Amnesty Hearings — Durban — 1998-11-30

MS THABETE: Just one more.  I also refer the Committee members to page 8 of the judgement, line 23, which reads the accused originally said he had never told anybody about the incident even though two members of his family had been shot down in cold blood by his fellow bodyguard.
	I also refer the Committee members to page 7, line 12 which reads a second improbability in the accused's version is that both deceased were relatives of his.  One indeed was his brother-in-law.
	He saw these two relatives shot down in cold blood in his presence, and did not demonstrate or intervene in any way in order to save them.

CHAIRPERSON: Were both the deceased relatives of yours?  We know that Sbusiso Mlaba was.  What about Mkhize?

MZAMO THABANI MLABA: As I explained before, I discovered later that Sbusiso Mlaba was indeed a member of the family.
	With regards to Nhlamvu, he is a brother-in-law in the sense that his brother is married to a Mlaba woman.  That is how I take him to be a brother-in-law.

MS THABETE: I read these two text because I am open to correction, I thought you had said earlier on you did not know that Sbusiso Mlaba was your relative.

CHAIRPERSON: He said that he was a relative, but he did not know that he was as close as being his father's brother's son.

MS THABETE: I am indebted, thank you.  No further questions.
NO FURTHER QUESTIONS BY MS THABETE

CHAIRPERSON: Mr Wills?

MR WILLS: Thank you.  Mr Mlaba, is it not so that within the ANC operations, there is a distinction between a political leadership and the operations that are performed by MK operatives?

MZAMO THABANI MLABA: Please repeat the question.

MR WILLS: Is it not so that there is a distinction within the ANC about people who work on the political side of the organisation, and people who work on the MK side, in the sense that those who work on the MK side, keep their operations to themselves and do not necessarily inform the political leadership about it?

MZAMO THABANI MLABA: That is correct.  The political leaders are not necessarily concerned, they are not in contact or they do not know anything about what goes on in the MK operators.

MR WILLS: Thank you.  No further questions.
NO FURTHER QUESTIONS BY MR WILLS

CHAIRPERSON: Thank you Mr Mlaba, that concludes your testimony.
WITNESS EXCUSED

MR WILLS: Mr Chairperson, I have no further witnesses, but I would like by consent if the Committee has not seen this report, to hand this pro active report in by the TRC, dated the 13th of November 1998, up as an Exhibit.  I don't know if the members have a copy, but I certainly don't.  I mean, I didn't beforehand.

CHAIRPERSON: We will receive that as Exhibit A.

MR WILLS: Thank you and that would conclude my case for this applicant.

CHAIRPERSON: Thank you Mr Wills.  Ms Thabete?

MS THABETE: No further questions Mr Chairman.

CHAIRPERSON: No further evidence?

MS THABETE: No further evidence.  Mr Chairman, if I can adjourn for two minutes, because we had agreed with the victims that I will consult them.

CHAIRPERSON: Yes, and then Mr Wills, are you in a position to argue the matter?

MR WILLS: I am in a position to argue the matter.

CHAIRPERSON: We will now take a short adjournment to enable the Evidence Leader just to have a brief consultation with the victims' family and also for Mr Wills and Ms Thabete to get their minds in gear for the submissions which we will receive after the short adjournment.
COMMITTEE ADJOURNS

CHAIRPERSON: We are just waiting for the Interpreter.   Ms Thabete, did anything arise from your consultation?

MS THABETE: There is no more evidence Mr Chairman, but I will summarise what I have been told, in argument.

CHAIRPERSON: Thank you.  Mr Wills?
WITNESS EXCUSED

MR WILLS: Thank you Chairperson and members of the Committee.
	Mr Chairperson, it is my submission that the applicant has satisfied the requirements of the Act in so far as he has with respect, indicated and shown that the murders that he committed, were indeed committed with a political motivation and secondly it is my submission that he has fully disclosed the circumstances surrounding such murders.
	Mr Chairperson, I would like to indicate at this stage that the report that was provided by the TRC Investigators, actually substantiates this.

CHAIRPERSON: I think if one takes a look at the evidence presented before us, as well as the documentation including that report, the only finding that could be made with regard to Mr Mkhize, was that he was probably a police informer or that there was certainly justification for the applicant and his colleague to believe that, genuinely believe, bona fide believe that he was a police informer, and that they proceeded to that house at that time, to kill him.
	What is the position with Mr Mlaba, the deceased, Sbusiso Mlaba, because it is not clear from, I don't think the finding can be made from the evidence that when they proceeded to that house, at that time, before they walked in that door, they had any intention of killing any other person, other than Mr Mkhize?

MR WILLS: Yes, indeed, I agree with the Committee in that regard.

CHAIRPERSON: So therefore the killing of Mr Mlaba from the applicant's point of view, was unforeseen and he wasn't aware that it was going to happen until it actually did happen.
	That cuts out a common purpose with respect to that killing.  And then how reasonable was the belief that Mr Mlaba was going to tell the police?  Was there any justification at all in killing him, which raises the question, what happens if there were four or five people in the room at that time, would they have shot all four or five?
	Then one gets into the question of proportionality with regard to that there.  If you could perhaps address us on those points.

MR WILLS: Yes, thank you.  Mr Chairperson, yes indeed I agree and concede that in respect of the death of the second accused, there was no preplanning in regard to that incident, however, in the nature of the violence and the nature of this attack, certain things happened immediately, without any chance for matters to be discussed and planned beforehand.
	My respectful understanding of the law is that a common purpose can be derived immediately from the circumstances  which occurred immediately.

CHAIRPERSON: Like going on a robbery and you have an agreement not to kill and you all go with guns, and somebody gets killed.  You can't say well, we didn't have a common purpose with regard to the murder?

MR WILLS: Yes indeed, and I submit that the applicant's evidence in that he took full responsibility for the fact that the second deceased died, is indicative of the fact that it was part of an operation which whilst the effect of that operation was, or whilst the plan was directed at the first deceased, the second deceased in effect got killed in the cross-fire.