Amnesty Hearings

ON RESUMPTION

DERICK SKOSANA: (Still under oath).

JUDGE NGOEPE: ... on Thursday the 12th June 1997. We are proceeding with the application of Derick Skosana. Mr Skosana you are still under oath.

JUDGE NGOEPE: Mr Tee you were still busy with your questions.

ADV TEE: Thank you Mr Chair. Mr Skosana, in your document that you presented yesterday from which you read paragraph 25 you state that the enemy agents, you had to get rid of them so as to clean up the organisation before the elections. Do you confirm that?

MR SKOSANA: Yes, I do. It is exactly as I have stated on my statement.

ADV TEE: Are you aware that in 1992 no date for the elections had yet been set?

MR SKOSANA: No, as I have stated that there was no date stated at that time, but the negotiations were in process, but there was no certain date stated.

ADV TEE: In paragraph 26 you say we were lying low. Does that refer to you and Solly?

MR SKOSANA: That is correct.

ADV TEE: For what reason were you lying low?

MR SKOSANA: I am referring to myself and Solly.

ADV TEE: Yes and why were you lying low?

MR SKOSANA: We were hiding ourselves, me and Solly.

ADV TEE: No, Mr Skosana, I am asking you for what reason were you, Skosana, hiding yourself?

MR SKOSANA: As I have stated that we came to Nelspruit, we were running from the police. That is why we were hiding ourselves.

ADV TEE: Did you not say yesterday that, in fact, Solly was running from the police?

MR SKOSANA: That is correct, but I was also assisting Solly so I could not expose myself, because it was going to jeopardise Solly's position.

MS KHAMPEPE: Mr Tee, can I just interrupt you. Mr Skosana, you remember the evidence we gave in mitigation and it appears on page five, I think, alphabet C of his bundle, are you saying that you ran away when you were with Solly from Witbank and you both, you accompanied him and assisted him to run away from Witbank to Nelspruit?

MR SKOSANA: That is correct.

MS KHAMPEPE: So you travelled together.

MR SKOSANA: Yes.

MS KHAMPEPE: Now the evidence that we gave in mitigation, did you tell the truth before the court then, because according to the evidence you gave then you say that you met Solly and his friends from Soweto in Nelspruit.

MR SKOSANA: I would like to clarify.

MS KHAMPEPE: Yes.

MR SKOSANA: The reason I said this in court, I had reasons.

MS KHAMPEPE: Did you lie in court? That is all that I wanted to find out.

MR SKOSANA: Sorry.

MS KHAMPEPE: Did you lie in court when you said that you only met Solly ...

MR SKOSANA: Yes.

MS KHAMPEPE: ... and his friends ...

MR SKOSANA: Yes.

MS KHAMPEPE: ... in Nelspruit.

MR SKOSANA: Yes.

MS KHAMPEPE: Was there any reason for you to give that kind of evidence?

MR SKOSANA: Yes.

MS KHAMPEPE: Can you explain why?

MR SKOSANA: It was because when I was arrested, when I was arrested in 1992 the way the police treated my case I felt that they were biased against me, because a lot of things happened in connection with this case and police were insisting that me and Solly, we left Witbank for Nelspruit to do whatever we did. The reason I said so in court, even though I pleaded guilty, I realised that police were nailing me and they were making me a main culprit on this. I said this in court because I did not want the police to have that impression about me that I left Witbank with Solly, because after the police arrested me they tortured me and I gave evidence that I was with Solly and others when we did this and it took police a long time to arrest the co-accused and that is when I realised that the police were basically against me and the second thing is that in court they had a separation of trial and awe co-accused were given a free bail and I was given a R5 000,00 bail and after that we were separated. All these things, to me, appeared as if I was the bad one or the police were treating me differently, because police insisted that I left Witbank to commit this crime and that is why I lied in court.

MS KHAMPEPE: Now, did, is it a fact that you were told by Solly that he, Solly, was going to approach Joe to assist him to skip the country?

MR SKOSANA: When I arrived at the squatter camp where I met Solly we discussed certain issues like we realised that it was dangerous for Solly to stay in this country, because we knew that if police found him they were going to kill him. MS KHAMPEPE: But did Solly not tell you that he was going to approach Joe to assist him to skip the country?

MR SKOSANA: Solly worked with Joe before and they knew each other and it was Solly's idea that we should approach Joe.

MS KHAMPEPE: Yes, so it was not a decision which was taken by you and the other Comrades that Solly, Mr Nkuna, Joe Nkuna should be approached to assist Joe. It was something that was suggested to you by Solly?

