Amnesty Hearings — Durban — 1999-11-15

CHAIRPERSON: Yes, no and also from a technical point of view, if he is present at a meeting where a decision is taken to kill these people and they are killed subsequently, that he would then be guilty technically speaking of a conspiracy to ill them.

UNKNOWN: That is so.

CHAIRPERSON: That the debate, I mean you can't expect a lay person  to tell you that.  He would tell you:  "I didn't kill them" or "I didn't go there to shoot them", "I wasn't there, I just heard the shots", which is his case, but he wouldn't know the niceties of conspiracy and all these other legal technicalities that lawyers normally get excited about.

UNKNOWN: By his own admission he was party to the conspiracy.

CHAIRPERSON: Yes, now we have to decide it on whatever the evidence is, which we will ascertain from the record.  Alright.  What about Mr Khuzwayo?  What is his position?

UNKNOWN: On page 83, line 10 of the judgement, the learned judge conceded that the incident on the 3rd of May 1994 which resulted in the death of Mr Mthembu was indeed politically motivated and probably a revenge attack, but it was party against party.  Mr Mthembu was a wealthy businessman, a card carrying member of the IFP.  My client was informed by his colleagues that he was known to fund them to such an extent as to enable them to acquire the weapons used in incessant attacks on his kraal and on neighbouring ANC homesteads.  This was reported to him at the meeting he attended via their leader, on Shadrack Mahletsha.  I refer the honourable members to the bundle, namely page 31, paragraph 6, confirming Mthembu's link to the IFP and being approached for funding by Sibiya.  This was therefore no figment of my client's imagination.  There was a common purpose attack on him and on Sibiya.  The political objective was to attain peace for the whole ANC area that was being attacked and where my client resided. The hit list was given to several members, including my client.  My client was a trained soldier of the ANC and trained by them and in line with full disclosure he admitted to where and how and by whom he was trained to fight in this political struggle.  He maintains that he always reported to Shadrack when, having got instructions from him and sometimes he did undertake attacks when he couldn't actually get direct instruction from Shadrack, but he was guided by him and then would report the matter to Shadrack.
	My clients also stated that as a soldier trained in the Mozambiquan camps, he followed orders, not for personal gain but for a common purpose, a political objective to attain peace for his people.  He has made full disclosure today supplying names and details of his activities in the ANC cause.  
	He sincerely hopes the truth will assist the victims' families to come to terms with what happened to their loved ones and he hopes they understand that his actions were always orders from his elders, all to attain political objectives, it was never a personal grudge against them.  He hopes that the members of the Honourable Committee would grant him, in the light of the above, amnesty so that he could begin to live a life free from political violence and a life where he could share and discuss his political views and perhaps learn from opposing parties rather than to resort to violence for political clout.  In terms of Section 20 (a) (b) (c) (ii) (a) (d) (f), (iii) (a) (b) (d) (e) (f), I humbly submit that my client be considered for amnesty.

CHAIRPERSON: In respect of, just list them, is it the murder of ...(indistinct- mike not on)

UNKNOWN: That's correct.

CHAIRPERSON: What else?

UNKNOWN: The robbery and the attempted murder of Sibiya.

CHAIRPERSON: ...(indistinct - mike not on) he says he's not involved in the theft of the money, so he's not asking amnesty for that.

UNKNOWN: That is so.

CHAIRPERSON: Did he speak about the firearms?

UNKNOWN: In what respect Mr Chairperson?

CHAIRPERSON: Yes, my colleagues have just refreshed my memory.  Yes, in fact your client, when Adv Bosman asked him, your client indicated that he's also asking for amnesty in respect of the unlawful possession of arms and ammunition.  Now, that would obviously be in the context of these attacks on those two victims, do we have an indication what arms it was that he possessed?

UNKNOWN: I'm not sure if it is in the affidavit, but he didn't, not at all.

CHAIRPERSON: There must be some or other arms.  I mean, it's not vital, if you can't identify them specifically it's neither here nor there.  He was never charged with that but it would certainly fall within the ambit of the offences that are before us.  If he were to qualify for amnesty in respect of the murder and the attempted murder, then obviously he should also qualify for amnesty in respect of the unlawful possession of the arms and ammunition.

UNKNOWN: That is so, Mr Chairperson.

CHAIRPERSON: I just want to ascertain, just ask you client, just take instructions, what weapons was it that were involved here.

UNKNOWN: Mr Chairperson thank you, but he had given me a list which he's confirming.  He had AK47, two AK 47's and ammunition, he had one pistol, Makarov, together with ammunition, he had 18 pairs of camouflage uniforms, hand grenades.

CHAIRPERSON: We're just, we're talking about the attack that we are dealing with, the attack on Mthembu and Sibiya.

UNKNOWN: I see.

CHAIRPERSON: Was it 2 x AK47 rifles?  Is it 1 x Makarov pistol that they used in this attack?  We just want to know what they used in the attack against these people.

UNKNOWN: Thank you Mr Chairperson.  On that particular day he was in possession of an AK47 and his co-perpetrators had pistols of Makarov.

CHAIRPERSON: Makarov, is it Makarov pistols?  What did you say?

UNKNOWN: That's what he says, pistols, Makarov Pistols.

CHAIRPERSON: How many?  Three, he said they were four people, did the other three each have a Makarov pistol?

UNKNOWN: Those are my instructions.

CHAIRPERSON: So they had 1 AK47 rifle and 3 Makarov pistols with ammunition?

UNKNOWN: That's correct.

CHAIRPERSON: Alright.  Yes, have you got any other submissions in respect of Mr Khuzwayo?

UNKNOWN: No, Mr Chairperson.

CHAIRPERSON: Does that conclude your submissions?  Thank you.

UNKNOWN: Thank you.

CHAIRPERSON: Ms Jelal.

MS JELAL: Thank you Mr Chairperson.

MS JELAL: I will focus on applicant number 1, Mr Nkwanyana.  We have been throwing around the idea that this may have been conspiracy, however, the technicalities of it would be that one would have to look at this thing in perspective.  Look at the fact that the applicant became a member of the ANC in 1988 and this attack only took place in 1994.  Further to that that the applicant had moved out of the area and had only returned on that particular day of the incident.  Taking all this into cognisance it is obvious that he had no idea of what was going
on, over and above that, if there was a conspiracy, all of the accused together with applicant number 2 were with applicant number 1.  If they intended to conspire, they would have advised him of what they were going to do right after their meeting.  That would have been tantamount to a conspiracy where they would have acted with common purpose and at the same time.

CHAIRPERSON: Ms Jelal, assume that we find that he was present at the meeting or meetings where a discussion took place around these unwanted elements that they want to have eliminated and a decision is taken that these people should be killed although no time and date is placed on this, on the execution of that killing, would that make the applicant guilty of conspiring to kill these people?

MS JELAL: Mr Chairperson, once again, there must be something more concrete than just, in the event of us knowing for certain that this instruction was given at a political meeting ...(intervention).