DAY : 3

--------------------------------------------------------------------------CHAIRPERSON: We are continuing with the applications of Messrs Mosia, Mofokeng, Sera and Mohomane. Mr Mhlaba?

MR MHLABA: Thank you, Mr Chairman. The testimony on behalf of four applicants has now been concluded, we are not calling any other witness.

CHAIRPERSON: Thank you, Mr Mhlaba. Mr Sesele?

MR SESELE: We are not calling any further witnesses, Mr Chairman.

CHAIRPERSON: Thank you. Mr Mapoma?

MR MAPOMA: Thank you, Sir, there is no further evidence.

CHAIRPERSON: So then it's just a question of submissions? Mr Mhlaba?

MR MHLABA IN ARGUMENT: Thank you, Mr Chairman. Mr Chairman, all these applicants are approaching the Committee for an amnesty to be granted on the basis that the offences which they have committed were committed with a political objective. I want to start and address the Committee on the aspect of the political objective.

It has become common cause that all the applicants were members or supporters of the African National Congress and it is further common cause that the applicants were at the time in question members of the SDUs. It is further common knowledge that the SDUs were the establishments of the African National Congress.

It is further common knowledge that the call for the establishment of Self Defence Units was made after the suspension of the armed struggle by the African National Congress. And further, there was no stage where the African National Congress called for the disbanding of the SDUs or the disassociation of the African National Congress from the Self Defence Units.

It is common knowledge, Mr Chairman, that the people who participated in Self Defence Units were ordinary members of the community who were not part of the leadership of the African National Congress and were often unaware of the decisions of the leadership.

It has become common knowledge, Mr Chairman, that the hierarchial arrangement of the command structures of the liberation movements, in particular the African National Congress and its SDUs was a top secret. In other words Mr Chairman, the chain of command was not known even to the operatives themselves. It is known that commanders will be known by pseudo names or what is sometimes called combat names. In other words Mr Chairman, the commander will hand down the orders to his immediate subordinates without them questioning the validity of such orders and whether such orders were coming from somebody above, because they did not have access to the person on top.

Applicant Mosia, Mofokeng and Sera testified that they obtained their orders from their co-applicant who is Mohomane, who was their commander, who further testified here that he was given powers to establish his own unit and to recruit members and that such order came from a person whom he called comrade Craig Khumalo, and this very name is a pseudo name.

And these very applicants, that is Mosia, Mofokeng and Sera who I can regard as foot soldiers for all intents and purposes Mr Chairman, received instructions from their commander and they were expected to carry such instructions without being invited to discuss the policies of the organisation.

Similarly, applicant Mosia received orders from comrade Craig Khumalo without him given any opportunity to discuss the policies of the day of the African National Congress, and he was expected to carry such orders. This position, Mr Chairman, obviously could result in opening avenues for fake commanders to emerge and give people orders, people who were not commanders of the African National Congress. But if such information, Mr Chairman, is received by the recipients thereof as genuine information and they genuinely believe that the instructions which they are expected to carry out are from their principal, are in further of their political objectives, that is the political objectives of the African National Congress, Mr Chairman, I believe that if they subsequently act on the strength of such instructions and commit unlawful activities, such activities have been committed with a political objective.

Mr Chairman, it was mentioned in respect of applicant Mohomane, that the purpose of committing this unlawful act was to eliminate the investigating officer in a robbery matter where he was a suspect. This information, Mr Chairman, emerged from State witnesses in the trial of the very offence which they're amnesty for and these State witness' were witnesses who were warned in terms of Section 204 of the Criminal Procedure Act, and this evidence came mainly from a witness known as Mr Kele.

I would want, Mr Chairman, now to deal with the aspect of the credibility of the very witness who brought this information into light.

Mr Chairman, if I were to refer the Committee to page 124 of the paginated bundle, that is the Court record, from line 30 downwards Mr Chairman, it was mentioned by the trial judge:

"At the end of Kele's evidence-in-chief, Mr Botha he gave his witness, he made available his witness' submission to the State defence. This statement was not handed in as an exhibit but under cross-examination it would seem that Kele told several untruths therein."

The trial judge further goes on and explains the apparent untrue statements which have been made by Mr Kele.

