CHAIRPERSON: We're proceeding today with the submissions from legal representatives. Yesterday we heard the representatives for the applicants and now we'll hear the submissions from the representatives from the victims and victims' families. Mr Mokone, do you have any submissions to make?
MR MOKONE: Thank you Mr Chairman.
Mr Chairman, yesterday we have adjourned, the victims and the applicants remained behind and they discussed the whole issue and then they embraced one another.
CHAIRPERSON: I heard about that and I hear it went off well.
MR MOKONE: We are therefore not opposing the application.
CHAIRPERSON: Thank you Mr Mokone. Ms Monyane, do you have any submissions to make?
MS MONYANE: Thank you Mr Chair, as Mr Mokone has stated now that the parties met yesterday and they embraced and also reconciled but I think I still have to address the court about the non-disclosure of those informers.
CHAIRPERSON: The Committee, we're not a court.
MS MONYANE IN ARGUMENT: Sorry about that Mr Chairman.
Mr Chairman, in terms of the Act, the Act requires the applicants to amnesty to disclose all relevant facts. The non-disclosure of, for the applicant to qualify for a amnesty, he should disclose the names of those informers. This is relevant because those people, the informers are also as if they are as guilty as the perpetrators of the crime and one could conclude that the reason why Mr Pitsi didn't want to disclose the informers it's because maybe he's trying to protect himself or maybe he doesn't want to disclose these people because these people never applied for amnesty and I would also submit that Mr Pitsi lived in Atteridgeville, he knew the deceased very well and I do not think he relied on the information of the informers regarding the notorious acts done by the deceased.
ADV DE JAGER: Wasn't he almost a neighbour of one of the deceased?
MS MONYANE: His parental home is not far from Phenyane's family, they say Phenyane's family staying in one street and they are staying in the following street so it's not far and it seems there was a passage that they could use to go to the other street.
I also submit that the aims and purpose of the 1995 Act, the Promotion of National Unity and Reconciliation Act, will be defeated if the names of the informers are not disclosed. Also the families are going to leave this Committee with some questions that they had ten years ago why the deceased were targeted and I will submit that Mr Pitsi has not fully disclosed the names of, the relevant facts as required by the Act and I will therefore leave that question to the Committee to decide and the analyze. Thank you Mr Chair.
ADV SANDI: I can just say one thing Ms Monyane, perhaps it is not appropriate to refer to these people as informers because we do not have evidence that they were getting paid. Maybe it would be best to refer to them as sources of information?
MS MONYANE: Mr Chair, yes, I think as Mr Pitsi said, he said that they were reliable sources.
CHAIRPERSON: So I think the use of the term informers has led to an understanding that an informer is almost an essential part of policing these days and has been for many, many years. They're paid agents as it were who are citizens who assist the police whereas these people might not be exactly in the same category as a police informer but I think we do have evidence saying that, from the applicants saying that they relied heavily on information received from the community in the conducting of their work as cadres.
MS MONYANE: The term as used by the applicant "reliable sources". Thanks.
CHAIRPERSON: Thank you Ms Monyane. Mr Joubert do you have any submissions to make?
MR JOUBERT IN ARGUMENT: Yes Mr Chairman I do have, unfortunately my instructions are still from my clients the Kulele's to oppose the amnesty application.
The Act lays down certain requirements to be met in granting amnesty to the applicants. The requirements are as follows.
"The deed must be politically motivated, full disclosure of all relevant facts and events in formal requisites."
In the argument I will only deal with Section 21(c) and 31(d).
During the Kulele attack, the following could be established through given evidence. Mr Toka in his evidence ordered and authorised the attack on Mr Kulele's home. The order was given to Mr Nkosi and Mr Mokgonyana. Mr Nkosi at a later stage when he gave evidence in fact testified that his involvement was very remote in that he trained and handed Mokgonyana to Mr Toka. In Mr Nkosi's evidence it was implicated that Mr Mokgonyana planned and executed the attack based on the ill intelligence and reconnaissance which was provided by Webster. There are contradictions however in the testimonies of Mr Toka and Mr Nkosi which are as follows.
Mr Toka said that he had given the orders to Nkosi and Mokgonyana to execute the attack. Mr Nkosi through his evidence never received such orders and only trained and handed Mokgonyana over to Mr Toka.
Mr Mokgonyana said that during this meeting he overheard a discussion of attacks on policemen and he himself was not aware of any names or a specific attack. This contradicts the order from Toka to execute an attack on Kulele's home and Mr Toka authorised this attack.
According to Mr Toka, a meeting took place shortly after the attack to discuss the success of the operation and according to Mr Nkosi the meeting only took place several days after the attack. The question that still needs to be addressed is, who executed the attack on Kulele's home in which a fourteen month old baby was killed and a mother injured? Toka was a commander, he knew the operatives and instructed to attack the house. As a commander, in his main evidence, he had to oversee the execution of the operation and therefore it can be assumed that Mr Nkosi was directly involved in the attack as Toka was his commander. Toka could only confirm this in his evidence but he was very vague in the sense that he authorised and gave the order and did not fully disclose all the relevant facts of this attack when the opportunity was given to him during this hearing. In fact he implicated his real involvement which can be construed as a real involvement, is that the attack took place on the ill intelligence which was received from Webster.
In reply to questions raised by the panel and myself Mr Nkosi could not point out the exact reason why he applied for amnesty for the attack on Kulele's home. Nkosi's explanations are not acceptable as he could not give acceptable reasons for not applying for amnesty with regard to the other unknown attacks of which he overheard a conversation. This indicates as well Mr Nkosi's involvement in the execution of the attack. This brings me to Mr Mokgonyana's evidence who was not an applicant in this hearing but he was prepared to testify as he was implicated on occasions, numerous occasions, during the evidence given by Toka and Nkosi. It is common knowledge that Mr Mokgonyana was charged and stood trial and was acquitted on all charges laid against him. The reason was that he simply was not involved at all. Mr Mokgonyana voluntarily agreed to testify as a witness in this application and the argument of Mr Molefe that Mr Mokgonyana testified to save himself is an absurd statement. Mr Mokgonyana did not need to testify nor was he forced to do but only to show his bona fides in this hearing.
ADV DE JAGER: Nor could he be prosecuted because he's already been charged and he has been acquitted.
MR JOUBERT: That's in fact Mr Chairman ...[intervention]
CHAIRPERSON: Yes but however if he did come here and say well I was involved he would severely compromise himself within his community. I mean he knew the victims' family etcetera so that might be a reason for him to come and say I wasn't there, I know nothing about or I know very little about it.
MR JOUBERT: Thank you Mr Chairman. Through the testimony of Mokgonyana, the following contradictions were revealed with regard to Mr Toka and Nkosi's evidence. Mr Mokgonyana never received any order from Toka, in fact he met Toka once in Krugersdorp. Nkosi never trained him, he never took part whatsoever in the execution of the attack on the Kulele's home. Although Mr Mokgonyana knew Nkosi, Nkosi never handed him over to Toka. During Mokgonyana's evidence and cross-examination, he consistently testified that he only provided transport. He admitted that he had received training in weapon handling and explosives which he had received from Sitoli but never did participate in any attack. Therefore his testimony can be accepted as a true reflection.
