Amnesty Hearings — Durban — 1999-06-24

MR MALAN: Was the evidence of Kuala not that the implicated individual did not reveal his identity to him, knowing who he was, but that he recognised the implicated person, Qeda and that he first addressed him and only then did he see who the individual was.  Shouldn't one also read it against the backdrop of, in terms of his evidence, of the intention really to kill everybody there?  "I also have to kill you now", and he shot again, on the basis of his evidence, whoever that individual was.  I'm not necessarily arguing that the identity was correctly established, but that such an altercation did take place in some way or another in terms of the wounds inflicted and also in terms of the post mortem, the photographs, the whole Judgment which is part of the bundle.  It's very difficult.

MR SARDIWALLA: There may well be wounds inflicted.  I think you concede that the identity could be an issue in question.

MR MALAN: This is the point.  The identity could be an issue in question, but the point is this, if the identity is an issue in question, then what is not in question, not necessarily flowing, is the fact of some altercation at the back of the vehicle of two people standing next to each other, the one partly covered with a balaclava and the other one, one of the victims, whereas on the evidence of the applicant, no one got near the people, the shots were made, or the shooting was from quite a distance.

MR SARDIWALLA: I think one must, Chairperson and Members of the Committee, must look at the evidence of the applicant's evidence as he experienced it.  Now he says what he did, what he saw.  If one of the other perpetrators did in fact go around, it's outside his knowledge, it's obvious.  It was never put to him that maybe someone did go and you did not see them, but he indicated that after he had conducted what he had done and what he had thought he had completed, he ran off.  So if a person did in fact go to that vehicle, yes it may well be, but he ran off and there's no suggestion that he was in fact the person that came there.  In fact it was put to Kuala "did you see him" and he said "I've never seen him".  So it may well be that he actually ran off whilst one of the others, be it Qeda or anybody else, let's leave the identity, that actually went up in that minute or two, around, peeped, fired a shot or two but this was pandemonium there at the time, it wasn't, you know it's not as though it's a book written thing that follows, step 1, 2 and 3.  He ran off and there's nothing to suggest that he stood there, or he went to the vehicle.  We're talking about the applicant and what he saw and what he experienced and that has been uncontested.

CHAIRPERSON: May I find out how identical Qeda is to the applicant?

MR SARDIWALLA: May I approach my client on that one?

CHAIRPERSON: Yes, you may.

MR SARDIWALLA: My instructions are that they look different, firstly, and they've got a difference in height as well.

CHAIRPERSON: Yes.

MR SARDIWALLA: May I continue, Chairperson?

CHAIRPERSON: You may do so, Mr Sardiwalla.

MR SARDIWALLA: Thank you.  So having regard to these submissions, Chairperson, I submit that, despite the discrepancies that may have arisen as a result of the ...(indistinct) of time when he has not methodically, I am now referring to the 1987/88 issue that he was not too clear about - there was some clarity that was sought out of him as far as the white vehicle and the cream-white vehicle were concerned -overall I believe that he has complied with the requirements of Section 20 and I submit that amnesty be granted to him.

CHAIRPERSON: Ms Thabethe.

MS THABETHE: Thank you, Madam Chair.

UNKNOWN: On behalf of the victims who are opposing the application, we would argue that the applicant has not satisfied the requirements of the Act in terms of Section 20 sub-section (1)(c) and also sub-section 1(b) in that he has failed to make full disclosure and also the fact that the act or the
offence of killing the school kids was not associated with a political objective.
	I'll start with the full disclosure.  We argue that there was no full disclosure because the victims - or my instructions which I have put to the applicant were that in 1993 the area was an IFP area, there were no ANC areas and there were no known ANC areas at Maqonqo.

ADV DE JAGER: There were sporadic attacks.

MS THABETHE: There were attacks that were done by people outside of the area.

CHAIRPERSON: But isn't eNkanyesini part of Maqonqo?

MS THABETHE: Yes Madam Chair, eNkayesini is part of Maqonqo and my instructions are that eNkanyesini was also an IFP area.

CHAIRPERSON: But hasn't it been the evidence of your own witness, Mr Mkhize, that the people who attacked came from eNkanyesini?

MS THABETHE: No, Madam Chair, his evidence is that the people who attacked came from outside Maqonqo.

CHAIRPERSON: No, not from outside Maqonqo.  His evidence was that the applicant himself was now staying at eNkanyesini and that's where these people were coming from  They were coming outside Mboyi, they were not in Mboyi they came outside Mboyi and that the applicant, to his knowledge, was staying in eNkanyesini.

MS THABETHE: Maybe I'm mistaken, but that's not how I heard him.  However, if the evidence is that he stayed at eNkanyesini,  still eNkanyesini was known to be an IFP area. According to my instructions., there was no ANC area at Maqonqo.

ADV DE JAGER: But would it make a difference whether there was an area as such or not?  The fact is that there were attacks and that's common cause.  Also that I think they were from people who had previously fled and came from outside to lodge the attacks.

MS THABETHE: It makes a difference in the sense that, according to the applicant, there were attacks that were made by the IFP towards the ANC members at Maqonqo and my instructions are that there were no such attacks that were made because, as you heard from Mr Mkhize's evidence, they did not know where they could attack the so-called ANC members because they were staying outside.  That's how I understood him.  They didn't know where to attack these people, so it does make ...(intervention)

CHAIRPERSON: The knew where to attack.  His evidence is quite pointed with regard to that aspect.  He did not want to go and attack them because it was a different chief and the chief he mentioned was the chief of eNkanyesini.  That was the evidence of Mr Mkhize.

MR MALAN: Miss Thabethe, my recollection again is that the applicant conceded that there was no ANC area as such and that some of the ANC members did return, but they moved, I think the idea used was, anonymously, living among the other people.  I don't think - but even if it was as you see it, would that
really relate to disclosure in connection to what happened with the incident?

MS THABETHE: It would in the sense that it gives motive to the incident, the motive being that there were IFP people  attacking ANC people and as a result the ANC people had to attack back and my argument is that there were no IFP attacks towards ANC people because, according to Mr Mkhize, they would not have known where to attack them because there was no ANC area at Maqonqo.

ADV DE JAGER: Let's accept that for a moment that there weren't IFP attacks on the ANC people, but that could be something as far as disclosure is concerned, but it wouldn't reflect on the objective or the political motive of the other attacker.  Even if there were no IFP attacks, there might have been ANC attacks and according to the Act we're not looking whether there were in this particular instance attacks vice versa, there was a conflict situation and I think that's accepted by both parties.  So it would - in the sense that it would relate to the motive of the applicant, that wouldn't make a difference, but it could make a difference as far as disclosure is concerned.  Is that your point?