Amnesty Hearings — Durban — 1999-08-17

MS GABRIEL: I take that point Mr Chair, but on my submission it is highly unlikely that Taylor would confuse a group of three or four people with the very simple, very effective killing of one person.
	If I may move on.  So my submission is that the act of distinguishing this evidence, has been designed to protect them from answering any further questions.  Now I want to point out Mr Chairman that the applicants are bringing an application for amnesty for the killing of a citizen of this country.  There is no onus on the mother of that man, that deceased man, to convince you that the applicants are lying.  The onus is on the applicants to present a full disclosure so that the reasons for his death not just the manner of his death, are well understood.  
	The witnesses led by the family clearly establish that there were very solid grounds on which Mr Ninela could have been prosecuted.  Both with respect to the death of the Bengu, son of Bengu and secondly with respect to the presence of weapons at the house in Inanda.  That has never been a dispute and the witnesses led by the family were very very clear that he was implicated in that.  The problem is on the versions presented by the applicants, and that is, we were following orders, they do not come up to be challenged against that.  All we can do is perhaps now at this stage, to question Taylor who is dead.  That particular aspect can never be challenged.  So I would point out that the full disclosure emanates not so much from the fact that Mrs Ninela couldn't point to aspects of their evidence that were missing, but from the fact that at the earliest possible opportunity, they could not remember.  When they could remember, they remembered enough to distinguish and when they did remember it was a very selective disclosure.  They would reveal and did reveal no more than was necessary to support the version that they were carrying out orders.  Subsequently when the family had access to the amplified application and compared it with the first application, they realised that there was more than met the eye in these applications and on that basis went out and secured the further information, which then was presented to the applicants and suddenly they could remember.
	If I may just move through specific points in the evidence of the second and third applicants.  Apart from the obvious contradictions with Taylor, what I point out as significant and I submit is significance is this miraculous burst of memory in the intervening two and a half year period.  Minute details are recalled, such as the fact that he was apparently picked up with a limpet mine, they remember details of who shot and who blew him up, they remembered details of, Wasserman recalls details of what he was thinking at the time, he was thinking when du Preez blew him up that this is a good thing, because people then will not identify him and believe that he has gone to Swaziland.  How is it then that such minute detail can be recalled at this very, very late stage?
	In evidence and under cross-examination Wasserman says he did not talk to Taylor before preparing his first application.  Both of the first applications incorporate paragraphs from Taylor's application and I refer the Committee to pages 20 and 36 of the first bundle.  It is clear that these applications were made at the same time and in concert.

CHAIRPERSON: Just give me again what pages.

MS GABRIEL: 20 and 36.  And I would refer you on page 20 specifically to paragraph 10(a) incorporating paragraph 10 (a) from page 5.  Similarly with page 36.

CHAIRPERSON: 36 of which volume is this?

MS GABRIEL: Pardon me, bundle 1.

MR LAX: Sorry when you refer to page 5, which page 5 are you talking about?  I read it there but does that not refer to the very same application which is on page 15 of that bundle?

MS GABRIEL: I must stand corrected, it would appear that the mistake is mine and that I had made the cross reference.  So then I do not rely on the fact that Wasserman must have spoken to Taylor before making his first application.

CHAIRPERSON: Very well.

MS GABRIEL: I want to suggest that it's highly improbable that they would not have spoken to Taylor before making the application given that they were all applying for the same set of events and for the same sets of killings and given the fact that they subsequently realised that Taylor had in fact made several mistakes.  On this - my basic submission is that the amnesty applications and this has been the basis of the family's objection, the amnesty applications have limited the disclosure of what they knew and how they were involved to aspects on which they know they cannot be questioned on.  For as long as they distinguish Taylor's evidence, they do not have to justify the proportionality, they do not have to justify any personal knowledge of Ninela.  At that point they can simply remember, yes, well perhaps I met him in prison, but du Preez then is forced to say that Ninela is lying about the torture because he doesn't want to reveal that there was in fact a prior relationship between them.
	Even if my submission is rejected on that score, I submit that there are still problems with the versions presented by the applicants.  If the order was to execute, if as they say, the order came from Taylor to execute, why desecrate the body?  Why blow up the head?  Why blow up the hands?  We had du Preez who said one of the purposes in blowing him up was to serve as a deterrent.  If indeed they were blowing up an MK soldier, they would want that presumably to be known the ANC.  Wasserman says that he thought that the explosive was a good idea because then no identity would be possible and people would think that he had left to Swaziland.  How is it then that on Mwelase's evidence, Taylor had the same belief, or fed Mwelase the same story that Ninela was in Swaziland?  I want to suggest that this was part of a much broader plan and that Wasserman's sudden recollection points at some measure, to a much more organised and deliberate execution of Mr Ninela than we are given to believe.
	Du Preez, having distinguished Taylor's evidence, states in his second application that he had not personal knowledge of Ninela's activities.  That is what prompted the family to go out and investigate and that is what prompted the family and the investigators to discover that indeed there were documents that showed a very traumatic and a very early relationship between du Preez and Ninela.  Even so, du Preez seeks to distinguish the references to torture.  There is no reason for Ninela to have falsely implicated du Preez.  The problem is that du Preez must now stick to his version that he couldn't recall Ninela and to the extent that he could recall him, well he wasn't an exceptional personality.  If anything the documents show not that it's directly relevant now on their version, but the documents show that the legal machinery was partly employed and that it could have continued to be employed against Mr Ninela.  
	I submit that on the evidence that has been placed by both sides, the entire modus operandi surrounding the death of Mr Ninela is strange.  On the evidence presented and as the evidence recalled by the applicants, the profile of Ninela is not that of an ANC military operator.  It's not that of an ANC terrorist.  Why then...(intervention)

CHAIRPERSON: He appears to have been keen to go overseas, when he was approached by these two people and made an appointment to meet them at the post office.

MS GABRIEL: Well we have no idea on what basis they approached him.

CHAIRPERSON: No, the fact of the matter is he did show some interest in it at that stage.

MS GABRIEL: The question is why.  If he was an MK activist, why did he not have more, anything more than ever one limpet mine?  Why did he tell Mwelase that he had no more weapons?