Amnesty Hearings — Johannesburg — 1999-02-10

MR SIBEKO: Mr Chairman, I would submit that the vehicle was robbed the same day.  The operation was carried out on the very same day.  Had the mission been successful, that is the delivery of the arms at Thokoza, we would have said the mission was accomplished and as to what would have happened with the bakkie thereafter, it would always remain a speculation because what we have right now doesn't complete the full picture.
	Mr Chairman, I would submit that the version of the applicant having to drive into Dawn Park, although the instruction or the order was clear that we, if needs be, we'll fight out way through and they meet the roadblock, Mr Chairman, I would submit that it is possible that the way they found the roadblock might have been problematic in such a way that in view of their number, they were four, they were in a bakkie and one would have a picture of a massive roadblock into a township where the said township neighbours, a township in turmoil.  It could be expected Mr Chairman that the numbers of the officials or of the officers who are manning that roadblock could have been large in view of the fact that it is expected that arms were shipped into the township or were transported into the said township which is in turmoil.
	Now at the end of the day Mr Chairman it is quite possible that although the order is there, that we've got to fight our way through, it doesn't necessarily mean we've got to submit to our death or to our arrest blindly, knowing very well that this would be impossible to overcome.
	I would submit Mr Chairman that it is quite possible that going back to the drawing boards, going back to stragegise is quite probable under the circumstances.  Mr Chairman, I would understand that there are incidental offences or incidental matters that occurred during this incident, that is the housebreaking which was said to have occurred in or around the area of Dawn Park.  With your permission Mr Chairman, I would quickly try and explain that these are the incident that you are talking about right now, that is to say the applicant doesn't deny that housebreaking might have occurred.  What he is saying that he was never involved.  What he is saying, he and his comrades were never involved in the break in but all what they did was to transport arms from Duduza.  
	Mr Chairman, ...(intervention)

CHAIRPERSON: That may be so and I can understand the trend you're following and I must say it is not a far fetched theory.  The problem with that is then how do you explain the time gap?

MR LEOPENG: The time within which this occurred?

CHAIRPERSON: Well 30 - let's say 45 minutes to travel from where they collected the firearms to Dawn Park.  Even 5 o'clock maybe, traffic etcetera.  This incident their arrest occurs in the vicinity of 7.30.  It raises certain issues even on your sketching of what could have happened and a fortuitous presence of your client and his colleagues, not having anything to do with a break in.  How does one explain that time lapse?

MR SIBEKO: Mr Chairman, the understanding that I got from the applicants' testimony was that when they parked their vehicle or the stolen or robbed vehicle, discussed, this Sierra approached and by that time in fact it is now common knowledge that the certain vehicle that is there, the Sierra, were not the police.  The incident occurred, that is the shoot out occurred between the occupants of the Sierra and the applicant and his comrades which was thereafter followed by the arrival of the police.  Mr Chairman, the testimony of the applicant is when he got an opportunity to take over Vusi's firearm, he fired whilst he was running.  Further his testimony is as a result of being shot he lost consciousness.  Mr Chairman, what we have is the version of the arresting officers and the version of the complainants or the witnesses to the safe break in.  Unfortunately we don't have that part of the applicant's version.  Why?  Because he lost consciousness.  He could have been - it could be true that the arresting time of the applicant is true but at the same time it could also happen that it's not true.  Why, because we have one untested version of the witnesses and the arresting officers.

CHAIRPERSON: Tell me one last aspect.  Should the orders or the motives as a result of which your client acted had had been false and not political, but yet your client believes it was politically motivated, what would be his position?

MR SIBEKO: Can you come again Mr Chairman?

CHAIRPERSON: Let's assume he got orders to do this, that and the other for political reasons and we find out that was not true actually, but your client actually believed it, but in reality there was no political motive, what would be your client's position?

MR SIBEKO: The applicants, client's vise vis this application?

CHAIRPERSON: Ja, if we in reality discover there was no political motive for collection of firearms and whatever happened thereafter?

MR SIBEKO: Mr Chairman, I submit that if that could be found then the necessary steps to discipline or to punish the applicant have to be followed because ...(intervention)

CHAIRPERSON: Well he has been punished, isn't it?

MR SIBEKO: Mr Chairman, he has been punished for the offences but what I'm trying to say here is for having brought such an application here knowing very well that it's ...(intervention)

CHAIRPERSON: No, I'm saying he doesn't know himself or he was lied to, he honestly believed it was for political reasons.

MR SIBEKO: Oh, okay.

CHAIRPERSON: But we discovered in reality that there were no such political motives for collecting firearms yet he believed that, what would be his position?

MR SIBEKO: Mr Chairman, I would submit that his position would still be the same.  Why, because my understanding, it's my submission Mr Chairman, my understanding of the conflict situation, my understanding of the chain of command, my understanding of the structures of the defence structures in the township.  In most cases it even happens in the formal structures of defence that when the commander issues instructions or orders, you don't really question those commands or instructions, you simply carry those commands or instructions out.  Should it happen that those instructions or commands are not proper, then the relevant superior authorities, in the formal structures of course, follow the matter up.  In this particular instance Mr Chairman, I would submit that this was not a formal structure, this was not a properly run defence structure or defence unit.  The applicant shouldn't be made to suffer because of the intentions or the aims of those whom he took as his commanders or his superiors.

CHAIRPERSON: Yes thank you.

MR SIBEKO: Mr Chairman, I only hope that this covers everything, including the statement.

CHAIRPERSON: Well, you argued on the issues that bothered us.

MR SIBEKO: Thank you Mr Chairman.

CHAIRPERSON: Ja, what about the escape from custody, I forgot about that one?

MR SIBEKO: Mr Chairman, I would submit again that the applicant believed in the war that he was fighting.  Mr Chairman, about the escape, the attempted escape occurred after he was ...(intervention)

CHAIRPERSON: In custody.

MR SIBEKO: In custody.

CHAIRPERSON: He had to be, it couldn't happen any other way.

MR SIBEKO: Right Mr Chairman.

CHAIRPERSON: I'm asking what date?

MR SIBEKO: Mr Chairman, I'll have to refer to my ...(intervention)

CHAIRPERSON: You see because there's the question also of making application for an offence that occurred before a particular date?

MR SIBEKO: Yes, correct so Mr Chairman.

CHAIRPERSON: I think it's the 12th or 14th December 1994?

MR SIBEKO: When he attempted to escape?

CHAIRPERSON: No.  He could only get amnesty for offences that occurred on or before that date.

MR SIBEKO: Okay Mr Chairman.

CHAIRPERSON: I've been trying to check, I can't find ...(intervention)