Amnesty Hearings — Nelspruit — 1997-06-12

BERNARD MAKGABO NGOEPE: (Indistinct).

ADV DE JAGER: Yes, Mr Tee, we are speculating now on what Mr Patel would say.  He is going to submit a written arguments and I think we will request Mr Black to forward the argument to you and you could respond to the argument whenever you receive it, because we do not know on what basis he would say that there was not a full disclosure.

BERNARD MAKGABO NGOEPE: You will recall that the other people like Mr Patel and, well he is not, it is now going to be the case with Mr Mojapelo as well.  They are going to submit written argument and you indicated to us that you preferred to argue.

ADV TEE: Correct Mr Chair.

BERNARD MAKGABO NGOEPE: You see, the awkwardness of the situation is that you are appearing for the applicants and we may try to assist you in identifying points which other people are going to argue.  It may just be a futile exercise for you now to try and deal with them and it almost certainly means that you are going to have to submit written argument, because you cannot argue in, their points in anticipation.  You may mis-anticipate their arguments and find that you mis-argued against them when their written arguments come.  So it is almost a certainty that you are going to have to get a copy of their written arguments, read their written arguments and then reply thereto.  That is, must just happen. That indicates therefore, I think that instead of wasting a lot of time trying to argue what other people are likely to argue, you should restrict yourself maybe to essential points which you want to make orally bearing in mind that you are going to get yet another opportunity and therefore keep yourself brief and to the points that you want to argue now.

ADV TEE: Thank you Mr Chair, I am indebted, and that would be an appropriate way to deal with it, yes, because in essence I would have liked to have had a reply and without the arguments I would need to have something in writing.

MR BLACK: In that regard, Mr Chair, then may I just get a directive as well.  At this stage of the proceedings from my position, I will note the oral submissions which Mr Tee wishes to make at this stage and I too will have to reply in writing after I have received the full argument of all the parties.  So I will not be submitting argument in, orally at this stage.

ADV TEE: Mr Chair and members of the Committee, then I am going to move to the argument concerning the full disclosure of the relevant facts.  I would submit that the proper way of interpreting that aspect is that the full disclosure of all relevant facts relates to the question of what is relevant.  A full disclosure of what is relevant is not the same as a full disclosure and the reason is that lawyers have long known that there is a difference between evidence which is admissible by virtue of relevance and evidence which becomes inadmissible by virtue of irrelevance or hearsay.  Now, if one takes that as the bench mark of what needs to be stated, the relevant facts here relate to the question of what actually took place and I would submit that their are four key relevant facts.
	The first one is the fact of the order and that is divided into two parts.  The general order and the specific order relating to Shabangu.  The second one relates to the fact of the chain of command.  The third one relates to the fact of the attack and the fourth one relates to the fact of their motives, because that necessarily then brings into play Section 20, sub-section 3 of the Act where they justify.  Now, for example, where the Commission is faced now with a conflict of versions relating to the individual facts, because one party says two people threw grenades and another party says one person threw a grenade, is that a relevant factual dispute and my submission is clearly it is not, because both are common cause in the following aspect.  The attack took place, we were all party to it.  So there...

BERNARD MAKGABO NGOEPE: Wait, maybe just argue to the real fact, because you know it will depend.  If one applicant says one person threw a hand grenade or another one says two and it turns out that the person who says so is one of the applicants and he is absolving himself, he is, all other evidence indicates that he is the one who threw the hand grenade, but then although they all say that two hand grenades were thrown, but if he says he did not, he is not the one who threw the hand grenade then he has not made a full disclosure.  If other people say that he did throw a hand grenade (indistinct).

ADV TEE: As the Committee pleases.  In that regard I would submit that the evidence that was found proved in the Magistrate's Court of the fact that one of the grenades exploded inside the bedroom and one of the grenades exploded outside of the house is clearly consistent with the version that was bought before this Committee by the Nkunas.  What is also, I would submit, very important in this regard is to accept that their is an inherent improbability that Joe Nkuna himself would have been part of the mission and the inherent probability relates to a structural aspect of MK, the fact that commanders generally did not go on raids.  They were the ones who organised them in the background and then the physical probability that as a result of his injury he would not be participant to a raid by virtue of the fact that he would not be able to get away particularly because we know that that raid was carried out on foot and that there was no vehicle to assist them in the getaway.  The probabilities that he himself were present are staggeringly low and I would submit that his evidence that he was not present and that he had organised it is what should be accepted by this Committee.
	Now, when it comes to the disclosure relating to how he got the orders, again I would submit that there is nothing to gainsay that he had the order as a general order from Mr Hani and then as a specific which he thought had been carried through from military intelligence by two people, but in fact it could well have been only one and that is Solly himself.  The problem that both Skosana and the Nkunas' have is that both Solly Morape and Mr Chris Hani are dead, but the fact that they are dead, does that mean that we have to reject their application for amnesty because there is nothing to corroborate it when indeed if one looks at the whole sequence of events everything else is corroborated and what is even more important is that there is no hard evidence before this Commission to set up anything in substance that goes against Joe Nkuna's version.  There is no hard evidence.  There has been more than ample opportunity for any of the victims to come in.  There has been more than ample opportunity for any of the parties to lead conflicting evidence, but there is not the type of evidence which says we know as a fact that Joe Nkuna could not have got the order from Chris Hani, because Chris Hani, for example, was out of the country at the time.

SISI KHAMPEPE: Mr Tee, Mr Nkuna has been quite emphatic that the information identifying Mr Shabangu came from both Derick and Solly.  How do you address that?