Amnesty Hearings — Sebokeng — 1998-07-10

CHAIRPERSON: What is the issue, is it that they were not killed?

MR BERGER: Well Chairperson, I have consulted on this specific issue ...[intervention]

CHAIRPERSON: I know that but I want to know so that we can give the witness the opportunity to know what is it that is an issue about this.

MR BERGER: Chairperson, on the basis of the instructions that I have so far these two names are not mentioned.  I cannot now say as a matter of fact I'm disputing it, I'll have to take instructions on that but on the instructions that I have thusfar there is no Gazu and there is no Mbatha.

CHAIRPERSON: We're not here to decide whether or not Mbatha was killed or Gazu in Boipatong.  We're here about whether or not these individuals are entitled to amnesty in regard to the killings in Boipatong.  This is why I'm trying to limit the scope of the inquiry.  If you have the information which differs from what the witness says, please put it to him so that he can have the opportunity.  I understand that on the instructions you have, these two names do not appear.

MR BERGER: Thank you Chairperson.
	Mr Mthembu, on the instructions I have up to this point there is no Gazu and no Mbatha who were killed in Boipatong, are you adamant that those two were killed in Boipatong before the attack?

MR MTHEMBU: Yes, I am certain that these people were killed in Boipatong.

MR BERGER: I now want to read to you from certain confessions which were made at the time of the massacre.  This is a confession which was made by Bhekinkosi Mkhize.

MR STRYDOM: May I intervene at this stage Chairperson.  It's my instructions that that confession is not an admissible confession in terms of the Constitution and in terms of the Criminal Procedure Act.  In fact the State prosecutor during the trial elected not to use those confessions on - well I can't say on that basis, but we opposed the admissibility of those confessions and we still maintain that those confessions are inadmissible evidence.

MR BERGER: Chairperson, this very issued was argued at the Amnesty Hearings into the death of Mr Chris Hani and it was ruled then that any confessions, any statement that has been made can be used for the purposes of cross-examination in an Amnesty Hearing.

CHAIRPERSON: That issue is before this Committee, not then.  We want to hear argument now as to why you say it is.

MR BERGER: Well there is a statement here, on the face of it it was made freely and voluntarily.  There is nothing in this document to suggest that it's not a document signed by Mr Nkosi, Mr Mkhize, I beg your pardon.  The purpose of these inquiries I would submit is to get to the truth, to ensure that there is full disclosure and here is a document which I submit is highly relevant to the issues that this Committee has to decide.

CHAIRPERSON: What's the position of Mr Mkhize in regard to this document?

MR STRYDOM: I must take specific instructions in this regard.  I can just rely on my memory.  My instructions previously were that that confession was not freely and voluntarily made.

CHAIRPERSON: Well shouldn't you take instruction from your client and let us know what the basis is upon which this is being, we can sit here and you can just take those instructions now.  Will you be able to do that?

MR STRYDOM: I can do it but I firstly haven't go the confession at hand so I'll have to get it.  I haven't got it in my possession right now.

CHAIRPERSON: Yes.

MR STRYDOM: It makes it a bit difficult.  I see it's twenty six minutes past already and as the Chairman indicated to take the adjournment at half past, so with the leave of the Chairman I would do it over the weekend.

CHAIRPERSON: Okay.  We will leave aside for the moment the question of the confession and then would you go on with other ...[inaudible]
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CHAIRPERSON: ...[inaudible] and come and tell us the basis if any upon which there is an objection to the use of the statement.

MR BERGER: I shall Chairperson.

CHAIRPERSON: Yes, very well.

MR BERGER: Chairperson, I would then like to refer the witness to another confession not made by any of the applicants.

CHAIRPERSON: Would you refer to others matters other than the confession.  Do you have other questions on other matters not on confessions?

MR BERGER: I do Chairperson.  It's twenty seven minutes past one ...[intervention]

CHAIRPERSON: Okay.  Perhaps, why don't you refer to those other matters and then the question of the confession will then be argued first thing on Monday and then we can go on with issues relating to the confessions.  That confession, does it relate to one of the persons who are applicants here?

MR BERGER: No, it's not, it's not a confession by an applicant.

CHAIRPERSON: Well I think it would be proper to deal with the question of confessions thereafter.  Perhaps you should continue with other questions which are not related to the confessions.

MR BERGER: Chairperson, even if this document on the face of it, is freely and voluntarily made.

CHAIRPERSON: All confessions are.

MR BERGER: All confessions.

CHAIRPERSON: Mr Berger?

MR BERGER: I'm back on track.

CHAIRPERSON: Yes, very well.  I just want to mention one point.
	Mr Strydom, once you've taken instructions from your client, as soon as possible would you indicate to Mr Berger the basis upon which there will be any objection if any?

MR STRYDOM: I will do so Chairperson.

CHAIRPERSON: So that he can prepare himself accordingly.

MR STRYDOM: Yes, very well.

MR BERGER: Thank you Chairperson.  I will have to leave that whole section that I was cross-examining on because the confessions fall into something else.
	I will move now Mr Mthembu to the question of SADF involvement in the attack.  You've told the Committee about the presence of SAP vehicles, you remember?

MR MTHEMBU: Yes, I remember.

MR BERGER: And you said that as you were going past the vehicles you saw the police, they must have seen you, they did nothing to stop you.

MR MTHEMBU: That is correct.

MR BERGER: That was during the attack, am I right?

MR MTHEMBU: It was after the attack as we were returning.

MR BERGER: I will come to the police in a moment, let's deal with the SADF.  Are you saying that there was no SADF involvement in the attack at all?

CHAIRPERSON: A broad question.

MR BERGER: Alright, I'll ...[intervention]

CHAIRPERSON: Perhaps you should - yes, please.

MR BERGER: Alright.
	Was the army present either before, during or after the attack on Boipatong that night?

MR MTHEMBU: As I've explained, when we left Boipatong as we were about to cross the road near the garage, that is where I became aware that there were soldiers standing around there, some near the robots.

MR BERGER: This is now as you're leaving Boipatong?

MR MTHEMBU: Yes.

MR BERGER: Did you leave through Umzumgogo Street, is that the street you left on?

MR MTHEMBU: I think we left through the ...[indistinct] National Board.

MR BERGER: ...[inaudible] next to those factories that you saw the soldiers.

MR MTHEMBU: It was not close by but there is a garage near the robots where I saw army vehicles parked there.

CHAIRPERSON: ...[inaudible]

MR MTHEMBU: No, I do not.

CHAIRPERSON: You mentioned that you also saw the police.

MR MTHEMBU: Yes.

CHAIRPERSON: ...[inaudible] to the army, where were the police?

MR MTHEMBU: As I've explained, army vehicles and SAP vehicles, I saw both these vehicles, they were all parked near these factories near the garage.

CHAIRPERSON: Yes.

MR BERGER: So the police and the army were parked together?

MR MTHEMBU: Yes, that's how I would put it, it was in one area.

MR BERGER: What do you say about an allegation that one of your comrades shot at an army vehicle?

CHAIRPERSON: That is during the attack?

MR BERGER: During the attack yes.

CHAIRPERSON: Yes.

MR MTHEMBU: I have no knowledge about that Sir.

MR BERGER: You saw no army vehicle inside Boipatong?