Amnesty Hearings — Sebokeng — 1998-07-13

VICTOR MTHANDENI MTHEMBU: When we exited through the main gate, or when we exit through the gate, we did not pass the security guards from Iscor.   I can see that the honourable sir doesn't know what he is talking about.

CHAIRPERSON: At the trial it was argued on your behalf that you could not have passed in front of the Iscor security without them noticing you, is that what was sub... (intervention).

MR STRYDOM: Can I clarify something here?

CHAIRPERSON: ...what was submitted?

MR BERGER: Not only that, and also moved along the road, which was patrolled on a 24 hour basis by Iscor security, Vaal Commando and so on.

CHAIRPERSON: Ja.   That is what was put on your behalf.  Do you agree with what was put on your behalf?

VICTOR MTHANDENI MTHEMBU: Because this pertained to the trial, I think the lawyers who were defending us were trying to set us free, I cannot say that I used a route if I did not use it.

MR BERGER: From that main gate, the Kwamadala main gate, to Iscor is about 300 metres, am I correct?   And you would pass Iscor on your way to Boipatong?

MR STRYDOM: Can I just intervene here, I just want to set something correctly?   I think if we get the photographs, the position will be made clear.   If one leaves through the main gate, you get to the tar road, and about 300 metres back on that tar road, away from Kwamadala, you get the security gates, so you don't really pass the security gates.  What was argued as a probability during the course of the trial was that there was activity on a 24 hour basis and it's highly improbable that if a group of 300 people moved along that tar road, that they would not have been seen, that was the argument during the trial.

CHAIRPERSON: Well, that's what I understood to be the argument, yes, it was put no higher than the probabilities.

MR STRYDOM: Yes, it's only on a probability basis, because our instructions were that Mr Mthembu, for instance, was not part of the attack, so we just argued on probabilities at that stage, and I can also mention these probabilities were rejected by the trial judge because the accused at that trial were convicted.

MR BERGER: Well one can't, with respect, have one's cake and eat it.   What was submitted, and on the basis of evidence, was that it was "uiters onwaarskynlik", that it was not just improbable, that it was highly, highly improbable, that a group of 300 attackers would not be picked up.

CHAIRPERSON: But the difficulty that we have here is that we don't have the benefit of that argument, I mean of the evidence that was before the trial court, on the basis of which those submissions were made, so we are not in a position to comment on the probability or otherwise of whatever submission was made, you know, at the trial, but I understand the point that you're making.

MR BERGER: Well perhaps, Chairperson, we'll get those facts agreed and placed before the Committee in due course.

CHAIRPERSON: It does seem, Mr Strydom is nodding his head, which I think is the proper way to deal with the issue.

MR BERGER: Whether or not you would have been picked up or discovered, there was always the risk, I put it to you, of discovery by either Iscor, the Vaal Commando, the police, someone else, and what I want to ask you is, how could you, as one of the attackers, have followed such a blatant route, such an open route, without fearing that you would be discovered by one or other of the security forces?   Do you understand my question?

VICTOR MTHANDENI MTHEMBU: Yes, I understand the question.

MR BERGER: And what is your answer, how could you have done that without fearing that you would be picked up?

VICTOR MTHANDENI MTHEMBU: At that time, whether we were going to be caught or not did not matter.   After we had decided that we were going some place, we would go.   If the police discovered us, that would be their duty to do so.

MR BERGER: Isn't it rather, Mr Mthembu, that you knew in advance that you were not going to be arrested by the police or the army or Iscor, you knew in advance that you had safe passage to Boipatong?

VICTOR MTHANDENI MTHEMBU: I had no knowledge of that, sir.

MR BERGER: You know the little bridge that one crosses to enter Boipatong in Umzumvubu Street, do you know that little bridge?

VICTOR MTHANDENI MTHEMBU: Yes, I know it.

MR BERGER: Did you cross it?

VICTOR MTHANDENI MTHEMBU: Yes.

MR BERGER: Do you know, if you're looking at Boipatong standing on that little bridge, one has to go, you have to go another 900 metres south, and then a further 900 metres west, I beg your pardon, east, to get to Lekwa Street, in other words it's almost two kilometres from that footbridge to get to Lekwa Street to enter into the township.   What I'm putting to you is that to get people at the footbridge entering into Umzumvubu, to get people at Lekwa Street entering into the township, to get people right up at the top near Slovo Park into the township, and to co-ordinate all of that so that the attack starts at the same time, you need planning and you need vehicles, that's what I'm putting to you?

VICTOR MTHANDENI MTHEMBU: Mr Berger, I do not understand your question clearly.   What I think has happened is this, people have told you about this and you don't know about it yourself.

CHAIRPERSON: Well in short what is being put to you is that to get to the point of the attack, you had, two things had to have occurred:  one, there had to be prior planning;  and secondly, you had to be transported to that point.   Is that in a sense what you... (intervention).

MR BERGER: Yes.

VICTOR MTHANDENI MTHEMBU: I think Mr Berger doesn't understand when I say that I, as a person who was there, did not use any transport to get there.

MR BERGER: What I'm putting to you is that transport was used to carry some of the attackers... (intervention).

CHAIRPERSON: Mr Berger, do you think we can take it further than this, because he is clearly saying he didn't use the transport.

MR BERGER: Chairperson, he might not have used the transport, but he would have seen the transport.   The point that I'm making is that for this attack to have occurred... (intervention).

CHAIRPERSON: We understand the question.   Did you see anyone being transported by motor vehicle from the hostel to Boipatong?

VICTOR MTHANDENI MTHEMBU: Sir, I did not see anybody being transported to Boipatong.

MR BERGER: At page 82 of the heads of argument, it was submitted by your lawyers on your behalf that there were army vehicles at the robot at the crossing of Frikkie Meyer Boulevard and Nobel Boulevard, that's the northern entrance to Boipatong.   It is then submitted on your behalf that if any, and the word "enige" is underlined, if any of the attackers had made use of that road, that tarred road, to go in the direction of Kwamadala, then they must have been seen at least by members of the army.   It's your evidence that when you were going back to Kwamadala, you were seen by the army and the police, and none of them attempted to stop you, is that correct?

VICTOR MTHANDENI MTHEMBU: We saw police and army vehicles, but they did not stop us.   We were using that small bridge you have been referring to and they were at the robots near the garage.

CHAIRPERSON: Did you see them on your way to Boipatong or was that on your way from Boipatong?

VICTOR MTHANDENI MTHEMBU: On the way back from Boipatong.

MR BERGER: Let me also tell you that there was evidence at the criminal trial that people had gathered in the veld behind the hostel and that that grass had been pushed flat.  Do you know anything about that?

VICTOR MTHANDENI MTHEMBU: What was discussed in the trial and what we are talking about now are two very different things.   The lawyers who represented us may not be here and I don't know if you expect me to go summon them and explain what they were saying.