Amnesty Hearings — Mmabatho — 1998-08-04

MOKOTEDI MPSHE: Mr Chairman, my response to the belief would be by way of what the applicant said.
	I will start with Makarov.   He knew Makarov for a period of ten months, he attended meetings of these new SDU's with Makarov, Makarov stayed in the same area as he did, and he is fully aware that Makarov was a code name, one cannot understand how possible is it for you to operate with a person for a period of ten months, you to know very well that this is a code name, and not know the actual name?  Mr Chairman, in the political circles, as they existed then, people had code names, but people who were involved in those circles or in those cells would tell you that, "We called this man Makarov, but this was his actual name, he was given this name in order that he should not be arrested", that is expected of people in a particular cell, but applicant was in that cell with Makarov, if it can be called a cell, in that cell with Makarov, attended meetings with Makarov, but he does not know Makaroff's real name.   That really should cast doubt as to whether even the other comrades he mentioned actually existed.
	And to take the matter further, Mr Chairman, members of the committee, the onus to prove on the balance in this type of a hearing is on the applicant.   If Makarov actually existed and the other comrades, particularly the one who laid out the plan for them, one would have expected him to have brought that commander and said, "Yes, this man is correct, there was a street defence unit, I was the commander, I was called Makarov and this is my name, this man was our member".   We don't know anything about these people.  Instead some of them disappeared in the 1980's. 
	I don't know whether I have responded correctly.

ADV MOTATA: You have, but if we take it a little further and say the man is incarcerated and the others are outside, are you still saying it's a duty on him to have got those people?

MOKOTEDI MPSHE: Mr Chairman, the duty still rests on him, the man is not by himself, I'm sorry for using that word "man", the applicant is legally represented, and the means and ways of getting a witness to a hearing for even an incarcerated applicant are available.   If perhaps they had attempted necessarily to have them here, but because of not having been able to consult with them, their legal rep would have mentioned that "We need the evidence of Makarov, it is of vital importance to establish that this man was a supporter and a member of the street defence units", but this is not said.   We are encouraged to believe his word.
	Just to quote what happened yesterday, Mr Chairman, not belabouring the point, the opposition wanted the journalists, and they made an application that a subpoena  be issued to get them here.   I'm saying the means were there and the means are still there to remove the onus on the applicant.

ADV MOTATA: Lastly, on the question of names, Mr Mpshe, this Morris Pinda Sakeli Mkosi, didn't he have a code name as well, but he knows him fairly well by that name, Morris Sakeli Mkosi, didn't he have a code name, because if we have to compare that, what I'm saying and what you said about Makarov?

MOKOTEDI MPSHE: Yes, Mr Chairman, actually that enhances my argument, in that Pinda had a code name, and he knew Pinda's real names, because they were together in one cell.   If you could know names of other people, other than their code names, why not be able to know even Makarov, who was actually seen as their leader?   Which brings one conclusion, or one inference, with respect, that Makarov never existed.   If he did, the same would have applied to Makarov as it applied to Pinda, inasfar as the names are concerned.

ADV MOTATA: Thank you, continue, I'm sorry to have taken so long whilst you were presenting your argument.

MOKOTEDI MPSHE: Thank you, sir.
	Mr Chairman, I'm still on sub-paragraph (a), all right, I will move, I think I have covered that one sufficiently.
	Mr Chairman, if you move to paragraph (g), where it states that:-
"Any person who associated himself or herself with any act or omission committed for the purpose referred to in the above paragraphs."
I'm just quoting it here to state that even if it can be argued that, "Yes, we now concede that he was not a supporter of the ANC, we now concede that he was not a member of the SDU's, but we submit that under paragraph (g) he did what he did, associated himself with the Act, and he's not covered by the others, but except by this one", because paragraph (g) makes room for a person who is not a member, who may not be a supporter, but who may bona fide believe that what he did was in the furtherance of a political organisation or State or liberation movement, now I'm saying should that submission be advanced, of course it has not been advanced, it also wouldn't hold water.
	Sub-paragraph 3, Mr Chairman, (a) thereof, I must state it right away that these are just guidelines, what follows under paragraph 3 exactly, these are not the requirements really, these are guidelines or the criteria laid down by virtue of the (Indistinct) rules, but the impact thereof is that when a committee decides on its decision, these criterias are to be looked at as well, but not necessarily that they are to be complied with by the applicant.
	I will then go directly to (a) thereof, sub-section 3, (a) thereof:-
"The motive of the person who committed the act or omission or offence."
Mr Chairman, if my interpretation of this part is correct, this is directed to furthering the liberation struggle or seeing to it that the political climate changes or seeing to it that a new political dispensation is brought into existence, because we're dealing here with the political objective.    Now this also wouldn't apply to the applicant.  The Chair and the members of the committee will recall very well that I made him put it on record pertinently that the structure that was established by themselves was to protect the community, and I said to him it was more directed to social protection, other than political, and he said yes, it was social protection.   So the political injection is not in existence, but the social one is there.

ADV MOTATA: If I may just here, I've got problems to follow that kind of argument, that for instance if they say, "We were protecting the community from criminality", would that really fall under the definition of social?

MOKOTEDI MPSHE: Mr Chairman, my knowledge tells me that it will fall under social.   This will be a social, can I call it a social disturbance, a social inconvenience of people who move around mugging people... (intervention).

CHAIRPERSON: Mr Mpshe, what about the applicant's evidence that, and you're correct in saying that he did say that it was, one of the objectives of these units were to clean up crime, but he also did say that it was to be used in retaliation against the attacks by IFP members on the trains, and that it was to be used, I think just to quote an old adage, they were going to adopt the offence as being the best method of defence, and then attack the IFP, keep them in their hostels, keep them off the trains, would that, although we know that shooting people on trains is a crime, was it not purely a political motive in the commission of those crimes of killing people on the trains, the target being, amongst others, IFP members, was that not political?