Amnesty Hearings — Ermelo — 1998-07-23

MR HATTINGH: Mr Chairman, I have no instructions, I hold no instructions on behalf of the IFP or the Black Cats, so I cannot make any admission on their behalf.   However, it is my personal opinion, and I made that clear from the very outset, from day one, that we can accept as a fact that there was a conflict, and that the two sides were fighting each other.   That I accept in my personal capacity, acting on behalf of the particular clients and victims that I represent.

CHAIRPERSON: And if we accept that, then it follows that we must expect casualties on both sides, isn't it, and such casualties would be a result of the political conflict that you accept?

BONGANI WILBERFORCE KHABA: Mr Chairman, one could expect anything at the time, but when you go ahead and you commit a murder and your only aim is revenge, the fact that it occurred in the same period, then that may be so, but your aim would still be revenge.

CHAIRPERSON: That's another matter.   If your case is that the murder that he committed was a result of avenging the killing of his mother, it's totally another matter, but to suggest that in defending, as he says, in defending the community to which he was attached is in contradiction to what he says today, that he was acting in terms of an order, which order was in line with defending that community, then that's another matter.   It's not as destructive as you suggest.   But if your line of questioning is based on a possible revenge, so be it, and then you're allowed to proceed.

MR HATTINGH: Thank you, Mr Chairman.   Mr Khaba, why did you never mention the fact that you were acting on the instructions of an MK commander when you killed Obed?

MR BLACK: May I object to this?   You know, I'm finding it - if one looks at page 40, it's quite clear he states that he was a member of the African National Congress, in what capacity, he was in the Youth League.   We then page to page 44.11(a), where you have these wheres and was's
"committed in the execution of an order or on behalf of or with approval of the organisation, institution or movement, state department or security force concerned"
He says it was on behalf of the ANC.   So it's not correct to say that he does not say that these were motivated by or carried out on orders of the ANC.

ADV BOSMAN: Mr Black, in fairness to Mr Hattingh, I go along with the chairman that Mr Hattingh would perhaps be over-stretching the point to say that it's fatal or completely destructive, but if one looks at paragraph 11(a), the question there is also, "Who gave the order?", or with approval, let me just find it
"If known, the name and address of the person who gave such an order or approval."
My difficulty is that Mr Hattingh, as his ground for opposition, said that it was a revenge attack, and he is now cross-examining on another ground for opposition, that is my personal difficulty, but the question in my opinion, isn't it fair, if it was specifically asked and not replied to?

MR BLACK: As I read... (intervention).

ADV BOSMAN: Paragraph 11(b).

MR BLACK: That is so, possibly, but I wouldn't say this is the most inadequate application I've seen of people filling... (intervention).

ADV BOSMAN: I made it quite clear that I do not think that this would be fatal to the application of the applicant, but what I am saying is, in fairness to Mr Hattingh, the question is a fair question, but the problem is that Mr Hattingh indicated to the committee that his ground for opposition is that this was a revenge attack, and I cannot really make the link between the question and the revenge, unless Mr Hattingh now wants to change his... (intervention).

MR BLACK: Grounds.

MR HATTINGH: If I may proceed... (intervention).

MR BLACK: May I, before... (intervention).

MR HATTINGH: I think that, I'm speaking, Chairperson, thank you.   The question that I asked was, why did Mr Khaba not mention the name and the fact that he was acting under the instructions of his MK commander, that was the question.  There was an objection to my question.   I don't think - we haven't sorted that out as yet, that's the one point.   If you would like me to answer or respond to Mr Black's... (intervention).

CHAIRPERSON: You don't have to.

MR HATTINGH: Thank you.

CHAIRPERSON: Yes, Mr Hattingh, and that's why I have this grave difficulty with languages in this country, and a disregard for the level of education that we've gone through.   Here is a person who says his mother language is Zulu.   In his wisdom, he fills in a form in English.   Can he be held liable for any defects in it?   I mean to attack him for that, I'm not too sure whether it's really proper.  That he didn't fill it in in Zulu may have been his mistake, but I don't consider that to be a matter that should be held against him.   We don't know if he understood the question.  From what he filled in there, I don't know if he did, it doesn't seem like it.

MR BLACK: Chairperson, may I just add this, by the time this application comes before the committee, there is a supplementary statement, and it seems to be totally ignored.

CHAIRPERSON: Mr Black, you seem to be missing the point.  What Mr Hattingh is checking is his state of mind when he initially decided to apply for amnesty, and hence the question, but as I pointed out to him, we have a language problem here that cannot be put at the doorstep of this applicant, really speaking.

MR HATTINGH: Mr Chairman, I think what I intended to do was to, that's the idea of cross-examination, it's not only to try to break someone down, but to give him the opportunity of explaining things, and I'm actually giving this applicant the opportunity of explaining something which I am absolutely quite - certainly going to argue in the end, that if, what I'm going to argue in the end is that it is a fabrication that he was politically motivated, and the fact that he was instructed by Gushu was - this is something new that was just a fabrication of the event, and it is supported by the fact that he didn't mention it in his initial application.   Now I give the applicant the opportunity of responding and explaining why he did not mention this very important fact.   He went and he killed Obed because he was instructed, that's it.

CHAIRPERSON: Well would you agree that if his version was a fabrication, that it would have been a fabrication when he filled in this, that the embryo of the fabrication would have become existent when the form was filled in?

MR HATTINGH: No, sorry, I do not quite follow you, sir, sorry.

CHAIRPERSON: If the idea of an order, and that he followed an order and acted in terms of an order by whoever, is a fabrication, that fabrication would have been in existence already by the time he filled in this form, because he had already gone through his criminal trial, isn't it?

MR HATTINGH: Yes, but the whole issue of the instruction by his MK commander never came to light until very recently.   At the time of his criminal trial, as well as at the time when he filled in this... (intervention).

CHAIRPERSON: I follow you, and you're almost right, but I'm asking you, would you agree that if you are correct and this whole idea of acting in terms of an order is a fabrication, it would have already been fabricated just before the filling in of this form.   When do you reckon it was fabricated?

MR HATTINGH: I do not know when it was fabricated, but I, what I'm going to argue is that it was fabricated between the time that he filled in this application form and the time when his supplementary statement was prepared in 1998, so we're looking at between April 1996 and some time in March 1998.

CHAIRPERSON: Does it follow what he says in this application then is the truth?   That's the third lie, or is that the third false version?

MR HATTINGH: Perhaps.   Perhaps he became more clever as... (intervention).

CHAIRPERSON: As time went on?

MR HATTINGH: ...as time went on, yes.