Amnesty Hearings — Welkom — 1998-11-18

CHAIRPERSON: Thank you, Mr Mhlaba.

MR SIBANYONI: Thank you, Mr Chairperson.  Mr Mhlaba, I would like to hear you on these two issues:  number one, the fact that this SDU was supposed to be underground.  Mohomane calls it an underground cell.  If I'm not mistaken, Mr Mofokeng, Jack Mofokeng it was supposed not to be known by the community, the other one was known by the community.
	And the second issue being the fact that their instruction was to shoot and kill the police and not take their firearms.  Can we hear you on those two issues?

MR MHLABA: Thank you, Chair.  I will start addressing the aspect of the underground SDU.
	Mr Chairman, the reason why it was called an underground SDU is because in protecting the community the SDU need to engage in unlawful activities and such unlawful activities, in committing those unlawful activities they were vulnerable to be arrested and get convicted.  So it is on this basis that they need to remain unknown.  It will not be expected of them, Mr Chairman, even if it was resolved that police are legitimate targets of the SDUs and the African National Congress to come out and openly discuss the issue of them planning to eliminate police officers or proudly talk of such elimination after it has taken place.  So it was on this basis that those activities were not disclosed to the community.  
	Whereas the SDUs which were known by the communities are the type of people who engaged in day to day patrol in the community, give the community instructions how to assist them and how to stay alive in those moments, Mr Chairman.
	With regard to the firearms, Mr Chairman, it will emerge that in the previous hearing of the other applicant he indicated that in order to equip the SDUs to be able to protect the community they needed to acquire firearms and those firearms needed to be acquired from the police and the members of the South African Defence Force.  
	And he further mentions that they could even kill these people in order to obtain those firearms.  An incident occurred shortly before the very incident we're talking about here.  And I specifically consulted the applicant in particular, Mr Mohomane, about those aspects because it appeared to me that these operations were carried out in the same village or in the same community but it was explained to me that they belonged to a particular SDU, he belonged to another SDU but he knows that it was mentioned even though it was informally to him by this comrade Craig, that it becomes difficult to identify the criminal activities from the activities of the African National Congress if firearms are going to be taken from those people because it would appear to be ...(indistinct) robbery.  So hence the contradictions between the two incidents which are not necessarily related, Mr Chairman.  There was a time lapse after those two incidents.

CHAIRPERSON: Thank you, Mr Mhlaba.

DR TSOTSI: I just want to put a few questions to you.  The first one is that there is evidence that at the time when these policemen were killed the ANC had suspended military operations, can we in the circumstances that the killing of the policemen in this case, was on behalf of or in support of the ANC?
	The second question is, was the killing of the policemen bona fide in the furtherance of the struggle?  From the evidence it appears that it was localised ...(indistinct) the questions of the decision of the Qwa Qwa policemen that they should kill these particular, Qwa Qwa SDU, that this policemen should be killed.
	And the third question I want to ask is what reasonable grounds did the applicants have for believing that they were acting in the course and scope of their duties.  We have to be satisfied that the applicants were in fact acting in the scope and within the course of their duties.  What reasonable grounds can you put forward to persuade us to believe that?

MR MHLABA: Thank you, Chair.  I would like to start by responding to the last question.  Mr Chair, the question of them reasonably believing that they were acting on the, that is acting in furtherance of the political objective of the African National Congress, that is I believe a subjective test, not necessarily an objective test, or the test should cut both ways.  It should be partly subjective and partly objective.  And the reason for me saying that, Mr Chairman, is that it became very clear throughout the testimony here that these applicants were receiving orders from his immediate superior and it doesn't go further than that.  He did not have an opportunity to meet somebody higher than his superior so the question of policies was not discussed.  Hence, Mr Chairman, I referred to them as foot soldiers whose duties were to carry out the instructions of their immediate commander as soon as they agreed to participate in the SDUs.
	So Mr Chairman, the test which should be used here is whether in accepting the instructions from their commanders they should have went further and questioned: "Why do you instruct us to do certain things, tell us the policy which supports the type of operation which you want us to engage in."  Mr Chairman, it has been made very clear here that they were not allowed to ask such questions.
	With regard to the reasonableness of targeting and killing police officers, Mr Chairman, I would also want to mention to the Chair that it is not my belief that they were given a discretion or they ought to look into the reasonableness of the order which they need to carry out.  Theirs, Mr Chairman was to carry out the orders as they received from their commanders.  So the targets were not identified by them as the foot soldiers, the targets were identified by their, the got the details of the targets from their commanders and it's not even known to them whether it was their immediate commander who determined the target. Whether it came as high up as the leadership of the African National Congress, that they do not know, Mr Chairman.
	With regard to the question of the suspension of the armed struggle, yes it is true that the armed struggle was suspended at the time of the killing of these police officers, however Mr Chairman, it is known that after the suspension of the armed struggle, structures such as the SDUs were still in existence.  And the call for the establishment of the SDUs was done while the political leaders were still negotiating the political future of this country and it was done when the armed struggle was formally suspended.  There was an announcement of suspension of armed struggle.  
	It is however a known fact that certain high-ranking leaders of the African National Congress associated themselves with the Self Defence Units, even called for their establishment, so it was not an establishment of these foot soldiers, Mr Chairman.  Thank you.

CHAIRPERSON: Thank you, Mr Mhlaba.  Mr Sesele, do you have any submissions to make?