Amnesty Hearings — Johannesburg — 1999-02-18

MS MOLOISANE: As it pleases you Madam Chair.

CHAIRPERSON: You will recall that Mr Mkhwanazi said the unit was headed by Bonga Khumalo.  Now how do we deal with that?

MS MOLOISANE: I do agree with the fact that that was his evidence, Madam Chair, but then I ask this Committee to take into account the fact that Mr Abraham Khumalo was the youngest, in fact he is the youngest of the two applicant, ...(intervention)

ADV BOSMAN: Just for the record, Mkhwanazi was the youngest.

MS MOLOISANE: Mr Mkhwanazi.  He was born in 1978 and at the time of this incident in 1992 ...(intervention)

CHAIRPERSON: He was also fifteen wasn't he?

MS MOLOISANE: He is a year younger than Mr Radebe.

MR LAX: Mr Radebe was sixteen and a half at the time, so if he's a year younger he'd be fifteen.

MS MOLOISANE: I do agree, Madam Chair, but the point I'm trying to drive home, or to bring home, is that Mr Radebe was under the command of Mr Mabusa Mhlongo.  Mr Mabusa Mhlongo issued instructions, orders, that Hapile Ndumo and Elsie Mokoena should be eliminated, or should be killed, and as far as Mr Radebe is concerned, he acted in furtherance of or in compliance with those orders.

CHAIRPERSON: What weight should be attach to the fact that Mr Mkhwanazi, inasmuch as he was only fifteen years of age, was much longer in that unit than Mr Radebe.  Mr Radebe came in quite late to join the unit.  Wouldn't one have expected Mr Mkhwanazi to have know the commander better than Mr Radebe?  I am saying this mindful of the fact that Mr Radebe was second in charge to the commander of the unit, when he joined it, but he joined it much later.  Surely Mr Mkhwanazi would know who is the commander of his unit, and cannot make a mistake with regard to his commander.  How does that mistake happen?

MS MOLOISANE: Madam Chair, I do agree that there was that mistake, but, and it is unfortunate, because I am no in a position to can account for that mistake, but the point is that Mr Bonga Khumalo was the overall commander of the Zone 12 self defence unit, and as such Mr Mabusa Mhlongo was subordinate to him and accountable to him to some extent.

CHAIRPERSON: You see what really caused me concern, was Mr Mkhwanazi saying that not only was Mr Khumalo a commander, but  he was a commander to whom Mr Radebe was second in charge.  That really created more problems to me.  It showed a situation where one was aware of the structure and the chain of command.  Do you get the problem that we are sitting with?

MS MOLOISANE: I do, Madam Chair.

CHAIRPERSON: We are not talking of a person who is ill informed of the structure of his unit and the chain of command.  He is aware of the structure.  He is able to tell you who is on top.  He might have honestly mistaken Bonga Khumalo as being a commander by virtue of him having been the general commander of Zone 12, but how does he then go on to mistakenly say Mr Radebe was second in charge to the commander Mr Bonga Khumalo?

MS MOLOISANE: Madam Chair, at this stage we know that Mr Radebe was sort of more senior to Mr Mkhwanazi, but that being the case, the fact that Bonga, I mean Mr Radebe was second in command to Bonga, I mean, puts me in a very difficult position.  I cannot take that further, but the only point that I can drive home is that it is true that Mr Radebe was second in charge, or had some kind of authority that had been bestowed on him by Mr Mabusa Mhlongo.

CHAIRPERSON: We are quite aware of that from his evidence, and from the evidence of Mr Mabusa Mhlongo, and definitely from the evidence of Mr Khumalo, but where does the evidence of Mr Mkhwanazi leave us in this regard?  What weight should be attach because Mr Radebe inasmuch as he ultimately became second in charge he was a Johnny come late into the unit as it were, and Mr Mkhwanazi was well know.  All the witnesses who came in to testify in support of their applications were saying they knew Mr Mkhwanazi very well, they knew Mr Mkhwanazi better than they knew Mr Radebe.  But how do we, how do we account for a serious mistake which relates to not only the structure, but the chain of command?

MS MOLOISANE: Madam Chair and Committee Members, I do agree, I do admit that there is that mistake, but as my submission is that that mistake according to the evidence that we have before us is not that material in the sense that Mr Mkhwanazi and Mr, I mean Mr Mkhwanazi said that he got, he had been instructed by Mr Radebe to keep watch on the two girls, and even in his application he did state when there was a sentence, yes, there is a sentence where he is, well a question I mean, where he was being asked if he had been acting under orders or in compliance with orders, whose orders were they, and he mentioned Mr Radebe as the person who had given him orders on that particular day or relating to the event of that day.

CHAIRPERSON: That's neither here nor there, is it?  If one takes into account the evidence of Mhlongo, that this order was given to all unit members, which would include Mr Mkhwanazi himself.  That to me is the problem.  A profound problem.  He need not have actually acted on anyone's orders, if one takes account of Mr Mhlongo's evidence.

MR LAX: You see the other problem is that he doesn't even mention Mhlongo as having given that order at all, whereas he, according to Mhlongo, he was present.

ADV BOSMAN: And furthermore, when there was evidence that Mr Radebe asked him, what should we do, and he said I don't know, it gives me a problem if he had an order where he had been present, then he should have said well we are ordered to kill.  It give me a problem.

MS MOLOISANE: Madam Chair and Committee Members, my submission is that Mr Mkhwanazi himself, on that particular day, according to the evidence, had reduced himself to a subordin, to be subordinate to Mr Radebe.  Mr Radebe was very active.

CHAIRPERSON: I think Mr Radebe was an active person from the look of things, but the fact of the matter ids, if one is cognisant to the evidence of Mr Mhlango who was the commander, the members present when he issued the order included Mr Mkhwanazi, and his order was that any of them should kill Ms Ndumo and Ms Mokoena on sight.  So the fact that he really acted under orders doesn't take the matter any further.  We still are saddled with a profound problem of what weight to attack to Mkhwanazi's evidence which stands in stark contrast to the evidence given by a host of witnesses that you called to support both the applications.  I understand your difficulty.

MS MOLOISANE: Madam Chair and Committee ...intervention)

CHAIRPERSON: You may proceed to another aspect.

MS MOLOISANE: Madam Chair and Committee Memebers, I wish to draw this Committee's attention to the fact, to put weight to the lapse of time, the fact that these incidents took place five years ago, more than five years ago.

CHAIRPERSON: Absolutely, we take that into account.  Then when we deal with the chain if command, it was not Mr Mkhwanazi's evidence that he could not properly recollect who the commander of his unit was.  That was not his evidence.  There was no shadow of doubt about who his commander was, so we cannot, outside the context of the evidence before us, take things into account unless the evidence indicates that we should take such things into account.  If some doubt had been expressed by Mr Mkhwanazi about the structure of command, then maybe we would definitely have to take that into account.  As it is, we were given very clear evidence about who the commander was.  He expressed no doubt.

MS MOLOISANE: Madam Chair and Committee Members, as far as the aspect is concerned, I leave it in your hands.

MR LAX: Let's move on to another point.