain amount of attack but in essence it would be what one could described as a defensive operation.
And a final category which I’ve identified there, of course these are my own categorisations, is that of enforcing allegiances to chiefs and to the party, being the IFP. And Mr Luthuli in particular deals with this in his affidavit from page 253 onwards, in paragraph 16, and he talks about the strategies that were employed in the rural areas, in particular in the area out towards Elandskop, Gezubuso and beyond, the other side of Edendale, of trying to ensure that the chiefs who may have been wavering in their support for the IFP were encouraged to strengthen that support, and also ensuring that the people in those areas supported the IFP supporting chiefs, and it included seizing cattle and so on. Mr Luthuli was not involved in those things himself, but he’s talking about what was going on.
There is the one, or perhaps more controversial incident than others, of the murder of Natie Gumede in which Mr Dlamini was involved.
Now Mr Wills will deal in more detail with this because it involves also Mr Hlongwane and Mr Mbambo, but I’m briefed of course today to speak on Mr Dlamini’s behalf, as to his involvement, and there was a suggestion in cross-examination that this hit had something to do with a motor vehicle or a charge about a motor vehicle, and so on. But it’s quite clear from Mr Dlamini’s evidence that insofar as he was aware, and insofar as he was concerned, this was another one of the political hits and he was instructed that this what, this was an ANC supporting person who needed to be eliminated, and he really, as a, as more of a foot soldier than any of the others in this hearing, went along and did what he was instructed to do, and if there was anything about a car or something like that he didn’t know anything about it, and he in my submission held the bona fide belief that this was a political hit, and indeed as I submit it was, but I don’t need to go that far on behalf of Mr Dlamini, I only need to go so far as to show what he thought that he was involved in, and whether or not he thought that was a reasonable belief, and indeed in the circumstances my submission it was. They were involved in, on the same day, in identifying two people at the Eshowe hospital, a security guard and a nurse, that had to be eliminated for political reasons. They decided not to carry out those hits on that day because there were too many police and so on around, and then they went off to find Natie Gumede and Mr Dlamini explains clearly in his evidence what he thought that that was about.
So that then deals, in my submission, ...(intervention)
ADV MOTATA: If I may just interrupt. Wouldn’t that give us further problems? Because it would appear they had instructions, but if they had instructions, why couldn’t they get proper instructions who to eliminate, not just a nurse and a person. Because you see there was a whole range of arrangements, even going to MZ going to James Zulu, even to arrange a motor vehicle to go there. Why couldn’t they get better instructions and say precisely who that person is, or persons?
MR STEWART: Thank you Mr Committee Member. My recollection of it, which may be wrong amongst, or confused amongst the morass of evidence before you, but my recollection of it and we’ll look for it, is that the particular nurse and the particular security guard were identified, but the decision was then taken not to carry out the hit on that occasion, and they then, they drove away and they stopped and they had a discussion and then there was much debate in the evidence as to what discussion was being referred to because the discussion was in one paragraph and, the reference to the discussion was in one paragraph and then the details about Natie Gumede in the next, and they then decided to then go and carry out the next hit, and in Mr Dlamini’s understanding, very clearly it was a political hit on an ANC, influential ANC individual.
JUDGE KHAMPEPE: In fact there was somebody who had been given to the applicants to accompany them in order to identify the person in question, if I recall the evidence.
MR STEWART: Indeed, thank you, that is the case.
So that then deals, save for what might be raised by my learned friends present, or indeed raised in question or discussion by Members of the Committee, that then deals with the question of acts associated with a political objective, and I then move on to the question of personal gain. Now of course it is provided in the act that an act associated with a political objective does not include any act, omission or offence by any person who acted for personal gain, and then it goes on to say provided that, and it speaks of receiving money as an informer.
Now of course it is true that all three applicants whom I represent did get personal gain inasmuch as they were employed to perpetrate these kinds of activities. It’s not the only thing in respect of which they were employed, they also had other responsibilities. Mr Luthuli in particular speaks about ...(intervention)
CHAIRPERSON: Generally speaking, there’ll obviously be exceptions, but personal gain really means being rewarded for performing a particular act, either by being paid by somebody to do it, normally by prior arrangement that there will be a payment, or of course in the event of a robbery by that being the prime motivation, is to go there to benefit oneself by stealing goods. Personally I mean a soldier receives a salary, it’s not covered by the Act I’m sure, so it’s looting maybe, and being rewarded for a particular act.
MR STEWART: Thank you Mr Chairperson, thank you. Then, with that in mind then, really that’s all that’s left insofar as personal gain is concerned, is the couple of incidents which were referred to earlier where the applicants were rewarded by Mr Jamile in Claremont for performing particular hits, and in particular that was in relation to the murder of Zazi Khuzwayo and the shooting of the pedestrians following the Clewer remark. And there’s, some ground was covered in cross-examination in an attempt to show that the applicants were acting out of this motive, and in my submission the evidence doesn’t bear that out at the end of the day, in fact it doesn’t even come close. That these were, if you like, ex gratia payments or gifts in thanks after the event. There’s nothing to indicate that the applicants were motivated in the expectation that this was what they were going to get, whether because it had been promised or because there was some pattern of it they therefore expected that it would happen, and that’s why they did it. ...(intervention)
ADV MOTATA: So there was no prior arrangement as to compensation or reward, and neither was there expectation of receipt of such reward, was there?
MR STEWART: Indeed, thank you Mr Committee Member, that is so, that is my submission on the evidence, and really that then deals with that aspect. It’s not, it’s not a critical element in this application.
CHAIRPERSON: We’ve heard much evidence over a long period of time and I’m sure there’s some evidence, some mention of it somewhere, that now and then there was a bit of looting that took place. Like a TV would go, or something, if they went into a house, or cattle, or that sort of thing. We haven’t got much on it, and it’s never been the focus of any particular incident, but I’m sure that there was an instance in the evidence, we can find it, where there has been some admission that sometimes some goods might have been taken.
MR STEWART: Mr Chairperson thank you. According to my recollection that, really one’s talking about two instances, or two scenarios, the one is the seizing of cattle where there’s a Zulu name for that, amakambanyana or ... I’m sure there’re others in the room who’d be better at pronouncing it than I am, but there’s no evidence of the applicants actually being involved in that themselves, so that one doesn’t need to deal with that further. And then the other one is in the area of clearances, situation of burning down houses and so on, there is a mention, Mr Chairperson you’re certainly right in that respect, of that, if one can say it, minor level of looting, but there’s no evidence of the applicants being involved in that. That, if you like, was not the soldiers but the crowds who may have involved themselves in that from time to time. In fact the evidence on that is extremely, there may be between Mr Magadi and myself, we can recall one mention of it. It is something we can look for. ...(intervention)
CHAIRPERSON: It’s also my recollection. I’ve just remembered something being mentioned about goods being taken, but as I said it certainly wasn’t central to the concern, it was just a mention. But what you’re saying is that there’s insufficient evidence, there’s no evidence to suggest that any of the applicants participated in these various incidents for personal gain.
MR STEWART: That is so Mr Chairperson, the causal element is just not there.
JUDGE KHAMPEPE: Hasn’t Mr Dlamini, I can’t recall it properly, hasn’t he alluded to some kind of looting having taken place in an incident where he was personally involved? You could probably assist us. I thought you were still going to go back to it, because you have referred to it in your heads, when houses would be burned and cattle would be taken, and some movable property, you know, in some of the houses that were attacked.
MR STEWART: Thank you Ms Committee Member. I am not able to lay my finger on it immediately, and rather than delaying proceedings what I’d like to suggest is we will look at that, I’ve asked Mr Magadi to make a note of that, and we will find that specific incident and come back to it, if that’s acceptable.
JUDGE KHAMPEPE: Are you in a position to, without having to refer to that particular incident specifically, relate to that in, as you did with personal gain, how that would not be part of personal gain? That would fall outside the political objective as defined in the Act.
MR STEWART: For, let’s assume that there’s a scenario like that, and as I say we’re looking for it precisely, but where there is a scenario of house burnings or area clearances which incorporate some level of looting, the difficulty that I would face in seeking amnesty in respect of that incident would be if there was evidence to show that the attack was motivated, at least in part, or at least not in significant part, by the anticipation of personal gain. Or if I was seeking amnesty for the act of, or offences of theft, in those circumstances, because clearly that would be, the theft or looting of televisions and so on, that specific offence, would be for personal gain. But the broader offence of arson and maybe of murder and attempted murder and so on, which is associated with the act as a whole, would not be, in my submission, for personal gain. It would lack that causal link, and therefore it wouldn’t apply, and ...(intervention)
CHAIRPERSON: So what you’re saying is if there is a clearance, let’s just for purposes of argument assume that there was an incident where a house was invaded, the inhabitants were killed, in part of a clearance operation, and on the way out a TV set was taken, or a video recorder, or something like that. Are you saying then that the actual motivation behind the killings is completely separate from the taking of the video recorder? So when they went into the house it was there for the clearance purposes, to attack them because it was an ANC or UDF area, and coming out the taking of the video recorder, although it is looting and theft and there is an element of personal gain, it’s not linked to the reason why the inhabitants of the house were killed? It’s separate?
