Amnesty Hearings — Durban — 1998-10-21

MR LAX: I was talking about, well in relation to proportionality, proportionality falls out the window to a certain extent if you're acting on an order or under command of someone else and it's in that context that I'm asking you around authority and command because at one level it may dispose of the proportionality argument, so it's just in that context.  They are sort of interwoven in this particular scenario.

MOKOTEDI MPSHE: To be fair to the applicant and to the question, I do concede and that is what the applicant also said that he was the leader and he gave commands and he ordered us to do whatever that needed to be done, I do concede to that, but I do not think the applicant was not in the position where he could disagree with the brother, more so that information was begotten and a meeting between the two of them ensued and if you think, if you talk of a meeting between two persons, it was this person, these people can negotiate and talk on certain issues on the same level.  Perhaps the influence, if it may be referred to, influence of the brother could be put onto the action itself but insofar as the planning and all, it was only the two of them in the meeting.  If their brother was so dominating, there won't even have been a meeting between the two of them.  The brother would have said, look fine we've got this information now this is what we are going to do and you carry out that.  But that is not the evidence, I don't know whether I've addressed this aspect.
	Mr Chairman and Members of the Committee, on the question of the firearm, the intention as testified to by the applicant is that they wanted to give the firearm over to the leadership and to believe if this was the intention and if this was done, given to the leadership of the IFP, then one would be having no problem with the political objective insofar as this firearm is concerned, but the firearm is not even given to the leadership of the IFP.  If the leadership of that piece told thereof at court fourteen months down the line, now can it be said that the firearm, the taking of the deceased's firearm was done also on behalf and in interest of the IFP, I think the answer will be in the negative.  
	In conclusion, Mr Chairman and Members of the Committee, my submission is that this, even if there is no such evidence as correctly indicated that there was, there could have been a fight between the applicant and his brother and the deceased, but what is funny here is that the planning is done by two brothers in their own house at home, not involving anybody of the organisation, two blood brothers and it's the two blood brothers from the house who go out and carry out this execution.  I find it very absurd.  I don't say that he should have called the informer but one would have expected really in the circumstances that I want to tell what has happened, I going to tell the Amnesty Committee that this is what happened and this was my informer and my informer is here to can testify to that effect.  We were just told about the informer but no evidence has been led in as far as the informer is concerned to endorse that actually this was done on behalf of the IFP, to protect the IFP.  I think, Mr Chairman, that is all, unless the Committee would like me to refer to any other thing.  Thank you.

CHAIRPERSON: Thank you Mr Mpshe.  Mr de Klerk do you have any reply?

UNKNOWN: One response, Mr Chairman, there is a matter and I know these sort of instances it's always a problem where these attacks that took place on a local situation, that is that there's problems in that area and persons from that area makes a decision to go and retaliate sometimes revenge and the question is usually asked, this is revenge, it's not political.  All these matters, political motive is always intervened, so even in the circumstances where somebody's brother was killed before the time, it was my experience that the mere killing of the other person was not merely revenge, it's still that war situation.
	I went through some of the previous decisions of the Committee and several of them the same situation applied where there was a localised decision where the people after being attacked decided that they're now going to retaliate, that means the group of IFP or ANC people.  There is one specifically, that is the matter of Nsumela whose application 435/96.  What happened there, there was also violence and then there was a meeting.  Maybe not two people, there was a little bit more there at the meeting and there they decided that they must attack to curb the violence and then they attacked and killed somebody and their perception was that they were curbing the violence, stopping the violence.
	Now we must have a look at this applicant's subjective  situation.  His brother is the youth leader, the position in that as we know it, especially in Natal, is that these leaders have a lot of power and they are not questioned.  This is not the normal situation.  Leaders especially in an organisation that is built on the structures and historic structures of the Zulu, it is not easy to question your leaders.  Strong men and strong leaders are usually accepted with open arms and accepted as good leaders.  So I disagree with this questioning of what the brothers should have decided that maybe it wasn't right or it was wrong.   It is accepted, it is normal for these people to accept these sort of decisions if made by a leader, even if it's your brother.  That's all I want to say about that.

CHAIRPERSON: Thank you Mr de Klerk.  We will reserve our decision in this matter.  I'd like to thank Mr Mpshe and Mr de Klerk for assisting us in this matter and a decision will be handed down as soon as possible.  Mr Mpshe, I think with regard to the list of the victims, we have to specify the victims.  You said that you had difficulty or the TRC had difficulty in tracing the deceased family but if we could nevertheless have all the information relating to the victims name and address etc if possible.

MOKOTEDI MPSHE: Thank you Mr Chairman.  The deceased family is known.  He was single and the name that came forward is the name of the deceased's mother and her name is Buyeleni Joanah Ngobo.  The address is just written as care of Umvuti, Mapumulo area.

CHAIRPERSON: ...[inaudible]

MOKOTEDI MPSHE: Indeed Mr Chairman and when the ...[intervention]

CHAIRPERSON: Umvuti in Mpumalanga area?

MOKOTEDI MPSHE: Mapumulo area and when the initiators went there to serve the notice, it was established that she was no more there.  After this incident she had moved out of the area for fear of her own life and nobody knows where she had fled to.  This is very common in this area.  Thank you Mr Chairman.

CHAIRPERSON: Thank you Mr Mpshe.

CHAIRPERSON: Now what is the position with the next application?  The application of Messrs Cuba, Syisi and Mgengo?

MOKOTEDI MPSHE: Mr Chairman, the application is ready.  The lawyer is here and the applicants are here and other victims are here.  We are ready to kick off at 2 o'clock with that application.  Unless Mr Chairman wants to kick off now?

CHAIRPERSON: I see that it's 12.40 and it might be a convenient time to take lunch but we needn't take it right through to 2 o'clock it would be better if we could start at 1.30 or even 1.15, as soon as you are ready after 1.15 as possible that we can get started on that other matter.  Thank you, thank you very much.  We'll then now take this opportunity to adjourn for the lunch adjournment and we will resume with the next matter on the roll as soon after 1.15 as is possible.  Thank you.
COMMITTEE ADJOURNS