amntrans AMNESTY HEARING 1999-03-08 PINETOWN MAGISTRATE'S COURT 1 CAPRIVI TRAINEES - ARGUMENT https://sabctrc.saha.org.za/hearing.php?id=53229&t=&tab=hearings https://sabctrc.saha.org.za/originals/amntrans/1999/990308_ptn_990308pn.htm CHAIRPERSON MR WILLS ...(indistinct) CHAIRPERSON Yes, thank you. 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 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 MR STEWART Thank you Mr Chairperson, Members of the Committee. In the hearings today ...(intervention) CHAIRPERSON MR STEWART CHAIRPERSON MR STEWART JUDGE KHAMPEPE ...(inaudible) MR STEWART IN ARGUMENT 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 JUDGE KHAMPEPE MR STEWART 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 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 ...(intervention) CHAIRPERSON MR STEWART CHAIRPERSON MR STEWART Thank you, thank you Mr Chairperson. 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. 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. 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. 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 JUDGE KHAMPEPE MR STEWART JUDGE KHAMPEPE 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 MR STEWART JUDGE KHAMPEPE MR STEWART Thank you Ms Committee Member, indeed that then is the end of it on that point. 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 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 "...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: JUDGE KHAMPEPE Would it not be too disproportionate? You insult me as an IFP and I respond by killing you. MR STEWART Sorry Mr Committee Member. ADV MOTATA MR STEWART 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. 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 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 JUDGE KHAMPEPE MR STEWART CHAIRPERSON MR STEWART 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 COMMITTEE ADJOURNS ON RESUMPTION MR STEWART IN ARGUMENT (Cont) 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. 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. There is the one, or perhaps more controversial incident than others, of the murder of Natie Gumede in which Mr Dlamini was involved. So that then deals, in my submission, ...(intervention) ADV MOTATA MR STEWART 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. CHAIRPERSON MR STEWART 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 CHAIRPERSON MR STEWART CHAIRPERSON MR STEWART That is so Mr Chairperson, the causal element is just not there. JUDGE KHAMPEPE MR STEWART 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 CHAIRPERSON MR STEWART 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. CHAIRPERSON MR STEWART Indeed, thank you, thank you Mr Chairperson. CHAIRPERSON Thank you very much Mr Stewart. Mr Wills. MR WILLS IN ARGUMENT Yes, thank you Mr Chairperson. ...(inaudible) 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 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 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." JUDGE KHAMPEPE Is it policy Mr Wills, or practice? MR WILLS 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 ADV MOTATA I would advise you go on with your argument. MACHINE SWITCHED OFF MR WILLS 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 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 "... 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. JUDGE KHAMPEPE MACHINE SWITCHED OFF MR WILLS 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. 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 MR WILLS JUDGE KHAMPEPE MR WILLS 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 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. CHAIRPERSON MR WILLS CHAIRPERSON I understand that, I can understand that element, but in order to perform it, to do it ... MR WILLS ADV MOTATA MR WILLS ADV MOTATA CHAIRPERSON I think that, they were girls, they were fourteen or fifteen. ADV MOTATA MR WILLS 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 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 JUDGE KHAMPEPE MR WILLS JUDGE KHAMPEPE MR WILLS 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 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 JUDGE KHAMPEPE MR WILLS JUDGE KHAMPEPE MR WILLS Yes, I, sorry. JUDGE KHAMPEPE MR WILLS JUDGE KHAMPEPE MR WILLS CHAIRPERSON COMMITTEE ADJOURNS ON RESUMPTION MR WILLS IN ARGUMENT (Cont) The answer being: I submit that that would form part of the sort of general attacks on the opposition. Thank you. 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. CHAIRPERSON MR WILLS CHAIRPERSON MR WILLS CHAIRPERSON MR WILLS CHAIRPERSON Was sent there specifically for, to perform a task. MR WILLS 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 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. CHAIRPERSON MR WILLS CHAIRPERSON MR WILLS CHAIRPERSON JUDGE KHAMPEPE Four point, I think it was CHAIRPERSON Four point three. JUDGE KHAMPEPE Page 12. CHAIRPERSON MR WILLS CHAIRPERSON MR WILLS 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. CHAIRPERSON MR WILLS CHAIRPERSON He used to keep the arms MR WILLS Yes, in a steel trunk. CHAIRPERSON and issue them out. MR WILLS 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 MR WILLS 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. CHAIRPERSON MR MULLER CHAIRPERSON Thank you Mr Muller. Mr Mpshe do you have any submissions you wish to make. ADV MPSHE NO SUBMISSIONS BY ADV MPSHE CHAIRPERSON 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. CHAIRPERSON ...(inaudible) MR STEWART No that must be Dlamini Mr Chairperson. Khumalo incident number 5, attack at Natingi, and ...(intervention) CHAIRPERSON ...(inaudible) MR STEWART CHAIRPERSON MR STEWART CHAIRPERSON Thank you. HEARING ADJOURNS