Amnesty Hearings — Port Elizabeth — 1997-09-25

MR NYOKA: Thank you.  None of the members of the community of Port Elizabeth in particular - not that of South Africa in general, pointed fingers for a second away from the security branch as being responsible for the disappearance of the two.  To suggest otherwise will be an insult on the in - of the intelligence of the people of South Africa.  The only thing that is surprising is the execution, not the fact that the police were responsible - we are not surprised at that.
	We would like first to start with the grounds for reaching the decision to eliminate - in no particular order.  With regard to that of politicians and senior police officers using statements like: "Total onslaught" etc., and exerting pressure on the Eastern Province security branch to stabilise the security situation, on their version - without saying that it is correct, on their version I would like to say that it is unfair to the then National Party politicians to say that all they uttered in their speeches was the "total onslaught" - in public speeches.
	These were uttered simultaneously or counter-balanced with references to democratic - we defend a civilised Western way of life, democratic road but without Black domination, what did that mean?  It means respect for human life, respect for human dignity not to take away human life or inflict harm or on violate limb, that did not mean that.  It is therefore outstanding that the three applicants could conveniently isolate such statements and only concentrate on the so-called "total onslaught" speeches.
	Secondly, the politicians could not have meant in their favour that - the politicians could have meant that the E.P. Special Branch was not doing their work properly.  I'll make an example of a education scenario.  A principal will say to a history teacher: "You have a very high failure rate, you must do something, take drastic steps",  it doesn't mean that teacher must tell his students: "You must copy to pass or even eliminate the entire history class" - that's not the intention.  
	It means that he must look at himself to see whether he is a good history teacher, he must see to it that he makes the student attend week-end classes, give individual attention to each history student.  You cannot say therefore you are saying to people - to students, they must copy and say that is an educational motive towards - in an educational manner.  That's a pure crime or a pure offence.  
	The fact of the matter that the three did not do their work properly, it should even by the way these executions - these - the killings were executed, they were not properly planned.
	Let's come now to the undesirable effect of legal options, firstly with the criminal prosecution.  The argument that the only evidence there was, was that of informers and that they had to be protected is with without sense.  Surely one of the consequences of being an informer is that besides giving information and getting money, you stand the risk of having to go to court and being placed under witness protection, otherwise why will you have to use informers if you're not going to use their information.  That was a typical waste of tax payer's money, no wonder many people did not pay tax before.
	Furthermore, even after 1982 criminal prosecutions did continue as Mr Nieuwoudt agreed with me there was even a late case in 1988 of Collin Devu where a Mr X was used.  The restriction in house arrests - this could have been a more humanitarian measure as it was considered that Mr Mthimkhulu's home was visited by the police daily especially after his return from Cape Town.  Secondly, the police could have caused him to report daily or once a week at the police station.
	Furthermore, they could get into the township with the use of Casspirs or Nyala's and that there was a shortage of policemen power is not enough.  If you play rugby and you're a scrum half you have to face a forward, your excuse would not be in not tackling him: "He's big" - why do you get into the field the first place?
	And if you are saying there's a shortage of police and the two gentlemen were very high political figures, surely they could have sacrificed and take those few policemen to monitor them.  We are not talking of a case of house arrest of a thousand of people, we are talking of two big fishes so to speak.  
	The last one of detention without trial - also with out belabouring the point, the reasons for not embarking upon this avenue are far from convincing.  I do not understand how the stature of activists could be boosted by further detention without trial.  
	And if the fact was that Mr Mthimkhulu was sickly was a consideration, police stations have go prison hospitals and they could even have taken him to private hospitals under police surveillance, that was not going to be a problem.  The last one of Mr Mthimkhulu swearing revenge on the police.  I find it difficult that a wheel bound disabled person could be more dangerous in his disability than before against the notoriously almighty efficient effective police force.  
	I also find it difficult to accept that when the police force knew of the insurgence of the ANC cadres and attacks especially on State organs and police personnel, they could extraordinarily distinguish into prominence the alleged and untested revenge of a wheel bound young man.  We are referred ...[inaudible] to the incident of Mr Mangasuto Buthelezi.  That incident happened in 1978, why should it be of consideration four years later - to determine his death?
	I finally find it difficult to accept that when the wheel-bound Mr Mthimkhulu was constantly under police surveillance and later on under monitoring, he will be feared of carrying revenge as immediately it will start that he will be taken, and if you have dangerous weapons or pamphlets the minimum sentence then was five years, the police would have used that evidence and sent him straight to jail even if they were not responsible for the prosecution at least they will cause him to be charged.	Instead the three should have allowed ....