MR STEWART: That is so Mr Chairperson, that would be my submission on that, and there isn’t, I think the, our relative inability to find this mention that we seem to have a recollection of, is indicative of the fact that there wasn’t any causal, or significant causal link, that that wasn’t the motive. It may have been something en passant but we are looking for it and we’ll come back to it.
That then takes me to the next eliminating consideration, as it were, in Section 20 sub 3, Roman two of the Act, which is the question of personal malice or spite.
Now, as I’ve suggested in my heads there is no evidence of this. Of course, I say there isn’t even a suggestion of it. Well in cross-examination there was a suggestion of it, and it came in particular in relation to the murder by Mr Khumalo of Mrs Xaba in Mpumalanga, and as Members of the Committee will recall, this was the case where he had, a particular target had been identified, it’s Mr Khumalo’s incident number eight, a particular target had been identified as supplying guns, I think it was, to ANC people in the area, and it was decided that Mrs Xaba being the target should be eliminated. Mr Khumalo enlisted the support of Mr Musa Gqulu and early one morning they then followed her as she went towards work, and it was dark, and Mr Khumalo followed her, and as she was going up some steps he caught up to her and he trod heavily to attract her attention, he was about two and a half metres away, she turned round, and he shot her. And the suggestion that was made in cross-examination, well that is evidence that really he was doing this not because she was a political target that needed to be eliminated, but because he enjoyed killing, or he was wanting to torture her because of his lust for killing. Now the suggestion is there of course. There’s no suggestion thought that there was personal malice as between him and her, or personal ill will or spite. It’s not something which arises out of some other private as opposed to political feud, which has now been dressed up in political clothing. The criticism, it seems to me, of Mr Khumalo in the circumstances, is that he was being inordinately callous, where he could have killed her without her knowing, he ensured that she did know. His explanation for that, such as it was, was that he had a policy, a personal policy which he pursued, of not shooting people in the back.
The murder of course, one way or another, was a brutal murder, but it was one, in my submission, which was clearly one with, associated with, a political objective. There wasn’t really besides this suggestion of a lust for killing, there was no, there’s nothing more to show that it was out of personal spite or malice. There’s no connection between Mr Khumalo and the late Mrs Xaba in that respect.
CHAIRPERSON: Another one where it might be argued, although you’ve dealt with it, is the Clewer incident again, where you get the insulting remark and then the reaction by shooting. One might say, argue that that shooting was done out of malice because of the insult, but you’ve argued that it’s not the insult, in the proportionality when you were talking about proportionality, that must be weighed, but they had a wider objective, but that is another case where malice might be considered.
MR STEWART: Indeed, thank you, thank you Mr Chairperson.
That then in my submission deals with the formal requirements, and as I say for issues that may be raised by my learned friends, indeed by the Honourable Members of the Committee in discussion in due course. As I’ve said of course, I haven’t focused on each individual incident, I’ve sought to draw out those which, where there may be more concern than others, and we would welcome the opportunity to address whatever concerns the Members of the Committee may have.
Finally what I deal with, and in my submission it is significant, is the attitude taken by the communities and victims in these particular cases. Of course, it’s not a formal consideration for the Committee at all, and I raise it really by way of informal consideration, or in a sense mitigation, that it’s reflective as well of the extent to which the applicants took the Committee and took the communities and the victims and the survivors who were present into their confidence, by telling them this very long and sad and tragic story, that in Izingolweni and in Hammarsdale, those victims and community representatives who were, or communities that we represented, placed the matter in the hands of the Committee and don’t oppose amnesty, and that weighs somewhere in the balance.
And Honourable Mr Chairperson, Members of the Committee, that’s as far as I take the argument. Thank you.
CHAIRPERSON: Thank you very much Mr Stewart. Mr Wills.
MR WILLS IN ARGUMENT: Yes, thank you Mr Chairperson. ...(inaudible)
Members of the Committee I act for four of what must be described as foot soldiers of the IFP’s military machine, and persons who were primarily responsible for the actual killings on the ground. Like Mr Stewart I have annexed to my Heads a list as Annexure A of all the matters, all the incidents, which the applicant whom I represent, in respect of which they apply for amnesty. Obviously I think that it’s clear to the Committee, its’ very difficult to be specific about the offences, simply because of the lack of evidence as regards who the victims were and also because of the large time scale involved. It’s very difficult to give actual dates and link that up to any event at any particular place, but be that as it may I still think it’s important that we maintain our application for amnesty in respect of these matter, even ‘though the details are somewhat vague, particularly in the light of developments that it appears that in respect of people who haven’t applied there is going to be an attempt by the Department of Justice to prosecute those persons. And I think in the circumstances it would be extremely unfair to these applicants, who I submit are some of the few that have taken the Commission and the Committee, I say the Commission and the Committee, both the Human Rights Violations Committee and the Amnesty Committee, in to their confidence to such an extent.
I think rather than just following my Heads I’d like to just deal with the issue which is last in my Heads, and that is the issue of full disclosure. I know it’s not really a big issue in this case. I just want to make the point that even ‘though the person whom I represent are in gaol for certain offences, they represent a small proportion, or a small amount, of the acts in which they were involved. And in fact in the majority of incidents no-one would have known about the fact that these incidents had taken place, had it not been for the applicants themselves coming forward. So clearly one cannot ascribe the fact that they’re in prison to their application to, or their application for amnesty. In fact the converse is true. I’m not sure if it’s part of the evidence, I think it did come out in one of the applicant’s evidence, that they made the revelations to the Goldstone Commission well before this Act was published, and they’ve been helping the State with investigations since late 1993 or early 94.
I’ve divided the argument up into geographical areas, but first of all I think it’s important to look at the context, and this is the overall context, which in my submission, applies to all the incidents in all the areas at all times. The first, and I think most important thing, is the simple fact that all of the members were part of a military operation which Inkatha had set up with the express purpose of, I think in Luthuli’s words, eliminating the ANC in KwaZulu Natal. Now it is my submission that every act that was committed by the applicants who I represent, was associated with that objective. It’s clear that, from Luthuli’s evidence, that Inkatha had decided to form an armed wing to fight the ANC. My case is slightly different to that of Mr Stewart’s, because from the fact that the applicants who I represent are in fact foot soldiers, it’s my submission that they had the general instruction to carry out these attacks from people in higher authority, and it’s clear from Mr Luthuli’s evidence, and specifically my cross-examination of Mr Luthuli, that he knew more or less what each of these applicants were doing. Possibly not with each specific incident, but clearly their main purpose of, as I say, eliminating the UDF was well known to him and he supported them.
CHAIRPERSON: Are there any incidents involving your clients, Mr Wills, where they, or any of them, acted on his own, or on their own, without any specific instruction being given to them from Luthuli or one of the community leaders or one of the local chiefs, or whatever?
MR WILLS: It is my submission that that is in fact not the case, that the evidence ...(intervention)
CHAIRPERSON: I’m just asking is there any, I’m just trying to recall is there?
MR WILLS: Look the one issue which is a controversial issue, which I will be debating, is obviously the rape.
CHAIRPERSON: No but that one there was evidence that he went to that person who said get some blood and ...(intervention)
MR WILLS: That applied to the murder, clearly, of that incident, but the rape is a little bit more difficult for me than that.
CHAIRPERSON: Yes, but are there any other incidents where they acted ...(intervention)
MR WILLS: Not to my knowledge, and I submit to be corrected because there is a voluminous, there’s literally tens of incidents, but I’ve divided the issue up in my Heads to specific incidents of orders, where like Mr Stewart I’ve referred those to, as you’ll see in page 9 of my Heads, identification and elimination of specific targets relating to the Izingolweni matters, and there I’ve detailed where they got the orders from and what’s that about.
But then the issue, the second issue that I deal with, and I’ll get to, and I think I need to elaborate slightly on what Mr Stewart has said, relates to the, what I term the so called indiscriminate attacks, and I think in that category there are certain cases where it may be submitted, in my submission without merit, that they were acting outside the mandate of their superiors. But if I could just, with respect Mr Chairperson, just focus for a short while on the importance of the membership of this military machine and its implications on the applicants. Because it’s my submission that it’s this very membership, without, if they didn’t have this membership they wouldn’t have been in the position they were, and obviously also the dehumanising effect of that, on each of the applicants, I think must be taken into consideration. Particularly in relation to applicant seven, Hlongwane, who was involved in horrendous direct conflicts from a very young age. And it could be argued with merit that somebody who finds himself in that position would not be able to be discerning in his later life, and that I think is borne out with his subsequent history.
There’s also the division, as I see it, in the IFP military structures. On the one hand you’ve got people like Mkhize and Luthuli and Dlamini, who got involved, and Mbambo, who got involved in formal hit squad structures, and later on Hlongwane joined, but I think there’s also an important aspect of just youth getting involved through informal structures and being controlled specifically by local people on the ground, particularly the people in Hammarsdale, Mr Mkehle was a dominant influence in regard to Hlongwane, and because the relationship was quite a loose military relationship, there were just broad instructions given to attack the ANC and the UDF, and obviously if that is the case, there would be a wide range of activities which possibly might not be sanctioned other than by a broad instruction.
