Amnesty Hearings — Nelspruit — 1997-06-12

ADV TEE: Necessarily on the same basis that he has changed what originally happened and in essence his evidence is unreliable by virtue of the series of events that he has gone through.  First he pleads not guilty then guilty.  Then his guilty plea in mitigation is not quite the same as his evidence in his, in the trial, it is not quite the same as his evidence before this Committee.  He is not reliable where he denies that.  Joe Nkuna is quite clear about it.  What is significant as well about Skosana's evidence, not only does he meet Solly, but he has also met other Comrades and on two occasions he mentions the other Comrades, but you do not really know who they are.
	Now, even if, and one is trying to argue a reconciliation of the versions so that in fact all applicants versions can be accepted if one looks at what could possibly have happened.  Nkuna is absolutely sure he got the order from two people, but it is possible, it is possible that in fact when he says he got the order from two people he is wrong, because he is making an assumption.  He gets the order from Solly, but because the two have arrived together and the order is not contradicted by Derick Skosana he in his mind accepts it is an order from both.  Therefore the versions are, in fact, seemingly to compete, but capable of reconciliation, but what there is nothing to gainsay is the fact that Solly, according to Nkuna, was definitely a member of military intelligence and there is something to gainsay that Skosana is, because he denied it himself, but that is not Nkuna's version and there is a conflict which will have to be resolved as the Committee sees fit.

SISI KHAMPEPE: That would have been my next problem, because he has also been quite emphatic that both of them came from the intelligence unit and Skosana has already insisted that he was not a member of the intelligence unit.

ADV TEE: Necessarily when I am arguing for the applicants I am arguing not as one would do in a Court of Law.  In a Court of Law I would be arguing that you accept my clients and you demolish the opposition, that you crucify them.  That my clients are telling 100% accurately the truth.  Now, all judges know that a witness can come to a court and be totally, totally honest, but yet wrong.  That often happens.  There is a case which is sited in Hofman and Zeffit which is a fascinating case relating to two Barristers in England who identified a robber having been in London on the day of the offence and the Barristers gave evidence in court and the robber was on the point of being convicted when it transpired that in fact he was in a different place and that was capable of proof beyond reasonable doubt.
	What it means to say is this.  That a person with all  the good intentions of telling the truth can tell the truth as they perceive it, but it does not necessarily have to be factually correct.  Now, in a Court of Law one has to get truth and fact to coincide totally, but in a Commission where ...

INTERPRETER: Speaker's mike is off.  Speaker's mike is off.  Speaker's mike.  Speaker's mike.  The speaker's mike is off.

ADV TEE: Mr Chair, I am using it as the point that honest people can give truthful evidence and yet be wrong.  That is the point I am making about that example.  So what I am saying is that here I am trying to argue for a broader perspective to give the Committee an aspect that I understand that in the length of time that has transpired since the events, in the fact that there was this context of disinformation, that what seems to be lawyer-style irreconcilable versions are not necessarily completely irreconcilable.  There are aspects that overlap to the extent that this Committee could be quite satisfied in accepting Nkuna's version and yet granting amnesty to all three.
	The acceptance of the Nkunas' version does not mean that this Committee has to reject the other applicant.  The acceptance of Skosana's version does not even mean that this Committee has to reject the Nkunas, because on his version, his version is that the order came, according to what he had been told by Joe, from MK head office, Chris Hani himself and then he goes on to say in his application,  
"And we regarded Joe as trustworthy".

ADV DE JAGER: I do not think we have got a problem as far as Skosana and Conrad's, they have acted on instructions.  Whether it came from, according to both of them it came, they acted on the instructions of Joe.  Whether Joe had instructions from up top is another matter.  He says, well, he has received, in his application he said he received instructions from Chris Hani.  It is not quite clear whether he received it personally, as far as the specific instruction is concerned, from Chris Hani or whether he received it via the message of Solly and I think you should address us on that whether you accept, in fact, that Chris Hani gave an instruction and that Solly was a messenger or whether Chris Hani gave the instruction to Joe personally and whether there, the instruction was to kill three people or one and that is the crucial difference and then the other difference, as far as the evidence is concerned that may be relevant, is whether he in fact took part in the attack itself, whether he was present.

ADV TEE: Mr Chair, with regard to taking part in the attack I have already made the submissions that it is so improbable as to be discounted.  My submission is that the general order had come from Chris Hani and that should be accepted as it was early in 92.  The precise date we do not know.  The specific order also must have emanated from somewhere, but it was certainly transmitted, by what Nkuna says, Solly and Derick to him.  Now, this is where the application becomes subtle and this is where this Commission might accept or reject the application and there is no doubt about it that as a matter of Law it is a question of the interpretation of the concept of full disclosure of all relevant facts.
	You will recall that Joe Nkuna said I am not coming here to make a whole lot of comments that it has been speculated I will make.  What he is saying that he himself accepts responsibility for the carrying out of that operation.  He says that the information that he received relating to Mr Shabangu is clearly wrong and he is sorry about that, but he says that he believed it at the time and the reason why he believed it at the time is because it had come from two former MK Comrades who he regarded as working in military intelligence and whom he trusted as bringing a proper message, but furthermore he himself says that at the time he was not thinking clearly, because of the attack and the paranoia that he was feeling and what he should really have done is he should have double, double, double checked, but ...

BERNARD MAKGABO NGOEPE: Sorry, double checked what?

ADV TEE: He should have double checked the information coming from Solly and ...

BERNARD MAKGABO NGOEPE: And Skosana.

ADV TEE: He should certainly have double checked that.

BERNARD MAKGABO NGOEPE: Double checked in what sense?

ADV TEE: When a commander gets an order like that surely a commander is able to think, which he should have, that this is a high official in the ANC.  I would like to check it before I carry out the operation.  Now, ...

SISI KHAMPEPE: Sorry, Mr Tee ...

BERNARD MAKGABO NGOEPE: Check it up with who?

ADV TEE: What he can do is he can check it up with the military intelligence sources.  The problem is he accepted the order and he thought it was genuine and he believed it was genuine and he acted in the bona fide belief that it was a genuine order and ...

BERNARD MAKGABO NGOEPE: But that is not what he testified when I put a few questions to him last time.  He said that he got specific order directly from the late Mr Hani.  Is that not  so?