Amnesty Hearings — Durban — 1999-09-03

MR CORNELIUS: Mr Chairperson, apart from this aspect that he now places himself on the scene where the weapons had been handed out, he transports these alleged murderers to the scene and he played a very actual role according to his evidence, with all respect and if you look at page 29 to Willem Albertus Nortje's statement, then you see that he says that the following members departed to Chesterville to go and do duty there and then he mentions 10 names and it's a complete list.  What could the reason be why at this stage Nofomela's name had not been mentioned?  He says:  "We departed, the driver ..."  He could say "We departed, the driver of the vehicle was Nofomela" and there was no reason at all to leave out his name and this appears in all the documents that had been handed in at the inquest and this really puts a question mark over his evidence for me.  And if we look at the evidence of Mr Nofomela, I have problems with his political motive.  I think members of the Committee specifically asked about this, but he associated himself almost with the aims of Vlakplaas.  We could maybe try and infer this as a political motive.
	Important, Mr Nofomela was not present when the orders had been given that the comrades had to be killed.  We have evidence that he said:
"Those people will be shot."
This could be interpreted in many different ways.  It could be that the askaris could be shot or it could be that the white members could be shot or it could be that other people could be shot.  It does not necessarily mean that enemies would be shot.  It could be, as it was put, but this is an inference, that he possibly wanted to protect Nofomela.  He did not, he shouldn't be at a scene where a possible shooting could take place.  They go into a flash point in Chesterville where there are serious unrest with active ANC activists and comrades and A Teams and it is logical that it possibly could have been said, but it does not mean that he had knowledge that steps would be taken to eliminate people in a kind of an ambush.  
	If we then - Nofomela cannot remember what Radebe had said.  He said Radebe just said that it would appear to me as if the mission was everything but successful.  It is not the normal type of action to leave survivors.   From the hearings that I had seen, it is definitely not the case. We have the perfect example with the Nelspruit murders where Tiso had been the spanner in the works, to put it this way and he was murdered.  Maybe a miracle that Mr Mbatha's sitting here today.  He was shot 9 times and apparently this was the intention to kill him.  You shoot a person 9 times if you want to kill someone.  There are other people who have been killed 20 times, the other people 15 times and it appears to be a very serious attack.  It was undoubtedly a very serious attack, we cannot doubt this, but something happened to trigger this off.  There is a very interesting allegation that, I don't think you missed it, that one of the people's machine guns had gone off too quickly and this appears in one of the statements and it wasn't brought up by my learned colleague.  It's a point.  Something happened that then triggered off this incident.  If it had been a shot from inside the so-called shack, or an uzi that had been triggered off too quickly, but something happened that then led to an incident that was not planned.

CHAIRPERSON: Well, we have Mr Mbatha's evidence.  He said that there'd been no weapons inside the shack, there'd been no shooting from within the shack, so the attack only came from the outside.  The shooting was the attackers.  The people who had shot had been the attackers from the outside.

MR CORNELIUS: Yes, but you will also notice from the inquest that there'd been one statement and a statement that had been made approximately a year after the incident, Mr Radebe who said that the one person's finger was a little bit to quick on the Uzi and the Uzi then went off and this could have started it.  I can refer you to this.  I will later find it, but there is a specific incident, I've forgotten the man's name.  So this could have started it, but important in this aspect is that - let me just find it for you, Mr Chairperson.

ADV DE JAGER: Yes.  I'm just trying to think who it is.

MR CORNELIUS: Nortje, Mr de Jager, I think it's Mr Nortje.  Yes on page 23 of the piece in front of you, paragraph 12, the second half.  He says
"I can only mention that approximately one or two years after the incident, Simon told me that one of the members of Vlakplaas by the name of Aubrey Magopo, that specific evening had gotten very nervous and that he had pulled this trigger of his Uzi machine gun in a hurry and after this the other members also shot."
This could have happened, Mr Chairperson.

CHAIRPERSON: Yes, but strangely enough after that they had withdrawn their members from this room.

MR CORNELIUS: Yes.

CHAIRPERSON: And now this accident takes place.  The accident doesn't take place while their people are inside, the accident happens while the targets are inside.

MR CORNELIUS: I do agree with you Chairperson, I just have a problem.  Naturally I do not have my applicant on the scene to argue with authority on this, but I am speculating on the balance of probabilities to indicate this was also a cause.  They withdrew, whether they wanted to discuss something or whatever they wanted to do, but when the trigger was pulled and everyone is nervous, then this could have been the cause of the shooting, but the relevance and the reason why I am saying this, Chairperson is that this negates the possible pre-planning and conspiracy or any aspect that could have led to the murder on  the scene.  In other words there had not been subjective animus directus.

CHAIRPERSON: I do realise this, but it does not go further than a suggestion.  Someone who years afterwards had then come up with this idea, or come up with this thought.  Yes, you are correct, the one person was nervous.

MR CORNELIUS: Yes, exactly.

CHAIRPERSON: And then they just emptied their magazines.  I said and then they just emptied their magazines, just because of one person who got nervous and that is what the evidence is and these are professional people, hardened operational people.

MR CORNELIUS: I agree with you Chairperson, but Mr Chairperson, as far as my applicant's point of view is concerned, I will concentrate on a conspiracy.

ADV DE JAGER: Mr Cornelius, your client is applying just for the illegal possession of a firearm?

MR CORNELIUS: That is correct, Chairperson.  I can just ask for the unlicensed possession of a firearm, for the use thereof and then also for a contravention on the weapons Act.

ADV DE JAGER: Doesn't the police have the right to issue an unlicensed firearm?  Is this still an offence?

MR CORNELIUS: Mr Chairperson, the problem I have with this is the face value of this document.  I can accept that at face value this thing is correct, that Brig Schoon had approved it and then one can say yes, it had been an issued document.  That then gave relaxation to the Weapons and Ammunition Act but on this face value I cannot make finding and this is why I am for safety sake applying for the possession of unlicensed weapons and also the use thereof, because the possession is only active at the bridge.

CHAIRPERSON: The possession then, does this have a mens rea element?

MR CORNELIUS: I have considered this, Chairperson and I think the animus possidendi is with the association of the position of Nortje who had been the Commander of the group to which he eventually belonged, but he only saw the weapon when Nortje handed it over and he does associate himself with this, Chairperson, this is my problem.

CHAIRPERSON: But what did he have to do then?  Did he have to arrest Nortje?