A fourteen month old baby was killed, the mother with shrapnel wounds, scars, and the father seeking peace must live for the rest of their lives with the question, who executed the attack on their family home. That was not answered. Mr Toka and Nkosi blatantly tried to shift the blame of this horrible attack on Mokgonyana as well as on the ...[indistinct] intelligence of Webster. This attack could be resolved and reconciliation could take place if there was full disclosure of all relevant facts and events. Unfortunately both gentlemen did not make use of the opportunity given to them due to the fact that their testimony did not fulfil the requirements in terms of Section 21(c) and Section 31(b). Therefore, it's my humble submission that Mr Toka and Nkosi should not be granted amnesty. Thank you.
CHAIRPERSON: Just for your comment on this, Mr Joubert, with regard to the Kulele incidents, in your view would it be possible to distinguish the command structure from the operatives, in other words could it be that - and I'm not suggesting, I just want to know your views on it that the command structure received information, they didn't go to the house, they didn't carry out the surveillance etcetera, they received information. Okay, even if it was bad information, at the time they might not have known it was bad information. They received it from their intelligence that the person who lived in that house was recommended to be a target and they then moved on from that, got the authority to carry out the operation and then gave the order to eliminate Mr Kulele and then the operatives go out and they just hurl a grenade through the window not knowing who is in the room and killing the baby. Now can there be a distinction between a person giving the command, who wasn't on the ground, who didn't hurl the hand grenade through the window and the operatives on the ground who did hurl the hand grenade through the window?
MR JOUBERT: Mr Chairman, yes there can be a distinction but the commanders had been trained, they know that there are operatives in the cells and even though they receive the intelligence from certain people that's trained to gather and reconnaissance for an attack, the situation is that the commanders, I believe, knew that who executed the attack.
CHAIRPERSON: Yes.
MR JOUBERT: And they were fully aware of that.
CHAIRPERSON: Are you saying - so that's a non-disclosure?
MR JOUBERT: That's a non-disclosure.
CHAIRPERSON: Because if you had a situation, let's just take an example for instance, a commander gives an attack, he says "look, you must go and assassinate X" gives him an AK47 and issues the order. X then goes - I mean the operative goes with a rifle and assassinates X and three other people who happen to be sitting in the same room at the time, can the commander be responsible for the death of the three other people? He didn't give the instruction that they be killed. The operative messed up the operation by killing more people than he should have.
MR JOUBERT: Mr Chairman yes I do agree if there's a problem or a mess up in the operation where innocent people are killed, it must be fair to accept that a commander can't be held liable for that.
ADV DE JAGER: If the commander - let's accept for a moment that Mr Kulele was a legitimate target and he had to be eliminated, the commander instructs X,Y or Z to carry out the elimination. His information is that Mr Kulele is staying in a house, the weapon he supplies is a hand grenade and not for instance a gun. The moment he supplies the hand grenade, shouldn't he have foreseen that other people would be killed apart from the real target?
MR JOUBERT: Mr Chairman indeed I think with my cross-examination of Mr Toka it was the view we have taken as well in saying that certainly there could be a vast difference between a hand grenade and only a rifle attack. It could have been foreseen that especially with - you're working with explosives, that innocent people can be involved and injured or killed in such an action where explosives are used in an attack.
ADV DE JAGER: There can be no argument at all that a fourteen month old baby could have been a political opponent.
MR JOUBERT: This is correct Mr Chairman, a fourteen month old baby is innocent, that can't be a target but I believe that for a moment I accepted it that the ill intelligence, even though certain things could have been foreseen and not to attack a family house, ja, it is very sad that a fourteen month old baby died and surely was innocent in any political motivation.
ADV DE JAGER: Further the real target isn't even there, he wasn't even there for hours so there was nothing done to prevent the killing, they didn't even target the real target because he wasn't there, he was at work for almost six hours already so how could they argue that they in fact targeted the policeman?
CHAIRPERSON: Thank you Mr Joubert. Mr Dreyer do you have any submissions to make?
MR DREYER IN ARGUMENT: Yes Mr Chairman.
Mr Chairman, first of all I would reiterate that ...[indistinct] said we indicated that on behalf of the three victims that I represent in the so called Juicy Lucy bombing. The applications of the applicants were opposed on two bases. First of all the question of whether or not there was full disclosure within the prerequisites of the Act and secondly whether or not there was compliance with the definition of what was supposed to be an Act which is an associated act with a political objective of a particular organisation at that stage as stated in Section 21(b) of the Act.
At the outset I would want to qualify that to the following extent that obviously it was clear the conclusion of the evidence that only three of the applicants that testified before this Commission was actually involved in some way or another or required this Commission to contemplate on their application for amnesty in respect of this particular incident being Mr Toka, Mr Pitsi and Mr Mathe, so I would only direct my argument in respect of those three applicants. Obviously there's no insistence on the part of the victims that I represent to oppose the applications of the other applicants in view of the fact that they were not at all involved in this particular incident.
I would also state at the outset that it was made clear by the Commission that although there might have been some formal discrepancies or deficiencies in the completion of the physical or the written applications of those three applicants. It is clear not only from these proceedings but previous proceedings before the Commission that if that written application is supplemented by evidence under oath, it could be rectified and amended in the course of the evidence such appended and I would not heavily rely on that basis of opposition in respect of the three applicants.
CHAIRPERSON: You're not taking any technical points?
MR DREYER: That is correct Mr Chairman. What I would rather reiterate is that and that's been maintained throughout the cross-examination in respect of the three applicants that in no way could whatever they had done and whatever role they played in the particular incident ever be considered to be an act in the furtherance of the political aims of their particular organisation or associated with political objectives of their particular organisation.
Mr Chairman I know that we have in the course of the cross-examination referred to certain principles as advanced in the ANC's statement to the TRC as a global statement of the total organisation to the TRC but I think it needs to be revisited in order to explain exactly why I maintain that the applications of those three applicants do not fall within the four corners of the Act and do not in fact sufficiently manifest that it is an Act which should be considered for the purposes of amnesty in respect of each three of them.
First of all I would like to say with reference to the ANC's statement it's clear that since the adoption of the armed struggle as opposed to the mere participation in the political struggle or political opposition to the then Government policies round about 1961 after the so called Sharpeville incident, uMkhonto weSizwe was formed and it was emphasised that there should always be supremacy of the politics over the narrow military activity and there was a specific attitude explained as to civilians, the white community and the treatment of captives. That was followed up by the Magoragoro Conference in 1969 which it was clearly indicated by the ANC that there should be a protracted armed struggle but still and once again and they would like to iterate that this is the golden thread that runs throughout the policy declaration of the ANC in respect of the armed struggle. It should be guided by the broader political strategy of the ANC. At the Kabwe Conference in 1985 there was consensus on the approach to military action and it was reaffirmed by the ANC that there should be only a struggle directed against so called legitimate targets and I will refer to that when it's more appropriate in the course of my argument.