Another aspect which Mr Stewart has referred to briefly, which I concentrate on and I think is important, is at page 5 of my Heads, and it’s what I’ve titled the territorial dynamics of the conflict. It’s a unique feature of the Natal violence, in my submission, that the conflict relates so directly to territory, and the whole of the conflict was about dominance of particular geographical areas, to the extent, as I say in my heads, that one could more or less rely on the fact of if one lived in a particular area than one would be a member of the political party that was dominant in that area. This aspect of the conflict I submit is important particularly when one looks at what might, had it not been for that characteristic, be considered indiscriminate attacks.
I think the evidence of Hlongwane in the Hammarsdale record, is pertinent in this regard. He, as a young man, was under the impression that it was his, it was for him to fulfil the objectives of his organisation, that the UDF should not exist and not be able to govern Mpumalanga.
"...We were supposed to eliminate the UDF, everybody, everybody belonging to the UDF was supposed to be eliminated at the time."
Luthuli also comments on this, that it would be assumed that because in an area there are certain people who belong to a certain political organisation, which is controlled by a certain organisation, those people would have to be killed. And I think this relationship which the foot soldiers had with their superiors who had this attitude, clearly gave them the distinct impression that it was their party’s policy to adopt this approach, and it was part of the policy of the IFP military to take, to attack anybody in an ANC area.
JUDGE KHAMPEPE: Is it policy Mr Wills, or practice?
MR WILLS: I would go so far as to say it was policy, in the sense that it relates to what Mr Stewart and what Mr Luthuli brought out as regards the public and the private face of the Inkatha’s tactics. I submit it was used so commonly that what might have been a practice certainly developed at least, at the very least, in the minds of the applicants, to be a policy of the organisation. And from a very young age Inkatha youth, particularly Hlongwane were, and applicant four Ndlovu, taught that you had to be a member of Inkatha to live in this area. And being a loyal member of Inkatha you had to, you had no choice, you had to attend at camps, you had to obey the instructions of military commanders, and you had to chase the ANC out, or the UDF out of the area. So I’d submit it was a policy.
In regard to this, going to page 7 of my Heads, in view of this territorial, this territorial nature of the conflict, and in view of the fact that all the applicant who I represent were involved in this military attack, it’s my submission that all the applicant believed, on reasonable grounds, that they were acting within the course of their duties, or with express or implied authority as IFP hit men. And I submit that the evidence of Luthuli reinforces this point.
Another important aspect is the specific hit squad that was set up at Izingolweni dealing with Izingolweni matters. Here what was important was that applicant five was called to Ulundi, spoken to by very senior IFP people, and asked him if he’d be capable, if he, well he was ordered in fact, to set up a hit squad. He then was given the task to recruit other people and he was informed how things would basically operate. He appointed first of all applicant five Mbambo, and then later on Hlongwane was sent on instructions by Luthuli to join, and so to was Dlamini, applicant three, to join in. The significance of that, from my point of view, from the evidence it can be seen, is that at least in relation to those people acting below Mkhize, and in every event wherein Mkhize were involved, they had orders from Mkhize, and Mkhize obviously got his orders in the main from Captain Langeni. And the Committee Members will recall the main person who was communicating with Ulundi, and in fact with the local IFP leadership whose role was mainly to identify targets, was in fact Mkhize, and to a lesser extent, at least with the local leadership, was Mbambo, who in fact, when Mkhize was available, took over for a short period as the leader of the hit squad.
On page 8 I refer to the modus operandi, the identification and elimination of specific targets, and the indiscriminate attacks on ANC areas and persons. The only issue, I think that it would waste the Committee’s time for me to go through the actual incidents, I’ve documented them here in relation to Izingolweni, the only thing that I want to touch on is the so called what I’ve termed the cross fire cases. You will recall that there were a number of incidents where, for example in the murder of Sergeant Dlamini, Sergeant Khumalo, where Mr Mabiko was killed. You’ll also recall the incident where there was an attempt on Mr Ntimkulu’s life, and it turned out that there were in fact women in the car, and Mr Ntimkulu was nowhere to be found. It’s my submission in those incidents that the motivation was still political in the sense that they went out to perform those deeds, and secondly that because the deeds in the main occurred within the context of this territorial conflict, that they were relatively certain in any event that the persons found in those areas would be ANC supporting. And so in a sense the two types of attacks dovetailed, and weren’t outside what the policy of the military strategy was.
What’s also important from, from my clients’ point of view, is the fact that they invariably reported back the incidents to, usually in the case of Mr Mkhize to Ulundi, and always to the local leadership in Empangeni, usually either to the, to Mr Bhiela or Mrs Umbuyazi.
Mr Stewart referred to the issue of the kidnapping and murder of Natie Gumede. Clearly from the, the evidence suggests and it’s not contested in any way, was that there was a direct instruction given at a meeting in Ulundi by Prince Gideon Zulu whose a very senior person within the IFP, that this person should be eliminated. Not only did he give the order but he also ordered his subordinate, a Mr Naiwozi to organise a car from the chief minister’s department, and the car was utilised, and after the attack it was, after the execution of the order, a report back was made. There was, I remember at the trial, and also the suggestion in cross-examination that there might have been an ulterior motive particularly from Mbambo, relating to the stealing of a car, but on balance the evidence clearly weighs in favour of the applicants that that was in fact no the motivation.
You will recall that a considerable time was spent in checking up the deeds and the activities of Gumede, before the decision was taken to kill him. In fact Mkhize and Mbambo conducted certain investigations and only after they were satisfied that this was in fact an ANC plot, when I say they were satisfied within their own minds that this was an ANC plot to have Mr Mbambo, who was well know in Izingolweni at the time for what he was doing, taken off the streets, and it was for that reason ...(intervention)
ADV MOTATA: If I may just interrupt. In these two incidents in respect of Natie Gumede, that he was firstly investigated, and the question that, which arose largely even in cross-examination, that Mr Mbambo, why he was eliminating Gumede was that he must not testify against Mr Mbambo about this alleged stolen vehicle. So I just want to know which of the two came first. Whether it was the investigation, or it was the motor vehicle theft, alleged motor vehicle theft.
MR WILLS: I think what actually happened was that Mbambo was notified by the motor vehicle theft unit that he was being suspected of having stolen a vehicle. So that, in fact, came first. His response to that was, knowing that he hadn’t been involved in this, was that he was going to investigate this, and he reported this to his superiors. But, with respect, that aspect of the events, pales into insignificance because the real reason why, in any event, why Natie Gumede, the decision was taken to kill Natie Gumede, and I believe the real reason which, why Gideon Zulu took the decision, was because had Mbambo got into any trouble there was a possibility that the activities of this hit squad could have been revealed, and it was just too dangerous. This hit squad was operating very effectively, it was facilitating the aim of clearing Izingolweni of ANC and causing havoc in what was a pretty strong ANC area at the time, and that process wasn’t going to be disturbed under any circumstances. I don’t know if that answers your question. Mr Chairperson.
ADV MOTATA: I would advise you go on with your argument.
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MR WILLS: Just to place on record, obviously we’re not applying for amnesty in respect of any theft, and that isn’t because he was acquitted of that charge, where he was in fact acquitted of that charge in Court, that is because the theft in fact did not occur.
JUDGE KHAMPEPE: I think the reason why my colleague is putting that question, is that if one has regard to that kind of evidence, it then paints a different picture to the motive, for the killing of Mr Gumede, and it is an important issue for us to clear in our minds, that there were no, there was no other motivation other than a political motive. That he was not trying to eliminate Gumede in order to protect himself from criminal prosecution, which was imminent as a result of the BMW that had allegedly been stolen by him.
MR WILLS: Thank you Ms Committee Member. My submission in this regard would be that had that been the case, the applicant was fully armed with a whole arsenal of weapons, which one can see at the final stages of my argument, and he could have quite easily taken that person out completely, without referring the matter to anybody else. Instead he took the matter to his commander, Mr Mkhize, he disclosed the problem to Mr Mkhize, but even more than that the matter was raised with Gideon Zulu and others at a meeting at Ulundi. Now there would have been no necessity for that, in my submission, had there, had he just wanted to kill Gumede for the purpose of trying to cover things up. What I think is the probably is in fact what Mr Mbambo suggests, is that he honestly felt that his was a ploy of the ANC to get him off the streets in Izingolweni, and I think if one considers the evidence in totality, particularly the issue of how the KwaZulu policemen in Izingolweni were investigating the crimes of their colleagues, covering up evidence, and the fact that the ANC had no recourse to the police station, one can understand that these types of desperate measures or different tactics to get rid of a person, would ensue. For example, there’s no motor vehicle theft unit in Izingolweni with the KwaZulu police. One would have to go to the South African police to get that sort of thing investigated. That’s the first thing.
And secondly the ANC had lost all faith in reporting incidents to that police station, because there was no success in investigating the issues. And that in itself would make it far easier for Mbambo to have killed Gumede. Because he could have killed Gumede and the matter simply wouldn’t have been investigated, like the hundreds of other issues that weren’t investigated.
I submit as well in the totality of the evidence, I mean you’re touching on the issue of personal gain, there is not one iota of evidence where any of the applicants whom I represent got anything for anything that they did, other than the salaries that they got as policemen.
