Amnesty Hearings — Umtata — 2000-03-28

MR MGIDLANA: Thank you Chairperson.  I think Mr Mtimkulu has put clearly the attitude of the victims which is to the effect that if the applicant qualifies to be granted amnesty in terms of the requirements of the Act they will have no quarrels with that.  I would have hoped therefore that in his address the representative of the applicant will be mindful of that and I hope that those who were the victims who seem to be the only ones that are prepared to extend a hand of reconciliation are not going to feel bad out of some submissions that have been made on behalf of the applicant which, with respect, I think some of them have got an element of arrogance in them.  But be that as it may, it is not for the victims to come and give evidence, to try and show that the applicant has not told the whole truth and subject themselves to cross-examination.  We had avoided that purposely because we did not want the situation wherein it will turn out into a fight between the applicant because from the very word go it became clear that the victims were interested in the telling of the truth.  I must say that during the testimony of the applicant I had a feeling which feeling I must say it was not my personal feeling but out of interacting with the victims, they were not satisfied at the level to which the applicant was prepared to tell the truth.  Of course I'm heartened because towards the end of the hearing during the cross-examination by the legal representative of the Police, the implicated members of the Police, it was then that it seemed that he was now loosening up and willing to fill in the gaps that we would have thought that he will be prepared to fill in earlier on and it is my submission that it is on that basis that there has been also this feeling amongst those that I represent that if for whatever reason he qualifies then he shall be granted amnesty.
	One could go on length in addressing the question whether or not he has satisfied the requirement insofar as a full disclosure but I would like again to be brought in the same trap of trying to down play what has been said by Mr Mtimkulu on behalf of the victims.  I will rather leave it at that for as long as it is taken note of course we are disappointed by some of the arrogant submissions that have been made on behalf of the applicant.  However, we wouldn't like to deal with them because it will just change the complexion of the attitude of those who are the victims.  Thank you.

CHAIRPERSON: Thank you Mr Mgidlana.  Mr Stofile, do you have any submissions?   Just push your button?  Thanks.

MR STOFILE: The submission on behalf of Mrs Matoti that whilst she identifies herself with the statement made, she has got strong reservations about the truthfulness of the victim.  She wants me to mention that out of expediency she was to speed up the proceedings, she did not want to delay them and simply out of that fact this is the reason why she did not want to testify and she wants that to be taken note because she wanted to explain in detail what happened.
	The other factor is that she would rather leave this whole issue to be decided by the Committee and she also wants me to recall that the victim, shortly before we made this or resumed the adjournment, she came to her and apologised for everything and when confronted about the lack of trust she said she did not, she had forgotten, but the problem with that is that she did not admit it whilst she was being cross-examined.  She rather could have denied it.  Those are some of the areas but nonetheless she applauds him for coming forward but would rather leave it into the hands of the Committee.  That is all.

CHAIRPERSON: Thank you, Mr Stofile.

MR DUKADA: And by the victim you're referring to the applicant.

CHAIRPERSON: When you said the applicant came to ...(intervention)

MR STOFILE: The applicant came forward privately to ...(intervention)

CHAIRPERSON: Yes, you said the victim came forward.

MR STOFILE: No, no, I'm sorry, I apologise.

CHAIRPERSON: No, it's just a word slip, I realise that.
Mr Madikizela, do you wish to make any submissions?

MR MADIKIZELA: Yes Mr Chairperson.  Mr Chairperson, throughout the cross-examination that I conducted it has transpired that more specifically with the incident at Willowvale that the applicant cannot say unequivocally who gave the instructions on that day to destroy property and to shoot but what I submit what he wants this Commission to find is to assume as he claims that that was a security branch operation.  To assume that, therefore, because all the other forces that were there had gone to assist the security branch.  The security branch's senior officers who were there and even those who remained here in Umtata are the ones who gave orders whilst he has admitted that he cannot say who gave orders when the bombing occurred, he was behind in the forest.
	Furthermore, it's also my submission that even regarding these other instances where people were tortured, assaulted and ill-treated, he cannot say that it's General so and so or so and so said I must assault so and so.  He specifically told this Committee that what he did to the people that he had encounters with was what he copied, was what he saw, that was what was being done to suspects by the members of the security branch.  In other words, nobody specifically said you must assault suspects, you must torture suspects, you must ill-treat suspects.  He says it himself that he did what he saw being done there, there were no specific orders and he keeps on all along to say he, as a junior officer, non-commissioned, he could not have signed a warrant either for arrest or detention.  We have no problem with that.  Nor can it be said that the gentlemen, the handful of them, the top management of the security branch that he had mentioned in his application are the ones who signed the warrants of arrest and detention because we are told that the only person or people who have powers to sign warrants of arrest or warrants of detentions are any members of the security branch, that is commissioned members.  Any commissioned member of the security branch could authorise that so and so be arrested, so and so be detained, it's not as if it was clear cut that only the top management of the security branch would authorise warrants of arrest and warrants of detentions.  Hence it's the submission of my clients that they did not know that when those warrants of arrests and detentions were signed and handed over to the applicant and others were attached to the investigative unit of the security branch.  Suspects that were arrested and later detained were thereafter subjected to the type of treatment, torture, assault that the applicant has described before this Committee, nor did they sanction that they be treated in that manner.  It is therefore my submission that the warrants of detention and arrest were issued to applicants did not authorise applicant to carry the deeds that he carried out.
	I'm further submitting, Chairperson, that the operation, the joint operation, that occurred at Willowvale, it's not clear to be honest.  I've been listening throughout the proceedings.  It's not clear, it cannot be clearly said that so and so was in command of this operation.  Can it be said that someone from Pretoria or someone from TDF or someone from security office branch was in charge of the operation?  That's all Mr Chairperson.

CHAIRPERSON: Thank you Mr Madikizela.  Do you have any reply, Mr Dukada?

MR DUKADA: Yes, just on a few aspects, thanks Mr Chairperson and Members of the Committee.

MR MAPOMA: I'm sorry, Mr Chairperson?

CHAIRPERSON: Mr Mapoma, I can assure you I don't do it with malicious intent, sorry.  It's just that you seen on the far end of the table then I'd go down the line.  Do you have any submissions to make?