MR SKOSANA: I can say that it was something like that.

MS KHAMPEPE: And you would not know therefore, you cannot dispute that Solly without your knowledge might have approached Joe to assist him to skip the country before you even got to Joe's house?

MR SKOSANA: No, no, okay, even though I will not be quite sure, but this way or the situation he was in, Solly at that time, it was a terrible situation and I took it as if he just decided on that day when I met him.

MS KHAMPEPE: Yes, what I am saying is you cannot dispute that there might be a possibility or their exists a possibility that Solly spoke to Joe directly without your knowledge?

MR SKOSANA: Yes, I will not dispute that.

MS KHAMPEPE: Thank you.

ADV TEE: If you have a look at paragraph 28 of your document, is it not true to say that by late 1992 the external missions had been closed and the cadres had been repatriated and that recruitment had stopped. So that, in fact, there would be no way that Joe could assist Solly to skip the country.

MR SKOSANA: Is it page 28, paragraph 28?

ADV TEE: Paragraph 28.

MR SKOSANA: The one starting with the following day?

ADV TEE: Yes, at 28, Mr Chair. It is on page six of his statement.

MR SKOSANA: Would you please repeat your question.

ADV TEE: Is it not true to say that in, towards the end of 1992 the external missions had already been closed, that the cadres, many of them had been repatriated and that recruitment had already stopped so there would have been no way that Joe Nkuna could have helped Solly to skip the country?

MR SKOSANA: It is not true. The recruitment process was still on and I would say people were training and people were being transformed, the guerrillas were being transformed and people were still training outside the country.

ADV TEE: Mr Skosana, could you look at paragraph 38 of your statement. Do you see it?

MR SKOSANA: Yes.

ADV TEE: In the trial of the Nkuna brothers did you not testify that Solly had thrown one grenade and Conrad had thrown the other grenade?

MR SKOSANA: Yes, in my trial or in their trial?

ADV TEE: In their trial.

MR SKOSANA: Yes, that might be true, I might have said so in court, but what I am saying today is what happened.

ADV TEE: If you turn to ...

ADV DE JAGER: Well, could you kindly then explain why was it necessary for you to tell that untruth in the court?

MR SKOSANA: Sorry.

INTERPRETER: If the speaker can put, okay, thanks.

ADV DE JAGER: Could you kindly explain why it was necessary for you to tell this untruth to the court?

MR SKOSANA: Yes, I was angry at him.

JUDGE NGOEPE: Sorry, I do not understand. What is the untruth? Mr Tee.

ADV DE JAGER: That he, Conrad, that, he says in court the evidence was that Conrad threw one of the grenades, but that was not the truth. Solly had thrown both the grenades.

JUDGE NGOEPE: Is that what the record says Mr Tee.

ADV TEE: Mr Chair, the judgement of the Magistrate seems to indicate that the evidence of Mr Skosana had been that two people had thrown grenades. One of them being Solly, the other one Conrad. So I asked him did he testify in the Nkuna trial that Solly had thrown one and Conrad had thrown the other and he said yes.

JUDGE NGOEPE: Where is that, because my recollection of the record or the portion that I see was that it read, that may not necessarily be so, but the portion I have reads,

"The attack was made on the base that Solly would have thrown the hand grenades."

I am reading from page 12. That may, of the judgement, I am, paginated page 12 of the judgement.

MS KHAMPEPE: Line.

JUDGE NGOEPE: Line, about line 11, 12, 13.

MS KHAMPEPE: Yes, line 13.

JUDGE NGOEPE: Page 12.

MS KHAMPEPE: Line 13

JUDGE NGOEPE: 12. It may very well be that further on the judgement is going to read differently, but the portion that I have, I have just read it to you, seems to tally with what he is saying now. That is why I was asking you where, why do you say that what he is saying is different. Maybe I did not read far enough. If you could show me a portion which would read the way you say it does.

ADV TEE: Mr Chair, I cannot recall exactly where I read it, but at the bottom of page 12, the typed page 11.

JUDGE NGOEPE: Yes.

ADV TEE: It says,

"Accused number one and Solly were between the houses."

JUDGE NGOEPE: What line, sorry, what line?

ADV TEE: The very last line of that page.

JUDGE NGOEPE: Sorry, what line, whereabouts?

ADV TEE: 30, line 31.

JUDGE NGOEPE: Yes.

