Amnesty Hearings — Umtata — 1998-04-21

MR BRINK: Well, with respect, absolutely, it is a wholly improbable claim that men running out into the open, running down a road, perhaps entering the veld, could be cornered in any sense.  It is wholly improbable.  Therein lies, that expose, that give the lie to the claim made in the application form that the men were cornered and then shot from different directions.
	I don't think I have highlighted this, I have mentioned the cutting of the telephone wires and the handset to the wireless radio, but the point is this.
	If the police trusted the assurances of the applicants, as has been alleged, that they were not to come to any harm, then the severing of the telephone wires and the radio wireless microphone, handset, is unexplained.
	It looks, I mean that evidence coupled with the buttons, the cartridge, who knows what happened there, but coupled with the buttons, suggest struggle, suggest struggle.
	We are in the dark to when Sergeant Mbhele's teeth were broken, but it seems likely that there was a struggle at the police station, he was assaulted there.  It also seems most improbable, most improbable on its face, that four armed men arriving at a police station, out numbering two police Sergeants who - they were evidently taken by surprise, it seems improbable that these four armed men arriving hostile, weapons drawn, would be able to persuade two policemen who they insisted on abducting, that they are not going to come to any harm, just come peacefully and they complied.  It seems most unlikely.  Again the buttons suggest otherwise.
	To claim the benefit, namely immunity which was created by the machinery of this act, it is a fundamental essential unavoidable requirement that the applicants make a full and frank disclosure of all the relevant facts, of all the material facts.
	In conclusion, it is my submission that they haven't done so and that they haven't done so is manifestly obvious.
	It is a matter of overwhelming probability and on account of the discrepancies between the evidence given viva voce today, the evidence given on paper in the affidavit and the unsworn claims appearing in the application forms.
	Those are my submissions.  I move for the dismissal of all four applications.

MR NOTUNUNU: Honourable Chair, I don't know whether I could just not respond to this, I am just going to take a very brief time.

CHAIRPERSON: (Microphone not on)

MR NOTUNUNU: Yes sir, there has some things been said which I think, they need some clarification on.

CHAIRPERSON: Let's hear.

MR NOTUNUNU: I am not going to be long Honourable Chair, thank you very much for the chance.
	The problem I am having with the submissions by my learned friend, is that the evidence, his evidence is circumstantial and the problem with that is that it is not based on the, it is not based on any facts.
	The law is clear that if you come with circumstantial evidence, then such must be reasonable.  It is very much unreasonable to think that because Nyembezi was known or knew Mbhele then Nyembezi would have then in the circumstances, formed the idea of going and killing Mbhele.  That is very, very much unreasonable conclusion.
	If Nyembezi had in fact wanted to kill Mbhele, that he could have done at the police station in question, at that very moment, after he had identified him.  Besides that, Honourable Chair, my learned counsel had also referred to the cutting of the telephones.  He says the cutting of the telephone was done because perhaps there had been this some form of identification.
	What is not clear to my learned friend is that these people who had gone there, were in fact MK trained SDU's.  The cutting of the telephone was in fact a way of frustrating the enemy, so that they could not be followed there and then.
	Of course the question of the discrepancy in the applications, that is the when they had said they were MK, that had been explained.  Honourable Chair, the fact that my learned counsel says because there were wounds on the face or because of the multiplicity of the wounds, that is suggestive of close range shooting.
	Again, it is my submission with respect, that there is no basis for that, and that is not the only conclusion which can be drawn, because if you are going to rely on circumstantial evidence, the conclusion you seek to draw, must be the only conclusion and it must be a reasonable one.
	All the conclusions my learned friend has in fact come to in this particular case, which he bases on the circumstantial evidence, in fact not even on circumstantial evidence, but on what have been said by the witness, are in fact not reasonable.   It is my submission sir, with respect, that we have in fact done and we have in fact explained, and we have in fact disclosed all that in fact e know in this particular case, and again we move for the granting of the applications sir, with respect.

CHAIRPERSON: We will take time to decide the matter and when we are ready to issue our decision, we will do so in the normal way.
	We will adjourn.
COMMITTEE  ADJOURNS