Now, the only, turning to the incidents of what I’ve loosely referred to as the indiscriminate attacks, and I use the word indiscriminate specifically in the context that the victims were not identifiably, but the attacks were discriminate in the sense that they were directed against either ANC persons or ANC areas. But referring to that was what I considered to be quite a seminal event in the history of Izingolweni, and that was the incident where the IFP had a rally in February 1992 at the Izingolweni station, stadium, and Prince Gideon Zulu was due to address that rally, and it was disrupted by the ANC to the extent that Prince Gideon Zulu couldn’t deliver his speech as he intended. And from that point on, right in the presence of Mbabmo and later at a meeting called at Izingolweni specifically to discuss that problem, Gideon Zulu issued the instructions to the effect that "...we must do to the ANC what they are doing to us." And by that he was referring specifically to these attacks on ANC busses and the like in areas without specifically targeting people. And that was seminal in the sense that it was only after that that the applicants who I represent, should I say the applicants who’d only been operating in Izingolweni, got involved in that sort of violence.
CHAIRPERSON: The watershed with regard to the policy of random or indiscriminate attacks. It happened, from the evidence before us, certainly my impression was that it was, that policy came about directly because of what happened at that rally, and because the Prince lost his temper. He was humiliated publicly, and that brought about a complete change. Before then it was hit list type work, you know, specified targets.
MR WILLS: Yes, that would be my submission in relation to the geographical area of Izingolweni, but I would submit that the, that that policy was in effect in places like Hammarsdale and Ermelo, much earlier than that, and I’ll get onto those issues when I deal with them. But clearly in regard to Mkhize and Mbambo who only really got involved in these activities in Izingolweni, that was clearly the case. But Gideon Zulu went further than that, and this is confirmed in Luthuli’s evidence, because Luthuli confirmed that whilst Luthuli wasn’t at the meeting at Hlalankahle hall when this change of policy was communicated to the local people, Luthuli commented that he met with Gideon Zulu at a later stage, at Ulundi, where Zulu indicated to Luthuli that this change of police had occurred. And that’s documented I think in the statement of, I’ve got the reference somewhere in my argument and I can find it.
There’s an enormous amount of these so called indiscriminate attacks, and I don’t intend to deal with each of them, I want to deal with them quite broadly, and I’ve listed them at page 14. These, once these attacks started, there were more specific reasons given for them at certain stages. You will recall that there was the incident of when some of the IFP hit, some of the IFP operative in Izingolweni were arrested as a result of an attack on the ANC leader Beki Ntuli’s home. They went to Court and there was a bail hearing. The ANC leader Willis Mkunu gave evidence to the effect that,
"... since these people have been arrested the violence in Izingolweni has dropped."
And then there was a meeting between Bhiela, Mrs Umbuyazi and the so called lawyer Gabela, that in order to persuade the Magistrate otherwise, the hit squads should be activated, and on that particular evening a lot of havoc was, they certainly did operate in Izingolweni.
I think as well on that level, referring back to Gideon Zulu, there was that level of pride. The evidence sort of indicated when Zulu was so furious about this attack, that he accused these well trained soldiers of not being able to do their jobs. In fact it was the only time, in my going through the evidence of this time, that they were reprimanded. They were never reprimanded for killing people. I mean sorry, the only time they were reprimanded was for not killing people. They were never disciplined for killing the wrong person or going, or doing too much in that regard, and I think that’s quite an important point.
JUDGE KHAMPEPE: You earlier on wanted to refer us to the record. May I assist you? I think it’s, according to your Heads, with regard to Mr Luthuli and the message that was conveyed by his eminent Prince Gideon Zulu, with regard to the indiscriminate order, appears at page 6, it’s on page 6, the second paragraph of your Heads. It would give you the record pages.
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MR WILLS: Thank you. It is, it’s my submission that everything that Hlongwane did in this instance was at the instruction of his leader, Zekeli Mkehle and at times he was provided with ammunition by Luthuli and assisted by South African policemen. Obviously applicants Mkhize and Mbambo weren’t involved here, and there’s one incident which I’ll relate to, where Ndlovu is involved on his own.
I don’t know if there’s anything that the Committee wish me to expand on, apart from the rape incident, in that area, but clearly it was simply a case of Hlongwane being a member of the IFP youth, being a brave and loyal person, and a very useful member of that Inkatha youth, and him performing his function really well in his leaders’ eyes, of just disrupting the community. There are a couple of instances where I think possibly need a little more expansion and those were the ones where a, an innocent person was killed in order to lure a more prominent person into the area. Now that’s ...(intervention)
CHAIRPERSON: That was the one where they wanted to get the brother, I think.
MR WILLS: Yes, Thulani.
CHAIRPERSON: And there was the ...(intervention)
MR WILLS: That occurred in fact in Ermelo ...(intervention)
CHAIRPERSON: They wanted to create a funeral to get the brother to come as a mourner.
MR WILLS: Yes, that in fact, that policy was adopted in both Hammarsdale and the Ermelo matters. In the Hammarsdale matter in fact there were two members of one family killed in order to lure the brother back. There was a mother and a son killed, and in the Ermelo matters it was just one incident, but the same tactic was adopted.
But my submission on that is the specific objective, firstly, was to get the particular activist who was labelled as a troublesome person, and in all of these instances, it wasn’t applicant seven’s idea on his own, he was advised to do this by, in the case of the Hammarsdale matters by Mkehle and I think in the case of the Ermelo one which we’ll get to it was Mwayo who instructed him accordingly.
CHAIRPERSON: What about proportionality in respect of that sort of incident?
MR WILLS: Well, I submit ...(intervention)
CHAIRPERSON: Where you go to such extreme lengths to, just to get the presence of your target, let alone to kill him.
MR WILLS: Yes, I submit that the issue of proportionality with respect concerns issues more where orders are absent, because where a person is given an order, clearly, particularly Hlongwane, he was at the bottom rung of this killing machine, and he just had to execute those orders. I think that that creates a problem. If it were Mkehle applying for amnesty in regard to those events.
JUDGE KHAMPEPE: But I have a problem. I agree with you, to some extent, with your submission. But I do not recollect Mr Hlongwane’s evidence with regard to the Hlowane killings, the two brothers, to have been that in both incidences he received instructions from Mr Mkehle. I think the instructions was with regard to the killing of Thulani, but I do not recollect the evidence to have gone that far with regard to the later killing of the other brother.
MR WILLS: Thank you Mr Chairperson. I’d have to look at that more closely. My recollection was that the first instance was the order to kill the mother of the, and then the second incident was the younger brother.
JUDGE KHAMPEPE: I can assure you that the first order was to kill Thulani in order to lure in Sikanye. I think that’s the person who was being targeted. Now the reason why they wanted Sikanye is that they couldn’t locate Sikanye and the only, best method that Mkehle came up with was to kill Thulani in order to get Sikanye, who it was anticipated would be killed in a night vigil.
MR WILLS: Yes, look I will check up the detail of that if I could have some time and get back to you. But assuming that what you say, Ms Committee Member, is correct, I still submit that if the initial order was given on the basis that you kill person X to lure your target into a night vigil so that you can kill him, and you do that and that doesn’t work, then I would submit doing it a second time would be performing the same plan in a second attempt to try and get the person. And I submit that if the second time wouldn’t have been necessary had the victim been, had the plan worked in the first instance, but the plan didn’t work, so he had to try again. And the whole purpose of that was to kill the opponent. But I’ll check, I will check that out, possibly over lunch.
JUDGE KHAMPEPE: You do that, and when you do check, also give us a reference whether there was any evidence that was led why Sikanye was not killed in that night vigil. Thulani was killed in order to lure him in, were there any attempts made to kill Sikanye in the night vigil?
MR WILLS: Yes, thank you.
CHAIRPERSON: Perhaps you can take a look at, or focus on the rape now.
MR WILLS: That I deal with at page 17 of my Heads. The main import of the application in respect of the rape, or my main argument, concerns the brutality of the violence and the experience of what applicant seven had been through up until that point in time. He had effectively been taught to treat enemies as dogs, without having any compassion for their humanity whatsoever. The evidence of Luthuli concerning his problems when he first arrived in Mpumalanga, about the undisciplined nature of the violence, is also pertinent in this regard. You will recall that Ntuli went in and there were two camps. There was one person who wanted to speak, to negotiate problems through, negotiate the conflict through peaceful means, and there was Mkehle who was Hlongwane’s commander, who preferred the violent means. And in describing how these people operated, Luthuli went as far as saying that because the person operating under Mkehle were so treacherous and bad and brutal, that people were moving out of the IFP areas into the ANC areas because they didn’t want anything to do with it. And I think Luthuli’s words was that he wanted, one of his purposes of coming to Mpumalanga was to rebuild the organisation because of the serious indiscipline that he found there.
Now should that be the case, and I submit there is nothing to counter it in the evidence, then clearly the implication is that those persons acting under Mkehle basically did what they wanted without any guidance whatsoever in regard to terrorising the community. And in those circumstances, the extremes that they took to eliminate all opposition, went to levels which can only be described as horrific.
The two girls were not seen as women, they were seen as ANC spies, and the order that Hlongwane got from Mkehle was brutal in the extreme. When he had captured the girls Mkehle indicated to him that he must cut their throats and take a cloths and wipe some blood off each of their throats and return the bloodstained cloth to him so that he could use this for muti. In his evidence Hlongwane said that he must do something so terrible to these girls that it will serve as an indication to other people, other girls specifically, that they should not come into the area to spy. And it’s in those circumstances that that rape occurred.