ADV TEE: "That accused number one and Solly were between

the two houses on the left-hand side. Solly moved around the corner and moved to the front of the house. He then threw the first hand grenade which exploded on the outside. He once again moved around and threw the second hand grenade."

ADV TEE: Now, at some other stage I got the impression that the Magistrate was saying that the two that had moved forward were Solly and Conrad and that, in fact, each one had thrown, but now the significance of my question is this, Mr Chair. When I asked him did he testify like that in court, he has just confirmed now that he did and then he said that the reason why he did is because now, today he tells the truth, but in court he did not.

JUDGE NGOEPE: Well, that what he says now will mean nothing if, in fact, in the court he did not testify so. What is the meaning of, what is the significance of him confirming something which is not true. He will be incorrect.

ADV TEE: Mr Chair, what I am going to have to do is to leave that for argument, because I simply remember that there was a dichotomy that had been created as to the throwing of the grenades.

JUDGE NGOEPE: My recollection is that it was created by your clients not by him. The version that the one hand grenade was thrown by one person and another one by Solly, my recollection is that that was said by one of your clients.

ADV TEE: That is quite true. That is certainly said by Conrad, because he was there. His version differs on the facts as to what happened and how the grenades were there. Conrad's version tends to be in accordance with what the police found, that one had exploded in the bedroom and one out. If I cannot find it, it is not going to be a material point.

JUDGE NGOEPE: I think leave it out. I do not think that you are correct in putting it that way to the witness.

ADV TEE: As the Committee pleases. Mr Skosana, in paragraph 43 is it not true that you were transported to Swalala not by Joe Nkuna, but by a person called Adam Myanga in his own car?

MR SKOSANA: The person who, the person who organised us transport was Adam Myanga, that is true. Joe organised the transport and he was with us.

ADV TEE: Is that your answer?

MR SKOSANA: Sorry.

ADV TEE: I am not sure what your answer is. Who actually drove the car?

MR SKOSANA: The car belonged to Adam Myanga.

ADV TEE: Yes, now is it not true that Adam Myanga drove you to Swalala?

MR SKOSANA: Yes, Adam drove his car, but the person who organised the transport was Joe and the place where we were going Joe organised that place as well and he knew the place.

ADV TEE: Alright, but are you saying then that Joe did not go with you that day, it was just Adam?

MR SKOSANA: Joe was there as well together with Adam.

ADV TEE: Yes, well you know that Joe has denied that he was with you travelling to Swalala.

MR SKOSANA: How would we have known his sister's place if he was not there?

ADV TEE: Now in paragraph 44 you say,

"The following weekend Joe came to take his sister to attend a certain funeral."

Are you not aware that at the time his sister was at Unigaza writing exams. In other words she was not there to be taken anywhere.

MR SKOSANA: That is not true, that is lies.

ADV TEE: Alright, Joe Nkuna instructs me that, in fact, there was no funeral that he had to attend at that time. What is your comment?

MR SKOSANA: Like I have said they attended a funeral on that weekend and I am sure and certain of that.

ADV TEE: Mr Chair and Committee, thank you. I have no further questions.

NO FURTHER QUESTIONS BY ADVOCATE TEE

ADV DE JAGER: The attack was round about two o' clock at night?

MR SKOSANA: Yes, I can between two and one.

ADV DE JAGER: Was there electric lights near the house?

MR SKOSANA: Sorry. Before the attack there was no electricity, there was an electricity breakdown.

ADV DE JAGER: So it was very dark?

MR SKOSANA: It was very dark.

ADV DE JAGER: And you found Joe at a nearby house after the attack?

MR SKOSANA: Yes, where we left him.

ADV DE JAGER: How far, approximately, was that from, from the, where you were standing?

MR SKOSANA: Maybe about ten to 15 metres. I am not exactly sure of the distance, but I can estimate. It is about ten metres or ten to 15 metres.

ADV DE JAGER: But it was across the road?

MR SKOSANA: Sorry.

ADV DE JAGER: There is some, could you kindly attend, I think he cannot hear.

MR SKOSANA: Would you please repeat your question.

ADV DE JAGER: You told us it was, he was on the other side of the road.

MR SKOSANA: Yes, there is a main road and he was on the other side of the main road.

ADV DE JAGER: And was he directly opposite the house of, where you executed the attack?

MR SKOSANA: It was not directly opposite. He was looking at the house from an angle.

ADV DE JAGER: So you say and could you see him standing there?

MR SKOSANA: Yes, even though it was dark there was a moon and you could see someone from a distance even though it was dark.

