Amnesty Hearings — Pietermaritzburg — 1997-02-10

MR KUBONI: No, they did not give evidence at the trial.  Maybe I must take instructions just on that one whether it is possible to get hold of them otherwise it is pointless ... As I have suspected, that is the problem that I had that the witness in fact, since it is a long time ago that he left the area, it will be very difficult to get hold of those witnesses.  So under the circumstances I do not have any intention to call further witnesses.
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CHAIRPERSON: /...
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CHAIRPERSON: Thank you very much.
	Before I call upon you to address us, can we place on record whether the victims or the relatives of the victims have turned up at all?

MS THABETHE: No, they have not.

CHAIRPERSON: Is there anything you wish to draw our attention to in this matter in summing up?

MS THABETHE: In summing up I would like to summarise whether I think in my submissions the applicant does require with the requirements of the Act with the question of full disclosure.  My opinion is that the version given at the trial court is very different from the version that we are told today, but the applicant explained that he had no obligation to tell the truth at the trial.  Still though, with the evidence which that he has given us today, there are a lot of inconsistencies.  And the applicant hasn't come out clearly to explain factors and questions put to him.
	And just on the question of the children coming out and talking to the applicant.  I don't think it  is very likely that children who are in the house, a house that has just been shot at, can be so courageous to come out and actually speak to the person who has been doing the shooting.  But I don't know, it is just my opinion.  As I said before, the applicant does not seem to be a good speaker, if I may put it so.  It is like he is unable to explain himself and the sequence of events clearly.  So it is very difficult for me to make an opinion whether a full disclosure was made or not.  It is not convincing that it was, but I may be wrong.
	Then on the question of political objectivity.  We may not doubt the fact that the incident occurred during a time of ANC/IFP unrest in KwaZulu/Natal.  At the same time there
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MS THABETHE	232	ADDRESS
is nothing which shows the connection or a causal link between the offence committed, that is the shooting of the two females and children, and the political objectivity sought to be achieved.  There is no connection between the two.
	At the same time the applicant indicated that their purpose was to kill three IFP people who had attacked the Luthuli kraal.  However, I don't think that would justify the killing of the Nqobo family and children.  I am not clear as to what the political objective was.
	Thank you, Chairperson.

MR KUBONI: Chairperson, at this stage what has to be decided is whether the Act has a political objective and whether the applicant has made a full disclosure.  It is my submission that the question of a full disclosure and the question of political objective are in a way interlinked.
	In my view, the applicant has done all in his power to disclose the events which took place on the day in question.  The question boils down to the question of probability of his version.  And the improbabilities that are pointed out is the question of shooting.  The improbabilities in his version mainly have to do with the question of the bullets that penetrated the children.  The child was there and also the two females were there.  
	In my view if the version of the applicant is accepted that there was a shooting from inside, surely it cannot be said with reasonable certainty which bullets that penetrated the deceased were really from the applicant.

JUDGE WILSON: Could they have been from anyone else?  Are you suggesting anyone else fired shots which could have hit the people in the house?
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MR KUBONI: /...
MR KUBONI	233	ADDRESS

MR KUBONI: My point is, since it was still dawn, in his version there were people who were shooting from inside.

JUDGE WILSON: Are you seriously suggesting that we should have regard to the possibility that these people who were in the room were shot by other people in the room?  By their relations, not by a hostile group?  Are you seriously suggesting we should accept that as a possibility?

MR KUBONI: What I am saying is, you cannot overrule that possibility, but in any case it is farfetched.  But given that there was turmoil or there was an exchange of fire, so they might have been caught in the cross-fire.  But what is obvious is that with the indiscriminate shooting of the applicant, anything is possible.   If the people who were being pursued, that is Mqupeni Zulu and Skwayi Nqobo, if they got into the house running, surely I don't think really that they would have time - they would have time to warn the people who were inside or also to check in what positions they were in, so surely they must have directed their attacks at the people who were inside, so the possibility really of shooting the people who were inside, it is not a possibility that we can completely overrule.

ADV DE JAGER: But is it a probability? You said we should deal with probabilities.  Do you think that it is a real probability that they have been shot by their own people?

MR KUBONI: It is not a probability, it is just a possibility.

JUDGE WILSON: You must bear in mind that it was light enough outside before they came to the house for the applicant to recognise the people he was pursuing.  There was sufficient daylight for him to do that.  So we are not talking about a black, dark room.  This was in the morning
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MR KUBONI	234	ADDRESS
wasn't it?

MR KUBONI: Yes, it was in the morning.  What is obvious from this version is that since there was this shooting the possibilities that - since there was this shooting, he didn't foresee that the three deceased were inside the house.  Their political aim was to kill the people who were there.

CHAIRPERSON: He has been found guilty of murder;  he has already been found guilty of shooting those people and the probabilities and the possibilities of their death being caused in  some other way is now an academic issue, is it not?

MR KUBONI: I didn't hear the last part.

CHAIRPERSON: He was found guilty of actually murdering those people, so the probability or possibility of those people being killed in some other way is now an academic issue.

MR KUBONI: I agree with that.  The point I am trying to highlight as such is ....(intervention).

CHAIRPERSON: You must work on the basis that he did the shooting or any of his group, although he denies that any of his friends had a gun.

MR KUBONI: In my view, when he shot, he just shot indiscriminately.  So therefore the probability is there that six bullets could infiltrate the deceased and it is possible that also the children could be shot the way he was shot.  Therefore, I am saying, in my view he has made a full disclosure in that regard because he stated that when he arrived there he started to shoot all over the house.

ADV DE JAGER: He denies that he could have foreseen that there would be women and children in the house.

MR KUBONI: Sorry, can you repeat the question?
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ADV DE JAGER: /...
MR KUBONI	235	ADDRESS

ADV DE JAGER: Doesn't he deny that he had foreseen that there could have been women and children in the house?

MR KUBONI: From what I heard from him certainly he denies that he foresaw that there might have been people inside the house.

ADV DE JAGER: ... in a four-roomed house round about daybreak an ordinary house in the rural area, occupied by people, there wouldn't be women and children in the house?