Further Mr Chairman, the trial judge was sitting with some assessors. One of the assessors who is Mr Galloway doubted the truthfulness of the statements of Mr Kele. In particular, Mr Chairman, I want to refer the Committee to page 134 of the paginated bundle, line 21 to 31. It becomes very clear there, Mr Chairman, that the witness has told, had lied or most of the statement which he made were not true, in particular item 5 in page 135, where it was said that:

"He denies falsely that he and Captain van Staaden visited accused number 4 at the Harrismith Prison."

Also, Mr Chairman, I want to refer the Committee to page 131 of the paginated bundles of the Court record, line 5 to 10. Here, Mr Chairman, it is indicated that Captain van Staden has testified that he had paid a visit to accused number 4, who is Mr Sera and that the reason for that visit was to invite Mr Sera to become a State witness and that he refused to become a state witness.

Mr Chairman, in view of the fact this evidence of Mr Kele has not been corroborated by anyone in this Committee for instance, Mr Chairperson, if this Committee is invited to rely on the evidence given by Mr Kele at the trial of this matter, it will be expected for the legal representative of the family of the deceased to at least verify the information by getting the dossier from the Phuthaditjhaba Police and confirm that one of the deceased was in fact the investigating officer in this matter.

It has been denied here by the applicant, Mr Mohomane, that the deceased was an investigating officer in the matter. He even indicated that he knew the investigating officer to be somebody else and that the police officer who has arrested him was somebody else, and the deceased was according to his knowledge, never involved in this matter. I would submit that the testimony of Mr Mohomane in the absence of any contradictions, should be accepted.

Mr Chairman, with regard to the failure of the applicant to testify to dispute the evidence of Mr Kele, this aspect was not well explained by the applicant but it became apparent that the applicant did not have any trust in the legal system then. And this Mr Chairman, is further confirmed by the fact that the legal representative who was representing them in this very trial only went to them and told them that "I will be appearing on your behalf tomorrow", and the following day they went on. So it was not very clear who is for them and who is against them.

Mr Chairman, further it has happened during the currency of this very sitting of this Committee that the Committee came to discover that certain people who were not linked to a commission of offence were falsely implicated with some of the applicants who are applying for amnesty. Consequently, Mr Chairman, they were advised to withdraw their applications. So in saying this, Mr Chairman, I submit that it is not unusual for the police or rather it was not unusual during those periods to fabricate information against suspects and convict them on the strength of such fabrications.

It is my respectful submission, Mr Chairman, that a political motive has been proved by all the applicants in this matter, and I further submit that there was a full disclosure with regard to the very offences on which they were applying for amnesty.

Lastly, Mr Chairman, I briefly want to deal with the application forms. I want to mention that the application forms of some of the applicants were not completed up to standard, to put it that way, but however such applications, Mr Chairman, those flaws which were there does not render them to be fatal and I submit that compliance, that the applications are in compliance with the enabling legislation.

And I submit that the applicants are entitled to be granted amnesty and I accordingly request the Committee to grant the applications as requested. Thank you, Mr Chairman.

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?

MR SESELE IN ARGUMENT: Thank you, Mr Chairman.

Mr Chairman, it has emerged in evidence that all four applicants knew about the suspension of the armed struggle and each and every one of them has conceded that they did not obey the suspension of the armed struggle, and they further conceded that they placed themselves beyond the policies of the ANC. In that respect, Mr Chairman, I would submit that the applicants were carrying this shooting of the policemen for their own benefit and that was totally not related to the activities of the African National Congress.

It is again, Mr Chairman, clear from the evidence of all applicants that only one and in particular, Mr Mofokeng, has mentioned the issue of two Self Defence Units, namely one which was known to the community and the other one which was not known to the community and was operating underground.

I am of the respectful view in that regard, Mr Chairman, that applicants are not making, applicants have failed to disclose the background that led to this killing in that regard. And further, Mr Chairman, Mr Mosia has said that he knew before the 5th of June 1993, that there was an armed robbery case pending against Mr Mohomane but then he went on like the others to deny that they carried the shooting of the policeman because of that pending case.