ADV DE JAGER: Were you not concentrating on the windows and the house you were about to attack?

MR SKOSANA: Yes, I was, but also I was on the lookout for everything, anything and I could see what was happening on the road as well as the house.

ADV DE JAGER: Thank you.

JUDGE NGOEPE: The, you say that you left Joe Nkuna at a certain house or he was at a house, he remained at a house where you had left him. That is what you said.

MR SKOSANA: Yes, as I have explained, I said when we were taking a shortcut to the house where we were going to attack we left Joe somewhere nearby.

JUDGE NGOEPE: Why did you leave him there?

MR SKOSANA: We were the ones who were supposed conduct this operation. We were the ones who were armed.

JUDGE NGOEPE: By we you mean who and who?

MR SKOSANA: Myself, Solly and Conrad.

JUDGE NGOEPE: And Joe was not supposed to attack the house?

MR SKOSANA: We only had two guns, AK47 and hand grenades.

JUDGE NGOEPE: You must listen to my questions very carefully. If you do not understand them you must tell me, because I have not asked you how many firearms you had, I asked you Joe was not supposed to attack the house.

MR SKOSANA: He was supposed to attack the house.

JUDGE NGOEPE: But how could he attack the house if you leave him there where you left him?

MR SKOSANA: His job was to be on the lookout, not necessarily that he was supposed to throw the hand grenade. His role was to be on the lookout.

JUDGE NGOEPE: Now, from where you are sitting how far would the house be where you had left him? You have indicated that you have problems with metres, but I want you to refer to physical objects inside this room or, if necessary, outside the room. If that distance means the distance from here to town you must say so. If it means from here to the gate you must say so. If it means from where you are to the cars outside you must say so. How far was that house from the house which you attacked and please refer to physical objects inside or outside this room?

MR SKOSANA: A distance like from here where I am sitting and halfway to the gate.

JUDGE NGOEPE: Halfway to the gate.

MR SKOSANA: ... and there is a gate there and when you pass that gate a little bit. In other words you go past the gate.

JUDGE NGOEPE: Which, which gate? The gate at the main entrance or is there another gate before that one?

MR SKOSANA: Not at the main entrance, this gate here.

JUDGE NGOEPE: Mr Tee, how far would that be if you know where that.

ADV TEE: I would think he is estimating approximately 40 metres, Mr Chair.

JUDGE NGOEPE: Mr Black.

MR BLACK: Yes, I understand he is referring to almost the gate at the car park and that I agree to be approximately about that.

JUDGE NGOEPE: Mr, by the way Mr who?

MR SHWAKANE: Shwakane.

JUDGE NGOEPE: Shwakane, do you go along with that estimation?

MR SHWAKANE: I am not too sure which gate they are referring to.

JUDGE NGOEPE: Well, let us ...

MR SHWAKANE: I am aware of the gate, the main gate there.

JUDGE NGOEPE: Well, let us ...

ADV DE JAGER: Could he point it out? Yes.

ADV TEE: Perhaps if one refers to the car, where the cars are parked.

JUDGE NGOEPE: Alright, I will, let us, to save time, let us provisionally accept that is 40 metres. During the adjournment you can take Mr Shwakane to that gate and he can ascertain the distance and if there are problems about that you will tell us. Let us provisionally accept that is 40 metres. Now, that, is that the place where you ran to after attacking the house?

MR SKOSANA: That is correct.

JUDGE NGOEPE: When you say you left him at that house, which was about 40 metres away, what do you mean at, you left him at that house? Did you leave him inside that house? Did you leave him in the yard of that house?

MR SKOSANA: As I have explained before people were asleep in that house. We were just taking a shortcut to the house where we were going to attack. We did not leave him inside any house, it was in the yard outside. People were asleep in that house where we left him.

JUDGE NGOEPE: But was he inside the yard of that house?

MR SKOSANA: There is no gate in that house, but there is a passage, a shortcut which people usually use so we left him on that passage.

JUDGE NGOEPE: Now, if you left Mr Joe Nkuna at that house, as you say, what do you mean in paragraph 38, paragraph 38 when you say we stood at strategic positions around the house? Are you excluding Joe Nkuna?

MR SKOSANA: Joe also occupied another position, because his position was to be on the lookout and oversee everything.

JUDGE NGOEPE: I understand that he might have taken a strategic position, but I want to know whether you include him around the house? That is the gist of my question?

MR SKOSANA: No, he was not there. He was there on that other side on that other house where we left him.

