Amnesty Hearings — Nelspruit — 1997-06-12

ADV TEE: Now, the first, that was why I was going to deal with Shabangu last.  That allegation is without substance for the following reasons.  Firstly, Mr Shabangu did not agree with that approach when asked specifically about that by the Magistrate and what that says about Shabangu is the following and I would ask this Committee to make this as a finding.  It means that Shabangu is a man of the most exceptional integrity.  It means that Shabangu is a very balanced, evenhanded and fair man.  Where does one find a victim who has nearly been killed by his attacker saying I am not going to speculate that that was the reason.  Shabangu is clearly a man who is so fundamentally honest that he is not even prepared to stoop to the level of imputing a motive be it false or true, but the fact that he did not shows that because Shabangu himself is a man of integrity and balance and honesty is that he did not believe that that was the reason and that is the significant aspect.  He did not believe that is had anything to do with that.
	He, Shabangu, was also aware, he must have been aware of the problems that had been going on at the time with the disinformation and Shabangu has been in the hearings and was a victim and has not come forward to discredit Joe Nkuna and what is even more significant, Shabangu and Nkuna were friends.  He knew, he knew the man and he knows that Nkuna would not be motivated by the pettiness of trying to get back at an individual where a collective decision had been made to suspend him and where he had survived the suspension and, in fact, there is no direct evidence that at the time of the attack there was any correlation between his suspension from the African National Congress and his position as a MK commander and that, I submit, is the most significant aspect there.  As a MK commander he stands apart from the political organisation.  
	So, Shabangu knew that.  Shabangu knows that he is not prepared to come and add grease to the mill.  He is not prepared to make a statement that because of a problem in the political arena Nkuna took it out in the military arena, no.  He knows when Nkuna, the trustworthy one, was acting Nkuna believed what he was doing.

BERNARD MAKGABO NGOEPE: (Indistinct).

INTERPRETER: Speaker's mike.  Speaker's mike.

BERNARD MAKGABO NGOEPE: I am sorry.  The other problem which worries us will be the one which would require of you to go through the record and comb through the record.  That is the question of the origin of the instructions.  Pay particular reference to the page that I have, that I read earlier on which was page 54 which I just picked up during your argument.  There might be more in the record and perhaps you can balance them in your written argument.  As I say that we will have to, will require of you to really read the record very carefully.  Well, we leave that one at that point and the other one would be, you see if Mr Nkuna, Joe Nkuna did go to, well you have dealt with it anyway to some extent.  Our concern was just that if he did in fact go to the scene he would have withheld relevant information and that would amount to non-disclosure on a material and relevant thing, aspect and why must we disbelieve Mr Skosana when he says that Joe was there.  I mean he has been consistent, well, maybe he misplaced the, him with regard to distances and the like.

ADV TEE: Mr Chair, I have dealt with that on the structural probabilities of the way MK commanders operated and on the  physical.  That he just was not in a position to be able to run away and the object was that they would run away.  Now, you will recall that the members of the Committee, Advocate de Jager also asked a number of telling questions in that regard.  I thought that would have clarified the issue forever.  He is clearly wrong about that.  He is clearly wrong.

BERNARD MAKGABO NGOEPE: For our part I think just for your benefit in case you want to re-argue those points again in your written argument.  I think we have summed them up for you.  One was the question of the origin of instructions.  We have less problems with Conrad and Derick Skosana on that, because both of them got instructions from Joe and that is not in dispute.  That point, that difficulty is only in relation to Joe, the origin of the instructions.  As I said that would require of you to read this, the record and then the second thing was, well, his presence, alleged presence at the scene, you will deal with that.  We have mentioned that to you and, sorry, I have just forgotten, Mr ...

ADV DE JAGER: The three names.

BERNARD MAKGABO NGOEPE: The question of the three names, three people to be killed that day and I have already indicated the question of possible motive.  That, you know, the motive that you are putting forward may very well be, may look differently if one takes into account certain things such as a previous attack on him.  The fact that Mr Shabangu made revelations and the like.  You have dealt with that, but those are the things which really worry us around Mr Joe Nkuna's affidavit, but do deal with other points in your argument.  We are not, you should please not be mislead into thinking that merely because we do not raise these issues in relation to Conrad automatically he is entitled to amnesty and I hope Mr, no, Mr Shwakane, I got there before you got there, I got there before you, before Mr Shwakane, I think Mr Shwakane you too you may not be under a wrong impression that we are suggesting that your client is automatically entitled, we feel that he is entitled to amnesty.  So, you people when you submit argument try to cover all aspects.

MR SHWAKANE: Sure Sir.

BERNARD MAKGABO NGOEPE: Yes.

ADV TEE: (Indistinct)

BERNARD MAKGABO NGOEPE: We wanted to sound you orally today unless there is something else that you wanted to add on that.

ADV TEE: Mr Chair, if I may just enquire on one final aspect relating to the evidence.  In this Committee what is the evedentuary burden borne by applicants.  As I understand it it could not be more than a balance of probabilities.

BERNARD MAKGABO NGOEPE: Where is that, that will be, where is that is what it is.  If the applicant carries any onus at all, if the applicant does carry any onus then it will be dischargeable on a balance of probabilities.

ADV TEE: And then if I may require, enquire if there are parties in opposition necessarily the onus would be to that level as well.  That on a balance of probabilities their version is correct or would it simply be their duty to educe evidence and then the fact that they have not automatically means that they are starting at a position where they are very, going to find it very, very difficult if not impossible to gainsay anything of the applicant.

BERNARD MAKGABO NGOEPE: Well, except that one must be careful not to confuse concepts here.  One must remember that they do not seek any judgements, they are not litigants in the true sense of the word.  I am talking about the other people you are referring to.  They are not like a defendant in a case where they will, they may have to seek judgement in their favour or whatever.  What they say, the evidence they give, their arguments all go into the same melting pot.  We take them into account in considering whether or not the applicant has shown that he has, he is entitled to amnesty.  They are relevant for that purpose.  Not as to whether or not they have proved that the applicant is not entitled to amnesty.

ADV TEE: Thank you Mr Chair.  The final question is would I be permitted then to put in these arguments in writing as arguments of reply?  In other words after I have received the written arguments of the others or does the Commission want me to put in arguments in advance of their, of their submissions?