Amnesty Hearings — Umtata — 2000-03-28

MR DUKADA: Yes, thank you Chairperson and Honourable Members of the Committee.
	The main issue at this stage is whether the applicant through his evidence which was tested at length by cross-examination qualifies for amnesty in terms of the Act and the tried points which are embodies in the legislation we are dealing with here, Mr Chairperson, one is whether the killing was motivated by political objective and secondly, whether he was disclosed all the facts fully for purposes of qualifying for an amnesty and thirdly, whether the gravity of the offences he committed are commensurate with the objective which he aspired to achieve.
	Firstly, our submission Mr Chairperson, is that there is profound evidence to prove that the deeds were motivated by a political objective and we submit that, with all respect, we would be astounded if there is any legal representative here who gainsays that there was a political objective for all the offences committed by the applicant.
	Secondly, the aspect which I would like to highlight and which forms the crux of all evidence led before this court, only the applicant has testified under oath and submitted himself to extensive cross-examination and at times very tedious and laborious.  Applicant remained unexhausted throughout and was consistent and his answers were compelling in all material aspects.  I admit that there were certain discrepancies in his evidence but with due respect, Mr Chairperson, one should understand the lapse of time which was a dominating factor throughout his evidence.
	His testimony or his demeanour was quite impressive and his testimony was straightforward and consistent as well.  I'm not in a position to highlight any material discrepancy which, Chairperson and Honourable Members, would find against the applicant.
	Thirdly, Honourable Committee, out of the solo testimony which has been examined extensively by this Committee, through legal representatives, one, the senior members of his security branch, despite their presence, elected not to give any evidence.  I accept that they were not the applicants but they elected not to give evidence and made the evidence of the applicant in these proceedings much more stronger and secondly, the victims did not give evidence in these proceedings.  I do not say at all that the victims avoided to be cross-examined, I don't say that at all but what I'm saying is that by a process of evaluation of evidence before this Committee, there is only the version of the applicant and it is for this Committee to decide whether the applicant has given a compelling version of the events.  I take note of certain statements which are contained in the bundle which was used in the proceedings, statements made by each victim and most of issues raised by each victim in his or her statement were admitted by the applicant is of no point to say that the applicant has not disclosed the truth if you compare his version with that statements.
	There are a few aspects where there will be mention of a particular victim being treated in a different way but the applicant has conceded and taken full responsibility of whatever atrocities took place whilst he was a member of a security branch.  To make an example, there has been a detailed cross-examination of the plight of Mrs Matoti and the applicant has unequivocally taken full responsibility for what happened to Mrs Matoti.
	And again I reiterate, Mr Chairperson, that the applicant here has said more than three times that no one persuaded him to come and apologise to the victims and apply for amnesty.  He voluntarily took the risk of coming before this Committee and endeavoured by all possible means to tell the truth.  
	Going further, Mr Chairperson, the applicant voluntarily explained his empty-headedness regarding his role as member of the security police.  He grew up in rural areas without any political environment for him to acquire the positive political education.  He had a rudimentary education, that is passed only Standard 10 in rural areas of Gumbu and his pathetic - if I can put it in the stronger terms, his pathetic position politically was aggravated by the security policemen who indoctrinated them.  This Committee, we submit, should accept that the applicant was indoctrinated more especially that not a single senior policeman came here to rebut his version.  Instead all of them elected to listen to the evidence and through their attorneys put questions to convey a bad denial on each on every material aspect which the applicant was addressing for the purposes of this application.
	Mr Chairperson, at the time the applicant got his indoctrination at the hands of the security police he was only 21 years having been born in 1959 according to official application form for amnesty.  It's not a question where a senior policemen would sanction or give instructions to juniors to assault people.  Here we are talking about an ordinary junior constable who occupied that rank throughout and had a limited authority to exercise a discretion as to what to do in the circumstances because of the provisions of the ...(indistinct) Act which was applicable then and the Act itself states out clearly that only a commissioned officer would authorise the arrest of a detainee.  He went further in his testimony to explain his plight, that is his purpose there was only to accept orders from his seniors and he actually understood that assault and torture of detainees was the culture of the security branch in Transkei and he understood that as an semi-educated person the only way of extracting evidence from detainees was to assault them and this was achieved because for example when Dugard Maqageza was assaulted he revealed that there were so-called terrorists in Willowvale. 
	Our submission, Mr Chairperson and Honourable Members, is that there has been full disclosure and again I'll reiterate that the fact - the issues of details which my colleagues, particularly Mr Mgidlana, concentrated on time and again, are issues which at that stage are completely relevant, with due respect, because it doesn't matter whatever form of torture was used by the applicant to each and every detainee, the applicant has unequivocally accepted full responsibility for his conduct.  Whether there was cigarette burns used in the body of a particular detainee, water poured or whatever, he has taken full responsibility of whatever damage caused to each detainee and again I want to ask the Committee when assessing his evidence to apply it's mind fully to the question of lapse of time which seemed at times to confuse the applicant but despite that the applicant was ready to admit if he was not in a position to remember certain events.  He was ready to concede where it was necessary to concede.  I'm not at all saying that he presented here a perfect testimony, it was a testimony which there were at times certain mistakes which he committed but on the whole it was a formidable and a detailed account presented by the only security policeman in the Transkei who has voluntarily decided to come and tell the truth.
	Now I don't want, Mr Chairperson, to give details of what he said about Mr Nyoka, Mr Mtimkulu, Magwentshu, Ms Matoti and Ntshikilana, etc.  The fact of the matter without being repetitive, the fact of the matter, whatever one says as a victim he has taken full responsibility for his wrongful acts.  Those are my submissions, thank you.

CHAIRPERSON: Thank you Mr Dukada.  Mr Mgidlana, do you have any submissions?