Amnesty Hearings — Johannesburg — 1999-02-18

MR LAX: How do you deal with the fact that although he mentions those two incidents, and he relies on them so strongly, none of the other applicants mention it.  The first one or the second one.  We can understand Radebe wouldn't have mentioned the first one because he wasn't a member of the unit at that time, but certainly Mkhwanazi would have borne knowledge of it.  It would have stood out in his mind as a particularly impressive incident.  Nobody mentions these things.  These things are all done ex poste facto.  In the light of that, what weight do we then place on that evidence?

MS MOLOISANE: Madam Chair, Committee Members, if this Committee recalls the evidence of Mabusa Mhlongo, nowhere in his testimony did he mention the fact that he was with the others when he threw this hand grenade into the car, and we do not also, he also said that he was alone in town when he noticed them.  And we do not have any knowledge or any information as to whether this incident were ever elated to the other unit members.

ADV BOSMAN: No we do have,...(intervention)

MR LAX: I'm sorry, with respect, he very clearly told us that he told them about them.  His evidence was crystal clear in that.  With regard to the hand grenade he told them the next morning, when he dismissed them, when he gave them the order.  And with regard to the other one, he said that was why he gave the order and he told them about it.  He reported back to his members.  So in both instances he, these were important factors in his mind, because he'd tried other investigations although he was unable to elaborate what those were and he made no successes, that's why these two things were so important.  So his testimony was that he did inform his members.

MS MOLOISANE: Madam Chair and Committee Members it is unfortunate that I am not in a position to can explain to this Committee as to why the other, the applicant failed to mention this important fact during their testimony, and the fact, or let me put it this way, I submit that whether the said Mr Mhlongo had actually told them or not, or let us assume that he told them, because that is his evidence, as to why they failed to, the applicants failed to disclose that during their testimony, I cannot account, Madam Chair, Committee Members.
	The crux of the matter is that the killing was, and the attempted killing, was in furtherance of an instruction, that is it was in compliance with an order that had been issued by a person who had the authority to issue commands, and that person himself confirmed that he had issued that command, and that command was carried, indeed carried out by Mr Radebe, and he openly admits that he's the one who carried out that act.

CHAIRPERSON: You see the problem with the evidence given by Mr Mabusa Mhlongo and the absence of the aspects testified to by him with regard to although that kept on prompting him to issue the first and the second orders, and more particularly the fact that he discussed all these occurrences with the members of his unit, and he goes on to say both applicants were present during the discussion, is that they usher in some kind of problems when it comes to the motive of the applicants.  You already are sitting with the evidence of Ms Mokoena, whose evidence would like to suggest that the motive for the initial abduction at the tavern by both applicants was rape.  And that's why we are asking you these questions.  We have to be clear in our minds that these were indeed politically motivated offences, that when they saw them at the tavern they decided to abduct them for no reason other than a political reason.  And that is to carry out the order of Mr Mhlongo because of the many activities that Mhlongo was able to elaborate upon, that they did not attempt to elaborate upon.  That's why we are asking you these questions.

MS MOLOISANE: Madam Chair and Committee Members, my submission is that if there was any other motive, apart from the political one, to abduct the girls from the tavern, then the applicants surely had ample time and, to do whatever they wanted to do with the girls.  If the motive was to go and rape them, they could have taken them to a secluded place or wherever and carried out their intentions, or whatever they intended to do with the two girls, but because the motive was purely political, they told Elsie Mokoena that she had to go with them to Zone 12, and she was not co-operative, and that is the reason why she was shot at that place before Hapile could be shot.

CHAIRPERSON: When you mention the suspect that they had ample time to have been able to rape them if that was their motive, you will recall that from the evidence of both the applicants as well as Elsie's, that what really interrupted the chain of events, whether those event would have been political or purely criminal, was Elsie's initial resistance immediately after coming out of the tavern.  By that I'm just merely trying to address the question of the fact that they had ample time to do whatever they would have wanted to do.  That does not remove, however, your argument that if, their offences had been politically motivated.  But as to time, even if they had intended to do something criminal, Elsie's resistance I think interfered with the train of events that would have followed.

MR LAX: Plus if I could just add one other aspect.  Plus the crowd of people that then gathered, it wouldn't have been very possible for them to rape these girls in front of all these people, which wouldn't have prevented them from killing the girls in front of all these people, because the evidence says that there was a crowd at the time they killed them.  At the time they killed Hapile rather, so the crowd wouldn't have stopped them from killing, but it would have stopped them from raping, which then adds a certain plausibility to what Elsie said about the crowd and how they responded to the crowd and so on.  It was never put to Elsie that they never said that to the crowd.  It was never put to Elsie that the things she alleged they had, Radebe had said to the crowd, weren't said to the crowd.

CHAIRPERSON: It is alleged, in fact it was stated by Elsie, that one of the things that Radebe said to the crowd of people was that if they did not go back because they were becoming a bigger crowd and following them around, he would crush their heads, and that as soon as he said that the crowd fearing for their heads to be crushed, they then dispersed.  But the fact is the intervening factor in the whole chain of events immediately after they had been taken away from the tavern was Elsie's resistance, because that really caused the problem, even on the evidence of both Mr Mkhwanazi and Mr Radebe.

MS MOLOISANE: Madam Chair and Committee Members, if I recall the evidence of Elsie correctly, she was, and that is also the evidence of the applicants, she was at some stage left with a certain Borman Ntjolo, who had to keep guard on her, whilst they went to look for ammunition.

CHAIRPERSON: She was left all by herself, whilst Ntjolo and Simon Niti, who is also otherwise known as Zandi, went into the house with Hapile for a period of about five minutes according to Elsie.

MR LAX: Just correct an earlier point.  They were left in one of the people's, both ladies, two people's custody, but that was at a different stage.  That was when they went to someone else's house first.  At a later stage they then went to Zandi's house so, but that doesn't change the thrust of the issue.  Elsie's evidence was that she didn't know why they went to those places.

CHAIRPERSON: In fact your problem is that there was a time when Elsie alone was left with Ntjolo.  And I'm tell you that there was never such an occasion when Elsie alone was left with Ntjolo.  There never was such an occasion.