Obviously, as many of the applicants testified and as a result of quite a number of factors which I suppose might have been the frustration within the commanding structure within the operatives of the ANC as a result of the fact that they could have believed that they do not succeed in the aims that they would or to the extent that they would. During the 1980's and the mid '80s there were several attacks on targets with no apparent connection to the apartheid State, but once again, according to the statement of the ANC and I don't think there's any reason to doubt that, then it's quite clear that that could also be established because of the fact that these statements were made public and so forth. There's no doubt that the ANC reacted to these random incidents which apparently did not fall within the pillars of policy of the ANC to such an extent that on the 8th January 1987 which, and I must reiterate, was a date prior to the so called Juicy Lucy incident. It was in no uncertain terms declared on behalf of the ANC that they must continue to distinguish itself from the apartheid death forces by the bravery of it's combatants, it's dedication to the cause of liberation and peace and it's refusal to act against civilians and I would like to reiterate the very last part of this statement, both black and white. On that point I pointed out in the cross-examination of Mrs Prinsloo yesterday or in the leading of her evidence that it was put to me by Mr Toka that what would my reaction have been in the presentation of the interest and the argument on behalf of my victims if they were four black women or three black women. I in fact did not answer that question because I did not deem it fit at that stage to answer questioning by a witness as is normally the procedure but I in fact turned that question around in the leading of the evidence of Mrs Prinsloo and asked her whether it would have made any difference to her if it transpired that the people who planted this particular limpet mine at that point were white and she indicated that it wouldn't make any difference to her, in fact she used a particular example and said that if she would walk down a street and she would have been attacked by a white or a black dog it wouldn't make any difference to her, she would have been bitten and she would have felt exactly the same so I would say that whether or not the person involved is black or white is of no concern because that is also reiterated in the policy of the ANC, that whatever aims were to be furthered on behalf of the ANC, it was not to be done on the pure basis of racialist contemplation or whether the target is white or black.
But once again my learned friend Mr Molefe tried to justify certain acts which apparently could be defined as going wrong at the end by saying that Mr Oliver Tambo declared that the war or the struggle should be taken to the white areas but in fact he fails to point out that in 1987 uMkhonto weSizwe commanders were specifically instructed by Mr Oliver Tambo as well as the National Executive Council of the ANC to reassert the ANC policy to operational units as to the avoidance of purely civilian targets and he reiterated at that, failure to comply with these orders would be considered as a violation of the policy and action would be taken against offenders. In fact in the ANC statement there are examples of people who in fact did not adhere to these policies and they were simply left to be dealt with in accordance with the normal principles of the criminal procedure and the courts of law without any interference by the ANC.
From it's inception uMkhonto weSizwe, according to the ANC statement on page 9 adopted a policy to avoid unnecessary loss of life and this is with respect, Mr Chairman, something different in my mind as to the former statement of avoiding civilian targets. So there's a second basis, it's not only avoiding civilian targets it's the avoidance of unnecessary loss of life.
ADV DE JAGER: Mr Dreyer, if we accept that they've been authorised by Botswana and Lusaka to target the soldiers visiting a certain area, public area, whatever the statements may be in their policy wouldn't that have an influence on the matter?
MR DREYER: Mr Chairman, it would have had an influence on the matter and it would have had an influence on the execution of that order if at the end of the day objectively speaking we could maintain that the target that was eventually, it was a legitimate target, but ...[intervention]
ADV DE JAGER: Isn't that the crux of the matter whether they in fact operated against the authorised target?
MR DREYER: That is in fact so Mr Chairman and that is the point that I want to make but I would humbly request the Commission to allow me and indulge me to complete line of my argument because I would not want to detract from the eventual conclusion that I would want to reach in the course of my argument.
CHAIRPERSON: Yes, proceed Mr Dreyer.
MR DREYER: Thank you Mr Chair. Now it was clear not only from the statements made by the ANC in the official statement but also the evidence of the three gentlemen that I referred to that all three of them were trained and they conceded that as a part of their training they were trained in terms of the political schooling and principles of the ANC so they were well aware of what the policy of the ANC was. In fact Mr Toka said yes, I'm well aware of the policies and the principles to be applied but sometimes you have to detract from that. So that was a clear concession on his part that in fact he was trained fully in respect not only of the military facets of whatever he was to be effect, but also the political background and the principles in accordance with which those actions should be taken and as far back as 1977 and in a manifestation of these beliefs, the ANC became a signatory of the Geneva Convention on the conduct of war and through that bound themselves to the accepted principles of action against civilians in any war situation.
The ANC throughout indicated that they could never be labelled to be a terrorist organisation but in fact that they were a lawful liberation organisation. If we look at the definition of terrorism, generally accepted definition of terrorism and also the definition given to terrorism by the ANC, it relates to those indiscriminate acts which are committed without any consideration of the target against people who has absolutely nothing to do with the policy and the object, the political object of the ANC.
It is also an accepted fact that all actions taken by any of the applicants in these proceedings, whether they are part of the government structures, former members of the security forces or being members of a recognised liberation organisation. It should be accepted and I concede that it should be accepted Mr Chairman, that it should be considered against the background that it was a warlike situation and in South Africa it was no less a war situation at that stage as for instance currently prevails around the world in similar circumstances. So it's not as though we were caught up in a unique situation, this was a typical political struggle between two or three forces of which the ANC were on the side of one of the liberation organisations, I mean we all know that there were also other liberation organisations involved but once again the very manifesto of the MK states and declares that "We of uMkhonto weSizwe have always fought as a liberation movement to achieve liberation without bloodshed and civil clash. Now at the Kabwe conference the whole principle of so called civilians caught in the crossfire was taken up and that should be considered against the backdrop of what was said at that stage. Now my learned friend Mr Molefe elected to present this Commission with a portion of the statement contained - or that comes from page 52 of the statement in which the following remark was read out by my learned friend by which was a statement by Mr Tambo:
"I will summarise the position taken by the conference in these terms that the struggle must be intensified at all cost over the past nine to ten months at least. At the very least there have been very many soft targets hit by the enemy, nearly 500 people have now died in that period, that works out to be 50 per month"
and he carried on with that and it ends with the following:
"The distinction between hard and soft targets is going to disappear in an intensified confrontation in an escalating conflict."
But what he failed to do Mr Chairman is, on that very same page there's clear indication to the following extent. By the end of 1985 an official ANC pamphlet - official ANC pamphlet -titled "Take the struggle to the white areas" was distributed inside the country. Targets were identified as the racist army, police death squads, agents and stooges in our midst and the call to take the war to the white areas is defined as follows. It was not a broad statement by the hierarchies of command in the ANC, it was defined and clearly defined Mr Chairman to the following extent. Strengthening our workers organisation and engaging in united action in the factories, mines, farms and suburbs, spreading the consumer boycott to all areas of the country. Now all that is referred to the so called white areas. Organised the well planned demonstrations in the white suburbs and central business districts, still no mentioning of civil targets, still no mentioning of attacking targets simply because they are located within the white area. Forming underground units and combat groups in our places of work and taking such action as sabotage in the factories, mines, farms and suburbs and disrupting the enemy's oil, energy, transport, communications and other vital systems. It's qualified, even if sabotage is mentioned it's qualified by disrupting the enemy's oil, energy, transport, communications and other vital systems and then very relevant to this particular attack, systematic attack against the army and police and the so called area defence units in white areas, well planned raids on the armouries and dumps of the army police farmers and so on to secure arms for the units.