First of all had there not been the perception that these girls were spying, Hlongwane wouldn’t have gone to get them. He in fact was called away to deal with the issue, and it is my submission that this rape was simply another example of the extreme brutality which was occurring at the time. Hlongwane also gives evidence to the effect that it was a practice that was used, and nobody disputed this despite the representation of the victims here, that it was, he mentions the name of a particular IFP woman who was found killed and raped on one occasion, and his evidence was to the effect that this rape occurred on both sides. And that is corroborated by what Luthuli says when he gets to Mpumalanga. Luthuli comments at page 289 of the bundle, that the Inkatha youth simply attacked houses on the slightest suspicion. People were robbed, girls were raped, and people were murdered. In his testimony applicant one saw his role to clean up the IFP, which was involved, the IFP was involved in killing, kidnapping, rape, stealing, burning and shooting and killing people in broad daylight.
Now my submission is obviously Mkehle would have know that this was going on if Luthuli who was a recent, or I shouldn’t say recent, but he’d come to the area after a long absence. One would expect, Luthuli found it out almost immediately, so Mkehle must have know that this was going on, and no steps were taken whatsoever to stop this type of activity.
CHAIRPERSON: Speaking generally now, with rape. You’re saying that the rape here was committed with a political objective. Is it not a physical necessity that there must be a huge degree, or a large degree of self-satisfaction in order to be able to rape a woman. You know if a commanders orders a man, his soldiers, to get an erection, they won’t get an erection. Because there’s no self-stimulation, there’s no ... but with rape there’s got to be that element of self-satisfaction. Now, am I right or wrong? I don’t know. That would seem so. You know, how can you physically rape a person and your motive is purely political? How can you do it?
MR WILLS: Certainly one hypothetically would agree with what you say, but it’s my submission that the rape can also be seen as one of the most horrific and degrading things that one can possibly do to a woman.
CHAIRPERSON: I understand that, I can understand that element, but in order to perform it, to do it ...
MR WILLS: Yes, well all I can say is clearly that, clearly that, that must occur, but my submission is that in itself wouldn’t prevent an applicant in the broader circumstance of applying for amnesty in the broader context of the rape, the murder and the whole policy, to just annihilate and eliminate the ANC in those areas.
ADV MOTATA: Put it in the context in which you are saying on page 17 that the, what I understand in your Heads is that, what governed the day was love and fear and the most powerful of the two was fear. And I say, taking that fear and saying now we would look at it in the context of rape. You must first have that love, and if that love is preceded by that fear, would you, in the circumstances say rape was political?
MR WILLS: My submission and I can’t take it any further Mr Committee Member, is that it was an attempt to - sorry, my submission is that it was simply, there was no love involved, there was clearly no love preceding that, but it was an attempt to simply humiliate and degrade in the most abominable way, a person who was hated for her being a member of the opposite camp. And I have, with respect, tried to find reference to this, but haven’t come up with anything specific, but it is my contention that the, that rape and pillage is a common occurrence in attempts to subjugate people. I know for example that the, that in Yugoslavia it was a common occurrence. My submission is that it has been a tactic that has been used to completely destroy the opponent society.
ADV MOTATA: Let’s look at it in this context, in the context of the evidence before us, and this is my understanding of the evidence. That firstly, these women were kidnapped, raped, that’s my understanding, correct me if I’m mistaken, and thereafter instructions were sought.
CHAIRPERSON: I think that, they were girls, they were fourteen or fifteen.
ADV MOTATA: Fourteen yes. That instructions were subsequently sought, what should we do with these women? And then the blood issue came into play. That slit their throats and wipe them with a cloth so that we could utilise that for muti. Now I say if we look at it in that instance, how could we say it’s political?
MR WILLS: Well firstly, with respect Mr Committee Member, there is a conflict between the applicant’s evidence in chief and his evidence on the statement in this regard. As you correctly reflect, that chain of events accurately describes what he said in his statement. In the evidence in chief, the opposite is the case, that he went first of all to Mkehle and then got the instruction and came back and raped the girls. There, I raised with him this contradiction in his evidence, and his answer was to the extent that, you know it was a long time ago, he couldn’t be sure. However, if the first incident, as you describe, occurs, the whole manner in which Mr Hlongwane’s being, his very essence, had been completely destroyed from a moral point of view by his activities, by that time, he had been involved in numerous killings, attacks, he had been taught by numerous people including South African government agencies, his training in Koeberg occurred before that period, simply to hate the ANC with a passion. And I submit that the act of degrading the women to that extent, would have served that purpose of simply showing the ANC that we can do anything to you. We can do anything to your women, and this is our area, and you guys must know that, you clear out of here.
ADV MOTATA: Would we, if we look at it in hindsight, that, what would have been paramount when we look at these two young girls? Their throats having been slit, or that they had been raped? What would have been paramount in the community of the ANC in that area?
CHAIRPERSON: I think what is, yes, what Mr, who would have even known that they would have been raped? Would it not have been, if the purpose of the rape was to send a message to have raped them and tell them to go home and tell their people what had happened to them, rather than to cut their throats. Fortunately one of them survived, but that was through no skill on the part of the applicant concerned.
MR WILLS: The only submission I can make in that regard is that it was quite a public incident. There were a number of people involved, a lot of them on the ANC side, I mean on the IFP side were involved in the incident, and I submit that that news would have travelled like wildfire.
JUDGE KHAMPEPE: How can that be so, on probabilities?
MR WILLS: Well I’d submit that it would be something that people would normally talk about, and would indicate that, you know, this what you do, this is what has happened to these people, and it’s the type of thing that would be discussed quite widely. Particularly in view of the fact that the police in that area were supporting the operations.
JUDGE KHAMPEPE: Mr Wills let me understand you on this particular issue. Is it your submission, that your client was given an order by Mr Mkehle to slit the girls throats for purposes of muti, and further to do something really bad in order to discourage other girls from spying for the ANC? Am I understanding you to be making those submissions?
MR WILLS: Unfortunately Ms Committee Member on the evidence I’m not able to make the submission as clearly as you frame it there. The best that I can do is say that in the circumstances, in the context of that brutality, the probabilities are that the rape was just another act, another one of the very many acts of horror and brutality, and that it would be my submission that in view of the extent and the brutality of the violence that was happening at the time, that hypothetically had Hlongwane gone to Mkehle and said I’m going to rape these women, there would have been no objection.
JUDGE KHAMPEPE: Let’s deal with the evidence. The evidence before us. What is Mr Hlongwane saying? Isn’t there serious conflict as you’ve just conceded?
MR WILLS: I concede that there’s a conflict, but I don’t concede that that conflict negates the fact that this rape was political. I mean had it been ordered, obviously, even had it been ordered, I submit that before this Committee it’s a very difficult issue and it’s a very controversial issue. I know that it’s one of the most difficult issues to try and justify, but even with the order that would have been so. But without the order, I concede it makes it more difficult for me. But my position is that it is a brutal act against an opponent and that is consistent with the way that Hlongwane had been developed to operate.
JUDGE KHAMPEPE: Now, if it’s consistent with the way in which Mr Hlongwane had been primed and developed by his organisation, we now we’ve heard evidence of how he was made to be a killing machine at a very young age, we have not, however, been presented with any evidence to show that his brutality extended to raping. And there has been a litany of incidents which really shows him to have been a killing machine. Yet, not a single incident is suggestive of his brutality to have extended to raping women to show his innermost hatred for the ANC. And that I have a serious problem with.
MR WILLS: Yes, Ms Committee Member, my submission in that regard would be that the majority of the incidences, by far, that Hlongwane was involved in, were attacks in the opposition’s territory. His whole modus operandi particularly from when he left Hammarsdale, was he was a single operator. He didn’t go with groups. He had people pointing out places for him. In Ermelo it was the individual by the name of China, they went looking into the enemy turf for people. They shot them and attacked them in their turf and then they came back. This is one of the few examples where an actual attack occurred in the safety of his home ground, where he had the luxury, of one can very badly described it that way, of saying to his, his co-operatives, to say, you keep these people in custody, while I go, and I don’t think that is disputed, while I go and seek guidance on what to do with these people from our leader. And as he says in his evidence it was the first time that he was dealing with women. That’s as far as I can take it.
JUDGE KHAMPEPE: I think I understand your difficulty, but I wanted to share with you my difficulty and give you an opportunity to respond to my difficulty, because I still remain with that difficulty. It was his first time you concede, to have been able to have one, a woman spy, secondly to deal with women at all.
MR WILLS: No that’s not entirely what I’m saying with respect Ms Committee person. The import of what I’m saying is that, one, it was the first time yes that he had caught women spies, but importantly in direct answer to your question, in his, in the safety of his own area. It wasn’t a hit and run type of attack. And I submit that it’s quite unusual, I haven’t seen it in any of the offences, for women to be, in these incidents where women come into other areas, with the specific purpose to attack, and I submit that in probability had that occurred more frequently then this same result would have occurred more frequently.
