Amnesty Hearings — Johannesburg — 1999-02-18

MR LAX: Well then how do you deal with his evidence where he said that he was going to take her, they were going to take her to the office at Small Farms, but then he decided of his own accord that in view of he order, and in view of the information he already had about her, she should just be killed there and then?  Just before I finish, doesn't that imply that he used his own discretion at that point in time, and he wasn't just following orders?

MS MOLOISANE: Committee Member Mr Lax if I recall the evidence of the applicant well, the evidence, and that of Mr Mabusa Mhlongo, an order had been issued that Maletsatsi should be eliminated, and surely by taking the applicant, or the decision to take the Maletsatsi to the ANC office for questioning first, was only the applicant's own decision.  He had never been told to take him for questioning first.  The order was simply that Maletsatsi should be killed.

MR LAX: The question is that he and his comrades, as he testified, were going to take her to the office, not necessarily for questioning, they were going to take her to the office first, to report, as I understood it.  Then he of his own according decided well in view of the order, and in view of the other information he already knew, that was his evidence, he was going to kill her there and then.  Because he was worried the police might catch them on the way.

MS MOLOISANE: I agree with you Committee Member, but the crux of the matter is an order was issued and he had to carry it out.

CHAIRPERSON: So you are basically saying the question of taking her to the office, which was his decision, does not detract from the fact that his order was to kill her, whether he decided to take her to the office, for whatever reason, that still does not remove the fact that he was acting under orders to kill Maletsatsi, and that's what he ultimately did.

MS MOLOISANE: That is correct, Madam Chair.

CHAIRPERSON: You may proceed.

MS MOLOISANE: Madam Chair, it is also an established fact that there was political violence in the Vaal townships during that period 1992, 93, when this incident took place.  I therefore submit that the offences that the, the murder of Maletsatsi falls within the ambit of Section 20, Subsection 2, of this Act and that in terms of Section 20, Subsection 3, that context, Three, Section 20, Subsection 3(b) the context in which this act or offence took place, was committed in the course of a political uprising, and we have already heard evidence that this act was clearly associated with a political motive.

MR LAX: Sorry, my understanding of that subsection is that that's intended to deal with situations where people react to a situation like a crowd where the police open fire, or a group of people in the heat of a disturbance do something.  This was a premeditated thing.  Do you see what I mean?

MS MOLOISANE: I do agree.  I concede that it was premeditated, but then it was not just something that came out of the blue.  The reason why a decision was made that Maletsatsi should be eliminated, came as a result of the information that the comrades, and in particular Mabusa Mhlongo's unit, had at their disposal, that is to the effect that Maletsatsi had vital information about their activities, that is the ANC activities, or comrades activities, and that she had now joined the other camp, and that she was now imparting information to the other side.

CHAIRPERSON: I don't understand why you should agree with Mr Lax.  Isn't it common cause that there was political turmoil in the Vaal at the time when this incident happened, and you are relying on that Subsection because of that?

MS MOLOISANE: That is correct, Madam Chair.
Am I?

MR LAX: Please continue.  We have different understandings of that section, and it's not that material.  You are still covered by other sections.  I'm just saying my understanding of that specific section B is that it deals with situations where people react to a particular incident.  This is not where somebody reacted to an incident, but we don't have the same understanding of that section and I don't wish to burden us with that issue.  I still think the issue of the political context of the violence, that's common cause.  There's no issue that there wasn't violence at the time.  That's not the issue as far as I'm concerned.

MS MOLOISANE: Madam Chair and Committee Members, I also would like to draw this Committee's attention to the evidence of the victim herself.  That is the, no, I'm sorry I'm now getting in to the grain of the other application.  As far as this application is concerned, that is concerning the incident of Maletsatsi Marumo, that is all Madam Chairperson.

CHAIRPERSON: Well what do you say then about Section 20 Subsection 2 and the Subsections referred to thereunder, under Subsection 2?
NO RECORDING

CHAIRPERSON: To which sub-subsection would your client qualify under?

MS MOLOISANE: Madam Chair and Committee Members I have already drawn this Committee's attention to Subsection 2(a), subsection, yes, 2(a), any member of which provides that, any member of political, or supporter of a publicly known political organisation, or liberation movement on behalf of or in support of such organisation or movement, bona fide, in furtherance of a political struggle ...(intervention)

CHAIRPERSON: We are familiar with the Subsection, you don't have to read it out.  Is that all?  Is it your submission that he qualifies in terms of that section only?

MS MOLOISANE: My further submission is that he also qualifies in terms of Subsection (f).  Because he was acting in the course and scope of his duty and within the scope of his or her express or implied authority.  I'm in.  I'm indebted to you Madam Chair.  A and D.

CHAIRPERSON: And in terms of Section 20 Subsection 3, specifically, which subsection does he qualify?

MS MOLOISANE: A.  That is the motive of the person who committed the act omission or offence.

CHAIRPERSON: You've dealt with A and B.

MS MOLOISANE: Subsection A.  The applicant was acting in execution of an order.

CHAIRPERSON: Thank you.  I take it that's all that you want to address us in respect of the first incident?

MS MOLOISANE: That is correct Madam Chair.

CHAIRPERSON: Before you move to the second incident, I am going to give Ms Thabethe an opportunity to respond, in respect of the Maletsatsi incident.

MS THABETHE COMMITTEE: Madam Chair in respect of the Maletsatsi incident I have nothing further add to what my learned colleague has said.  I'll abide by the Committee's decision.

CHAIRPERSON: You have no position to proffer?  You are leaving it in the hands of the Committee?

MS THABETHE: Well Madam Chair if I have to make any position really I would say it appears that the applicant was acting under orders and I would concur with my learned friend that it appears that his act does fall under the ambit of the Act.

CHAIRPERSON: Yes.

MS THABETHE: Thank you.

CHAIRPERSON: Thank you.  Ms Moloisane, you may proceed with the second incident.

MS MOLOISANE: Madam Chair and Committee Members, as far as the second incident is concerned, that is that of Hapile Ndumo and the attempted murder of Elsie Mokoena, my submission is also that there has been full disclosure as required by the Act.
	I further submit that these offences were committed with a political motive and I also wish to reiterate the fact that the Committee and all of us know that there was political turmoil in the Vaal townships during that period and that there were self defence unit, and that these self defence unit were engaged or involved in certain activities within the townships.
	I further submit that the both applicants belonged to a unit, a self defence unit.  They were both members of the ANC youth league, and both of them belonged to the unit that was headed by Mr Mabusa Mhlongo.

CHAIRPERSON: That's the evidence of one applicant, not the other applicant.