Mr Chairman, with the greatest of respect, in no construction of these principles do we find any indication that the ANC instructed it's operatives of MK to go forth and simply attack certain targets for the pure reason that (a) they are situated within the white area or (b) because it is frequented by people of the white race. Nowhere, in fact the ANC is very strong in their denial that the struggle is simply a question of black on white. It is throughout qualified as the struggle of the ANC's members which include white people to achieve certain political objectives. It is also clear from the uMkhonto weSizwe military code that every commander, commissar and instructor and combatant must be clearly acquainted with these policies. So for any person to turn around and say yes, I know that these were the stated policies of the ANC but unfortunately my friend, I was involved in a struggle and at the point where I got involved, you know I couldn't adhere to those policies because I was fighting my own war. That is clearly not the policy of the ANC but to turn this around and make it applicable to the evidence Mr Chairman, I would start with the evidence of Mr Mathe.
Now although Mr Mathe clearly exculpafied himself with any involvement regarding the so called Juicy Lucy bomb, he said that he was present when this whole operation was planned and discussed and he reiterated spontaneously in his evidence that at more than one occasion it was stressed by the persons giving the official command to go forth and execute this particular action that all steps should be taken, all steps should be taken, reasonable steps to avoid unnecessary bloodshed and the killing or maiming of civil people that's got nothing to do with the struggle. That is in stark contrast Mr Chairman to the evidence of Mr Toka and Mr Pitsi because nowhere in their evidence were there any strong indication that that was in fact part and parcel of the order which in itself is rather interesting because they were the people that supposedly gave this instruction. I cross-examined them extensively on the question of whether or not contingency plans were part and parcel of the order and throughout the impression was left that they can only give the instruction and then it's left to the operative whose also a fully trained member of the uMkhonto weSizwe movement to go forth and execute it in such a manner and fashion that would in any case avoid unnecessary bloodshed. So that's the first and a very important contradiction which transpires from the evidence, the fact that Mr Mathe clearly indicates that that was part of the instruction although none of the two more senior members and decision making members in this whole incident referred to that.
Apart from that, if we have a look at the evidence of Mr Mathe, he said once again in contradiction to earlier evidence, that he went to Proes Street on instruction and he was provided with a mini-limpet mine from the outset. There was no doubt about what he was to do with that mini-limpet mine. It was to be placed under a motor vehicle as a purely propagandistic act, not to kill or injure anyone and that he did but funny enough, when Mr Pitsi was cross-examined he gave the impression that he can't remember what explosive device was given to whom and he said there's even a possibility that the two operatives might have swopped the two explosive devices around because they decided that they're going to attack a different target which is in stark contrast to what Mr Mathe says. He said it was clear, "I was given a mini-limpet mine for a particular action and that is what I did."
CHAIRPERSON: Mr Dreyer, just your comments, it's something that comes to mind. This bomb blast took place - it was the 40th Anniversary of the Nationalist Party as did the one under the Renault. We've got evidence that orders from outside didn't have to be obtained for propagandist attacks like the Proess Street one for instance. Is it coincidence that the so called Juicy Lucy bomb blast doesn't appear in the ANC list as an attack. The evidence of the applicants is that indeed they did receive outside orders. If they did, is it just a coincidence that that attack also took place on the 40th Anniversary or could it have been merely another propaganda attack?
MR DREYER: Mr Chairman, I would believe that if cognisance is taken of the gravity and the consequences of the so called Juicy Lucy blast, I mean five people were injured and seriously injured in an action which throughout and I wanted to turn on the point of the so called involvement of the military personnel in the vicinity. If cognisance is taken of the gravity of that action, I can hardly believe that the ANC in it's official statement of what is to be considered legitimate targets would simply choose not to mention this or simply miss this typical act of furtherance of the policies of the ANC. Clearly, Mr Chairman, it was not an abortive type of incident, there was a target hit with serious injuries in the mid city centre of Pretoria, the capital and that took place as the Commission pointed out on the very day that the National Party had the so called celebration of it's 40th year of political rule in the country. I can for no reason see that the ANC would just simply forget about this incident.
ADV SANDI: Sorry Mr Dreyer, if I just interpose here for a second? I thought on the day that we started these proceedings there was a submission or an explanation by the lawyer representing the applicants concerning the non-inclusion of this Juicy Lucy incident in the ANC list of incidents which were carried out in furtherance of their aims. I think there was an explanation to the effect that they've now realised that there were certain incidents which they omitted to include and as such they were now trying to compile a final list so that they could enclose those that had not been included?
MR DREYER: Mr Chairman, with the greatest of respect, if the ANC would have forgotten to include in the list the Renault bomb blast I would not be surprised because there was no one killed and it was an incident of minor gravity but I am totally surprised Mr Chairman and I cannot take it any further. I have heard the explanation Mr Chairman, with the greatest of respect, but no one testified before this court on behalf of the ANC that such a mistake was made. It was a mere declaration by the attorney appearing on behalf of those applicants. I have no reason to doubt his word. All I am saying is at the point in time when the ANC was to consider official targets in the course of the struggle, this incident was not listed and I would submit with respect, Mr Chairman, that there is no indication whatsoever that the ANC is most definitely going to include this incident in the list because I suppose that the ANC in compiling even an amended list would still be bound by the policies that he clearly declared and would still have to contemplate whether or not this matter was included or excluded in the list, whether or not it justified or is justified or not to be defined a legitimate target and I would strongly submit and reiterate Mr Chairman that even if the ANC were to reconsider the list in respect of incidents that were by some fault not included in the list, it could not be said that this particular incident falls within the definition of a legitimate target and there's no indication that the ANC will in fact include this particular incident in their list because I would believe that the inclusion of acts in that list was done on the basis of acts which was considered by the ANC as acts committed within the policy and within the principal of furtherance of their own objectives and I would say it's very significant Mr Chairman that this act is not included.
ADV SANDI: Sorry Mr Dreyer, just whilst we are on this, is there any evidence or information before this Committee that the ANC took any steps to show disapproval of this operation as an operation which was not in accordance with their policies? Is there such evidence before the Committee?