JUDGE KHAMPEPE: And it is your submission that if you are filled with great hatred, it is quite something plausible for an erection to happen because of your hatred?
MR WILLS: As I say, I’m not in a position to comment on that with any degree of certainty, I’m not an expert in that field, but I can only say that there clearly, that rape is quite common in warfare, and in that sense it’s not done for reasons of love and affection.
JUDGE KHAMPEPE: Taking the totality of the evidence that has been presented to this Committee by all the applicants, there has not been a single incident where any of them have been involved in a situation such as Mr Hlongwane, where young women were raped. We know for a fact that there was this conflict between the IFP and the ANC, but there has not been a single incident wherein the applicants, who we know have been operatives, and were performing their tasks stirlingly for their political organisation, there hasn’t been a single incident where rape has been an issue.
MR WILLS: The only thing I can do, with respect Ms Committee person, is again refer you to Luthuli’s evidence, where he says when he got to Hammarsdale, and he says this specifically, that the IFP was involved in the killing and raping, and that is, seems to be plural in the context, and that is the only evidence we have of this. And if that is the only evidence the inference is that under the command of Mkehle this sort of thing was going on. I don’t, I’m not suggesting it was a direct order, but I’m clearly suggesting and submitting that Mkehle knew that this was going on and it was tacitly condoned.
JUDGE KHAMPEPE: You will recall however that Luthuli went on to explain that the situation was more criminal than anything else and that’s why he had to go in there and put things in order.
MR WILLS: Yes, I, sorry.
JUDGE KHAMPEPE: People were attacked not because really they were perceived to be belonging to a different organisation. All kinds of dynamics came into play and that’s why in earnest and because he loved his organisation he had to go in there to stop things and put things in their political order. That’s how I understood his evidence.
MR WILLS: Yes, I understood his evidence in exactly the same way, but one must, one must look at it, let me rather say hypothetically that had Luthuli been in Mkehle’s position at the time that Hlongwane had been recruited, things might have been quite different. But if you’ve got a commander who clearly, the inference, on the inference of Luthuli’s evidence, is allowing this type of what Luthuli referred to as ill discipline, then it’s a completely different, completely different position.
I submit that, all I can say is, it must be, it must be accepted, with respect, that Mkehle knew what they were doing and he didn’t do anything about it. And if that is the case, this instance, it wasn’t that they were doing it to IFP people, in this case it is clear these people were here, represented, and there was no dispute about their political allegiances, there was no dispute about the fact that they were indeed spying, that evidence was left unchallenged, and in that context, with a bad leader, who would influence a person and would tacitly allow people to do things in a particular way, I submit that that cannot be held against Hlongwane.
JUDGE KHAMPEPE: You will also recall that Mr Hlongwane was asked whether he did advise Mr Mkehle about the rape, after he had conceded that he could have raped the girl before getting instructions from Mkehle, that he stated quite clearly that he didn’t say anything about this issue to Mkehle. So with regard to this issue, definitely Mkehle wouldn’t have known that Hlongwane had raped. He can’t be blamed for people who have gone on a frolic of their own, under the guise of advancing the cause of a particular organisation.
MR WILLS: Yes, I think I’m not going to be able to take this matter much further, Ms Committee Member, only to say on that, that if in one’s mind as I think is in the minds of the people around this table, that rape is such an important thing, then one might expect, but if it’s just another act, another one of the many acts of brutality, then it’s not necessarily the thing that might have been reported. But further than that I can’t take it.
CHAIRPERSON: We’ll take the lunch adjournment now Mr Wills, until quarter to two.
COMMITTEE ADJOURNS
ON RESUMPTION
MR WILLS IN ARGUMENT: (Cont)
Sorry, to put it on record, the applicant’s age at the time of the rape incident was 16 years. Also, getting back to the question that was raised by Committee Member Judge Khampepe, the luring of Sikanye to the night vigil, clearly the Committee Member’s recollection of events was more accurate than mine. The incident, the incident occurred in that Thulani, the order was given by Mkehle to kill Thulani in order to lure Sikanye who was the target to the night vigil, and it was, he was going to be killed there. He didn’t come to the night vigil. Then the younger brother was killed, the name of isn’t on record and the applicant doesn’t know the name to this day. And he was cross-examined and the reason for the killing wasn’t to lure the person, it was mainly just an attack on him, being a person from a UDF family in the general violence at the time. So my submission is, is that that takes it out of the issue of proportionality.
If there’s anything further I’ll move on. The pages reference there, this incident is discussed page 159 of the Hammarsdale, sorry let me just check that, 159 to 169 is when it was discussed on the record. It’s the Hammarsdale volume. And just in answer to a question, just to finalise that issue to Honourable Judge Khampepe, the applicant was asked:
"...Are you saying that you killed Hlongwane’s younger brother because he was Sikanye’s brother, or was it because he was a member of the UDF? Which of the two? I just need clarification."
The answer being:
"...It was both, he was a member of the UDF and he was also Sikanye’s brother."
I submit that that would form part of the sort of general attacks on the opposition. Thank you.
I now want to turn to deal with the Ermelo matters, and I’m going to deal with these very briefly in my argument. They commence at page 18 of my Heads, and they’re listed in my Annexure A I think in section 3. I don’t intend going through every incident, basically what needs to be emphasised here is the way, or the circumstances surrounding the applicant’s deployment in Ermelo.
You will recall that he was actually removed from the police as a special constable, because the South African police were searching for him in relation to the rape issue which we discussed. And he was taken, he fled to Ulundi together with his co-accused and they were sent back to get clothing. In the process his co-accused got caught and then Hlongwane was hid for a while in the Ulundi environs. It was at that stage that, I think at one of the camps, the Black Cats from Ermelo, basically the IFP youth from Ermelo, came and he met them there, and then he was given basically a deployment order by the first applicant, Luthuli, to go to Ermelo, specifically because the Black Cats were losing the war and the ANC were creating problems for organisation in that area. The similar structure existed in that he was told to report to the mayor of Dargle a Mr Noah, and he met this person at an agreed place. This person provided food and shelter and in fact, together with other IFP persons in the area, provided him with the, what he described as being the tools that he required for, to, satisfy his mission or to complete his mission there. And as the evidence indicates he was very successful in this regard, and certainly directed a number of attacks against the opposition which were quite successful.
I, it’s my submission that in relation to all these attacks they were committed strictly within the framework of the military tactics employed by the IFP against the ANC and UDF at the time, and further that in relation to all of these incidents he has fully disclosed the circumstances surrounding them. Again it’s, I think it’s useful to emphasise that in most of these instances, he hasn’t been prosecuted, and in fact nobody would have known his involvement had it not been for him coming to the fore. Further, his sincerity in approaching matters this way is shown by the fact that he has acted for the State as a State witness and assisted with investigations, and also as Mr Stewart had indicated earlier, his contrition and his full disclosure has led to him being, his apology being accepted by the community in Ermelo.
CHAIRPERSON: Mr Muller’s argument is that there’s no acceptable evidence that the named policemen who he represents were involved in supporting the IFP, etc., and Mr Rouss Ngewu I think the name was, wasn’t even a policeman, Roux Ngwenya, yes. What do you say to those submissions which we’ll no doubt hear shortly from Mr Muller.
MR WILLS: Well I submit with respect that in order for the Committee to take cognisance of that argument, which with respect I haven’t seen, this is the first I’ve heard of it, but that argument must be put to the test of cross-examination. Hlongwane has come here, he’s testified under oath, he’s subjected himself to cross-examination by a number of legal teams, and the same can’t be said of the person who may be opposing him. And to that extent I would submit that the evidence of Mr Hlongwane must be accepted above the evidence of these persons.
CHAIRPERSON: Sorry, just while we’re on that matter, I should have perhaps have asked Mr Stewart when he was arguing, what about the stance, or the, taken by the implicated person represented by Messrs Faulkner and Hewitt during the hearing? Namely that all their clients deny, any and all of the allegations against them.
MR WILLS: Yes, my argument would be similar. I think this provides, they were provided with the Section 18 notices, they had ample opportunity to come and to testify in opposition, and it’s very easy for somebody at a distance to sit in Ulundi and say, we know nothing about this, these people are just criminals, it’s another thing for them to come and substantiate those averments and subject themselves to cross-examination.
I want to, I don’t see that there’s a need to harp on the Ermelo matters unless there’s something else, just that, the only other thing ...(intervention)
CHAIRPERSON: I think the same arguments apply in respect of those, and to a large extent the Izingolweni type of incidents, they were horrific, I mean there’s no doubt about it. I mean, when one looks at most of the victims, they were school children there. I mean, they had a problem at the school and I think at one stage Mr Hlongwane said you know, take out the whole school. You know, to solve the problem. And then, come across school kids and they get pointed out and boom they’re shot down, that sort of thing. Much in the same mould as many other.
MR WILLS: Yes, except to say, well it’s in the same mould but I emphasise, in addition to the way I did with the Izingolweni matters, that this was in the, within the structure of a planned operation, and Hlongwane was effectively ...(intervention)
CHAIRPERSON: Was sent there specifically for, to perform a task.