But then when one goes further to look at the evidence of in particular, Captain van Staden, who was called as a witness in the criminal matter and seeing that that evidence was uncontradicted, the only reasonable inference that can be drawn from that aspect, namely that Sergeant Makau was the investigating officer and coincidentally this unit these applicants only targeted Sergeant Makau as a policeman and also in the process of targeting Sergeant Makau, Sergeant Mosebi was killed also.

It is my respectful submission that the coincidence in that respect, Mr Chairman, can only lead to one inference, namely that Mr Mohomane solicited the other applicants in furtherance of his objective which was completely not related to the political activity in terms of the Act.

It is my further submission, Mr Chairman, that because, the fact that the applicants tend to rely on their commander, Mr Mohomane, and deny having knowledge of any other person in the higher hierarchy of the so-called SDUs, can only lead to one inference that they were not acting in terms of the mandate of any SDUs of the ANC, if ever there was any such structures operating in terms of the policies of the ANC.

It is my respectful submission, Mr Chairman, that all applicants have failed to disclose that they were politically motivated and they are therefore not entitled to the benefit granted in terms of this Act, namely that their amnesty must be refused. That is all, thanks, Mr Chairman.

MR SIBANYONI: Mr Sesele, have you familiarised yourself with the document which was part of the submissions of the ANC, the document entitled: "For the Sake of our Lives", where it was among others said that the SDUs were supposed to be established and thereafter they should be owned by communities. In other words, not necessarily as structures of the ANC, only the ANC provided MK cadres to train those members of the SDUs. In other words my point is, are you saying the SDUs were supposed to be carrying out operations on behalf of the ANC strictly or they could have also taken or made their own initiative within the various communities where they found themselves?

And the second one is concerning the killing of Makau. Is your argument to say that Mohomane benefitted by the killing of Makau who was an investigating officer in that robbery case? Was the killing of Makau equal to the killing of a witness, which will have the effect of destroying evidence? That's the two issues I want you to address us on please.

MR SESELE: Thank you, Mr Chairman.

I have personally not had a look in the document mentioned by Mr Sibanyoni, from the ANC regarding these SDUs, but having said that I would say that in the light of the evidence that there was one commander, Mofokeng who was a trained member of MK and who recruited Mr Mohomane and to who Mr Mohomane had to report, it would seem that the SDUs in this context, if ever they were creations of the African National Congress there had to be some measure of control. There had to be some measure of reporting back to the higher authorities if ever the situation is as is stated by the applicants.

Coming to the second point, the killing of Sergeant Makau, it is my submission that that act cannot be equated to the killing of a witness, in that even if Mr Makau as an investigating officer had been killed, the docket would probably be handed to the next available police officer to carry on with the investigation.

Having said that I would submit that probably because of the understanding of Mr Mohomane and the other applicants, they might have laboured under the impression that if the investigating officer was killed then that would be the end of the case against Mr Mohomane. Thank you, Mr Chairman, that is all.

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

MR MAPOMA: Thank you, Chairperson, I have no submissions.


CHAIRPERSON: Mr Mhlaba, do you have any reply?

MR MHLABA: No, thanks, I've got none.


CHAIRPERSON: Thank you, that brings this hearing to a conclusion. We will have to deliberate and a decision will be reserved and handed down in the near future, in written form.

I'd just like to thank you, Mr Mhlaba, you've been with us since the beginning of the week and you have helped us greatly. Mr Sesele as well, thank you very much for your assistance in this particular hearing and also Mr Mapoma for your assistance.

Mr Mapoma, that's the roll for today. The next hearing you informed us yesterday could not be brought forward until today because of the availability or unavailability of legal representatives. So it now correct that we adjourn until tomorrow morning for the next hearing?

MR MAPOMA: Yes, Chairperson, that is correct.

CHAIRPERSON: Until what time should we adjourn? Sorry, are the legal representatives coming through from elsewhere or are they local, do you know?

MR MAPOMA: Yes, Chairperson, they are coming from Pretoria but I will see to it that I convey the message to them that we start at half past nine tomorrow.

CHAIRPERSON: Yes, I think the earlier the better.

Thank you, that then brings this hearing to a conclusion, and as I said the decision will be reserved and handed down in the near future. We have no other matters for today but we will be proceeding with other matters tomorrow. We are accordingly adjourning until half past nine tomorrow morning at this same venue, thank you very much.