MR DREYER: Mr Chairman, there is no official evidence of the ANC to the one or the other side. I cannot say because I've never been a member of the ANC, I've never been part and parcel of the decision making body of the ANC, I cannot even say whether or not any one of the applicants were in any way admonished by a superior in the ANC and I would submit that even if that took place and any one of the applicants would testify before this Commission and choose not to disclose the fact that they've been admonished, it would also not come to the attention of this Commission. Unfortunately, this Commission is in a position like any other decision making body that it can only act upon the evidence placed before this Commission. This Commission cannot really, apart from those things which are so general in knowledge that cognisance can be taken thereof judicially, this Commission is bound to the extent of the evidence placed before this Commission and what was placed before this Commission was and it was placed before the Truth and Reconciliation Commission as a whole, the official statement by the ANC as the political organisation involved what they believed to be their policy and principles. That is an undeniable portion of evidence that was placed before this Commission and that must be Mr Chairman, with respect, seen as the basis upon which the actions of a particular operative of that organisation should be judged because it was stated in the very statement that if there is a detraction from that policy it should be viewed in a serious manner and steps will be taken. Once again Mr Chairman, I don't know if any steps were taken.
CHAIRPERSON: Mr Dreyer, take it subjectively, take a look at the applicants subjectively. They decided to place the bomb at that place on that day. Why do you think they decided to do that.
MR DREYER: Mr Chairman, it was clear from the evidence of especially Mr Toka when I confronted him with a policy of the ANC that he also relied on the fact that underlying to all of this was the call by commanders and persons in the higher hierarchy of the ANC to take the struggle to the white areas. He said that's an important factor, that was an important factor but more important in the evidence of Mr Toka was the fact that he was the very first person who indicated that that particular day was the day upon which the National Party as it was then celebrated it's 40th birthday so it had to be executed on that day and I put it to him Mr Chairman that in fact the real target on that day was not the military personnel that supposedly frequented this particular venue but the Nationalist Party but what I don't understand Mr Chairman, with the greatest of respect, even if that was chosen as the target, why was this limpet mine not placed at an official office of the National Party on that day, why was the bomb not placed at a particular venue which is clearly associated with a military action of the SADF as it was then? No Mr Chairman, with the greatest of respect, this bomb was placed at a point where it could actually hurt anyone. In fact I put to any - one of the applicants involved in this matter, I think Mr Pitsi as well that I'm not quite clear in my memory whether it was Mr Pitsi or Mr Toka who indicated that the area was well known to him because the taxi rank which he frequents is just around the corner and I indicated to him for all practical purpose Mr Chairman, at that point in time, anyone of his comrades could have crossed that line of fire on it's way.
CHAIRPERSON: Yes I think it's quite clear that the central business district are visited and frequented by persons of all races even during 1988 so from you've said then in response to my question, it would seem that the placing of the bomb there by the applicants was for a political reason, one way or the other. Then it's only a question of whether it's in the furtherance of the aims and objectives because it wasn't there for any personal gain, was it? Or malice or ill will or personal gain.
MR DREYER: Mr Chairman, with the greatest of respect, I'm not conceding that it was placed there as a political act, I would say that if cognisance is taken of all the evidence placed before this Commission it is for the Commission to decide whether or not and I'm not conceding that, that it was a political act. It could have been an act directed against for instance victims for the simple purpose that they were people of a particular race because very strong reliance was put on the fact that the struggle was to be taken to the white areas and if we take and I've made a list of certain factors which I think should be considered in the question of whether or not this was a target which could fall within the definition. The following should be taken cognisance of
First of all, the statistics of the people injured, only women, none of which were at all connected.
ADV DE JAGER: Mr Dreyer, to just add to what the Chairman has put to you, suppose the evidence was "we've placed this bomb there, we wanted people to be killed irrespective or whether they were women whatever, because we wanted to make a statement and we wanted to make this country ungovernable, that was our motive" then clearly it would have been a political motive. But that's not the evidence before us. If that was the motive and it was boldly stated that we, irrespective of who could be killed, then there was a - if that was the facts that would have involved full disclosure and as ghastly as it might have been like for instance the St James Church murder, there was full disclosure and you should say well, if that's the case the Act obliges us to give amnesty. But here we've got a disclosure of a set of facts that the bomb was aimed at the military. In fact, looking at the facts, the bomb was aimed at anybody so that the true facts do not correspond with the evidence in that respect.
MR DREYER: Mr Chairman exactly, that was the conclusive point that I wanted to reach at the end of the statistics or the factors that I wanted to mention. Nowhere in the evidence of any one of these three gentlemen was it stated that this particular bomb blast was undertaken as an act of propaganda, nowhere was it stated that "we decided because of certain statements made by our superiors that we are going to take the action to the white areas and we're going to select a target that we consider to be a suitable target to make an impression and make known that we the MK members of this particular unit want the white area in Pretoria, being the capital of this country, to know that we are operative, we're well, we're alive and we're acting in the furtherance of our objectives. Nowhere Mr Chairman at all was that stated throughout, throughout the applications whether in the written form submitted or in the course of the oral evidence tendered by these three gentlemen. It was stated throughout that this particular venue was chosen because of the fact that it is a venue which is associated with frequent attendance by members of the SADF and I would like to answer the Commission to the following extent. In the same way that a court of law will bound itself to the evidence tendered to it and in the same way any court of law would take the statements contained in the pleadings of a particular case as the basis upon which a person as a litigant relies and allow that to be argued before that court. I would submit in the same and the very same way, this Commission must adjudicate the evidence before it. I am well aware of the fact that this is a Commission which acts far more in the way and the manner of an investigative body, that is true, but once again I would submit that I find no reason, not within the Act or anywhere else why this Commission should detract from the principle that it is bound by the evidence tendered to this Commission and I submit that the distinguishing factor in this matter is simply as put by the Commission member, Advocate de Jager, that the basis upon which these three gentlemen advanced their applications did not at all in the slightest way indicate that this was a target which they chose and they executed the act regardless of the consequences, that was nowhere, nowhere the indication neither was it every indicated by these three gentlemen that that was the ratification or that was the command that they received from the outside command levels from Botswana or Lusaka or whoever. It was clearly indicated that the procedure was to send out someone to do the reconnaissance, choose a particular target which is then discussed with the command level in Botswana or Lusaka, they would then receive the necessary command to either proceed or not and then it would be executed.
ADV SANDI: Sorry Mr Dreyer, if I can just come in here? Can I get your reaction to the following aspect of the evidence which I think was given yesterday or the day before by one of the victims of this incident? We heard evidence to the effect that the Juicy Lucy was visited by members of the SADF. Now I'm not talking about their gender at this stage but I think the witness who testified said she used to see members of the SADF visiting this place. Don't you think that is perhaps an important factor to consider in this matter?
MR DREYER: Mr Chairman, with the greatest of respect, I think if there would have been a pharmacy two shops away from the Juicy Lucy, I could also probably say that that's also visited by any member of the SADF on an infrequent basis. I would submit that there's hardly any premises in South Africa that would fall without that definition of a venue visited by a member or members of the SADF frequently or infrequently. The point is Mr Chairman at the end of the day we must weigh also the evidence presented for instance by Mrs Prinsloo which clearly indicated the following and this boils back to the statistics or the factors which I wanted to point out and I would answer in that way.
If we take the Juicy Lucy venue and we weigh it against the following factors I would come to a certain conclusion.
First of all I say according to the statistics the five people injured were women, none of them were soldiers.
