Amnesty Hearings — Johannesburg — 1999-02-19

ADV SANDI: Was the central issue in that matter you have just referred to, not whether the perception of the perpetrators was justified in the given circumstances or whether it was reasonable or unreasonable?

MR KOOPEDI: Well, I am referring to that matter, for a number of issues raised in the matter.   One of the issues in that matter was that someone was being called an informer, and on the basis of that assumption that someone could have been an informer, the applicant, the first applicant in that matter, ordered that these people or this person, be attacked.
	I am also referring to this application in terms of saying it was not clear as to what motivated that applicant to issue the order, and one may only suspect that there were other reasons, personal reasons, but as that Honourable Committee found, a decision could not be based on suspicions.  It could not be based on the fact that it is not clear as to what motivated this.
	It is on those basis that I refer to that decision.  Thank you.

UNKNOWN: Thank you.  As has already been done, I divide the second and fourth applicants into a category of their own.
	In their case, the question in terms of Section 20(2) is whether there was any act or omission which constitutes an offence or delict, which according to the criteria set out in subsection (3) is associated with a political objective, in other words an act which constitutes an offence or delict for which they may apply for amnesty.
	There is the cover up, but is that an actual offence or a delict?  I would submit not.  Did they make themselves guilty of being what is loosely termed accessories after the fact?   We know one thing that when Mr Tshabalala went to make his reports, he was escorted by the third applicant, that is Mr Makhubu who had been the person responsible for shooting, I would submit not.
	Their evidence is that they took no part in the decision and were eyewitnesses to the execution.  At law, even if their evidence is accepted, no offence is revealed.  In other words, there is no abdication on which they may be given an amnesty and I believe the proper finding in their case, is that they should not be given an amnesty.
	They haven't made out a case.  The fact that Tshabalala and Mr Zungu made application for an amnesty, evidence is that they were in their opinion, guilty of something.  The Act requires that they make a full disclosure of all relevant facts.
	What they feel they are guilty of, they have not yet revealed.

CHAIRPERSON: What they may have felt they were guilty of, is what their fellows were trying to involve them in.

MR RICHARD: Did they reveal their involvement?  They didn't reveal I think, any involvement.

CHAIRPERSON: They didn't deny it.  I can understand it clearly, there was a trial and one of their fellows became a State witness, to say yes, yes, we had a meeting, we took a decision as they say in the statement at page 10.  They may well feel, they had to make an application.

MR RICHARD: If we relied on page 10, which they did not ...(intervention)

CHAIRPERSON: If we accept the present version, they might agree with you, but at the time they made their applications, a different version was being put forward by the other two, wasn't it?

MR RICHARD: Quite correct.  However, when it comes to the question of whether they made a full and complete disclosure of all relevant facts, the fact that there are two inconsistent versions, can only bring severe doubts as to what disclosures have been made.  Much has been made of the fact that the events to which they testified this week, happened 11 years ago, but nonetheless, there are two conflicting versions and when pushed for reconciliation or justifications of the conflicts, not one of the applicants came out with anything particularly useful.

CHAIRPERSON: I think where the time period is more important than as to the events and the evening in question, is the allegations that had been made that the deceased did something in October 1987 or he did something at some other time, which may be pure confusion that what they are in fact talking about is January 1988.

MR RICHARD: I accept in that regard, it was clear from the evidence that the events the witness has intended to allude to, was the January 1988, not the previous one.  I make no particular argument on that point.
	However to proceed to the other category and that is Mr Dube and Mr Makhubu, there I think we have the classic situation of where most unreliable evidence has been led.  In fact, evidence which I submit, should be discredited, but does that mean that the entirety of what is said, should be disregarded and their application should be completely dismissed?  There is a long line of cases, the most recent of which is the S v Steinberg (1983) (3) SALR 114 (A).  I have obtained a printout which I am prepared to hand up.
	The gravamen of the decision that I have referred to and those append to it, is that despite the lies, there may yet be elements of truth amongst the lies.  For that reason I have prepared a number of lists.
	One is what facts we can extract from the four applicants' evidence, and I would list them as follows:  The deceased, Mr Dhlomo was recruited in to the MK cell.  The second his joining of the cell took place some time around August and September 1987; the next third, he received the most perfunctory of trainings, the fourth, the deceased Mr Dhlomo did not participate in any mission or operation of the cell and was not a party to the planning of any mission or operation.

CHAIRPERSON: Are you handing this in?

MR RICHARD: I will.  It is part of my notes.  The fifth was that Mr Dhlomo no longer stayed in Soweto following his brief arrest in October and went missing, that is October 1987.  The next, which I think we can accept is that Clive Makhubu, the third applicant, shot the deceased.  The seventh, that Mr Dhlomo was murdered some time after dark on the night of the 24th and at or near the place where the body was found by the police.
	Mr Dhlomo's murder by Messrs Dube and Makhubu was kept a secret until some time after the Ellis Park incident in July 1988.  Beyond that, I don't believe that much can be extracted from the applicants' evidence.

CHAIRPERSON: Well you said he disappeared, I think.

MR RICHARD: On that version.

CHAIRPERSON: Well did he, when the second to last witness I think, when I asked him questions, agreed that he had seen the deceased on the 6th of January, he had seen the deceased in December, he had seen him in November.  The disappearance does not seem on the versions of the first an third, the other two don't make nearly the same thing about the disappearance and alarm, do they?

MR RICHARD: The way I phrased the point in my typed preparation was, Sicelo Dhlomo no longer stayed in Soweto following his brief arrest in October 1987.

CHAIRPERSON: ...(microphone not on)