Amnesty Hearings — Durban — 1999-09-21

UNKNOWN: Madam Chair, I do not want to burden the Committee with the evidence that has been led, may I just state the following?
1)  It is common cause that there was violence between the IFP, that was in Shayamoya and the ANC group, which the applicant belonged to, that lived not too far from the said place.
2)  It is also common cause that the witness, Mr Lucky Ntshetha Sinangwenye was appointed as the leader of the ANC group which the applicant belonged to.
3)  As such, he being the leader, he was faced with the burden of protecting the group, that which the applicant Moses Dlamini was part of.
	Madam Chair, the evidence that has been led by Moses Dlamini in so far as the murder of the victim, in much of its respects, it's in keeping with the evidence that has been led by the witness, Mr Ntshetha.  There have been discrepancies in so far as what may have become of the body after the death of the victim, or what was taken out from the body or whether the witness himself had committed all the acts concerned.  Madam Chair, but my submission is that in so far as these discrepancies have related to the evidence that has been led by the witness and the applicant, it is my submission that these discrepancies do not materially affect the evidence that has been given by the applicant in his evidence-in-chief.
	Now Madam Chair, the question now lies as to whether there was, 
1)   a political motive and
2)   full disclosure by the applicant.
	In addressing the issue on the political motive, I would submit that:
1)   the leader of the group which Moses Dlamini belonged to, was Mr Ntshetha,
2)   as mentioned earlier, it is common cause that there was friction between these two rival parties, namely the IFP and the ANC.  
	Now as such Mr Dlamini being a supporter of the ANC, Madam Chair, I submit that he falls within the ambit of Section 20 of the Act, that's Act 1934, - 1995, in that he supported the ANC and more likely would believe in the cause.
2)   Mr Lucky Ntshetha was appointed as a leader by the community to promote this cause.  We have heard his evidence that he was appointed by the leader, by the group of people that belong, to which Moses Dlamini belonged, and as the leader he would have been responsible for the protection of the people, as well as the protection of their beliefs, namely that the party they supported would have been the ANC and anyone posing a threat to that party, to the group he was a leader of, he would have to protect.

CHAIRPERSON: I have one particular problem with regard to his appointment.  I don't think we have been given the Command structure in a manner that one is able to discern the clear functions, responsibilities and duties of Mr Ntshetha.  Now what troubles me with regard to his office of Command is the fact that in one incident involving the deceased, the group collectively takes a decision in Mr Ntshetha's presence, does this amount to undermining his office?  Is this acceptable?  When is there room for this shift where a group collectively decides on a function that would ordinarily be assumed by the Commander, in the presence of the Commander, they decide on the fact that some kind of punishment should be metered out on the deceased and collectively they proceed to do that, in the presence of the Commander.  They decide collectively as a group that the deceased should be released and proceed to release him, in the presence of the Commander.  Ex post facto the Commander reconsiders the decision taken by the group, after quite a number of, a chain of decisions had been taken and had been acted upon by the group, including the Commander, then conveniently the Commander takes a decision that this person should now be killed.  I don't have a problem with that, because I don't think you have presented that as a problem, you now seek to rely on the fact that Mr Dlamini was acting on instructions as if he had not been party to the chain of activity that had been taking place within one incident.  You isolate his instruction with regard to the fact that he was told to shoot as if it is separate and it doesn't form part of what was going on and that constituted this incident.  I have a problem with that, I still do not see my way out with regard to that.  May you please address me on that one?

MR PANDAY: Madam Chair, in so far as Madam Chair refers to the collective decision that would have been taken for the release of the victim after disciplining him, Madam Chair, if Madam Chair recalls the evidence of Mr Lucky Ntshetha, what was given in his evidence was the following:  that the group had decided that the victim be released and ...(intervention).

CHAIRPERSON: I know that, but what gives the group the right to decide when the Commander is there?

MR PANDAY: Well Madam Chair, I ...(intervention).

CHAIRPERSON: Where do we draw the line?

MR PANDAY: I would get to the point.  Madam Chair, like in any structure of command, there would always be submissions being made to the Command and it is my submission that whilst the group would have come to the decision that the victim be released, that decision was still subject to ratification by the Commander, that being Lucky Ntshetha.

CHAIRPERSON: But hadn't he ratified when there was the first decision that he must be punished, he participated in the punishment himself?  He was to be punished in order to be taught a lesson not to come back again and do what he wanted to do.  That was the basis on which the punishment was metered out.

SINANGWENYE AKA NTSHETHA: Madam Chair, whilst I understand your concern that it seems to indicate that whilst the applicant alleged that he was following orders in so far as the murder of the victim, the concern arises, if he followed the orders to that extent, how is it that a collective decision was made in so far as the releasing of the victim without taking instructions from the Commander as such.  Madam Chair, I must therefore once again submit that whilst the group may have collectively decided, it is my submission that the group themselves still needed that ratification and being the Commander, at that point he would either decide yes, the victim be released, or no, the victim would not be released.  It is evident and from the evidence led by Mr Ntshetha, he at that point decided that they may be right and I would release them, indicating that he still had the final say and the group would in any event have to listen to what he says.  To draw Madam Chair's attention to the point that when the victim was released, the Commander issued an instruction to apprehend the victim once again and sent out three of the present to apprehend the victim and bring him back, where the concerns were raised that he's going to now alert the others as to what had happened.

CHAIRPERSON: That's not how I recall the evidence.  The evidence was that he did not revoke, he actually made the group aware of the consequences which might arise if this man is allowed to go back to Shayamoya and it was as a result of his concerns that the group agreed that he may be correct and this is the evidence again of Dlamini, that we then decided that maybe it is correct that we should go and recapture the deceased.  It is again a group decision, is it not?