Amnesty Hearings — Nelspruit — 1999-02-03

ADV BOSMAN: Mr Claassen, I am sorry Madam Chair, I did not realise you were going to pursue it further.  Mr Claassen, shouldn't you then at least, if you accept the truthfulness of Ms Msibi's evidence, shouldn't you argue the possibility of possible mistaken identity?
	I mean if you should argue that there could possibly have been mistaken identity, you need not necessarily argue that Ms Msibi was an untruthful witness?

MR CLAASSEN: Thank you Madam.  Madam this is true, and it is so that Ms Msibi stated that she did see the applicant as the person who actually threw something at the bus.  Madam Chair, it is as I have said, my instructions are that the applicant were indeed on the scene, but not actually throwing anything at this particular bus.
	In view of this, Madam Chair, it is my further humble submission that a mistake might have been made.  It is true that the applicant in his own version, said that he was present when this occurred and in view of this, it is my submission that surely the possibility arises that Ms Msibi might have seen the applicant, but not actually throwing these projectiles towards the bus.

CHAIRPERSON: In that case, it is not a question of mistaken identity, is it?  It is a question of mistaking what Mr Radebe was doing at the time when Ms Msibi saw him?

MR CLAASSEN: That is indeed correct Madam Chair.

CHAIRPERSON: Wouldn't in that case of mistaken identity, still be saddled with the fact that Ms Msibi's evidence stood unchallenged when she said she knew Mr Radebe for almost 13 years and could recognise him even with his back facing her?

MR CLAASSEN: That is true Madam Chair, that did in fact go unchallenged.  It remains my submission however that as stated, he was on the scene and as such, recognised but not doing what was perceived or what the witness thought him to be doing.

CHAIRPERSON: Yes.  You remember that Mr Radebe put the actual perpetrators of this offence, to about 20 paces away from where he was, about 15 paces?

MR CLAASSEN: 15 paces, that is correct.

CHAIRPERSON: 50?  To about 50 paces from where he was, you recall that?

MR CLAASSEN: I do.

CHAIRPERSON: Can you make something out of that?  Is there any argument you can proffer that would probably show Ms Msibi's innocent identification of Mr Radebe probably around the scene of the crime, which would then probably lead her to think that because she saw him there, and after seeing him there, there was this explosion, that it connects Mr Radebe to the actual throwing of the bomb?
	Is there anything that you can make out of that evidence?

MR CLAASSEN: Madam Chair, I am speaking under correction, but I think the distance which was established at the actual throwers by the witness, the distance from the bus, were much closer than the actual distance that the applicant alleges he was from the bus.
	Madam Chair, once again, I think the evidence and I stand to be corrected, of Ms Msibi was that the bus passed the applicant and after that, she saw a fire and then the explosions, or the fire inside the bus.
	Madam Chair, 50 paces is a relatively long distance.  Maybe just getting to the point that the accused once again, might have been seen by Ms Msibi to be part of this incident, whereas he was actually relatively removed from it all, but being a traumatic experience, this is a detail which stayed with her.

CHAIRPERSON: Obviously one must have regard to the fact that the bus was in motion?

MR CLAASSEN: That is true, the bus was in motion Madam Chair.

CHAIRPERSON: Is that your address, I suppose?

MR CLAASSEN: That would be the conclusion Madam Chair.

CHAIRPERSON: Yes.  Mr Sithole, do you have anything on which you would want to address this Committee?

MR SITHOLE: Yes, Madam Chair.

CHAIRPERSON: You may proceed to do so Mr Sithole.

MR SITHOLE: Thank you Madam Chair.  I think there is no dispute as to the political motivation of the offence.  The only outstanding aspect in my view is the question of full disclosure.
	It is my submission that the applicant Mr Radebe, has failed to show to this Commission, that he has disclosed fully the incidents leading to the attack as well as his participation in the attack.
	The victims as well as the evidence of Johanna Msibi, state clearly that he was one of the perpetrators and she also gives a background as to why he committed the said offence.
	When Mr Radebe is asked as to why he misled the trial court, there are three different answers that come forth.  He initially told this Committee that he doesn't know, he again said he was protecting himself as well as his colleagues, and in the affidavit that is before this Committee, he states further that he was told to admit the offence by his colleagues.
	Those are signs of failure to disclose as to the circumstances, the full circumstances relating to the commission of the offence.
	If Mr Radebe came to this Committee and led this Committee as to the real reason why the offence was committed and that he committed the offence, there would be no reason why this Committee wouldn't give him amnesty.  It is a clear indication that yes, there was a fight between UWUSA and FAWU and there is a perception nationally that UWUSA is a union which always aligns itself with IFP and on the other side, FAWU aligns itself with the ANC.
	I would ask this Commission to dismiss his application only on the basis that he failed to disclose to this Committee, thank you.

CHAIRPERSON: Mr Sithole, how probable is it that a person who has already been convicted of an offence, on the basis of his direct participation, as testified to be Ms Msibi during the criminal trial, how probable is it that that person could apply for amnesty and deny his participation when it would have been quite simple to admit his participation knowing full well that that would be supported by the version of events given by Ms Msibi during the criminal proceedings?  Do you think a person would take a chance and expose himself to a risk of not admitting to that aspect of his participation but proceed to give details of the planning that resulted in the commission of the offence?

MR SITHOLE: Madam Chair, it is my view that although the applicant admitted to the planning, he doesn't go beyond the planning phase.  Madam Chair, there are witnesses who came before this Commission and identified the applicant as a perpetrator, and to a certain extent Madam Chair, the applicant has not done anything to convince this Committee that those witnesses are misleading the Commission.
	It is my submission that the applicant has something that he is hiding to the Committee, and if the applicant had come to this Committee and admitted having committed the offence, maybe there might be something that he is trying to hide Madam Chair.

ADV BOSMAN: Let's assume the applicant gave the evidence which he gave before this Committee, at the trial court, what would your submission be, of what would he have been convicted?

MR SITHOLE: Madam Chair, I would agree with Mr Claassen when he says that he would be convicted as a conspirator and not as the actual perpetrator of the offence.

ADV BOSMAN: This is not how I understood Mr Claassen's argument.  I understood Mr Claassen's argument to be that he would have been convicted as a co-perpetrator?  Would you not agree with that argument?

MR SITHOLE: I wouldn't agree with that at all Madam.

ADV BOSMAN: May I put this proposition to you on the evidence that was before us, is there any room for a construction that the Committee who decided on the murder and planned the murder, were the prime perpetrators and that the operatives, played no other role, than a hired gun would have played?
	In other words, they were instruments used by the perpetrators to commit the murder?  Is there any room for that argument perhaps?