Amnesty Hearings — Bloemfontein — 1998-01-29

ADV MEMANI: I will be dealing with Makubalo, maybe we should just finish him off anyway, Mr Chairman.
	In the case of Makubalo, Mr Chairman, my submission is that the evidence of all the other policemen who testified should be rejected as being false. Clearly, they were not being truthful about the incident. 
	One, Mamome, for instance, suggests that he used the vehicle to chase Mr Makubalo while the evidence of the rest of the people suggests that the vehicle was stationary where they had found Mr Makubalo. That would be motivated by a desire on his part to deny that he was chasing after Makubalo and that he fired shots at Mr Makubalo.Two, he made the ridiculous suggestion that there is a policeman who never carries a firearm, and that clearly was motivated by a desire to deny that he fired shots on that day.
	He also denied ever having worked with Motsamai when, in fact, time and again from evidence spontaneously it did appear from the evidence that he did work with Motsamai. And the latest case was that of Coetzee who said that he used to work with Motsamai and Mamome.
	The rest of the witnesses were clearly conspiring against Mzuzwane. That conspiracy is evidenced by the fact that each of them was certain that Mr Motsamai was the only one who shot at Mr Makubalo at all times, and yet during cross-examination it appeared that on their evidence Mr Motsamai and Mr Makubalo were not in their view at all times when the shots were being fired. Now, you would ask yourself, what made them then believe that it is Motsamai only who shot? The only explanation is that they just ganged up against him and decided that they were going to say that Motsamai shot.
	Mr Chairman, there is also the difficulty that each one of them had, which is that they never applied for amnesty, and it cannot be said that the shooting of Makubalo was lawful. In order for the shooting to have been justifiable in terms of, I think, s 49, it would have required that he first should have been warned. There was no suggestion that he was warned. 
	Firstly, there was no suggestion that he was warned that he was about to be arrested. 
	Secondly, there was no suggestion that any warning shots were ever fired at him. So, clearly, not one of them regarded the shooting at Makubalo as being lawful, hence the desire on their part to distance themselves from the shooting.
	Mr Chairman, the probability is that Mr Makubalo, rather Mr Mamome was the first to shoot. He would have been the first to shoot because the victim was on his side. He was the driver, he was sitting on the right side. He would have been the nearest to Mr Makubalo, and that also explains the fact that eventually he caught Makubalo.

MRADV DE JAGER: He was really eager to murder this man, why didn't he shoot him? He was running behind him, he grabbed him, why didn't he shoot him?

ADV MEMANI: He shot and missed. It does happen that people shoot and miss.

CHAIRPERSON: After he had tripped him and he was lying on the ground in front of him, why didn't he shoot him?

ADV MEMANI: Well, Mr Chairman, you would have to ask the same question about Mr Motsamai as well. Why didn't Mr Motsamai shoot him after he was caught?

BERNARD MAKGABO NGOEPE: Well, the answer would be because they didn't want to kill him.

ADV MEMANI: As the Chair pleases.

BERNARD MAKGABO NGOEPE: Another problem is, the suggestion that almost everyone fired shots. To say that everyone of them fired shots, you must also say that everyone of them missed. I mean to me this whole thing really causes me problems. It is one thing to say, after they caught him they assaulted him - that is a different thing - but to say those people wanted to kill this man and so many of them fired shots - everyone of them missed this man he would have been a very lucky person.

ADV MEMANI: Mr Chairman, the evidence was that Mr Mamome fired shots and he missed. The victim ran away, and in an attempt to encircle him, one group went on the one side and Motsamai apparently does not say whether he was with another person on the side of the house, went on the other side. Whilst he was on the other side he heard shots. He does not say that all of them shot, he says that he heard shots, and that is not a suggestion that everyone of them shot. But the suggestion is that it is now being said that he is the only one who shot because there is a conspiracy against him.
	Mr Chairman, we cannot say at the end of the day that because several shots were fired at Makubalo and people missed Makubalo, therefore there was no intention to shoot him or that no shots were fired at Makubalo. Of importance is that Mr Motsamai is applying for amnesty as a result of the fact that he together with other policemen fired shots at Makubalo, reckless as to the consequences of firing those shots at Makubalo. It is not his application that they purely wanted to kill him; he says, "we went there to arrest him or to kill him, we did not care", and that is the basis of his application.
	Mr Chairman, may I look through the notes? At the time I was interrupted I was saying that Mr Motsamai's commission of these offences was clearly not for personal gain and there was no personal malice that motivated Mr Motsamai to commit these things. If there had been any friction between the people that he attacked and himself, it arose only because of the fact that they were activists and he was a policeman.

CHAIRPERSON: Why would they want to catch Makubalo?

ADV MEMANI: Makubalo was alleged to have killed ...[intervention]

CHAIRPERSON: Motsamai's informer, wasn't it?

ADV MEMANI: On his version it was Mamone's informer.

CHAIRPERSON: The other version is that it was Motsamai's informer, a very clear personal reason.

ADV MEMANI: Mr Chairman, this is exactly what I am saying, that it is not a personal reason; it is something that arises because Makubalo is an activist, Kozi is a political informer and Motsamai is a policeman.

CHAIRPERSON: And the evidence that was led before us was that he felt strongly, wasn't it? We had that evidence, we can't ignore it. You can say that it is on the probabilities or something else but you cannot ignore evidence, Mr Memani.

ADV MEMANI: Mr Chairman, it is not suggested that you cannot feel strongly about someone who messes you up because of your functions as, say, a policeman. He could have felt strongly about it but the fact remains, he was doing it during the course and scope of his employment.
	Again, Mr Chairman, the evidence of the applicant was that that informer was in fact Mamome's informer. The situation here seems to be that we cannot disbelieve Motsamai when he says that the informer was Mamome's. At the same time we cannot necessarily disbelieve the police. We have the policeman who says it was his informer. It seems that the matter should be left there as being that there is a dispute as to whose informer Kozi was, and we should rather then ask ourselves whether or not Motsamai has told the truth in all material respects in this matter. 
	It seems to me, Mr Chairman, that there has been substantial compliance with the requirement of full disclosure in respect of this application.
	Mr Chairman, I now deal with the application of Musi,
George Musi. We have heard again that Motsamai was a policeman. He, together with Mamome, went and shot George Musi. There hasn't been any suggestion of any personal relationship between George Musi and Motsamai.

MRADV DE JAGER: ...[inaudible] of 6.1 - the Melk Street one.