Amnesty Hearings — Welkom — 1998-11-18

UNKNOWN: Thank you, Mr Chairman.  Mr Chairman, all these applicants are approaching the Committee for an amnesty to be granted on the basis that the offences which they have committed were committed with a political objective.  I want to start and address the Committee on the aspect of the political objective.
	It has become common cause that all the applicants were members or supporters of the African National Congress and it is further common cause that the applicants were at the time in question members of the SDUs.  It is further common knowledge that the SDUs were the establishments of the African National Congress.
	It is further common knowledge that the call for the establishment of Self Defence Units was made after the suspension of the armed struggle by the African National Congress.  And further, there was no stage where the African National Congress called for the disbanding of the SDUs or the disassociation of the African National Congress from the Self Defence Units.
	It is common knowledge, Mr Chairman, that the people who participated in Self Defence Units were ordinary members of the community who were not part of the leadership of the African National Congress and were often unaware of the decisions of the leadership.
	It has become common knowledge, Mr Chairman, that the hierarchial arrangement of the command structures of the liberation movements, in particular the African National Congress and its SDUs was a top secret.  In other words Mr Chairman, the chain of command was not known even to the operatives themselves.  It is known that commanders will be known by pseudo names or what is sometimes called combat names.  In other words Mr Chairman, the commander will hand down the orders to his immediate subordinates without them questioning the validity of such orders and whether such orders were coming from somebody above, because they did not have access to the person on top.
	Applicant Mosia, Mofokeng and Sera testified that they obtained their orders from their co-applicant who is Mohomane, who was their commander, who further testified here that he was given powers to establish his own unit and to recruit members and that such order came from a person whom he called comrade Craig Khumalo, and this very name is a pseudo name.	
	And these very applicants, that is Mosia, Mofokeng and Sera who I can regard as foot soldiers for all intents and purposes Mr Chairman, received instructions from their commander and they were expected to carry  such instructions without being invited to discuss the policies of the organisation.
	Similarly, applicant Mosia received orders from comrade Craig Khumalo without him given any opportunity to discuss the policies of the day of the African National Congress, and he was expected to carry such orders.  This position, Mr Chairman, obviously could result in opening avenues for fake commanders to emerge and give people orders, people who were not commanders of the African National Congress.  But if such information, Mr Chairman, is received by the recipients thereof as genuine information and they genuinely believe that the instructions which they are expected to carry out are from their principal, are in further of their political objectives, that is the political objectives of the African National Congress, Mr Chairman, I believe that if they subsequently act on the strength of such instructions and commit unlawful activities, such activities have been committed with a political objective.
	Mr Chairman, it was mentioned in respect of applicant Mohomane, that the purpose of committing this unlawful act was to eliminate the investigating officer in a robbery matter where he was a suspect.  This information, Mr Chairman, emerged from State witnesses in the trial of the very offence which they're amnesty for and these State witness' were witnesses who were warned in terms of Section 204 of the Criminal Procedure Act, and this evidence came mainly from a witness known as Mr Kele.  
	I would want, Mr Chairman, now to deal with the aspect of the credibility of the very witness who brought this information into light.
	Mr Chairman, if I were to refer the Committee to page 124 of the paginated bundle, that is the Court record, from line 30 downwards Mr Chairman, it was mentioned by the trial judge:
"At the end of Kele's evidence-in-chief, Mr Botha he gave his witness, he made available his witness' submission to the State defence.  This statement was not handed in as an exhibit but under cross-examination it would seem that Kele told several untruths therein."
The trial judge further goes on and explains the apparent untrue statements which have been made by Mr Kele.  
	Further Mr Chairman, the trial judge was sitting with some assessors.  One of the assessors who is Mr Galloway doubted the truthfulness of the statements of Mr Kele.  In particular, Mr Chairman, I want to refer the Committee to page 134 of the paginated bundle, line 21 to 31.  It becomes very clear there, Mr Chairman, that the witness has told, had lied or most of the statement which he made were not true, in particular item 5 in page 135, where it was said that:
"He denies falsely that he and Captain van Staaden visited accused number 4 at the Harrismith Prison."
	Also, Mr Chairman, I want to refer the Committee to page 131 of the paginated bundles of the Court record, line 5 to 10.  Here, Mr Chairman, it is indicated that Captain van Staden has testified that he had paid a visit to accused number 4, who is Mr Sera and that the reason for that visit was to invite Mr Sera to become a State witness and that he refused to become a state witness.  
	Mr Chairman, in view of the fact this evidence of Mr Kele has not been corroborated by anyone in this Committee for instance, Mr Chairperson, if this Committee is invited to rely on the evidence given by Mr Kele at the trial of this matter, it will be expected for the legal representative of the family of the deceased to at least verify the information by getting the dossier from the Phuthaditjhaba Police and confirm that one of the deceased was in fact the investigating officer in this matter.  
	It has been denied here by the applicant, Mr Mohomane, that the deceased was an investigating officer in the matter.  He even indicated that he knew the investigating officer to be somebody else and that the police officer who has arrested him was somebody else, and the deceased was according to his knowledge, never involved in this matter.  I would submit that the testimony of Mr Mohomane in the absence of any contradictions, should be accepted.
	Mr Chairman, with regard to the failure of the applicant to testify to dispute the evidence of Mr Kele, this aspect was not well explained by the applicant but it became apparent that the applicant did not have any trust in the legal system then.  And this Mr Chairman, is further confirmed by the fact that the legal representative who was representing them in this very trial only went to them and told them that "I will be appearing on your behalf tomorrow", and the following day they went on.  So it was not very clear who is for them and who is against them.
	Mr Chairman, further it has happened during the currency of this very sitting of this Committee that the Committee came to discover that certain people who were not linked to a commission of offence were falsely implicated with some of the applicants who are applying for amnesty.  Consequently, Mr Chairman, they were advised to withdraw their applications.  So in saying this, Mr Chairman, I submit that it is not unusual for the police or rather it was not unusual during those periods to fabricate information against suspects and convict them on the strength of such fabrications.
	It is my respectful submission, Mr Chairman, that a political motive has been proved by all the applicants in this matter, and I further submit that there was a full disclosure with regard to the very offences on which they were applying for amnesty.
	Lastly, Mr Chairman, I briefly want to deal with the application forms.  I want to mention that the application forms of some of the applicants were not completed up to standard, to put it that way, but however such applications, Mr Chairman, those flaws which were there does not render them to be fatal and I submit that compliance, that the applications are in compliance with the enabling legislation.  
	And I submit that the applicants are entitled to be granted amnesty and I accordingly request the Committee to grant the applications as requested.  Thank you, Mr Chairman.