Amnesty Hearings — Nelspruit — 1997-06-12

ADV TEE: Now, Mr Chair, I have dealt with that.  What I am submitting is that if one reads the record he was starting to get confused at that stage of the questions from Mr Black as to the general and the specific order and if one reads the record again it becomes quite clear if one keeps in mind  that he had started to get confused, because it is true, it is true that he did say at one stage, yes, the name came from Hani, but he was backed into a corner.

BERNARD MAKGABO NGOEPE: Now, wait a minute.  Just a minute.  I do not  think whether you will be right to say that he was confused.  If, I am looking at the record, for example, page 53.  Mr de Jager asked a question.
"Can you tell me did you on visiting head office and speaking to Mr Hani, did you mention the name of Mr Shabangu".
and then Mr Nkuna answered,
"I mentioned it, not it alone, with many."
and
"Was it then planned that he should be removed?"
Mr Nkuna,
"Of course".
And then Mr de Jager,
"And did Mr Hani approve of that".
Mr Nkuna,
"Yes".
Mr de Jager,
"So that was not a general instruction, it was a specific instruction there?".
Mr Nkuna,
"Yes, it became specific in that manner".
and then he went on and then Mr de Jager came back again,
"Yes, could I summarise it.  Do I understand you correctly that he said as a general order eliminate agents?".
Mr Nkuna,
"Yes.  Of the Government?  Yes".
Then Mr de Jager came back again to the specific order
"As a specific order he told you to eliminate Mr Shabangu?".
The answer,
"Yes".
And then at that stage I intervened precisely because I wanted to clear this possible misunderstanding about the general order and the specific order.  I interjected at that stage and I said,
"Sorry, we must make sure that we are on the same wavelength here".
Mr Nkuna said,
"Yes".
Then I continued,
"So, are you saying that the name of Mr Shabangu was actually mentioned in the discussion with the late Mr Hani?"
Then he says, 
"Yes".
And then I said,
"That Mr Shabangu should in fact be eliminated?"
Then he says,
"Yes".
Then I asked him,
"In your presence?"
He said,
"Yes, in my presence".
And then Mr Patel took further from that point, but what I am trying to say to you is that if you go back to the point where I actually came in, my purpose of coming in at that stage was precisely to clear up the point you are trying to raise now, that there was a confusion about the general order and the specific order and that is why I came in at that stage and I said let us be sure that we are on the same wavelength and I do not think I could have put it any clearer than that.

ADV TEE: Now, Mr Chair, what my submission is there that his statement that was read into the court record at the start sets out correctly the time, date line.  It sets out correctly that time, date line.  Now this is one of the aspects which is subtle about this application.  I submit that it is quite clear from the general body of evidence that the general order came early in the year and the specific later at ...

ADV DE JAGER: I do not think we are quarrelling with that.  There was a general order, I think it was well known that agents of the State should be acted against, because they were seen as sell-outs and traitors.  So we do not quarrel about a general order or that his perception that they should be dealt with.

BERNARD MAKGABO NGOEPE: I do not know, Mr Tee, you are free to go, to pick up maybe a few points and just and, you know, and highlight, but I am quite convinced that it would help a lot if you revisited the record.  I am saying that you are free to argue points if you want to argue them, but I really believe that it would help a lot if you would revisit the record.

ADV TEE: Mr Chair, what I will do is I will be able to deal with those submissions then more fully in the written, as the court pleases.  I want to get then to the last aspect of the full disclosure, because it necessarily relates to Section 20 subsection 3.  It is one of the facets that is going to be exercising the mind of the Committee when the Committee decided on amnesty and this relates to the Act of Parliament itself.  Now, in brief that Section relates to whether a political act is an act associated with the political act, objectives shall be decided with reference to the following criteria.  The motive, the context of ...

SISI KHAMPEPE: Mr Tee, I think we are familiar with (indistinct) so you can skip having to read the criteria.  We are familiar with that.  Get to the point.

ADV TEE: The question of the one that has not yet been highlighted is C.  The legal and factual nature of the Act omission or offence including the gravity of the Act.  Now, when you are granting amnesty this Committee operates in a position where it is actually exercising a discretion, because it is not a hard, a hard court case where there has to be a precise decision.  There is an element of discretion, because the Committee takes into account all of those factors.  One of the factors that needs to be highlighted is that although the act that they set out to perform is completely reprehensible.  It is the killing of somebody.  In fact, the gravity of that transpired by virtue of the failure of the attack not to have been as severe.
	In other words this is not an application of some people who are convicted of the crime of murder.  This is an application of people who are convicted of the crime of attempted murder and that necessarily would weigh in the Commission's mind.

ADV DE JAGER: If in fact there was an instruction and in fact if he believed that this man was a sell-out and a traitor, I think in the prevailing circumstances we will accept that the act was, could be carried out.

BERNARD MAKGABO NGOEPE: In other words it can have been out of proportion.

ADV DE JAGER: Yes, I mean ...

BERNARD MAKGABO NGOEPE: To start off with they did not know that there were seven people in the house.  I mean, the fact there could have been 20 people and all that kind of thing and the fact that they are convicted on six, five counts of attempted murder really is neither here nor there as far as we are concerned.  After all they did not know there were so many people in the house and the like.  So it can be out of proportion.  Most probably even if they killed him given the nature of the conflict, that might not have been out of proportion.  I do not know whether it will help you if one were to point out certain things which perhaps are a little bit troublesome particularly with regard to Mr Joe Nkuna's application.  The rest of the things, maybe, you can fill them up after revisiting the record in the line, but we are particularly keen to hear you on one or two points which are a little bit troublesome.  You may deal with them again in your written arguments.
	You see the point was raised that possibly the attack could have been as a result of certain allegations made by Shabangu or discovered by Mr Shabangu with regard to misappropriation of funds.