Amnesty Hearings — Bloemfontein — 2000-06-13

UNKNOWN: Chairperson, I would just like to highlight some few aspects about this case.  Chairperson I will start first by saying that there is no dispute that the applicants were indeed members of the PAC.  Secondly Chairperson, there is no dispute that indeed Temba Ncapai was the Commander of APLA and also a member of the High Command.  Thirdly Chairperson, there is no dispute that the farm was attacked and as the victims have narrated that they suffered serious injuries and especially that they were of that advanced age at the time and they were unsuspecting during the
ungodly hours of the day.  Now Chairperson, also there's no dispute that Temba Ncapai gave an order.  
	The aspect that I think I need to address is whether the applicants have made full disclosure before the Committee regarding the incident.  I say so, Chairperson and Honourable Members of the Committee because of the testimony of the first applicant and the second applicant, but I would like to start by saying, Chairperson, the two applicants have nothing to hide, or there's nothing they fear.  They were sentenced and they served their sentence.  They were out of jail, so there was nothing which prevented them, which in any way would make them to mislead the Committee about the events of the day, of that day.
	Chairperson, why I'm saying so is because I would like the Committee to take the time elapsed after the incident up to now that this matter has been heard and to take into account that the applicants of course were in jail and of course when one is in jail, it's not a very healthy situation, you know, a conducive situation for somebody to live in.  Of course it's a place where people are punished, they have to serve their punishment.
	Chairperson the applicants, in a way they tell the Committee almost the same thing that happened about the events of the day, except on crucial issues like the first applicant, what was told by the first applicant on this, that what happened, the events that took place on the day in question are totally different to what the second applicant told the Committee.  
	Chairperson, it's my submission that in as much as they are different, Chairperson, looking and assessing, in my view their evidence is that in giving testimony, there was no intention on their part, deliberate intention on their part, to mislead the Committee about the events of the day.  I'm saying, I'm using the word intention, Chairperson, because there are instances where you can detect that people are doing it deliberately because they are hiding something or they are preventing some things to be known about what actually took place, but Chairperson, my assessment of their evidence is that there was no deliberate intention except that the first applicant, my assessment Chairperson is that he wanted to tell the Committee even about the events he did not experience, or see taking place, of what he thought what took place.  Like for instance, I may mention that he gave instructions that the goods should be disposed - should be hidden somewhere but in different places, but he comes and tells the Committee that everything was recovered and at the same time he does not even know what goods were repossessed at that farm.  He can't even tell the Committee what type of goods.  
	The testimony now of the second applicant shows that at the time everything that took place at the farm, at that time he was unconscious because he has been shot.  Like for instance Chairperson he is denying that he was ever put in a rondavel, and which is clear that he was taken after he was shot, was put in a rondavel as the second applicant is testifying that he went back to the house to look whatever can help him to assist his brother.  
	So Chairperson, for him to hide that, Chairperson, I don't think, Chairperson, in any event one would say is deliberate because he wanted to hide something, there was nothing to hide, Chairperson, when somebody has been shot and he was put somewhere and they were trying to assist him, so definitely Chairperson, it is my submission that whatever the differences in their testimony are, it's not deliberate, that it was the intention to hide something or not to tell the Committee exactly what took place.  You  can detect from the second applicant the honest answers he gives that, you know, "You didn't even care about the victims."   "Yes, we didn't care about the victims, I was concerned with my brother."  Everything.  The first applicant did not even tell the Committee that his brother was also admitted in hospital, maybe he did not know about that, that he was subsequently admitted or that also his brother was shot, which indicates that he was not in a position to be able to know what actually took place in the farm.
	Now the other aspect Chairperson which I think is of concern is the question of - in their statements to the police which kept on there is this fifth person, Chairperson, who keeps on cropping up and also in their response to the further particulars to the Committee that, Chairperson, initially of course they mention that initially it was intended that it will be five, but it ended up being four people and also when they were talking to the police, when they gave statement to the police they said five.  Chairperson, I wouldn't like to pretend as if I know the solution to this, but Chairperson it's my experience that most of the time you always find that the information given to the police is not always correct.  It's not always correct.

CHAIRPERSON: Mr Mbandazayo, what weight should be attach to it, that we find that they say in the statements given to the police that there is this Paul Masitsa and in the response to questions asked by the Amnesty Committee, they say yes, when we reconnoitred, we realised that we had to be five to execute this mission, what weight should we attach to that in our deliberations?

MR MBANDAZAYO: Chairperson, I'm just going there, I just want to tie in this sense, Chairperson.  My submission rightly or wrongly Chairperson is that there should not be much weight Chairperson, taking into account that at the end of the day, even though in their statement they say they were five, Chairperson, at the end of the day the people who were charged and convicted were the four people, of this offence.

ADV SANDI: Can I just ask, if we find the explanation given in regard to this fifth person, if we find that unsatisfactory, is that necessarily fatal for the application?  In other words, would that constitute a failure to give a full disclosure on the relevant facts of the matter?

MR MBANDAZAYO: Thank you Chairperson, Honourable Members of the Committee.  Chairperson, it depends, Chairperson, whether, if the Committee finds that there was a fifth person or there was a deliberate intention Chairperson, the question that would be asked if there was a fifth person, why this fifth person has not been mentioned.  Now, definitely Chairperson, it depends on what perspective one sees, one would say why is this person being always sheltered, no one is wanting to come up with this fifth person, why are they hiding this person?  What information maybe can come up to light if this person is known?  Maybe ...(intervention)

CHAIRPERSON: But is it not for you, Mr Mbandazayo, to tell us, look there is this fifth person who didn't come to light here and why we should disregard him, not that we should take a perspective, but you assist us in your submissions why we shouldn't - why we should look at it in a different - or persuade us and say:  "You look at it this way."

MR MBANDAZAYO: Chairperson ...(intervention)

JUDGE DE JAGER: Ja, perhaps we could still get clarity on that.  Mr Kachelhoffer, were only four accused charged?  Can you establish this from your clients?  Were there four or were there five?

MR KACHELHOFFER: Chairperson, my instructions are that he is aware of four.