Number two, the concentration of people in that area, if we take that, there's a total misbalance between the concentration between the military people as opposed to ordinary civilians. This is not the area which is predominantly visited or frequented by military personnel. We have heard that the building in which the military personnel is housed is closer to Van der Walt Street which is approximately a whole street block which in Pretoria is a distance of about four to five hundred metres away from the venue. We also heard evidence Mr Chairman that there are several other places where someone could have a meal in the vicinity and incidently at a far cheaper price.
The third factor is the type of venue Mr Chairman, if we for instance compare this to the Planet Hollywood Restaurant in Cape Town that was attacked a while ago, we can say that it's clear, we all know that it's general knowledge that the Planet Hollywood chain of restaurants is an American owned chain of restaurants, if I'm not mistaken it's owned by a couple of movie celebrities or whatever but the point is there's a clear identification of this particular venue with the American way of eating and living and that was attacked by people who supported the Muslim principles because of and it was nothing less than a counter-attack because of the previous attack and involvement of America in Iran. So there's annexes, there's a link, that particular restaurant is associated with a particular purpose, a particular object and it was attacked by people with a particular way of thinking.
In this instance we are talking about a restaurant which according to the evidence (a) is a health type of restaurant which according to Mrs Prinsloo and that is unchallenged evidence Mr Chairman, is a place which is according to her indication visited by about 90 percent women if not more. 90 percent women. She said that at the time when she saw members of the South African Defence Force attending those premises, it was women members of the force. She also said that on that particular day she didn't see a particular concentration of members of the Defence Force. She said in fact Mr Chairman, out of her own, I didn't lead her to that, I don't eat at Juicy Lucy because when she declared that it dawned on me that that is probably why I don't visit Juicy Lucy. She said that the type of food served in this venue is not the type of food men generally enjoy because it's very much health like foods.
CHAIRPERSON: No but we can't make a finding here that Juicy Lucy is a women's restaurant.
MR DREYER: Mr Chairman ...[intervention]
CHAIRPERSON: You'll probably get sued by Juicy Lucy.
MR DREYER: Mr Chairman I do not request this Commission to find that Juicy Lucy is a women's restaurant.
ADV DE JAGER: No restaurants would serve unhealthy food, then we could ...[indistinct]
MR DREYER: Neither so Mr Chairman, I'm not here to advance or enhance the public policy or the level of food served at Juicy Lucy, all I'm saying is and I would submit that it's a very relevant factor. It's undenied evidence before this Commission that the type of food served at that restaurant is much more in the taste of a particular group of patrons and it was also indicated Mr Chairman that the meals on the menu of that particular restaurant should not be ...[intervention]
ADV DE JAGER: The fact is at the time of the explosion there's not a single word of evidence before us that at that stage there was any soldier nearby.
MR DREYER: That is correct Mr Chairman. That brings me to the next factor, that is the point where the limpet mines was actually placed. Mr Chairman once again, it is unchallenged evidence that this limpet mine was placed in a flower box approximately thirty metres or paces away from the entrance to the Juicy Lucy, it was not placed in the Juicy Lucy, it was not placed near the entrance of Juicy Lucy. It's uncontested evidence Mr Chairman that that particular porch and the walkway and the pavement in the vicinity of that flower box is used by all members of the public and I would reiterate that it was conceded by one of the applicants that even one of his comrades could have been walking right beside that point when the blast occurred so the place, the actual locality of the limpet mine at the time of the explosion is a very important factor and I would submit that we might as well refer to that bomb blast as I indicated to the applicants as the De Bruinpark bomb blast because that was the very first, I clearly recollect at that time because I'm a citizen of Pretoria and I also read the papers and I can submit that at the time of this blast it was referred to - very first referral to this was referred to as De Bruinpark bomb which ...[intervention]
CHAIRPERSON: I think it's become referred to as the Juicy Lucy bombing because it happened that the victims, the only victims of the bombing had been at Juicy Lucy at the time so we don't place any great significance on the tag that has been put on the incident.
MR DREYER: That is in fact so Mr Chairman, so what I'm saying is and that is the point I want to make, we could have referred to this bomb in a hundred ways or a hundred names, the point is and that's the submission I want to make is, this bomb had absolutely nothing to do with Juicy Lucy. Absolutely nothing.
The next factor that I would want to deal with is the type of the explosive device. Mr Chairman, although there was endeavour on the part of Mr Pitsi in his evidence to say that the operatives could have switched around two explosive devices. It was clear from the evidence of Mr Mathe that the mini-limpet mine was intended for the Proess Street building or the explosive device or bigger explosive device, the SPM mine was intended for the other ...[intervention]
CHAIRPERSON: Mr Dreyer just on this, I know very little about bombs and mines but Mr Pitsi did say that the mini-limpet - I think it was Mr Pitsi or was it Mr Mathe, who said that the mini-limpet mine was in fact more lethal than the SPN because of the materials used in it. Now I don't know anything about that but that's what one of the applicants did say.
MR DREYER: Mr Chairman, with the greatest of respect, I would challenge the applicants to lead expert witness that would substantiate that particular viewpoint because incidently similar to the applicants at the time when I served my military service which was my obligation to do, I received similar and full training in those weapons and I deny this statement by that applicant. There's a clear indication Mr Chairman in the name alone - a mini-limpet mine and a super limpet mine. Clearly Mr Chairman, if you just take the size of the two mines the mini-limpet mine is more or less half the size of a super limpet mine. There is far more explosive power in the super limpet mine, it is a bigger, far stronger and more lethal explosive device and that is my submission, I do not intend to place myself before this Commission as an expert witness but I strongly on record deny that statement by the applicants and I challenge the applicants to place expert testimony before this court which is lacking, it hasn't been done.
Mr Chairman, I move onto the next factor and that is the time of the explosion. Mr Chairman it was pointed out by the Committee to the applicants, according to some of the evidence the bomb was set to explode round about 12.30 whereas Mrs Prinsloo indicated that the bomb blast was just after 1 o'clock in the afternoon. The point is Mr Chairman this was clearly intended to be a blast that must occur at the time of day when there's the highest concentration of people moving around because we all know and it was indicated by Mrs Prinsloo that there are various lunch hours ranging from about 12 o'clock to 3 o'clock but this bomb blast occurred right in the midst of this spectrum of possible lunch hours so it was concentrated or aimed at a time when there was the highest concentration of people moving around. Now Mr Chairman it's a very simple question, which people are moving around during a lunch hour? Yes, Mr Chairman, military personnel as well but Mr Chairman at the point where this blast occurred the vast majority and predominantly taken, the people moving around that area were ordinary civilians that had absolutely nothing to do with the military struggle, aims or policies of the ANC.
The next factor Mr Chairman is the basis of the application.
CHAIRPERSON: Sorry I didn't hear that?
