Amnesty Hearings — Johannesburg — 1999-02-18

CHAIRPERSON: They were foot soldiers, at least one was.

MS THABETHE: No I'm talking about Mr Mabusa Mhlongo who issued the order.  He was a commander and really they relied on the order that he had given.  So that's my problem, that's my difficulty, that I think it would be unfair really to expect of the applicants not to have followed an order because probably it was not properly verified or this was supposed to have been done and it wasn't done.

CHAIRPERSON: If that's the basis of your argument, it's got nothing to do with proportionality.

MS THABETHE: Maybe I shouldn't have even raised the issue of proportionality, but I was raising it as something I would have raised if maybe the applicants were the actual commanders who issued the order, but now I'm faced with a situation where the applicants are the people who carried out an order, and that limits really my basis for argument, so to say, in opposition of the application.

CHAIRPERSON: Even if they were the commanders, the issue of proportionality would not have come into play at all.  Even if they were commanders.  The fact that the information had not been verified does not make their action to be disproportionate to the objective that they sought to achieve.  However, I understand your argument is that you support the application because it is your contention that the applicants were not in command, they were acting on orders and they had an obligation to obey orders without any room of questioning whether that certain measures had been taken, which measures would then have entailed the verification of information or not, and you say that is something which is beyond what they would have been able to do.  They could not question an order.  Theirs was to obey, and that's what they did.  That's your argument, isn't it?

MS THABETHE: Precisely Madam Chair.  Maybe I would request the Panel if maybe they can give me guidance on what they would like to get from me in terms of my opinion pertaining to certain issues.  Maybe then I can respond to that.

CHAIRPERSON: Well you've heard us expressing our concern with regard to the evidence given by Mr Mkhwanazi in connection with the structure and the chain of command of his unit, and that given by Mr Radebe.  And crisply stated, his evidence was that Mr Radebe gave him an order that day and he obeyed Mr Radebe because Mr Radebe was second in command in the unit and the unit was commanded by Bonga Khumalo.  It has transpired of course, during these proceedings, that Mr Khumalo was not a commander of Mr Mkhwanazi's unit.  It's common cause that he was a general commander of the Zone 12 SDU which consisted of four units.  Mr Radebe on the other hand states that the order came directly from the commander Mr Mabusa Mhlongo, and he executed the order that was issued by him.  Bearing in mind the fact that Mr Mkhwanazi was the long serving member of this particular unit, and that point stands undisputed, what weight should therefore be attached to such a discrepancy?

MS THABETHE: Madam Chair my response would be clearly the evidence of Mr Radebe contradicts that of Mr Mkhwanazi with regard to who issued the order.  Nevertheless, I think the Committee shouldn't attach too much weight to that contradiction because Mr Mkhwanazi, in his application he says, where he's asked where he got the order from, he says from John Radebe, which suggests that he regarded John Radebe as his immediate commander.  To me it appears as if he really does not understand, but that's my own opinion, the real question of what is meant by command, because having mentioned Bonga Khumalo, it's not far fetched from the truth that Khumalo was a commander of these four units, even 'though he was an overall commander not a unit commander, and it's also not too far fetched, the fact that John Radebe was a second in command, but the problem is he wasn't a second in command to Bonga Khumalo but to Mabusa.

MR LAX: Isn't the other problem that Mkhwanazi doesn't know anything about the order that he should know about, that Mabusa Mhlongo allegedly gave, because he was present according to Mabusa Mhlongo when that order was given.  In his application he says nothing about that order.  Now that puts a direct conflict between the two applicants on where the order emanated from.

ADV BOSMAN: In fact Ms Thabethe Mr Mhlongo testified that he twice gave the order in the presence of Mr Mkhwanazi.

MS THABETHE: I think I understand the dilemma Members of the Committee.  Also it's, unfortunately it's not clear and it wasn't, we did not question the applicant about the sad fact as to why he did not mention Mr Mabusa Mhlongo as the commander.  I don't know whether he was questioned ...(intervention).

MR LAX: The reason was that that evidence wasn't before us at the time.  It was never put to him by Counsel, it wasn't put to him by anybody else.

CHAIRPERSON: It is not the duty of anyone else to put that kind of evidence in order to clear the air.  That's why applicants are represented by lawyers.  I don't want such things being imputed to any persons having to try and clear the air in that regard.  Mr Mkhwanazi was properly represented, and Ms Moloisane had the fortunate advantage of consulting and knowing the testimony of the two applicants.  She must have anticipated what would be a problem in this regard.
	I am addressing this to the Honourable Member of my Panel, as well as Ms Thabethe.  In case you've forgotten that the applicants lead evidence and has to comply with the requirements of full disclosure.  Indeed we have from time to time assisted as it is fit and proper for us to do when such things do come to our attention, but that is why applicants are legally represented, so that such mishaps do not happen.  
	Coming back to what you earlier on stated, Ms Thabethe, you are saying that it's possible that Mr Mkhwanazi might not have understood his structure very well, and the he must have mistaken Mr Radebe as being the commander.  You have referred to his written application form, and pertinently I suppose to question 11 A and B, which requires of an applicant to indicate whether the act was committed on the orders of any particular person.  Yes, there is a reference to Mr Radebe, but that does not mean that Mr Mkhwanazi did not understand the structure of command.  You will recall that he led evidence before us and in his evidence he was able to paint a very vivid picture of his structure, which he stated quite unequivocally that it was a unit commanded by Mr Bonga Khumalo.  He went on to say Mr Radebe was the second in command.  
	For you, therefore, to infer that he might have thought Mr Radebe to be the commander, would under those circumstances, be incorrect.