JUDGE NGOEPE: So when you say we stood at strategic positions around the house and when we were all ready, Solly threw the two grenades through the bedroom of Mr Shabangu, Joe was not there?

MR SKOSANA: Yes, that is correct.

JUDGE NGOEPE: You see the impression you give here, and you will remember I asked you questions around that point yesterday, the impression you give here is that Joe Nkuna was there too around that house and then that is why I got baffled when you indicated that he was somewhere nearby.

MR SKOSANA: Joe was not there on that house, the one that we attacked, but he was with us and he was part of the operation and I think my intention was to put it on that context that he was part of us.

JUDGE NGOEPE: Yes, I think, the reason why I am asking you these questions is that it is not being denied that Joe Nkuna was part of the operation and part of the planning, the dispute is around the question whether or not he was there at that house when the house was being attacked and he is saying that he was not there. That is why I am asking you these questions. Now, let me ask you something else. You, yesterday you talked about Joe having to arrange transport to take you to the place where you were to lodge an attack. Am I right?

MR SKOSANA: Yes, as I have explained yesterday, that Joe was the one who was supposed to organise the transport and we did not get that transport. We walked there. He was supposed to organise the transport, but he did not.

JUDGE NGOEPE: That is why you launched the attack in the early hours of the morning, around one, two o' clock?

MR SKOSANA: We did not have a specific time as to when to lodge the attack. Of course, Joe was supposed to organise the transport, but we decided that since he failed we should walk and at that time it was at about two am.

JUDGE NGOEPE: What made you think that he failed to arrange transport?

MR SKOSANA: According to the initial arrangement we were supposed to go to all three targets and it was only going to be possible for us to launch these attacks if we have a transport. Since we did not have a transport that is why we launched only one attack.

JUDGE NGOEPE: Well, maybe we do not understand one another. Did you wait for transport to come?

MR SKOSANA: Joe was the one who was organising transport.

JUDGE NGOEPE: Did you wait for transport?

MR SKOSANA: He left us there where we were staying.

JUDGE NGOEPE: And then he left you for the purpose of going to arrange for transport.

MR SKOSANA: We had a specific day as to when we are going to attack so he was going to organise transport.

JUDGE NGOEPE: I am going to interrupt you there. You have just said to me Joe left you there to go and look for transport. I am taking it from that point. No, did he then, did he leave you there to go and organise transport?

MR SKOSANA: Yes.

JUDGE NGOEPE: Did he leave the three of you there?

MR SKOSANA: Yes.

JUDGE NGOEPE: And then ...

MR SKOSANA: he left us there, the three of us he went to organise the transport.

JUDGE NGOEPE: You waited for him and waited and waited for a long time?

MR SKOSANA: When he came back he told us that he failed, he could not get transportation so we decided to walk.

MS KHAMPEPE: Mr Skosana, you are obviously aware that both Conrad and Joe Nkuna insist that only one person had to be attacked and not three persons and that is only Mr Shabangu had to be attacked. That was the arrangement that night or, yes, the night of the 11th of November.

MR SKOSANA: That is not true, three targets were supposed to be attacked.

MS KHAMPEPE: Now at paragraph 34 you state that this operation was discussed for some time and ultimately it was decided that it had to be carried out. What modus operandi for the execution of the attack did you decide to use? How were you going to attack Mr Jacks Modibane?

MR SKOSANA: We first went to Mr Jacks's house and we thought we were going to find him asleep and we were going to use the same modus of operandi to attack his house as the ones we used for Shabangu.

MS KHAMPEPE: And Mr Motembu?

MR SKOSANA: We had a problem to locate Mr Motembu's place, because Conrad was not sure as to where he was staying. He was staying far from these other two targets and Conrad had a problem and to locating his house.

MS KHAMPEPE: And you had two F1 hand grenades. Was each to be used for Mr Modibane and Mr Shabangu? Were you going to throw a hand grenade for each of your targets?

MR SKOSANA: Yes, because we decided that since we cannot locate Mr Motembu's house we are going to use two, each grenade for each target.

MS KHAMPEPE: And what would have been the role of Mr Joe Nkuna? Was that discussed as you have indicated that the operation was discussed for quite some time? What would have been his role in all these attacks?

MR SKOSANA: He was always with us and as a commander of the operation, but we did not discuss as to what for Joe to use specifically so he did not have anything with him.

MS KHAMPEPE: So on the 11th of November when the operation was discussed extensively, it had already been decided that Joe would not have any active participation in the attacks you were going to launch on your targets?

