Amnesty Hearings — Nelspruit — 1997-06-12

ADV TEE: I could certainly do that or I could certainly do that, Mr Chair.  The essence of the evidence that is before this Commission is the following.  When the African National Congress was unbanned in 1990 and the United Democratic Front joined with the African National Congress in 1991 what had happened is that there were three layers of political allies.  There was the South African Communist Party, there was the African National Congress as a political organisation and there still existed MK.  Inside the African National Congress there were three parts.  There were members of the African National Congress who had been underground, there were members of the African National Congress who had returned as exiles and there were members of the African National Congress who had come through from the United Democratic Front.
	It is also clear, certainly from the submissions of Mr Joe Nkuna, that the forces of South Africa who were looking after the security interests of the National Party Government at the time were aware of the overlays and overlapping of the liberation movements engaged in struggle against them.  The overlapping and overlay was exploited and mercilessly exploited by the mastinations of the security police and various other persons who set out deliberately to sew dissention amongst the ranks.  This was set out in the affidavit, at least in the submission which is now under oath, from paragraphs 43 and 44 and continuing through the document of Mr Joe Nkuna.  The effect was that South Africa, even after the unbanning of the African National Congress and its various allies, suffered a time of trauma where there was a lot of internecine fighting, a substantial amount of which had been instigated by the political forces in favour of the Government operating against the liberation movement at the time.  That is the general background and context in which all of these events must be viewed.
	One of the simplest and most effective methods that was employed at the time, as set out in Nkuna's affidavit, is that a level of disinformation would be sewn between the parties.  The disinformation necessarily then amounts to the following.  A certain number of people would be impeached within the ranks of the ANC from different areas of the ANC itself and the South African Communist Party and members coming in from the United Democratic Front.  There is nothing at the moment to say that this method of operation was not employed also by the former State in this province Mpumulanga.  
	As a result of this the security forces were able to exploit the divisions that necessarily existed by virtue of the overlay and the overlap between the organisations.  Once the divisions began to be exploited there occurred the attack which forms a background to this application.  An attack in October of 1991 upon Joe Nkuna himself.  This attack had some fascinatingly interesting features with regard to the actual motivation of the attack.  The first aspect was that it was certainly not a robbery.  The second aspect was that the briefcase containing documents was the only thing missing from the scene of the attack after Joe Nkuna had been attacked.
	Now, you will recall that in the cross-examination by Mr Patel a number of theories were put forward with varying degrees of forcefulness that the attack was precipitated by virtue of somebody being upset about Mr Joe Nkuna's infidelity with a member of the party.  There is no evidence to support that.  That the attack was done on the basis of some faction, there is still no evidence to support that.  Indeed, the evidence of Mr Nkuna is that he believes, and with justification, that some form of security force agency was responsible for his attack.  The significance of it being that his briefcase was stolen not his watch, not his money, not his clothes, not his shoes.  What is even more certain is that all of his Comrades in the area who were members of the African National Congress at the time were quite convinced that the attack had been politically motivated.
	The reason for the motivation of the attack would have been, probably, that he was an MK commander himself.  It would also have been probable that he was, it was because he was a prominent member of the African National Congress.  What is interesting further about that attack is that it is clear that the police made absolutely no progress at the time in bringing to book his attackers and, therefore, I would submit that it would be proper for this Commission to find that the attack on Mr Joe Nkuna had been part of the general campaign that was occurring at the time of attacks on activists and that the likelihood and the probabilities of that attack having been organised or sponsored or, in fact, actually carried out by agents of the State is extremely high.
	We then move to Joe Nkuna's version of exactly what happened during 1992.  He stated that after he had begun to convalesce during the early part of the year at a time that he actually cannot remember precisely, but reasonably early in the year, he had had contact with the leader of Umkhonto we Sizwe, Mr Chris Hani.  In that contact, of which there were several, he had received an order which related to a general order.  Now this general order was to eliminate state agents.  It has been put to him in cross-examination that it is very convenient that Chris Hani would have given that order since Chris Hani is not here to contradict him, but it is also common cause that all the parties recognised Joe Nkuna as a trustworthy commander and that is the evidence here.  There is no reason to believe that he did not receive that order and what is most significant is that there is no direct evidence contradicting his version.
	There was ample opportunity by any of the parties interested to have brought evidence specifically to contradict that fact.  That has not been contradicted.  Indeed, the approach of the attorney for the, for Mr Skosana, has been not even to cross-examine on that aspect.  Now, in cross-examination by Advocate Black this Committee will recall that at a time in the later part of that cross-examination, Mr Nkuna got the time, date line of that year wrong.  If one has regard to the record, which is luckily typed, one will see that initially his time, date line was correct.  A few extra questions were posed by Mr Black after which Mr Nkuna started to get confused in his answers and the confusion was later then confirmed when he was posed a question by one of the Committee members, Advocate de Jager.  	My submission in that regard is the following.  That the original answer which he gave is the following and this is the one that should be accepted and is correct.
"The general order to eliminate agents of the State masquerading inside the organisations occurred early in the year probably February or early March in the meetings he had with Mr Hani, but that was a general order.  Thereafter a specific order was given where the name of one agent was produced and that agent was alleged to be Mr Shabangu".
Now, I am leaving my address relating to Mr Shabangu last, because I have some very important aspects to put before the court about Mr Shabangu.  The most important one will be that it is quite clear that the information that he was an agent was and is always false.  It was never true.  It was a feature of the disinformation that was going around at the time, but the time, date line of 1992 I would submit should be found to be the following.  First came the general order then came the specific order.  It is also significant, because this Commission necessarily has to look at the applications of all three applicants when deciding these applications, because they relate similar facts and the same incident.  That twice in the submission of Mr Skosana he mentions the general order and then only the third time does he mention the list of the persons who should be eliminated. 	Now where the two versions overlap is that both versions have general order first, specific person second and where both versions can be clarified is that under Joe Nkuna the general order was early 92 and the specific one late 92 and in Skosana's version the general order and the specific order are both late 92.  What that means is that both parties are, in fact, correct, but that Skosana has not accurately placed the timing of the general order, but Skosana is correct about the timing of the specific order.  The timing of the specific order is October, the timing of the general order is February or March and that would make sense and that is why the attack was carried out, but it does not mean that the information upon which that order was based was ever correct and I will deal with that presently.
	The effect of accepting Joe's version, that is Joe Nkuna, will be the following.  If this Committee accepts that the evidence given by Joe Nkuna is correct this Committee, I submit, will have no option to do anything other than immediately grant amnesty to Skosana and immediately grant amnesty to Conrad Nkuna.  The reason why amnesty will have to be granted to both of them is because they were clearly soldiers under the command of Joe Nkuna and the essence of their applications, I would say, is quite straight forward.  Both of them bona fide carried out orders and the question of whether or not their versions are exactly the same can also be explained when I deal with the question of the commonality of versions. 
	This commonality of versions, I would submit, is the most significant aspect of these applications.  It is quite clear that Mr Skosana met first with Solly Morape and then together they went to Joe.  Solly Morape, according to Joe's version, was a member of the intelligence.  According to Joe Solly and Derick, as he calls them, brought the specific order.  Objectively, he said that specific order arrived in October and objectively we know that they did arrive in October.  Joe Nkuna has made a mistake.  He has assumed that because the two arrived together they both brought the order, but my submission is that this Committee should find that, in fact, Solly alone could quite easily have been the bearer of the name on that order.  If that is so then there is no conflict of versions between the two in any event.  
	Now, why is it then that Mr Skosana's version differs in some slight aspects to the actual attack, because the attack is common cause, it was carried out.