Amnesty Hearings — Nelspruit — 1997-06-12

ADV DE JAGER: But what about the three names?

ADV TEE: Now, the question of the three names is the part that would relate necessarily to the submissions I am going to make about Mr Skosana's evidence.  Mr Skosana was arrested and admitted quite frankly, and I submit, totally honestly that he was assaulted by the police.  Now, Skosana is a member of MK.  The people in MK were not softies.  MK was a very, very difficult soldiering work to do.  The fact that a MK soldier very soon changes his plea to guilty and then comes to give evidence against his former commander must be explained in the context of the admission made by Mr Skosana that he was assaulted by the police.  When it was put to him, did the police add those names to your list.  Well, he denied that, but he would deny that necessarily to remain as consistent as he can.  He would deny that to remain as consistent as he can with the evidence which he had given in his trial and in the trial of the Nkunas'.
	What is significant about Mr Skosana is that he has a number of competing versions where, I would submit, had it not been for the assault of the police which he has agreed occurred with him, would have been incomprehensible.  Why would he have one version for his mitigation, another version for the Nkuna trial and a third version here if his plea had been fully voluntary and if his evidence giving in the trial against the Nkunas' had been fully voluntary.  Those documents which are before the Commission tend to suggest that his plea was done voluntarily.  Those documents before the Commission tend to suggest that he was the chief witness before the, against the Nkunas' and that he was doing that voluntarily.  Well, if he was doing it voluntarily then, why the difference between what he said then and now and I submit that this Commission is singularly in a position to be able to take that into account.  Those names, I submit, this Commission can find were submitted by the police and they were put to Skosana and that was part of the evidence which he gave and ultimately it has become something which he now believes, but when one goes to the effect of the actual substance and probabilities on that evidence, the most significant question relating to that point arrived from the Committee this morning in relation to the attacks against the three people that were to be taken, that were to be performed on the night of November.
	Three people were to be attacked, but there were only two grenades.  There was no transport, two people were to be attacked, but there was still only two grenades.  It is inconceivable that at any stage the three people on that list is the truth.  There was only one.  In cross-examination yesterday Mr Skosana said that the documents had been stamped by the police.  These were the documents shown by Joe Nkuna.  The probabilities of Joe Nkuna having documents stamped by the police that contained a list of people that he should execute on behalf of MK are so staggering that it is laughable.  In that regard I would submit that the evidence is tainted, but it is not tainted because Skosana is a bad person. It is tainted, because Skosana has shown that he is singularly human, that eventually the police broke him down and that must necessarily be the way to deal with this.
	Now, I am not saying this simply out of, out of the blue.  In Skosana's application there is a document produced which I have read which is in Afrikaans which relates to correctional supervision and the fact that they are going to give the man parole after two-thirds of his sentence and a further document which was handed to us in a memorandum which is written in Afrikaans and I quote from this memorandum,
"The memorandum of background information with regard to Derick Skosana as well as completed SAP 62".

SISI KHAMPEPE: Mr Tee, will you please tell us where you are reading from.  Is that, are you referring to the document which is attached to the letter from the Amnesty Committee by Mr Black to the Department of Correctional Services which is the last page?

ADV TEE: The last two pages.  It seems to be numbered 42 and then (indistinct) the typed page ten.

SISI KHAMPEPE: I have it, thank you.

INTERPRETER: The speaker's mike is not on.  The speaker's mike is not on.

ADV TEE: Sorry.  The significant part here is that paragraph three reads as follows,
"whether or not he possessed leadership skills and whether or not he could be regarded as a leader.  He possesses no leadership qualities.  He can easily be influenced by leaders and is very submissive".
Now, what that means is this.  The man is a good soldier, but some people are born to be soldiers and some to be leaders.  Skosana is a good soldier, but he is not a leader, but what they are also admitting is that put him under a position of authority, for example, under the thumb of the police after arrest.  He has got no power to withstand their influence and I would submit that this is a pretty accurate document stating that the man is dedicated, but he can be influenced.  The word they used is "beinvloed" and the tragedy for Skosana is that he can be influenced both ways.  That is why he had to take the order, that is why he must get amnesty, but it is also why he came to give evidence which conflicted three times.  In his own mitigation slightly different to what he said in the Nkuna trial and quite considerably different from what he said here.  Does that mean that the man has not made a full disclosure.  Well, I am not going to argue his case on that, but suffice it to say that a full disclosure operates in terms of the Act under the rubric of a full disclosure of all the relevant facts and in my submission Skosana clearly falls well within that definition and I will be dealing with that aspect with regard to the Nkunas presently.
	The question of no opposition is also significant here for the Commission.  We know that the attorney of Skosana did not cross-examine the Nkunas.  We are also aware that this is not a Court of Law, but the Commission will take it into account that the attorney who was present throughout or his employee had access to the statements made by the Nkuna brothers from the first Monday, a good three days before I personally became involved in this matter.  Despite that there was no cross-examination.  In other words ...

BERNARD MAKGABO NGOEPE: Sorry, there was no attorney representing Mr Skosana when your clients applications were being heard.

ADV TEE: Mr Chair, that is not the point I am making.  The point is that the attorney who currently represents him had possession of those documents from the Monday, because he himself was here as well I believe.  So he knew about the statements made by the Nkuna brothers throughout the entire time before he was appointed to represent Skosana, during the time that he represented Skosana and yesterday he stated to the Commission that he would not be cross-examining.  Now, this is not a Court of Law where the failure to cross-examine sometimes necessarily means the acceptance of the version of the other side, because this is a Commission where the Commission looks at a broader perspective, but it is significant in the following respects.  He did not see it necessary to contradict Joe Nkuna.

BERNARD MAKGABO NGOEPE: But was he in the matter when Joe and Conrad testified.  Was an attorney for Mr Skosana part of the proceedings?

ADV TEE: Yes, Mr Chair, yesterday certainly when Conrad testified he was part of the proceedings.

BERNARD MAKGABO NGOEPE: I do recall that I saw Mr Mojapelo, if you are referring to him, I do remember that I saw him at some stage in the hearing, but I do not know whether at that point we were busy with Conrad's application or not and I do not know whether he was actually part of the proceedings at that stage.