MR DREYER: The basis of the application, that was the point that was raised by the Committee Member, Advocate de Jager. Mr Chairman, the basis of this application by each and every one of the applicants was not at all directed in any other way than stating that it was aimed against the SADF and Mr Chairman, with the greatest of respect, if we compare that to the location of this particular limpet mine and the explosion that took place, it clearly transpires that it had absolutely nothing to do with the SADF. It was aimed and it injured to the exclusion of any member of the SADF, only innocent civilians. Mr Chairman, very much related to that fact is the evidence and the uncontested evidence of Mrs Prinsloo of the locality where this particular explosive device was put. She indicated that it was put in this flower box and if the Committee, with respect, would recall she indicated that in fact she was looking towards the flower box because she was admiring the flowers or whatever was planted in this box at the time of the explosion and in fact she testified that she saw the bluish flash of the explosion split seconds before she became aware of the explosion. Mr Chairman, she indicated in her evidence and I reiterate that the point where she and the other ladies were walking at the time of the explosion, in fact it boils down to the very simple fact that they were simply at the wrong place at the wrong time. It could have been anyone visiting any one of the number of shops, situated not only in the building where the Juicy Lucy is situated but it could have been anyone visiting the Travel Bureau, any one of the other shops. I don't want to be admonished again about all the different shops contained in this building so I'll maintain that it could have been a patron of any one of the other shops or premises.
CHAIRPERSON: But it was in a public thoroughfare.
MR DREYER: But Mr Chairman, more particularly that is a point that I want to make, is Mrs Prinsloo indicated that the particular point where this bomb was placed was not the entrance or the sole entrance to the Juicy Lucy, it was a public walkway to be used by anyone and it could have been anyone, not the SADF Mr Chairman, anyone.
Mr Chairman at the conclusion of my argument I would submit that at the very best it could have been stated on the part of the applicants that there was a proper decision based upon proper reconnaissance of a proper identified target which is properly in the definition of a legitimate target being a target that would if at that enhance their political views and principles and objectives of a liberation organisation but unfortunately, Mr Chairman, it went wrong. Someone made a mistake at the end of the road, someone was caught up in an ill execution of a proper order. Mr Chairman, unfortunately for the applicants, that is not the evidence before this Commission at all, not at all. Mr Chairman, no one could testify before this Commission to the fact that Mr Ramadite on his own part and contrary to any order placed the limpet mine at a place where he was not instructed to do so. I would say we don't have to speculate about that Mr Chairman. Mr Mathe very strongly indicated to this Commission on his evidence that it was reiterated repeatedly by the decision makers that at all cost civilian deaths must be avoided.
Now Mr Chairman once again, if in fact and I say again and in that sense I cannot agree more than what was said by the Committee member Mr de Jager. If from the outset the evidence was that that area, in other words the public ...[intervention]
ADV DE JAGER: I just want to make it clear I only put a proposition to you, I didn't make a statement about it, I wanted your comment on the proposition.
MR DREYER: I'll rephrase Mr Chairman on the proposition stated to me by Advocate de Jager I would say if the evidence was from the outset at that particular point was targeted as the point where the explosion should take place however ghastly the results, that would have been the basis upon which the applications was to be considered but from the outset it was clearly stated it was not directed to members of the public it was exclusively directed at members of the military and I reiterate that Mr Mathe said that when the instruction was given in his presence to Mr Ramadite and himself, it was expressly indicated "you should avoid injury or death of civilians at all cost." Now Mr Chairman, with the greatest of respect, if we take just the location of this blast I can hardly state that any steps, reasonable steps, were taken to avoid injury to members of the public and I would want to recall the following. When I confronted one of the witnesses in respect of the so called foreseeability and avoidability principle involved in the decision around whether or not someone acted negligently or recklessly, it was also put to me that what is my comment on the American onslaught against Hiroshima and Agasaki in the Second World War and I would recall my answer to that in the following.
"In that instance first of all it was an outright war and the Americans decided..." ...[intervention]
ADV DE JAGER: ...[inaudible]
MR DREYER: As the court pleases. But what I wanted to say is Mr Chairman, the distinction is in the fact that from the outset in that instance there was a decision to attack a purely civilian target whereas in this case the total evidence of all the applicants involved in this incident pointed to nothing else that this was directed towards the South African Defence Force as a possible target and it fails, it miserably fails Mr Chairman in the definition of that type of target and I submit that this was an act of pure malice and indiscriminately executed, it's like aiming a rocket at a moving train and saying to yourself "well it's quite possible because of the type of people travelling with trains that there might be a member of the South African Defence Force or the Police on that train so if I hit the train there's a good possibility that I might also kill a policeman."
With the greatest of respect Mr Chairman, I would submit this was an act of malice, it falls totally beyond the definition required in the Act, as a qualifying act in terms of the considerations to be made and I would say that it was purely an act which was effected indiscriminately without any specific target. Unfortunately, we have to weigh that against the specific basis upon which the applicants purported to justify this act and then I say Mr Chairman, there's absolutely no annexes between what was stated as the object of the action and the result that occurred and in that sense Mr Chairman, I would submit that the applications of those three gentlemen, on those bases, because they accepted full responsibility for that act, should not be granted.
CHAIRPERSON: Thank you.
ADV DE JAGER: Can I only ask one question, why should we accept Mr Mathe's evidence that they were ordered to take - there would be no injuries to civilians, why should we prefer to accept that against the other evidence in view of the fact that no precautions could have been taken? What could Mr Ramadike do to prevent except by not placing the bomb?
MR DREYER: Mr Chairman, I'll answer that, I just want to enquire something from my learned friend?
Mr Chairman, I would answer in the following way. The very last applicant called by Mr Molefe was Mr Nkosi and this Commission would recall that when he was confronted by my learned friend, Mr Joubert, where certain contradictions between his evidence and that of Mr Toka, he said:
"I was a specific operative"
Mr Toka and Mr Pitsi were in the command structure and they were in command of many units and "it's quite easy for them to forget about certain things but me, the operative involved in a particular action, is far more prone to remember what the instructions were that were given to me"
And on the same basis I would submit Mr Chairman there's for the same reason we can also ask the counter-question, what reason is there to disbelieve Mr Mathe. The whole principle of evidence fabrication clearly pinpoints on the situation where a particular witness wants to exculpify himself from a particular act. I have hardly ever in my practice in experience that a person would falsify evidence and in the same way incriminate him with that evidence. We would rather expect someone to falsify evidence to exculpify himself and to remove himself from a scene of a crime or whatever but Mr Mathe said, "well that is the basis upon which I apply for absolution in this matter because I was there when this whole thing was discussed, I didn't take part in the execution of the act but the mere fact that I was there, I was part and parcel of the planning, that is why I approached this Commission for amnesty."
So I would state Mr Chairman, with the greatest of respect, there's no reason why we should not accept Mr Mathe's evidence to that effect, the same way that this Commission has no reason to not accept Mr Nkosi's evidence when he says "well, they might have forgotten but I know because I was the operative charged with the action."
CHAIRPERSON: Thank you Mr Dreyer. Ms Mtanga, do you have any submissions to make?
MS MTANGA: No, I have no submissions Mr Chairperson.
CHAIRPERSON: Mr Mohlaba, do you have any reply?