	All the grounds they reached are not convincing ones to justify the decision to kill the two.  Even then - even though the security laws were draconian, they had de iure legality, they were in law legal, but the four regarded themselves as above the law that is why this has happened.  As I stated in the earlier Mkosene Jack application, there's a saying by Lord Acton that: 
"Power corrupts - absolute power corrupts absolutely"
and that is the classical example, that's what happened here.
	One wonders why it took an entire 10 days to discuss the entire thing when their arguments were so demonstrably weak or defective despite their vast experiences as policemen, some have got 20 years experience.  
	It is therefore respectfully submitted that all the four applicants have failed to prove or show that their acts were politically motivated and/or there was a political motive behind.  In that firstly, if they had political motives, why did they not inform the head office of the security branch or the commissioner of police of their intended steps, as these two fell within their need to know basis category - they needed to know.
	And their goal of coverted covertness would still have been applicable and achieved if they had spoken to the head of security or the commissioner of police, it would still be under the umbrella of covertness  Perhaps they would have got more sensible or sensical advices like: "Gentlemen, you say you have a problem, before you eliminate how about trying a state of emergency for 1982" which was declared in 1985?  This could have been sorted out and it was a humanitarian measure.  Or they could have obtained the advice of banishment, taking Mr Mthimkhulu to a remote area like it was done to Mrs Mandela who was taken to Brandfort.
	If they applied a need to know basis and they were trying to achieve a political motive, why did they involve a junior like Mr Nieuwoudt who was only known to Mr du Plessis and he was not known to Mr Erasmus closely or to Mr van Rensburg?  
	If they acted in the interest of State Security, why did they not trust the very State they were acting for by informing the relevant higher State organs that: "We have decided to act as such in the interest of the State but we would like your approval to doing this and we would like this matter to be treated confidentially"?   I'm sure they will have given that confidentiality.  The reason is that they acted for their own selfish needs.
	The fact of the matter, they committed these monstrous deeds because of Mr Mthimkhulu's cheek and apparent rebelliousness, fighting for his rights in that soon after his release he instituted two civil claims against the Minster of Law and Order for assault and poisoning.  There was also a criminal complaint, there was also going to be a magisterial public enquiry on the 5th of May 1982.  The cumulative effects of these led to this - led to that undesirable conclusion of elimination.
	Furthermore Mr Mthimkhulu did not end there, he sought the assistance of human rights organisation like Black Sash and the opposition political party PFP,  giving prominence to his disability and to his fight for human rights.  The fact that during the 10 - the plus minus 10 days of discussion between Messrs Erasmus, van Rensburg and du Plessis, no mention of such steps like the civil claims, the poisoning allegations and the magisterial enquiry - especially after so much media publicity, is breathtakingly astounding and confirms out view to the say the very least.  
	And also shows that the act was not only criminal but the objective was criminal in that it was in response of Mr Mthimkhulu's cheekiness which was justified.  And not to embarrass the security branch of the Eastern Province especially after the embarrassing Biko debacle of 1977, the Eastern Province security branch could not afford that scandal.
	To show further that this was a purely criminal act with a criminal motive, why was it that none of the other COSAS activists who were responsible for mobilisation and unrest were not eliminated - why was it?  Why single only two and Mr Madaka was just unfortunate being a friend of Mr Mthimkhulu?
	Also there's been no real reason for the killing of Mr Mthimkhulu - of Mr Madaka, as Mr van Rensburg conceded later on that there was a quote: "No real evidence" against him.  Even the DLB's were not confirmed and the only evidence was that of an informer who could not be named, yet Mr van Rensburg is applying for amnesty which requires full disclosure of all relevant facts.  
	If there was such a big decision to take Mr Madaka's life, then the person was instrumental in having him included in the killings should have been mentioned publicly or an offer be made to the Committee to mention him in camera.  Maybe also there was no such an informer, it was thus a figment of his imagination.
	The fact of the matter in conclusion is that the applicants are criminals, unconvicted and unsentenced abductors and murderers coming here wearing flimsy political clothing.  No apology was given to the families.  The Government is not implementing the Nuremberg type - style of prosecutions but an accommodative Government, an accommodative democracy like we have done with the Government of National Unity. They should have seized the opportunity of coming across from the other side of the bridge to meet the family halfway and not hide behind lawyers advice that: "Don't apologise", meet them halfway and say: "We are sorry" - that was not done.  That is all.