Amnesty Hearings — Durban — 1999-11-15

UNKNOWN: On the 3rd of May 1994, not on that day, he was just visiting, but he was aware that there would be at some stage an attack on these people and it just happened on that day.  That is the difficulty.

CHAIRPERSON: Yes, well that is the conspiracy aspect of it.  We're talking about the actual murder, whatever these crimes were, whatever they might have been, I'm not even sure now, it's a murder and attempted murder?

UNKNOWN: My instructions are that he was not a party to any of that.

CHAIRPERSON: ...(indistinct - mike not on) in respect of the actual offences of murder and attempted murder.

UNKNOWN: On that particular day,yes.

ADV BOSMAN: Ms Loonat, in so far as the possibility of conspiracy is concern, my notes have it that he says he was never at a meeting where it was discussed, he only heard about this decision that they should be killed.  Now where does that take us, if my notes are indeed correct, in so far as conspiracy is concerned?  Would that found a basis for conspiracy?

CHAIRPERSON: What was his evidence?  Can you help us?  What was the evidence that he gave in respect of the decision to kill these people?  He said their names came up at this meeting.

UNKNOWN: That's all.

CHAIRPERSON: Yes, and then?  What else?  How did he relate the fact that there was a decision to kill these people?   What did he say?  Was he at a meeting where this was discussed, did he hear it via the grapevine, was it a "skinderstorie"?  What was it?

UNKNOWN: My instructions are that when he attended the meetings which they did under Shadrack Mahletsha, this came up in the course of their meeting, in their discussions.  It was just tossed around at random.

CHAIRPERSON: Was he present at those meetings where, or at a meeting where this...?

UNKNOWN: Those are my instructions.  Yes, he was present at some of the meetings where these names were tossed around but it wasn't actually decided upon, that's what I understand.

CHAIRPERSON: My colleague's note says that he just heard about this thing.

ADV BOSMAN: About the decision.

CHAIRPERSON: Yes, he heard about this decision, he was never at a meeting where ...  I don't want to go through the evidence here, I thought you had already...

UNKNOWN: I need to look through my notes.  According to my notes...

CHAIRPERSON: I appreciate in chief, you obviously are limited in taking your notes, perhaps some of the other colleagues of yours could help me with it.  Any case, because it is important.  If he only heard that there was some talk that these people are going to get killed, then of course he's not party to the conspiracy.  He can only rely on a conspiracy if he was at the meeting where that decision was taken.  He said he knew they were going to get killed sometime, but he just didn't know when exactly because he surmised that these people didn't trust him because he had some link to Sibiya and they thought he might not be appropriate to execute, although your other client says no, well he wasn't trained in the use of big arms, that's why they never asked him to come along.

UNKNOWN: According to my notes the question  was
Were they going to attack Sibiya on that day?  Did he know if they were going to attack Sibiya on that day and his answer was:  "Names will come about people to be eliminated" but on that day he didn't know anything that a decision was made about this gentleman.

CHAIRPERSON: If there's no clarity, if your colleagues can't help us, it's a simply matter, we'll have to just get that portion of his evidence, to see exactly what he said.

MS JELAL: Mr Chairperson, if I may come to your aid.  It was a question that I had posed.  The question was
"Were you ever instructed by your ANC elders to attack and kill Sibiya and Mthembu?"
and his reply to that was that he had heard about it but there were no direct instructions given.

CHAIRPERSON: Yes, no I thought he gave the evidence in chief when Ms Loonat was asking questions.

UNKNOWN: Yes, it was in chief, in my notes.

CHAIRPERSON: Yes, where he was saying that he knew they're going to get killed, he just didn't know when and he surmised about the reason why they didn't tell him exactly when they wee going to kill these people.  He thought that perhaps in the view of his comrades he would be too close to Sibiya and that's why they didn't tell him when and then Khuzwayo came and he said ;
"Well, we met on the day.  We didn't ask him to come along because he didn't have our special military training with the big guns."
And that is why I thought that perhaps you might have a note on the evidence in chief that might be of assistance, but let's approach it on this basis, assume the position of your client is that he only heard that these people were going to get killed, he was not present at the meeting where a decision was taken, where this thing was discussed, a decision was taken to kill these people.  What is your submission then?   If he only heard about this, he was never party to a discussion?

UNKNOWN: Well, what I've written here was,
"Names will come about of people that were common enemies."

CHAIRPERSON: Yes, but no, I'm sorry to interrupt you, this is a hypothetical position because we're not clear now what exactly the evidence the evidence is.  We will ascertain it, we've got the record, but let's assume, argue it on this basis, assume your client said that he only heard about this, he was not at a meeting where a decision was taken, in other words he was not party to a decision by being present at a meeting where a decision was taken, he only heard about it, where does it leave you in respect of a conspiracy?  Would it still be a conspiracy, or would it not be if he only hears, he's not party to the decision.  Would that not mean that he can't rely on a conspiracy?  He wouldn't be part of a conspiracy?

UNKNOWN: It's not part of the conspiracy when the decision was made, yes.

CHAIRPERSON: He only heard about it.

UNKNOWN: But it was something that was going to happen at some future date.

CHAIRPERSON: Yes, but is your submission that if he was indeed present at a meeting where a decision was taken, he would then be part of a conspiracy?

UNKNOWN: That is so.

CHAIRPERSON: Alright.

UNKNOWN: Thank you.

CHAIRPERSON: We'll see what the evidence says.  Sorry, is there anything else that you wanted to add about Mr Nkwanyana?

UNKNOWN: No, Mr Chairperson, thank you.

ADV SANDI: Sorry Chair, just for my own clarity.  In respect of this particular applicant, what offence exactly are we talking about here?  What is he applying for?

UNKNOWN: I find that difficult because my instructions were simply that he did not want to apply for political amnesty for the act for that particular day, because he wasn't present on that particular day.  However, for all other instances where he was an active member and he has taken part.

ADV SANDI: Yes, but the events of that particular day, is it not exactly what is in issue for the purposes of these proceedings?

UNKNOWN: That would be my understanding Sir.

CHAIRPERSON: In fact that is what is in his application form, that's why we're here today, that's why we brought him here with Mr Khuzwayo, because they apply in respect of the same incident, so we have to decide whether he has made out a case at all in respect of these incidents that are now before us.  We haven't investigated the other matters.  What is right for hearing is the murder of Nkosi Mthembu and attempted murder of Sibiya, so we have to decide those two incidents here.

UNKNOWN: I did explain that to him, the purpose of a political amnesty and my instructions were simply that  if he wasn't present that day ...

CHAIRPERSON: Yes, but I mean that doesn't, it's a lay person, we're debating the technicalities of the matter.

UNKNOWN: That he should be applying for amnesty based on all his general political activities.