Amnesty Hearings — Durban — 1999-08-17

CHAIRPERSON: No, we're talking about something else.  We're talking about apparent willingness on his part to take the advice of these two chaps who said they were going to take him overseas and he was prepared to go along with them and prepared to meet them, not knowing of course at that stage that this was a trap, but an indication of his mental attitude towards the idea of going overseas.

MS GABRIEL: But Mr Chair ...

CHAIRPERSON: It he was completely non-political, ...(intervention)

MS GABRIEL: Mr Chair, it has never been, with respect, it's never been the case that he was completely non-political, it's never been the case that he did not belong to a political party, the question is whether the evidence shows that this man was something more than a sympathiser, something more than a person who had one limpet mine and was found with one limpet mine at some point in his life.  The question is really whether Ninela could be linked to definite political ANC activities, military activities.

CHAIRPERSON: No, I understand that limpet mines are not to be found in every house in that area, you know.  The fact that a limpet mine was and he is connected with a limpet mine, now that's un undisputed fact on your evidence.

MS GABRIEL: Yes, yes it is.

CHAIRPERSON: Now, so it is an important factor indicating that this chap was not a pacifist.

MS GABRIEL: But did it indicate that he was a terrorist on a bombing mission?

CHAIRPERSON: No, he may not have been on a mission.  He might not have had a chance of being on a mission, it might be an exaggeration to say that he was on a mission.  Yes, we're merely saying (a) he was found in possession of a limpet mine.

MS GABRIEL: There is clearly, Mr Chair, there is clearly enough evidence led by the family, that he was not innocent, that he was linked to very definite and specific events.  Ultimately the question is, if you consider that even on Wasserman's evidence, this man was not a well-known figure, did he deserve to be treated in this way?  Did he deserve to have his face and his hands and his entire being obliterated?  The question is on the limited evidence presented to us, we can't understand why it is that he was treated this way.

CHAIRPERSON: No, you know I think that first of all what is important is not the fact that he was obliterated, the important fact is that he was murdered.  You see.  Why his body was obliterated, there were all kinds of twisted logic behind that and we have different reasons given...

MS GABRIEL: I do understand that.

CHAIRPERSON: As to why that was done.  Really, why?  Was his crime so serious that he should be killed?  You see?  Why should it be?  Here is a man, all that they know about him is that he gave a limpet mine to one of the children, one of the boys.  He could have been tried and convicted.  There was evidence of the person to whom he have the mine, to come and say.

MS GABRIEL: The problem though, Mr Chair, is that on the format and the style of the applicants' amnesty application, they don't get to be asked those questions.

CHAIRPERSON: Yes.

MS GABRIEL: Their version is they were following instructions.

CHAIRPERSON: Well now, what can you do about that?

MS GABRIEL: What I do about that is to show you why they seek to distinguish Taylor's version and to argue that this is improbable.

CHAIRPERSON: That's just a theory, isn't it?  That's just a theory.  These chaps are junior officers who take instructions from Taylor, who everybody acknowledges was the political person in charge of terrorism in Natal.  They get called in from time to time.  In this particular instance they were called in, they were told eliminate this chap.  They were willing henchmen and willing to eliminate him.

MS GABRIEL: But the question is and perhaps this ties in with your point Mr Chair, if that was the instruction and if they were following the instruction and if we are to believe everything that they say in their application is or are the relevant facts, why destroy the identity?  Why more out of the jurisdiction?  What were they trying to hide?

CHAIRPERSON: They were trying to avoid the identity of a man, one of the many that the police have killed.  You see if there wasn't this Amnesty Committee in the Truth and Reconciliation Commission we might not have heard all this in any case.  Yes.  There must have been many others who have been killed about whom we'll never hear, so the idea was kill one person and that's the end of the matter.  Why should it be made known who you are killing?  Why should it be known to others?  Let them believe he's overseas.

MS GABRIEL: In Swaziland.

CHAIRPERSON: Yes.  I'm not saying that they were justified in doing what they did.

MS GABRIEL: Well, on the evidence we have heard and perhaps it's not really fair, but I submit that on the evidence we have heard, we have not heard the profile of an ANC terrorist.  Having been linked to the Bhengu murder one would have thought that an MK terrorist would have gone into hiding immediately, not wait to be abducted or wait to be met by MK terrorists a week later.

CHAIRPERSON: Well quite clearly on the evidence of the witness that you've called, the person who served a term on Robben Island, who said that as far as he's concerned he was not a terrorist.

MS GABRIEL: He could never link him.

CHAIRPERSON: Yes, to any terrorist activities as such.  The high water mark against him was not that he was a terrorist, the high water mark against him is that at one stage he was found in possession of a limpet mine.

MS GABRIEL: Yes.

CHAIRPERSON: That's as far as it goes.

MS GABRIEL: Yes, and whether that's really justifiable for the end that he met, but then we don't have Mr Taylor before us.  If we are to accept the very clever distinguishing that has been presented to you by the first and the second applicant.
	My final submissions are these, that the applicants have not made a full disclosure and that is not because we cannot present evidence to the contrary.

CHAIRPERSON: I understand that.

MS GABRIEL: But that is because they have presented very limited evidence, have suddenly recalled miraculous details and have left out ...(intervention)

CHAIRPERSON: I hope - they've now recalled miraculous details.  Does that mean that they've now made full disclosure?

MS GABRIEL: Well the question is, what more don't we know? And that is the basis on which the Ninela family says ...(intervention)

CHAIRPERSON: And how are we going to know?  You see this Committee has a problem.  How do we deal with facts like that when we don't know, you see.  I mean it's always a possibility to advance an argument that we don't know this that and the other.  There are things which we'll never know.  We have to deal with the facts as we know them and unless we can prove a lie, which can throw some light on motive, then you reject all that evidence of one person or the other.

MS GABRIEL: I take the point, Mr chair.

CHAIRPERSON: Right.

MS GABRIEL: So that was my first submission.
	Amnesty, I would also submit, is my final submission, that if indeed the instruction was to execute, were they justified in desecrating the body?  Were they justified in blowing it beyond all recognition?  At the very least they should not be indemnified for that gross action.
	Those are my submissions, Mr Chairman.

CHAIRPERSON: Thank you very much.  Is there anything you wish to say?

MS THABETHE: No, Mr Chair.
NO ARGUMENT BY MS THABETHE

CHAIRPERSON: Ms Gabriel did I understand you correctly to say that you are anxious because of some other developments that have taken place, to be excused?

MS GABRIEL: Yes, that is true.