Amnesty Hearings — Durban — 1997-08-04

ADV DE JAGER: Sorry, there's no evidence in this hearing that he was a Deputy Minister of Interior and I've asked you about it and you didn't present the evidence.

MR SHANGWENI: Thank you Mr Commissioner, I will withdraw that question but I will answer it in this way.  Djamile was a member of Inkatha.  Djamile was opposed to people who were supporting UDF.  Djamile asked Msizi Jethro Hlope to point out his opponents to the would-be assassins.  Djamile told Msizi Jethro Hlope that UDF supporters are acting unlawfully, they were terrorists and they were murderers.
	Msizi believed that because he respected Mr Djamile.  Msizi believed that because he thought Inkatha was a correct organisation.  That is the nexus between the orders that were given to him, irrespective of whether he understood them or not, orders given to Msizi Jethro Hlope by Djamile.

CHAIRPERSON: You know I'll tell you what the difficulty in your way is, he's already gave evidence, he didn't even know why he wanted the deceased killed, not Kuzwayo, the other deceased, the other ...(intervention)

ADV DE JAGER: Mkhize?

CHAIRPERSON: Yes, yes.  He didn't know, the applicant didn't know why Djamile wanted this person killed.

MR SHANGWENI: Thank you Mr Chairperson.  From the affidavit of the applicant, he states that he was told by Mr Djamile that UDF supporters are terrorists and murderers.  In his evidence he said he believed that to be true.
	In his evidence Mr Chairperson, he said he was told that Mr Mkhize held meetings, UDF meetings at his home.  One would imply that if someone holds UDF meetings, he's a terrorist, he's a murderer as defined by Djamile in the affidavit of the applicant.

ADV SANDI: Mr Shangweni, I thought you said Claremont was a stronghold of the UDF and I understand from the affidavit of the applicant, that he was also resident in that area, is that correct?

MR SHANGWENI: That is correct.

ADV SANDI: In his evidence he does not say anything about having experienced or witnessed anything that shows that these UDF people were what Mr Djamile was saying they are, did he have any basis for believing what Mr Djamile was saying to him about these UDF people?

MR SHANGWENI: Thank you Mr Commissioner.  I don't think it's fair to the applicant to have witnessed something before he becomes a member of Inkatha or UDF, it's something that one makes voluntarily.

CHAIRPERSON: ...(inaudible)

MR SHANGWENI: I think I've answered most of the questions Mr Chairperson and once more the request by the applicant, I thought it would be addressed by the Committee.

CHAIRPERSON: Yes.

MR SHANGWENI: I will end my address, thanks Mr Chairperson.

CHAIRPERSON: Mr Brink?

MR BRINK: Save ...(inaudible) the difficulties which you have a share ...(inaudible) to some extent, it does appear that Mr Mkhize anyway was a well known UDF supporter.  That appears in the evidence of Mrs Mkhize and also at page 109 of the papers, paragraph 3, she in her statement says he was a well known - well he was an activist, he was a UDF activist.
	In fairness to the applicant however, motive is the problem but if he believed that Djamile who was a senior man in the Inkatha Freedom Party was ordering to do criminal things in the interest of the party, he may just scrape home, that's all I can say but the difficulties I have ...(inaudible)

CHAIRPERSON: You're afforded an opportunity to make any comments if you wish to.

MR DIAZ: Thank you Mr Chairman.  Perhaps if I may, I'm indebted to you Mr Chairman, insofar as the witnesses that are represented are concerned, it would appear abundantly clear is my submission that the applicant has not been holistically truthful with this Committee.
	That becomes increasingly apparent if one has regard to - if I may on this occasion as well refer to the Judgement, of copy of which is in the bundle particularly at paragraph 90 thereof in which the Honourable Judge had ...(inaudible) recorded his findings on credibility and fact insofar as these two witnesses are concerned.

CHAIRPERSON: ...(inaudible)

MR DIAZ: Page 90 Mr Chairperson.   The Chairman and Honourable Committee members will note that immediately preceding page 90 of the Judgement, the learned Judge had dealt at some length with the testimony that I caused to be adduced through these two witnesses namely, Mrs Mkhize and Mrs Kuzwayo and having dealt with that, arrives at the conclusion that their testimony must be accepted and says the following on page 90 from line three onwards
"The Mrs Kuzwayo referred to, Mrs Pelisiwa Kuzwayo confirms the evidence of Mrs Mkhize about the latter's reaction at the cells and her emotional disturbance.  She did not hear anything that number one accused said - number one accused being the applicant here said - but she confirms that others went around when she took Mrs Mkhize to the front of the court.  She stayed and comforted Mrs Mkhize.  I have already indicated that our view of Mrs Mkhize that she was an outstanding reliable witness and we 113 accept as truthful the other witnesses who gave evidence in this regard".
	In that regard I submit respectfully that, that last paragraph of the Honourable Judge's judgment ...(inaudible) records the finding I would like this Honourable Committee to record.  Just lastly, insofar as the evidence of the applicant is concerned, I would criticize his application to the extent that I endeavour to defeat his credibility by using the same learned Judge's comments on page 91 up to page 92 of the judgment, from the middle of page 91 where the learned Judge says the following:
"Accused number one gave evidence, he was a thoroughly mendacious witness, his demeanour was shocking.  He contradicted himself, he changed his instructions to his counsel with no satisfactory reason given and it is patently clear from the record and patently clear to us that the conspiracy that he spoke of was a fabrication.  From his counsel one would expect the best testimonial of his evidence before us that he could get and this is what Mr Steyn on his behalf said rightly, in our view
It is submitted that one should have approached accused number one's evidence with the utmost circumspection.  This means I submit, that each fact of his version must be examined with suspicion against the background of all the facts of his case".

ADV DE JAGER: Mr Diaz, let's accept that he lied at the trial ...(intervention)

CHAIRPERSON: That is why he was found guilty ...(inaudible)

ADV DE JAGER: He lied because he tried not to be convicted but now he comes and he confesses, he confesses that he in fact pointed out that he was a participant in the murders to some extent, why should be reject his evidence today, at least where he now admits that he took part although in a minor way but he's guilty as an accomplice, why should we reject his evidence because he lied at the court at that time?

MR DIAZ: Mr Chairman, Honourable members, I agree that if that were the level at which the argument is premised, it would be acceptable except that I'm distinguishing his present testimony as being far from truthful to the extent that I've dealt with.
	I'm saying that he were honest today and if he were totally truthful and open with this Committee, indeed his application may well be accepted.  And in this regard I endorse the sentiments of Mr Brink but my submission is that it would appear that his application is not based principally on truth nor is he openly truthful with the Commission with regard to all his activity and ...(intervention)

CHAIRPERSON: How does it help him not to be truthful when he's in jail already, he's been convicted, how does it help him to be untruthful?