Amnesty Hearings — Pinetown — 1999-12-13

CHAIRPERSON: There's one point I would like you to clarify and it may affect the question of proportionality.  It wasn't put specifically to the applicant, it may have caused distress, that that is the question of ordering.  On the information he said the only information he had about their supposed IFP activities were what emerged at the meeting.  He then orders this mob to kill these two people in the presence of their nine-year-old daughter.  Can that type of behaviour be justified as being for a political objective?

MR PANDAY: Mr Chairman, we are dealing with a situation where you have societies that are volatile, that are dealing with political risks, political violence on a daily basis and as such the nine-year-old victim now merely becomes a casualty of this violence that they are exposed to.

CHAIRPERSON: It was a community meeting.

MR PANDAY: Well Mr Chairman, whilst it started off as being a community meeting, it was thereafter established that there were other underlying forces that were at this community meeting and upon investigation when the deceased decided to display a different approach as to how the protection of the contractors should be conducted, it is then when these suspicions were raised. And as such you are now dealing with a situation where you once believed that the community all stood by the same values, but there now seems to be underlying forces and as such it turned out to be the case upon their investigation.

UNKNOWN: Thank you.
	Mr Chairperson, Members of the Committee, my instructions are to oppose the application for amnesty.  As Mr Chairperson correctly pointed out that this attack took place on the applicant's whim, that because there was a firearm present that the victims were somehow ANC affiliated, but my instructions are - sorry, were Inkatha affiliated, but my instructions are that the applicant knew fully well that the victims were actually ANC.  
	Over and above that, as the Chairperson pointed out, Xholisile Bhengu was a nine-year-old child when she witnessed her mother and father being killed.  She today described her father as a kind man.  They also asked me to inform the applicant that there were two other children who were left as orphans, being a brother and a sister to Xholisile.  They were at that point in time five years and eight years old respectively.
	Further, it appears from the victims' families that you all lived together, you did not know each other well but they believe that you used the term witchcraft to incite these people to commit this murder, there was no political motive behind it.  They further ardently believe that you were a warlord carrying out your type of kangaroo court.  For what reason they don't know but they are quite convinced that it was not politically motivated because you all lived in the same area, you knew that the victims were in fact chased from the Lindelane area because they were ANC supporters and not IFP.
	It is your evidence Sir, that there was no violence between January and April 1991.  Mr Chairman, Members of the Committee, this cannot even be seen as a counter-attack or any way of getting back at the Inkatha people.  And obviously, it would seem that if the applicant maintained that the victims were actually Inkatha, then they wouldn't be paying the Inkatha people back or letting them know that they were killing somebody that's Inkatha, because they were doing this within their own confines.
	This ...(indistinct) being public knowledge and over and above that, the applicant maintains that he saw Oswald with Ngobo, but that did not convince him that Oswald was Inkatha, it took a firearm, a firearm which - home-made firearms are so common and it is almost possible that one looks like the other, they don't look different, they have the same type of mechanisms to make them work.
	Regarding my instructions about the applicant being a very forceful person and threatening people, the affidavits and what he said in those affidavits, he says that two people under oath were lying about saying that they were threatened to attend this meeting.  But it is submitted that this is not true, two people wouldn't give the similar version of being forced to attend a meeting.

MR LAX: Except to say, Ms Jelal, that we do have Buthelezi's affidavit which indicates that these people were assaulted before making statements.  What they may have been put up to say, well that's another whole issue.  So ...(intervention)

UNKNOWN: These statements that I am talking about were not made to the policeman, these are statements made to the Committee.

MR LAX: I beg your pardon, I thought you were referring to the previous warning statements.

UNKNOWN: No, I refer to the affidavits made by the witnesses.
	It is also submitted that the applicant has not disclosed fully that he has sought amnesty for something which he knows to be untrue, that had no political motive whatsoever.  In the circumstances I leave the decision to the Committee.

CHAIRPERSON: Sorry, before you come on.
	The one problem I have, perhaps you can suggest an answer, is that it appears obvious that for some reason or another it was not only the applicant who was driven to this but the 50-or-so people who were there, or the majority of them.

UNKNOWN: That is correct, Chairperson, but again we find - we don't know what type of situation existed then.  As I said, the instructions I received from my witnesses was that the applicant was a type of a warlord in the area, he used force and he had people who worked for him, who worked under him and he had a gang, the gang didn't have a name, but there was a gang that existed and that these people used to put the ideologies or enforce the ideologies of the applicant and the little gang upon the rest of the people.  And it is possible that if you intimidate somebody you could have a situation like that.

ADV SIGODI: But that was never put to the applicant, that there was a gang.  So he was never given an opportunity to answer to that.

UNKNOWN: I do apologise.

MR LAX: Sorry, the other aspect is, all we have is your word on that and your intimation that those are your instructions.  You had the opportunity to lead evidence to establish those facts in contradistinction to the evidence of the applicant.

UNKNOWN: Yes, I did, but the evidence that I would have called would not have led the matter any further.  The affidavits that I've used, the two affidavits which show that the applicant had the tendency to be forceful with members of the community, that in itself would drive home the point that ....(intervention)

MR LAX: Well they certainly don't show that he was a warlord, they say that he called a meeting and it was a community meeting and all he said to them is if you don't come there are going to be consequences.

UNKNOWN: But that in itself would be tantamount to a threat.

MR LAX: I accept that it's a threat but it hardly indicates that he's a warlord with people working for him if he's going around calling them himself.

UNKNOWN: I will retract that.

ADV SIGODI: And also the affidavits, I mean the deponents to those affidavits were never called, in that what they said in the affidavit was never put to the test, it was never cross-examined.  So how much weight can you attach to that?

UNKNOWN: To the affidavits themselves?

ADV SIGODI: Yes.  They were never cross-examined on that part, because the applicant was disputing that he ever threatened them.

UNKNOWN: What I would say is that both of them made a similar statement.  They weren't made together, they had two different people deposing to two different affidavits who maintain the same thing.

ADV SIGODI: Yes, but what weight can we attach to that if ...(inaudible) never subjected to cross-examination?