MR MOHLABA IN REPLY: Yes, thank you Mr Chairman, just some few aspects. I just want to deal with the submission of Ms Monyane about the requirement of disclosure with respect to Francis Pitsi. Mr Chairman, I just want to mention that what the
panel should apply it's mind to is whether the identity of those sources is a requirement and in saying that I want to draw the panel's attention further to the statement by Mr Pitsi where he mentioned that his - he's mentioned the statements to the following fact. He said that "we were like fishes and the water in which we are swimming in is this community" and I want to further say that there was a suggestion that the source which gave this information to Mr Pitsi is equally guilty of a particular offence. I want to submit that I do not go with that reasoning and consequently I want to submit that the identity is not relevant to the act of murdering the three police officers and it is in no way - renders him to fail the disclosure test.
Further, I want to move further to respond - to give a response with respect to the submission by Mr Joubert about the full disclosure on the part of Mr Toka and I will want to dwell with what Advocate Dreyer has raised about the foreseeability of arming somebody with a hand grenade, sending him to go and assassinate a target as opposed to giving him an AK47 for instance. I want to respond as follows.
I believe that the question of foreseeability, it's not related Mr Chairman I submit to a political objective nor is it related to a question of full disclosure and the foreseeability should not be taken into consideration here and further I just want to mention that Mr Toka has indicated that he did not take part at all in the incident where this child was killed and he cannot be taken to have omitted to mention certain details regarding this attack because certainly he was not there. He has told us all he knows about his involvement and I believe that the suggestion that he did not disclose all the relevant facts should be disregarded.
And lastly, Mr Chairman, with regard to the so called Juicy Lucy bombing, it would appear that the question of foreseeability and avoidability seems to cloud the whole issues and the whole requirements way of granting amnesty and I believe those should not be taken into account and further there is no suggestion here, there is no evidence that these people were ever reprimanded, that's the operative or the command structure, was ever reprimanded by their principal for this particular explosion and Mr Toka in particular, Mr Chairman, I would submit that he did not act outside the policy of his principle. He mentioned here that his main instructions when he came to the country from exile, his main mission from his principal, he was told to recruit, train, arm and lead our people to battle and I submit that in providing ammunition to somebody or arms to somebody or explosives to somebody who he has trained and send him to battle to place an explosive somewhere Mr Chairman, takes him outside the scope of his mandate and renders him personally accountable or personally liable because he did not act within the instructions of the principal and consequently I want to believe that there was full disclosure and the acts or omissions or the offences which were committed were committed with a political objective and things which were done during the conflict of the past and consquently they should qualify for amnesty.
Thank you Mr Chairman.
CHAIRPERSON: Thank you Mr Mohlaba. Mr Molefe, do you have any reply?
MR MOLEFE IN REPLY: Yes Mr Chairman, that will be in brief. I think it is important for the Commission to note that in as far as the so called Juicy Lucy bombing the SADF did suffer some damage to it's property in terms of a vehicle.
CHAIRPERSON: You say the SADF suffered? I didn't hear?
MR MOLEFE: Damage to it's property in respect of a vehicle. It appears on the charge sheet Mr Chairman, that is very significant and it is also significant to note that the people who were injured in that blast were those who were immediately next to that flower pot. Those who were a distance away from that flower pot were not injured. It is also important to note that it is common cause that there were several government buildings within that vicinity and that is common cause and that includes amongst others the Department of Finance. My learned friend ...[intervention]
ADV DE JAGER: But it's government buildings but it belongs to
Legal and General for instance, it's not the property of the Government that's been damaged, it's been the property of an insurance company, the Government is only hiring the offices.
MR MOLEFE: That is correct, but the fact of the matter remains that it is a building used by the Government. Maybe let me leave it at that.
In as far as Nkosi's application is concerned it should be noted that the only reason why he's applying for amnesty in respect of this particular offence is that he was part of the command structure. He was according to him Benny Mokgonyana's commander. It is important to note that Benny Mokgonyana was using an alias when he was addressing his commander, Tiger. Benny Mokgonyana was referring himself to Pitso, not as Benny but as Pitso and when he was referring to Mr Toka it was Patusa. All those are their MK names and it is therefore unlikely that Mr Mokgonyana did not know that these are MK operatives and that he was acting in cahoots with them.
I think that is all.
CHAIRPERSON: Thank you Mr Molefe, that's therefore ...[intervention]
MR DREYER IN REPLY: Sorry Mr Chairman, may I not on a factual basis but on a legal basis just briefly answer to a statement made by my two learned colleagues. It's not on a
factual basis but on a legal basis, if I may?
First of all it seems to me as though it is advanced by Mr Mohlaba that this Commission must sort of relax it's connection and it's obligation to the principles of the Act as to the way of consideration. I would submit, Mr Chairman, if this Commission was charged with the question to be answered whether or not someone was a member of the liberation organisations or a governmental security force. That in itself is enough to qualify someone for amnesty, then the legislator could as well of just declared that any person who at that time was either a member or appointed or a registered member or any one of these two organisations will receive amnesty. The point is Mr Chairman and I reiterate, the qualifications are clearly stated in the Act and it must be adjudicated accordingly based on the evidence placed before this Commission firstly.
And the second point is, my learned friend Mr Molefe said that the Commission should take cognisance of the fact that only people in a very close proximity of the bomb blast was injured. In fact Mr Chairman, that is quite so but he fails to point out that the close proximity of the locality where this bomb blast occurred had absolutely nothing to do with the South African Defence Force or any other governmental institution. The point is anyone could have been in the close proximity of that so it is definitely not aimed at the SADF.
CHAIRPERSON: Thank you, I'm going to allow Mr Mohlaba and Mr Molefe to have a reply to that and then I'm going to disallow any further submissions. Mr Mohlaba, do you have any response to what Mr Dreyer has just said?
MR MOHLABA: Thank you Chair, I've got no response.
CHAIRPERSON: Mr Molefe?
MR MOLEFE: None Mr Chairman.
CHAIRPERSON: Yes thank you, that therefore - we will receive our decision in this matter. We will obviously have to take into account all the submissions made to us, all the evidence and we'll have to deliberate and we'll endeavour to get out the decision as soon as possible but before adjourning, I would just like to thank everybody for making this hearing possible.
I'd like to thank Telkom for the provision of this very nice venue, it's very convenient. I would like to thank the interpreters for all the hard work that they've done throughout the week, it's an extremely difficult job and tiring, they can't let up for literally a second or two. I'd like to thank the sound technicians for the provision of all this apparatus here which allows us to listen to each other and also to record the proceedings and the television as well. I'd also like to thank the police for the security that they have provided for us although I must say I at no stage at all ever felt under the threat of anything at all but the security was nevertheless there and we appreciate that. I also would like to thank the caterers for spoiling us with the nice food that they've given us. By the way I'm told that there will be tea served at 11 o'clock. And I'd like to thank Joe Jaftha and his secretary Molly Martin for all that they have done in setting up everything and seeing that it runs smoothly. I'm sure I might have forgotten to mention all the people. I'd like to thank the legal representatives for their assistance and indeed for all the people who have attended and if I've forgotten to mention anybody I can assure you it wasn't an act of malice or ill will and I thank everyone indeed. Thank you very much for attending, we will now adjourn.
HEARING ADJOURNS
