Amnesty Hearings — Johannesburg — 1998-10-05

MR VAN DEN BERG: That is so.  That is so, but even during the height of the struggle in the 1980's when the townships were ablaze, there is no evidence of any sort.
	I want to submit that the applicants cannot lift themselves up by their own bootstraps, there was no person on behalf of the PAC or on behalf of the APLA who has testified on their behalf to say that these are bona fide members or supporters of the PAC.

ADV MOTATA: Is that accession possible, Mr van den Berg, that with millions of people around that the APLA structure of PAC can pinpoint their supporters?  I don't think that's a fair argument, can you?

MR VAN DEN BERG: Mr Chairperson, the other applications which I have been involved in have involved command structures, have involved an indication of where a particular unit was on the ground, how it was tasked, how it was trained.  I accept that the applicants here have a difficulty in that their - the person they allege was their unit commander is dead, I accept that, but in response to questions about what kind of unit were they, there's reference made to repossession unit.  I understand that there's been evidence before this Committee previously this week relating to repossession units and referring to them by different names.  In any event, perhaps to take it further, it strikes me as highly unusual and highly improbable that a unit would comprise of five people who apparently are unknown to each other, there only seems to be one or two common threads.  Both of the applicants are members of the unit through Monde, there is a link through Mofokeng and the deceased Kopane Tshabalala, but other than that they seem to be unknown to each other and it would seem that in what we know of these types of units, that there would need to be some form of trust, that there would be need to be some form of intimacy for security reasons and that they seemed to be a diverse group without any particular links to each other.  I don't intend to take it any further than that, Mr Chairperson.
	If one has reference to the acts themselves, there is a material contradiction I want to submit between the amnesty application of the applicant Mofokeng and the testimony which he seeks to embrace, given by Mr Nkabinde.  His amnesty application is quite explicit, he says that Jacobs was identified as a target because he was a member of a right-wing organisation.  Now the assertion that he is a member of a right-wing organisation he cannot substantiate and in Nkabinde's version is that they were out to get arms, to get money in support or in furtherance of the struggle.
	The actions happened at a time when the PAC and APLA had declared a moratorium on violence.  Both of the applicants agreed that they kept up with the daily happenings to the press, radio, television and newspapers.  This thing of crucial significance in the history of the country passed them by, the moratorium and then later the cease fire.

ADV MOTATA: I have interest in the first incident because if we have regard to what Makwetu said in the newspaper and accepting it, that was on the 16th and he made the announcement the following day, the 17th.

MR VAN DEN BERG: It places - there may be an explanation for the first incident, for the murder of Dirk Jacobs.  The explanation by Nkabinde, that explanation may hold some water but the continuance thereafter of the activities of this gang for political cause, there can be no weight attached to that.

ADV MOTATA: If for instance we say there is an announcement on the 17th that they have agreed, there's no way where I glean from the newspaper clippings that immediately all operatives were informed of that cease fire?

MR VAN DEN BERG: Mr Chairperson, I attempted to lay the foundations on the basis of what the applicants knew and what they kept up to date with, I accept that in the case of a genuine APLA unit and I'm not making the concession that this was an APLA, that in the case of a genuine APLA unit, with little or no access to modern telecommunications, it is possible that they may have continued with their activities for a period until such time as they were advised by their structures.  I accept that but ...(intervention)

CHAIRPERSON: I think the situation is that if you had a situation where it was - where a unit was aware of a moratorium, even through the press, before it, one would  expect it reasonable that before it would conduct an operation, having that knowledge, they would then get a direct order from somebody above in the hierarchy before they would conduct that operation.

MR VAN DEN BERG: I think if one has reference to the evidence, it's clear that both of these applicants were in possession of items taken from the two homes, there was jewellery, there was a sum of money, Mofokeng was in possession of two watches and the manner in which they have dealt with that, I want to suggest is disingenuous.  It's clear, as Mr Mpshe put it to Mofokeng, that there had been a division of the spoils, of the loot.
	The newspaper clippings suggest that Gadebe was involved in a series of criminal activities.

CHAIRPERSON: I don't think we can place too much emphasis on that, I mean we can't really accept newspaper reports as evidence.

MR VAN DEN BERG: Indeed so.

ADV BOSMAN: Mr van den Berg, perhaps you could then deal with the relevance of the two applicants' criminal records perhaps to the possible ...(inaudible)

MR VAN DEN BERG: ...(inaudible) Mofokeng was not asked about that but ...(intervention)

ADV BOSMAN: One.

CHAIRPERSON: Just the one applicant I think, we've only got the record for one.

MR VAN DEN BERG: That's correct.  I understand that Mofokeng was the first defender, that's certainly what the press clippings suggest but insofar as Nkabinde is concerned, there are two previous convictions of armed robbery.  One in 1979 and one in 1983 and they both involve - well the one involves a panga and the other involves knives.

ADV MOTATA: Let's be careful about that because if you look at the record it says date of conviction and not date of when the offence was committed.  We should be careful when you come to that.

MR VAN DEN BERG: Yes, knowing the criminal justice system, it's possible that these offences were committed some period before the actual dates of conviction and ...(intervention)

ADV MOTATA: I'm saying that you should look at it because he talks of 1978 and when we look at the date of conviction, it's early 1979.  We should trample just a little lighter there but ....(inaudible) that is actually.

MR VAN DEN BERG: It's difficult to argue and one needs to argue carefully in respect of previous convictions but the suggestion here is that there was previous involvement in this type of activity and this type of criminal activity.  The first armed robbery involves the paltry sum of R25.  The second serious offence relates to the theft of a motor vehicle and then armed robbery of clothing, it would appear, "kleurasie besigheid", I don't know whether the value there of R2000 relates to the clothing or whether it was cash that was taken.

CHAIRPERSON: It usually refers to the value of the goods stolen so it probably relates to the value of the clothing taken from the business.