MR WILLS: Yes, and he did that task. I mean, clearly in respect of the Ermelo, he was known to be Zulu speaking. He got the reputation of being a KwaZulu policeman there. He didn’t obviously know Ermelo at all, so had it not been for the local IFP leadership pointing people out, he wouldn’t have known what to do. They provided him with cover, they provided him with transport, they provided him with arms and ammunition and they pointed out the targets. And basically he was more or less their fire power and that was about it.
Just the only other incident that I want to refer to that occurred within the Mpumalanga province’s jurisdiction, is the issue of the murder of Japie Teledi, which involved applicants five and seven. It involved applicant five only in a very minor respect in that he was originally involved in a conspiracy together with applicant five, to kill Japie Teledi, but for reasons that Japie Teledi was not in Bushbuckridge at the time, that mission was aborted. You will recall that the evidence was to the effect that later after the death of applicant five’s, that Mbambo’s, mentor, Siphiwe Ungayani, his co-accused in that trial, Wiseman Ngxongo, came to Izingolweni and the mission again was revisited and eventually it was successful.
There was some controversy raised by initially Mr Hewitt and later on by Committee Member Judge Khampepe, regarding the fact that in the application Mbambo had not stated the involvement of Mrs Umbuyazi, and he’d only said that in evidence, the implication being that this was a, sort of a post event fabrication. I’m able to refer the Committee to the judgment which I didn’t have available at that time, but I can state that the judgment in the matter where Mbambo was convicted was handed down by his lordship I think Mr de Klerk on the 22nd of June 1996. I’m just going to check that date. Yes, sorry, the 22nd of July 1996, and it was on that date that Mbambo appeared in Court and he pleaded guilty to this charge and he explained in mitigation the circumstances surrounding the killing, and the mitigation is recorded in the amnesty application of his co-accused, Mondli Wiseman Ngxongo, my pronunciation is bad but the spelling is N G X O N G O, and the amnesty reference number is AM4034/96. 34 of 96.
Now you will see from the affidavits in respect of this matter that they were only signed in December of 96, so it is clear that before the application was signed, Mbambo had already testified to the effect that Mrs Umbuyazi was involved in these matters, and essentially, to say ...(intervention)
CHAIRPERSON: In that extract in mitigation it is mentioned that Mrs Umbuyazi was involved in this.
MR WILLS: Yes, exactly. In fact, the evidence in mitigation that is transcribed, follows almost to the letter of the mitigation, or sorry of the evidence, that was led before this Commission, the viva voce evidence. And it’s my submission that this lends credence to Mr Mbambo when he indicated in answer to those questions, that he did indicate this in Court and that there was no mala fides or an attempt to not disclose the facts on his part.
Regarding that murder, clearly, taking into account and on the basis that Mrs Umbuyazi was involved and had ordered the, or had sanctioned the attack, when basically the evidence is Wiseman Ngxongo came to Izingolweni, he found Mbambo, Mbambo together went with Ngxongo to Mrs Umbuyazi’s house. Mrs Umbuyazi then made a phone call to the IFP contact in Bushbuckridge or Mpumalanga, she spoke to, we think, the chairperson there, and then she came back off the phone and she said, you guys must go and, in a hurry, and perform this mission. That is borne out in the transcript of the record in the criminal proceedings, and is reflected as I say at pages 58, 59 and 60 of the bundle that I mentioned earlier, that is amnesty, the Ngxongo matter 4034/96.
I submit in those circumstances, again, the applicant has satisfied both the requirements of full disclosure and the fact that this act was an act committed, associated with a political objective. Again, to emphasise this, the representative of Mr Tuledi’s family, attorney Ntuli from Nelspruit, was present at the proceedings at Ermelo, and he made no suggestion that one, Tuledi was not an active member of the ANC, and secondly, that Tuledi was not involved in the smuggling of weapons for the IFP, for the ANC, as was alleged by initially Sipho Umviyani as being the reason why Tuledi had to die. I submit that had that not been the case that, particularly in the light of the fact that that family was represented, would have brought to the attention of the Committee. My submission obviously being that one must at the very least assume that Tuledi was an active ANC person and in that sense he was a legitimate target and an obstruction to the IFP operations in that region.
Turning now to the Mandini matters. On the completion of my Heads I realised that I should have actually placed these within the context of the Izingolweni matters because they occurred at the same time. Again, these involve applicant seven, in the main, and to a lesser extent, applicant six. The reason for this being that the prime mover of these operations, the evidence suggests, is the, is chief Mataba from the Inyoni district in northern Natal, which I think adjoins the Izingolweni town boundaries, it’s in the Umtinzini district. Now you will recall from the evidence and the statement of Mbambo, that chief Mataba was listed as one of the person who he regarded as being one of the hit squad commanders. Basically what occurred was that chief Mataba, in the main, made certain requests of applicants six and seven, to perform certain deeds. Should I rather be, sorry I withdraw that statement, he essentially ordered six and seven to take out certain people. Amongst them a Cosatu bus driver, certain indunas who were allowing free political association areas, and a number of others.
Now not only did he enlist their assistance in these matters, he also provided most of the logistical requirements. In fact in the, on the one occasion chief Mataba himself pointed out the house where the target lived, and on other instances he provided certain persons to do that for him. But in all instances, his blue Toyota Cressida vehicle was used in the incidents. I submit in that context these matters must be seen, the ones specifically ordered by Mataba, as being act with, associated with a political objective.
There are a number of other acts which are directed against what appear to be Cosatu individuals in the Sundumbili area. These also relate back to chief Mataba’s concerns. And those that don’t, I think there’s two that don’t, I cannot specifically ...(intervention)
CHAIRPERSON: Which is the one with the mother and they used to come and eat food at the house, which one’s that? They used to come, the ANC children would come and eat at the mother’s house. What incident was that again?
MR WILLS: I’m sorry I don’t remember that specific portion of the evidence, with respect Mr Chairperson. I’ll just try and ...
CHAIRPERSON: She wasn’t really the mother. Although I think that was Izingolweni, was it?
MR WILLS: I’m instructed that it’s the murder of ANC member Ginvenga in the Mandini area.
CHAIRPERSON: Yes, that’s. Yes, it’s not referred to in, Gadinga.
JUDGE KHAMPEPE: Four point, I think it was
CHAIRPERSON: Four point three.
JUDGE KHAMPEPE: Page 12.
CHAIRPERSON: Yes, that’s right.
MR WILLS: I don’t recall that aspect exactly, if you could just bear with me very briefly.
CHAIRPERSON: It doesn’t matter, I just didn’t recognise it by reading your description of the Mandini events, although I remember there was this one with this house where they used to come and eat, etc. etc. Now that it’s been pointed out that it’s the Gidini one, I know it’s there. I thought it might have been overlooked.
MR WILLS: Yes. Turning to the last incidents which I couldn’t categorise geographically, in the main body of the evidence, there was the first incident of the murder of Bongani Ntombela in December 1991 at Imbali. And this is the matter in respect of which applicant four, Mr Ndlovu, is seeking amnesty. This you will recall is the matter where he was, as a KwaZulu policeman, was guarding MZ Khumalo’s son’s house in Izingolweni, and they were taking a walk down the street when they were insulted by a group of about 15 individuals, and then on the return to the house his colleague initially shot one of these individuals in the leg, and then the applicant finished him off by shooting him in the head, to use his words.
Here he was cross-examined to an extent on the issue of how he recognised, by again Committee Member Judge Khampepe, on how he recognised this particular individual, and the suggestion, or the inference was, was that it was an indiscriminate killing rather than something that, or rather than him specifically retaliating to a specific individual who had in fact insulted him. I submit in this case the political context of this is that the applicant was sent as an IFP constable to guard a house, and I think the evidence was to the extent that in particular section of Imbali there were only two IFP houses and so they had to be guarded quite, with some quite serious fire power. I think there were four guards on each house. And like the Clewer incident, there was this insult, and the, there was in a sense a retaliation for that remark, but that must be seen in the sense exactly like Mr Stewart argued that this was making a statement about the IFP’s presence in this area and that obviously facilitated the objectives of the IFP in that area, in the sense that one couldn’t treat the IFP in this manner. It certainly wasn’t a matter of any personal revenge. Clearly it was sparked by an attack of an organisational nature, a verbal attack, attacking the organisation as opposed to the individual, and the retaliation was likewise, against, it was an attack by a member of an organisation against another member of an organisation. The justification in that submission is that clearly these persons must have been ANC people in the light of the territorial position, that there weren’t many IFP people in that particular area, in fact there were only two houses, so clearly if there was any other IFP person within that area, the applicant certainly would have recognised that person. That’s as far as I can take that, but I submit that this is clearly a case which arose as a result of the political conflict at the time, and that, amnesty, the requirements have been met as regards of this issue.
In that issue, I just want to state that my Heads are slightly inaccurate, and I think this was brought up in the evidence, that it’s not only for the murder of Bongani Ntombela that amnesty is sought, it’s also for the attempted murder of the other four persons. I would respectfully request that that annotation be made. You will recall that there were other persons in the crowd, I think policemen, who were shot at.
We withdraw the application in respect of 5.2. You will recall this was the, what was entitled the revenge attack, for the killing of Siphiwe Mvuyani which involves applicant five. The basis of the withdrawal is that nothing was in fact done.
