Amnesty Hearings — Durban — 1999-09-22

CHAIRPERSON: I am mindful of that but you will also appreciate as a lawyer that we have to decide the fate of these applications on the basis of the evidence led before us, we dare not go outside the parameters of what is before us.  So please lets do what we have to do in a proper decorum.  We have to confine ourselves to that evidence that's before us and the evidence that's before us is what was subjectively perceived by the applicants to have been the situation between Mr Phewa on the one hand as a perceived member or alleged member of the SACP and themselves as members of the ANC and the conflict that existed at the time.

MS MOODLEY: To address you on that, Chairperson, I would submit that in this particular incident, the weapons that were used were given to the applicants from within the - the members of the organisation handed firearms to the applicants and which were used in the execution of this particular brutal murder.  The applicants at the time were of the view that they were defending the positions of the particular organisations that they belonged to at the time.

CHAIRPERSON: And how were they defending, what interest would have been achieved by the killing of Mr Phewa?

MS MOODLEY: They were protecting the interests of the organisation in that numbers of the organisation were being depleted, there was fragmentation, there was now factions being created and the discipline of the organisation was being undermined.

MR MALAN: Just on this argument, was the evidence not that they were doing this in the defence of Mr Mkhize that they wanted there?  But at the time of the incident Mkhize had already been deposed?

MS MOODLEY: Mr Malan, Mr Mkhize today is still a disciplined member of the ANC, he is in leadership, there was never a question of - in the interest of expediency, a decision was taken at a meeting at which members of the organisation from Pietermartizburg were present where an attempt was made to deal with the situation and I want to expand on this because I think it has relevance.

MR MALAN: Ms Moodley, really, with all due respect, you can't give evidence here.  I'm arguing about the evidence before us and my question is simply this, was the evidence not that they weren't trying to establish discipline but they were fighting people in support of Mr Mkhize, frankly on the evidence, against his wishes and orders after he had been removed as chairperson?

MS MOODLEY: With all due respect, Mr Malan, it's a very simplistic interpretation of the events because I'm actually giving you a full disclosure now about what happened in relation to the incidents where the two applicants were present at meetings.

MR MALAN: Ms Moodley please, with all due respect, it's not for you to disclose it at this stage.  You're busy with a submission which is an argument based on the evidence before us and you can deal with that.  I mean we have no doubt in our minds that there was an internal conflict within the alliance structure between basically ANC and SACP members, we have no doubt about that, that's clear before us.

MS MOODLEY: Chairperson, with all due respect, I would ask for the excise of your discretion in listening in what I need to make a submission on in relation to the particular incidents that were referred to in evidence of the meeting where Mr Gwala was called upon to attend at Wembezi to try and appease the ranks and broker peace within the disputing factions and when he left that meeting an attack was launched on Mr Gwala from neither side.  He was attacked and he was ambushed and the impression, the perception that went out the community was that one of the factions were responsible for the attack on Mr Gwala.  So there is here ...(intervention)

MR MALAN: Where do we have that evidence before us?  Was that evidence tendered?

MS MOODLEY: Mr Malan if you read those exhibits, those exhibits are going to help you tremendously.

CHAIRPERSON: Yes, no other than the exhibits because the exhibits do not form part of the evidence before us, they have to support the evidence tendered by the applicants but there was some reference thereto by Mr Mngomezulu in either in his evidence-in-chief but I think most probably under cross-examination.  But what was Mr Malan's problem was are you saying that the objective that they sought to achieve was to make sure that they instilled discipline within their structures and the killing of Phewa would have furthered that kind of discipline that they wanted to instil.  That was the crux of his question.

MS MOODLEY: I don't think the organisation would have organised killing of people but there is implied - I mean if someone is hungry and if there is food he will eat it, if someone is under attack, if someone has to protect himself, he will protect himself.  I'm saying that the command didn't come from the structures to say eliminate opposition, but when you are on the ground and when you are at the cold face, it's easy for us to sit in our armchairs now and debate about the particular responses of individuals but looking at the evidence holistically, I am saying there's a case to be made for an application for amnesty to succeed given the circumstances that prevailed at the time.

CHAIRPERSON: Yes and what would you say in a nutshell, what in your submission are you saying whether objectives which the applicants sought to achieve when they committed this particular act?

MS MOODLEY: They sought to protect the organisation and it's numbers.  It's numbers would obviously be impacted upon if you had fragmentation, if you had dissident groups and I'm using the word dissident very, very generously because I don't really know the merits of that particular debate but I'm saying that there is a political objective.  If you want to see to it that your numbers are not being depleted I would submit that that is good and sufficient political objective.

CHAIRPERSON: And would you therefore say that that was why they were opposed to anyone who did not support Mkhize who was an ANC leader and to whom the applicants saw as the right and only leader for their organisation?

MS MOODLEY: Would you repeat that question?

CHAIRPERSON: Yes, would you therefore contend that the applicants were protecting Mr Mkhize as a person they saw as the only rightful leader within the ANC, that they would have done anything to depose a person who sought to be seen as a rival of Mr Mkhize in the struggle for leadership?

MS MOODLEY: I wouldn't cut it as finely as that, I would say and this is now subjective as well, my opinion would be that they would be protecting the ANC particular structure at the time in Wembezi. I'm not individualising it to Mr Mkhize as the person in leadership.

CHAIRPERSON: Yes, the evidence however is that what really prompted them to do what they did initially was that they were in support and in defence of Mr Mkhize to an extent that they had to guard Mr Teaspoon Mkhize, that was their evidence.  I think this is where the problem started, when Mr Bheki Nsimande left to form his own party and started spreading rumours about Mr Teaspoon Mkhize in an attempt to depose Mr Mkhize as the leader of the ANC.  I think that's really what prompted the conflict, that's where the conflict starts, that's how I understand the evidence of Mr Mngomezulu in particular.

MS MOODLEY: I will concede that.

CHAIRPERSON: You may proceed.

MS MOODLEY: Honourable Chairperson, in respect of the full disclosure of the relevant facts, I know Mr de Jager raised the indiscrepancies in relation to the different depositions made by the applicant Thulani Madlala in relation to the non-disclosure at the initial stage.

CHAIRPERSON: It is honest disclosure as opposed to a non-disclosure.