Amnesty Hearings — Johannesburg — 1999-02-17

CHAIRPERSON: During Mr Mononi's criminal trial, to the effect that you saw one of the assailants attempting to remove Mr Mathonsi's firearm whilst he was on the ground, was that not the evidence that you gave during Mononi's trial?

MBASIMA RICHARD NKUNA: I said he tried to grab the firearm from Mr Mathonsi when he was laying.  I don't know what is written there, but what I said is that he was trying to take the firearm, but he was nervous, so when he heard the second shot, he ran away.
	I don't know how it is written in the documents there.

CHAIRPERSON: The Judge summarised your evidence as follows that when Mr Mathonsi fell,  and was on the ground, one of the assailants tried to remove his firearm from his holster.
	The Judge may not have gone further to say he was laying on the ground, but he said when he fell, you saw one of the, not one who was running after him, there might have been that incident, but how it is summarised to evidence is that you saw one of the assailants removing Mr Mathonsi's firearm when he fell.

MBASIMA RICHARD NKUNA: What is written by the Judge, I think they look similar.  It might be different in writing, when you put it on record, because I said he was running to him, trying to grab the firearm.  That is why I am saying it looks or it seemed as if he was trying to take the firearm or he tried to take it while he fell down, I mean it is difficult because he didn't tell me that he was trying to grab the firearm from Mr Mathonsi.
	It was just my own opinion.

CHAIRPERSON: It was your own speculation?

MBASIMA RICHARD NKUNA: That is true.

CHAIRPERSON: Yes.  Mr Leopeng?

MR LEOPENG: The applicant denies having run after the deceased and further that he tried to disarm the Police Official.  That is all Madam Chair.

CHAIRPERSON: Haven't you put that to him when you had an opportunity to do so?  We can't allow you to have the second bite.  You have already put that to him.  I allowed you to cross-examine him further on the basis of one question that you requested the Chair to allow you to cross-examine him on.  You may not put anything further to him.
NO FURTHER QUESTIONS BY MR LEOPENG

CHAIRPERSON: Ms Thabete, I suppose you don't want to re-examine Mr Nkuna?

MS THABETE: Not at all Madam Chair.
NO RE-EXAMINATION BY MS THABETE

CHAIRPERSON: Mr Nkuna, thank you very much for having given evidence.  You may take your seat.

MBASIMA RICHARD NKUNA: Thank you Madam Chair.
WITNESS EXCUSED

CHAIRPERSON: Ms Thabete and Mr Leopeng, now that we have finished oral evidence in respect of this application, are we in a position to proceed to legal argument?

MS THABETE: I am Madam Chair.

MR LEOPENG: I am too, Madam Chair.

CHAIRPERSON: Yes.  Before we do so, Ms Thabete, what are your instructions with regard to the relatives of the deceased, Mr Mathonsi?

MS THABETE: Madam Chair, I did not speak to them today, but I spoke to them the last time.  It was very difficult to get any facts regarding this incident, because they were not present at the scene.  I don['t have any instructions to oppose, nor do I have instructions not to oppose.  I just used my discretion that since they were not there at the scene of the crime, I wouldn't take any instructions as to whether they are opposing or not.

CHAIRPERSON: Do you have their particulars?

MS THABETE: With regard to address and everything?

CHAIRPERSON: With regard to names and addresses?

MS THABETE: Yes Madam Chair, I had requested Mteki to have their particulars with her, so I assume that she has them.  I can ask her quickly.

CHAIRPERSON: Do you know who is present today to attend this hearing from the deceased's family?

MS THABETE: Madam Chair, I would like to verify that, but as far as I know the mother is there.  I am not sure about the father, he was there the last time.  Like I say, I didn't speak to them today as such, so I can verify that Madam Chair.

CHAIRPERSON: Thank you.  We will take a lunch adjournment and reconvene at two o'clock.  Please let's make sure that we keep to time.
COMMITTEE ADJOURNS

CHAIRPERSON: Mr Leopeng, are you in a position to give us your legal argument?

MR LEOPENG: Yes Madam Chair, I am in a position.

CHAIRPERSON: You may proceed to do so.

UNKNOWN: Madam Chair, it is clear from the evidence which has been led on behalf of the applicant, that the act committed on the 11th of August 1993, was committed on instructions from the command of the then Unit Commander of the SDU's in Diepkloof.
	It is further clear that the intention of the Unit wherein applicant was, was solely to disarm Police Officials and not to harm or kill in order to enforce and to arm the SDU's in protecting the community from the attacks of the IFP and SAP.  The objective sought to be achieved, was simply to disarm and to protect the community.
	On the basis of that, I submit humbly that the action committed, was political.  I further submit that it is clear from the evidence which has been led, that the applicant is not the one who opened fire and apparently the fire went off as a result of a struggle.
	The intention was not to go and kill these people.   This was not a premeditated thing to go and kill.  That is also that appeared during the cross-examination of Mr Nkuna who clearly stated that the person was armed, the person who ran after the deceased, was armed with a shotgun which it was a palm gun, and that corroborates the evidence of the applicant to say I was armed with a Makarov pistol and not with a palm gun, which was armed by one comrade Xolani, who then during the struggle, the shot went off.
	Under this circumstances, I submit that a proper case has been made out and that the applicant be granted amnesty in respect of all the offences that he has been convicted of, including that one of robbery of a firearm of a Police Official, which he was not convicted of.  However, there was evidence that the firearm was taken by force from the deceased and it was handed to the SDU.  Thank you Madam Chair.

CHAIRPERSON: Ms Thabete?

UNKNOWN: Madam Chair, without repeating what has already been said, it is also my submission that it is not a disputed fact that Mr Mononi was an SDU member and it should be accepted by this Committee that he was.
	Evidence has also been led in several SDU hearings that it was common for SDU members to disarm policemen of their firearms in order to obtain firearms.  It is also from the evidence of Mr Nkuna, he testified that he heard a shot, he did not see who shot Mr Mathonsi, so the accused's evidence stands unchallenged and undisputed.  
	I would also submit that I have no objections to amnesty being granted and that the act appears to have been political.  Thank you Madam Chair.  
	Sorry Madam Chair, can I add something?  I would also recommend that the victims be referred to Reparation Committee, the R&R Committee for reparation, thank you.

CHAIRPERSON: Thank you very much Mr Leopeng and Ms Thabete, for the assistance that you have rendered to this Committee.
	Our decision in respect of Mr Mononi's application will be handed down during the course of the day.  We therefore will request you to be around Mr Leopeng in order to have the decision also.

MR LEOPENG: I will do so Madam Chair.

CHAIRPERSON: So that I think can explain it better to Mr Mononi, it is always advisable if we hand down decisions in a set up of this kind, that Counsel is around in order to further explain the decision to the applicant concerned.

MR LEOPENG: I will also do that, and explain to the applicant.