Amnesty Hearings — Durban — 1999-09-21

ADV DE JAGER: The only fact is, we know that the body was in fact in a shallow grave.  I don't think we can dispute that.  The only question would be whether the applicant was present at the stage when the body was put into this grave and the trouble there is that both the applicant and the witness gave evidence that they left the scene together, in fact they walked up the path behind each other, so that's a difficulty.  The only other possibility is that the witness and some of his friends came back later and buried the body, but that's not his evidence, that would be mere speculation and we've got no basis for saying that because both said they left the scene together and so somebody's evidence here wouldn't be the truth and at this stage it seems as though the applicant didn't make a full disclosure in this regard because the objective fact was that the body was found in a grave and you submission is that, as far as I can understand it, is that that is not such a material fact, that amnesty should not be granted, although it may be that he gave false evidence, or even lied or made a mistake on this aspect, it's not material to the actual murder of the deceased.

MR PANDAY: Mr Chairman, it's my submission that the applicant, to the best of the memory he has, he would have recalled that they left the scene, but as you have indicated that from the evidence that we have before us, that the body was obviously buried in a shallow grave.  It is my further submission that the applicant, to what he can remember, has disclosed fully that the body was left by the tree.  I understand the Commissioner's concern that the evidence now is that the body was buried, but at the same time it is also what the applicant can recall and as much as he can disclose fully and to the best of his knowledge, that is what he can remember.  The only difference in so far as - the only contentious point is that when they left, did anything happen to the body and to the best of his knowledge, he cannot recall that the body was buried, but he knows all of them did leave together.

CHAIRPERSON: No, that's not his evidence.  He recalls quite clearly that the body was not buried.  They all left together.  He was able to give us the sequence of who was right in front and he was also able to tell us that the applicant was followed immediately by his own witness.  Of course we will also bear in mind as you argued, about this discrepancy with regard to this pertinent issue.  That's your witness.  You and remember you, have called him to support your application and that's why we are this concerned.  It is not a witness who has been called at our instance, it is your witness.  I suppose that should conclude your submissions?

MR PANDAY: Yes.

CHAIRPERSON: Ms Mtanga, do you have anything to submit?

UNKNOWN: Chairperson, I will be brief.

UNKNOWN: My position is that I'm not opposing this application and to add to the submissions of my learned friend, I would like the Committee to look at the context in which this incident occurred, the background of the applicant and his witness, that this - their operation or their unit lacked the sophistication that one would expect in a typical ANC unit and it is my submission that this has therefore affected even their common structure and hence there was a lack of clear definition into roles played by the people who were in the leadership.  It is my understanding of their evidence that even though Mr Ntshetha was a leader, he was also a community leader, not just a political leader and therefore he took decisions in the community as well and when he was asked by the Panel to give duties that he undertook as a Commander, he focused on the dagga and smoking problems, but when further questions were put to him, it was clear that he was the person communicating with other branches at Osindisweni, at Mawuti, he was in touch with other people, therefore he had been the person who was leading this unit even in political matters other than community problems.

CHAIRPERSON: Is that relevant for purposes of us being able to decide this application where you are not dealing with a person who committed anything on the instructions of any Commander or leader?  Is that relevant, because we are dealing with a person who committed the deed in support of his organisation, he was promoting the interest of the organisation, more than acting on the instructions of a Commander.  He was not executing any order.

UNKNOWN: Chairperson, my understanding of the evidence of the applicant, it is that he followed - he acted upon instructions of Mr Ntshetha whom he had regarded as a leader.  They had appointed him a leader of their group and therefore he had acted upon his instructions and the those instructions are in relation to the killing of the victim and as far as the killing is concerned, Mr Ntshetha gave orders.

CHAIRPERSON: Well Mr Ntshetha did the killing himself.  That's the evidence before us.  The order that was given to the applicant, if it can be termed an order for lack of a better word, was that he must shoot and he couldn't shoot because his firearm could not discharge any ammunition and Mr Ntshetha, the leader, did the killing himself and this is the killing for which he is now seeking amnesty.  He was convicted on the principle of common purpose.

UNKNOWN: That is so, Chairperson.  If you are to grant amnesty to Mr Dlamini as an applicant for murder on the grounds of common purpose, my submission is that he was acting upon the in - in as far as his participation to further the common purpose, he was acting upon the instructions of Mr Ntshetha, whom he regarded as his leader.

ADV DE JAGER: But suppose we would find that he's not telling the truth about the body, what happened with the body after, what would the effect of that be?

UNKNOWN: Chairperson, if we're supposing that Mr Dlamini's not telling us the truth?

CHAIRPERSON: Yes.  We are now sitting with two versions, Ms Mtanga.  We are sitting with the version given by Mr Dlamini as an applicant and sitting with a version given by Mr Ntshetha who has been called specifically by Mr Dlamini to support his application and on this point, with regard to how the body was disposed of, there is this conflict, this serious inconsistency.  Now we are saddled with that situation.  What weight should be attach to that discrepancy, in so far as full disclosure is concerned?

UNKNOWN: Chairperson, I'm not certain as to whether I can answer that question, but my problem - my understanding of his evidence and the problem that I encounter in answering your question is that if he could admit to having seen the eyes being taken, what could have been worse to admit the eyes being taken, than admitting to seeing the body being buried, to me, if he had a reason to lie, he would have lied about the eyes as well, that he never saw the eyes being taken and as a result I find myself in a predicament as to whether the lie is material to the facts that should be fully disclosed before this Committee, or not.

ADV DE JAGER: I know it was denied that the heart was taken out, but wouldn't that be a motive for saying:  "I didn't know what happened to the body afterwards, we left it there.  So if the heart's been taken out later, I am not involved"?

UNKNOWN: That is a probability Chairperson.