Amnesty Hearings — East London — 1998-10-07

FUNDISILE GULENI: We're not that much accurate about that, although we believed that he wouldn't appreciate the existence of AWB in the area but also we couldn't trust it because it's operations are totally different with our operations as a structure.  They are the
government so we believed it won't be easy to just pop into the office and forward such kind of information.

ADV SANDI: Yes but the ANC and that government of the Transkei, weren't they on good terms?  Were they not getting along very well with one another?

FUNDISILE GULENI: They were.

ADV SANDI: You still didn't think that it was necessary to report this to the Transkei authorities?

FUNDISILE GULENI: We thought that will be the task of the ANC at upper level as we forwarded the report.  So if we forward the report to the ANC we wouldn't move to an extent of now jumping to report to the government.  At least we though that we'll deserve the analysis of the ANC at upper level.

ADV SANDI: The local police, were they informed that there were such people who could attack the local population and ANC members at any time?  Were they informed of that?

FUNDISILE GULENI: I don't remember a situation where they were informed formally but as we used to come across some individuals, they were aware of the situation without even being informed by us that Costello is suspected to be AWB member and the suspicion that there is - he's interacting with other group members, I mean other suspected group members of AWB.

ADV SANDI: Who are these individuals you're talking about, are you talking about the police, the people from the police force in the Transkei?

FUNDISILE GULENI: Yes I'm talking about them.

MR SMUTS: They knew what?  What did you say they knew?

FUNDISILE GULENI: I say we didn't report this thing official to the police but as we were staying in town interacting with some, we would find that they are aware of the situation, they have knowledge that there is suspicion about the existence of AWB in the area.

ADV SANDI: Thank you.

MR ZILWA: Mr Chairman, a lot has been said in the cross-examination of the applicants about their ...(indistinct) in what they did, they thought they were furthering the interests of the ANC and they thought that their action was in keeping with what they had to do as an SDU and there's been a lot of questions as to what the reaction of the ANC was.

CHAIRPERSON: Now Mr Zilwa, are you starting your argument?

MR ZILWA: No I'm not, I'm just trying to indicate to the Committee why I'm calling the next witness that I'm going to call.  I don't know if it's necessary, I just wanted the Committee not to be taken by surprise to know that I'll be calling someone who was in the leadership of the ANC in the area under which this SDU fell, just to give us an indication of what the feeling was with relation to this incident.

CHAIRPERSON: Mr Smuts, are you going to put anything of that in dispute?

MR SMUTS: I don't know what the relevance is of the feeling of the leadership, Mr Chairman.

CHAIRPERSON: I think what the applicants want to put before us is that they were acting, they were members of a self defence unit and included in their beliefs that they thought they were duty bound to do certain things to protect the leadership and I suppose it follows then afterwards the argument would go that what they did was in line with an attempt to protect the leadership.

MR SMUTS: I certainly wouldn't dispute Mr Chairman that they are - that they were members of a self defence unit and that defence of the leadership would fall within the ambit of their activities.

MR ZILWA: Yes, that being the position, Mr Chairman, maybe that being the feeling that I get maybe, I see the time is about ten to one, I'm wondering if perhaps we should take the adjournment at this stage, I'd just like to caucus with the applicants to see whether it is still necessary to proceed with what we would do i.e. calling this witness?

CHAIRPERSON: Wasn't that the reason you wanted to call him, exactly what Mr Smuts has agreed to?

MR ZILWA: Yes, to a large extent it was, Mr Chairman.  Could I just quickly caucus with the applicants?

CHAIRPERSON: I just want to adjourn for ten minutes.
WITNESS EXCUSED
COMMITTEE ADJOURNS
ON RESUMPTION

CHAIRPERSON: We have considered the issues before your people's argument and the panel is concerned with two issues on which we wish to hear argument only.  We're quite satisfied with the other aspects of the matter.
	The first one is what the impact is on the failure or absence or failure to acquire or the absence of an order to commit the crimes which are the subject of the discussion and secondly, in the event of this panel rejecting or disregarding the aspect of any Afrikaner Weerstands Bewegings activities in the area, what is the position of the applicants if we accept that their motive was in any event a retaliatory event in response to the assassination of Mr Hani and indeed also committed in order to send whatever message it is alleged they wanted to convey.
	Yes Mr Zilwa?

UNKNOWN: Mr Chairman, I assume from what you've stated that we need to confine our argument only to those two aspects.  Thank you Mr Chairman.
	Mr Chairman, with regard to the first aspect i.e. the applicants' failure to obtain an order to commit the crimes in .....[intervention]

CHAIRPERSON: Well we're not suggesting that he was obliged to do so.

MR ZILWA: Yes.

CHAIRPERSON: He didn't obtain or they didn't obtain or there was an absence, in other words they acted on their own volition.

MR ZILWA: Thank you Mr Chairman.  Mr Chairman, I would assume that the order referred to is an order either by the ANC or by the SACP i.e. the organisations to which the parties belong.  Mr Chairman, it should be remembered ...[intervention]

CHAIRPERSON: Mr Zilwa the evidence is clear that this group got together and plotted and committed this act.

MR ZILWA: Thank you, Mr Chairman.   Mr Chairman, as I was saying, the evidence of the applicants, all of them throughout has been that they were members of a self defence unit, an SDU.  Now they say the SDU's themselves were established by the MK which in turn is a wing of the ANC.  So in the broadest sphere, they were acting as members of the ANC in the wider meaning of that, being members of the SDU.
	Now, their evidence is of the fact that even though these SDU's structures were structures within MK and within the ANC, but they had quite a large measure of autonomy.  Now they further on go to say, when it comes to taking decisions, crucial decisions such as one issue herein.  Apparently, there was no set procedure within the SDU's as to exactly how such decisions should be taken or what should be the constitution of the SDU in taking such decisions.  Now the evidence is also to the effect that Maxhayi and Nyologana were really the leaders of the SDU's so to speak and their evidence was that when it comes to taking decisions of the nature such as the one in issue, where security issues would come up for consideration, it was not necessary, repeat - not necessary for the SDU as a whole which consisted of about fifteen people if my memory is correct, to meet and to take such decisions.

CHAIRPERSON: We're not concerned about that.  We're concerned about a status of this group having taking decision and gone off to do what they did.  Now what we are asking is that what is the impact the application in the manner in which they did, bearing in mind that they acted on their own volition as a restricted group.

MR ZILWA: Mr Chairman, to bring that into perspective, the brief background I'm sketching is that in this SDU in which they belonged, their evidence is to the effect that it was quite appropriate for them to meet as a group that they were when they met, to discuss the issue and to arrive at a decision that they arrived on.  In other words ...[intervention}