Amnesty Hearings — Johannesburg — 1999-02-18

MS MOLOISANE: The fact Madam Chair and Committee Members that I want to highlight is the fact that the two applicants went about looking for ammunition, and if their intention was purely criminal, if they had intended to rape the two girls, surely they could have taken them along and not left them behind when going about looking for ammunition.  But because the main reason why they had to go about looking for ammunition was for them to be able to carry out the orders as had been, they had been given to them by their commander ...(intervention)

MR LAX: In that regard, the order was to kill them on sight.  They didn't kill them on sight.  They were taking them for questioning first.  That's your clients' version.  They were going to get the ammunition, but they were taking them for questioning.  It was only at a later stage that Radebe then decided to forget about the questioning.  Again, he makes that decision himself, to forget about the questioning, and then he kills her.  There's a consistent pattern here, where in both instances, in both events, in spite of an order to kill them on sight he doesn't do that, he then purports to have something to do with questioning them and getting information and what have you, and then at a later stage of his own initiative then carries out the order.
	So, there's some disjuncture there that doesn't make sense, certainly to me, and maybe you can explain that to us or address us on that.  If he was so strict about following his orders as he implies and as you are arguing, why then did he do these other little things on his own first, and not carry out the order?  The other thing is that it's not a disputed fact that Ntjolo had a knife on him.  Why didn't they just stab them, kill them to death with the knife, there and then?  If that was their intention.

MS MOLOISANE: I was just about to say that this appears to have been John Radebe's modus operandi not to kill them instantly but to take them for questioning first.  But regarding ...(intervention)

CHAIRPERSON: But wouldn't you argue against ...(indistinct) and say he's probably enjoyed to torturing people, particularly women.  And that the fact that he didn't kill them there and there does not again detract from the fact that he ultimately carried and executed the order that had been given.  He was a particularly terrible SDU member who did not mind to walk distances with one of the women who was bleeding from either the neck or the chin, from the evidence of Ms Mokoena she had been shot in the neck.  From the evidence led at the trial, she had been shot in the chin, but the fact of the matter is that did not disturb Mr Radebe, simply because that was his make up.  He wanted to have them tortured first and ultimately carry out the order to kill them.

MS MOLOISANE: Madam Chair and Committee Members, to some extent I agree with the Chair that he decided not, he had decided not to carry out the orders immediately but to go off with the girls, but I do not want to submit that perhaps he enjoyed torturing them before killing them, or before carrying out the orders.  That point I never canvassed, neither was it canvassed by my learned friend Ms Thabethe, as to why he went about with them before executing the orders as he had stated.

CHAIRPERSON: No, that was a point that was extensively canvassed, both by Ms Thabethe and members of the Panel, and no plausible explanation could be given by Mr Radebe.  So much that I draw an inference which inference would be in his favour in any case.  Proceed therefore, but otherwise you may proceed, you are here to make your submissions.

MS MOLOISANE: Madam Chair, as far as that point is concerned I don't take it any further.  Coming to the knife, the issue of the knife, ...(intervention)

CHAIRPERSON: I thought you had already covered that, that it was not his way of killing people.

MS MOLOISANE: I don't in his own evidence he said that he, it was a standing rule that they should not touch the victim's blood and that according to him the easiest way to do that, to execute, to carry out the orders, was to use a firearm.

CHAIRPERSON: Yes, proceed to another aspect.

MS MOLOISANE: Madam Chair and Committee Members I therefore submit that this act, act for which the applicant now seek amnesty fall within the ambit of the Act, and that the murder and the attempted murder were carried out in execution of orders and that there was nothing that the applicant could have done by virtue of the fact that they were members of the self defence unit and had to act in accordance with orders that had been given to them.

MR LAX: Carry on.

MS MOLOISANE: I further submit that this incident for which the applicants are now seeking amnesty fall within the ambit of Section 20 Subsection 2 and Section 20 Subsection 3 A, B and E.  And I have no further address unless if the Committee Members still want me to address them on specific issues.

CHAIRPERSON: We are satisfied with what you have addressed us on.  We have indicated our difficulties as you were going along with your address, and you have attempted your best to address us on those that we drew your attention to.  Ms Thabethe do you have anything to say?

MS THABETHE: Madam Chair, I find myself in a very difficult position as far as this matter is concerned.  The reason being, as an Evidence Leader, I hold a certain view, and as someone who represents the victim I hold a certain view as well.  However, as a legal representative for the victims, I think the problem, or the difficulty that I find myself in is that I would argue that with regard to the killing Hapile Ndumo and the attack on Elsie Mokoena, the ...(indistinct) I would argue that it was not proportional in the sense that, proportional to the objective to be achieved in the sense that even 'though Mr Mhlongo had testified that there was a thorough investigation as to find out whether they were really spies or not, it also comes from his evidence that there wasn't really any investigation as to prove whether they were spies or not.

CHAIRPERSON: Ms Thabethe.  I'm definitely on the same wavelength with you.  You are saying you are objecting because the offence was not proportional, to what?

MS THABETHE: To the objective that was sought to be achieved.

CHAIRPERSON: Now what was the objective?  Wasn't the objective in terms of the evidence led before us by the applicants as well as the witnesses who were called in to support them, very unanimous on this issue of what objective was sought to be achieved by them, and that was to kill them because they were enemies of the people.

MS THABETHE: Madam Chair that's precisely my point, that there wasn't proof as such and there weren't investigations conducted to prove, but maybe let me explain what my difficulty is.  My difficult is that we are faced with the applicants who were carrying out an order.  Maybe if we were faced with the commanders I would have argued better on behalf of the victims so as to say that there wasn't much investigation done, and probably the basis for having reached the conclusion that they were spies really lacked the relevant investigation that had to go through, and nevertheless, also it was not verified as it was the principle of the ANC to verify such issues.

MR LAX: Isn't the argument this, that on one hand if the applicants are relying on an order, and the evidence points to the fact that that order was probably not given based on the fact of all the other surrounding facts.  In other words the probabilities based on the evidence produced by the applicants, in support of the applicants, is that there probably wasn't an order given, or even two orders given, cause if there had been there would have been verification on all those other issues.

MS THABETHE: With due respect Mr Lax, I wouldn't follow that argument because these people were commanders, they were ...(intervention).