In regard to 5.3, the failure to report murder of a man and woman in the ANC areas in Ndwedwe, that we’ve modified, and I submit correctly. What occurred here is the applicants applied for amnesty in respect of the murder of these persons. You’ll recall this incident. He was doing his work as a KwaZulu policeman, as a policeman sorry, in Ndwedwe, and he was in his van and him and his occupant got shot at from some distance. They radioed for another van, another van to go to the house, and they then went themselves. Basically the police entered the house, and shot first of all a man in the house, and then later on the applicant heard another shot emanating from the back of the house, when one of the police colleagues came to him and said that he had killed a woman, and it later transpired that this woman was pregnant. Now clearly there’s no common purpose on the part of the applicant in regard to this attack. It happened without his knowledge in respect of both of those murders, but as a duty, he had a duty as a policeman to report these issues, and he didn’t do so. Now the politics of that is quite simply that KwaZulu policemen would not investigate cases which involved ANC persons, and in that regard I submit that the political motivation for the omission is justified.
As regards the issue at 5.4, the attempted murder of unknown ANC members at a school in Ndwedwe, again you will recall what happened here is that it was believed by the applicant that the SANDF who were patrolling that area were supporting the ANC. They then got involved in this ploy to throw apples and oranges I think inside the police casspir, and then the police got worried about this, anyway a deal was struck eventually whereby the army, should I say, started assisting them in their operations. And what happened was there was a meeting being held in an ANC area and persons came out of that meeting, and the applicant together with members of the SANDF shot at these people. Again the motivation here is based on the attacks on ANC persons, and that’s part of the political conflict in the area.
The last incident involves applicant seven, also when he was employed initially after his training at Koeberg, to guard a certain school in Imbali in Pietermaritzburg, and when he was there certain youths started throwing stones and he retaliated and he recollects that two were injured. Here again it was an attack on people predominantly in an ANC area. He was making a statement about the IFP property, at the time, you do something like this to the IFP and the IFP will make a political statement and react. That’s as far as I take the matters.
In Section 6 of the Annexure 1, I detail the specific provisions which, in my humble submission, the applicants have contravened in relation to the possession, supply of firearms, ammunitions and explosives ...(intervention)
CHAIRPERSON: You’ve become an expert on this Act after the Radebe hearings Mr Wills.
MR WILLS: The Radebe hearings helped me considerably, thank you, yes. In fact I’ve improved since then, with respect, Mr Chairman. I noticed a mistake I’d made in that application.
But, be that as it may, I had no alternative other than to list, I mean, apply for amnesty in respect of a general period, because we know that these firearms were used over a fairly extensive period time, and there’s obviously no way of saying exactly at which time which person possessed what. The only clarity that I’ve got is that from the time Mbambo was operating as a hit squad member in Izingolweni, well shortly thereafter, he got a whole trunk-full of arms from ...(intervention)
CHAIRPERSON: He used to keep the arms
MR WILLS: Yes, in a steel trunk.
CHAIRPERSON: and issue them out.
MR WILLS: And so what I decided to do, and I submit it’s the only option available to me, is that I’ve listed the periods from when the first gross human rights violation was committed in respect of each individual, as close as I could get to that, unfortunately there’s no specific date and sometimes not even any specific month, and ...(intervention)
CHAIRPERSON: I think one could probably assume that during the whole period, there was handling and possession of firearms, some of which were illegal or unlawful.
MR WILLS: Yes.
CHAIRPERSON: I mean they got some of the firearms from the police, I don’t know whether that’s lawful or not, in the circumstances in which they got them or the purpose for which they were issued, but that’s covered.
MR WILLS: Yes, and then I’ve just taken it up to the point of their arrest. The dates indicated are the dates of their arrest.
Thank you Mr Chairperson, that’s basically my submissions.
CHAIRPERSON: Thank you Mr Wills. Mr Muller?
MR MULLER IN ARGUMENT: Chairperson with your permission, I will sit. I planned to be very brief and I hope that I can still be brief.
I’ve appeared on behalf of five policemen who were implicated by the seventh applicant, Mr Hlongwane, during the Ermelo hearings, and their names appear on, in paragraph 3 of page 2 of the Heads which were submitted. Chairperson these Heads were submitted in November last year, and I was under the impression that it was distributed among you, that everyone ...(intervention)
CHAIRPERSON: Yes, I don’t know what happened personally, I would have thought so as well, that they ought to have been in the normal course of events distributed, but I don’t know what happened. I must say I got my copy long ago, about November.
MR MULLER: Thank you Chair. My apologies to Mr Wills but I don’t think it takes the matter a lot further. I can only say that the purpose of the appearance on behalf of the implicated persons was not to oppose the application of the applicant, and that was put on record during the hearings and it was also under, the point is also made in the Heads. It is merely to protect the interests of the implicated persons, and it is correct so that no evidence was led on behalf of the implicated persons, but the reason therefor was that it wouldn’t have taken the matter further. We have put on record that the Goldstone Commission investigated the, some of the allegations that were made, and the only purpose in protecting the rights of the implicated persons is to request this Committee, and I submit that there is no, that there is not enough evidence to make a negative finding against any of the implicated persons, which might lead to a, that they might be charged or whatever, and I think that was the purpose of these, of the appearance on behalf of the implicated persons. And I think that is how far I can take it. Thank you very much.
CHAIRPERSON: Thank you Mr Muller.
Mr Mpshe do you have any submissions you wish to make.
ADV MPSHE: Mr Chairman I don’t have any submissions.
NO SUBMISSIONS BY ADV MPSHE
CHAIRPERSON: Thank you. Are there any further, anybody thought of anything else they’d like to, any further ... Mr Stewart?
MR STEWART IN FURTHER ARGUMENT: Mr Chairperson thank you, I will sit now so as to avoid dropping things and so on and so forth. Thank you.
I did indicate that we would look for the references to the looting or so called looting incident or incidents, and really in our searches here, you may have noticed us searching, we found only one, and this was in the affidavit of Luthuli, at page 285 of the first bundle.
Mr Luthuli is talking about the pursuit of a particular person called Guduza and he refers to a crowd pursuing this person, and the, there was a riot as it’s described, at a shopping centre, which was followed by the throwing of stones. Looting was taking place as well, he said, and this is him reporting as to what was happening by, as I think I indicated in my argument that, by the crowds rather than by the soldiers, and that was possibly the reference. And then of course there’s the reference to the taking of cattle, the seizing of cattle in the rural areas in defending one of the chiefs, or acting for one of the chiefs. And that’s, well perhaps I should say the first one I gave you the page number 286, it’s in particular paragraph 25.7.16. And the cattle incident is referred to page 257, paragraph 16.27. Those are the only ones that we’ve found.
If I might then also draw to the Committee’s attention, and I apologise for this, it’s become apparent to us in our searching for those references which I’ve indicated, that we’ve made one wrong reference. This is in the schedule of incidents in respect of Mr Khumalo, at the back of the Heads of Argument. And the pages aren’t actually numbered but it’s about three pages from the back. It’s the Khumalo incident number 5.
CHAIRPERSON: ...(inaudible)
MR STEWART: No that must be Dlamini Mr Chairperson. Khumalo incident number 5, attack at Natingi, and ...(intervention)
CHAIRPERSON: ...(inaudible)
MR STEWART: Mine aren’t numbered. That’s right. Now that’s it’s reflected as evidence in chief volume 1, page 34 to 37, that’s in fact volume 4. In any event it’s at the Hammarsdale hearings, the Hammarsdale volume, whereas volume 1 was Durban and Richards Bay. So it’s just that small thing.
And then the final thing unless there’re any questions that the Members of the Committee have, and that’s in relation to the question raised by the Honourable Chairperson in relation to the denials placed on record by the implicated persons. Clearly those denials were placed there for the purpose of protecting those persons rights and Mr Hewitt in cross-examination employed various other tactics in order to try and protect their rights, putting certain things on record and so on. But in my submission they can’t go so far as to weigh, really to have any weight in weighing whether amnesty should be granted or not. They, I mean they’re not so far as putting a version even.
CHAIRPERSON: They’re not backed by any evidence or anything either.
MR STEWART: Well Mr Chairperson you know it’s not even, not only is there no evidence, but it’s not even a version really, the person was there but they weren’t involved or anything like that. It’s just a blanket denial. It can’t really carry any weight insofar as the granting of amnesty is concerned. Thank you.
CHAIRPERSON: Thank you.
Yes well thank you very much. I’d like to thank the legal representatives for their arguments, and particularly Mr Stewart and Mr Wills for the annexures, the schedules, which you’ve both said it took a great deal of effort to compile, but I can assure you they’re going to assist us greatly in this matter and we appreciate that. We will reserve our decision and shall endeavour to get out, we are fully aware of the fact that your clients, Mr Wills, are in custody and that therefore there is a degree of urgency, let me put it that way, and we will endeavour to get out our decision as soon as possible in this matter, but we will reserve it at this stage.
Thank you very much, and I’d just like to thank you as well Mr Muller for coming up with ...(inaudible) argument, and it’s nice to see Mr Mpshe here again coming back to be with us. And I’d just like to thank everybody for arranging today to enable us to receive this argument. Thank you very much, and thank you Ms Williams for sitting in.
We’ll now adjourn, thank you.
HEARING ADJOURNS