MR SKOSANA: Yes, according to the information that I had and I knew that we only had two AK47s and two hand grenades and we decided that Conrad will have one AK and I will have one AK and Solly will have both hand grenades.

MS KHAMPEPE: Just to divert from the substance of what I have just asked. To your knowledge did Solly work in the Intelligence Unit of MK?

MR SKOSANA: No, according to my knowledge, no he was not.

MS KHAMPEPE: How was he associated with MK?

MR SKOSANA: Solly was an activist since 1985 and he was once sentenced to Robben Island and usually people stay with cadres in Robben Island and it is simple that you, things that you are taught about and the techniques of the guerrillas and when he was released in Robben Island, from Robben Island he trained internally here in this country and that is how he started as an underground activist.

MS KHAMPEPE: So if Mr Joe Nkuna insists that he was in the Intelligence Unit would you dispute it?

MR SKOSANA: I did not have sufficient information. Maybe Joe might have sufficient information on that aspect and I will not deny that.

MS KHAMPEPE: Thank you.

ADV DE JAGER: You told us that Joe ordered you to attack Mr Mtembu's house too. Is that correct?

MR SKOSANA: That is correct.

ADV DE JAGER: And now he is accompanying you on this mission, could he not point out where Mr Mtembu is living?

MR SKOSANA: I do not know, but what I know is that before we went and attacked that house we monitored this Comrade. We tried as to find out where they were staying, but we failed to locate Mr Mtembu's address.

ADV DE JAGER: But he, being the commander, did he not find out where is the address. Did he assist you in finding the address or did he not partake in this operation of finding the address?

MR SKOSANA: Joe also gave us a direction, but he was not sure as to where Mr Mtembu was staying. The person who usually accompanied us was Conrad and he was the one who knew as to where the Comrades were staying.

ADV DE JAGER: And on that very night to planned to attack three houses and you did not know where the other house would be?

MR SKOSANA: Yes, we could not find transportation and we were not sure, as well, as to where Mr Mtembu was staying and Conrad was not certain and then on that night we decided to attack only two houses.

ADV DE JAGER: How far is these two houses, how far are they apart? The house of Jacques and the house of Shabangu?

MR SKOSANA: It is one section, but I am not quite sure, because I do not know this township that well.

ADV DE JAGER: You see I find it difficult to believe that you have planned to attack three houses at the same night, because if you are throwing a grenade here, it is an explosion and the people in the vicinity would come out and they would look round and now there is another explosion nearby. Would you not risk to be seen?

JUDGE NGOEPE: Especially if they are on foot.

MR SKOSANA: If ...

JUDGE NGOEPE: Especially if they are on foot, they are not ...

ADV DE JAGER: Yes.

JUDGE NGOEPE: ... using any vehicle.

ADV DE JAGER: And you are on foot?

MR SKOSANA: Let me explain. If only we had a transport it was possible for us to round up all three targets, but because we did not have transport then that is why we decided on the nearby or ...

ADV DE JAGER: Yes, well, even then you had two targets.

MR SKOSANA: Yes.

ADV DE JAGER: And running from one target to the other after an explosion, people coming out and you will be seen.

MR SKOSANA: We knew that immediately after we finished attacking one house, people will concentrate on the house which is on fire and they will not concentrate on the one that we were going to attack. So there was that possibility as well.

MS KHAMPEPE: Mr Skosana, did you not state during the Nkunas' trial that you had decided to abort the attack on Mr Mtembu, because you did not know where Mr Mtembu's house was and that you had before the attack on Shabangu was launched, undertaken a recognisance through the assistance of Conrad Nkuna and because you could not locate Mr Mtembu's house it never was your intention on the evening of the 11th or the tenth to the 11th of November, it was never your intention to launch an attack on Mr Mtembu?

MR SKOSANA: It has been a long time since this trial and some of the things I do not really remember and I think I have put it clear in Mr Nkuna's trial that we did not know as to where he was located so we were not going to attack his house.

MS KHAMPEPE: So when the operation was discussed extensively on the 11th of November you had already as a group decided not to launch an attack on Mr Mtembu's house? So he was removed from the list?

MR SKOSANA: Yes, there was that problem, because we were not sure as to where he was staying. He was going to be attacked, but we did not know his whereabouts.

MS KHAMPEPE: How were you going to attack him if you do not his whereabouts?

MR SKOSANA: We were going to continue trying to locate him and we were going to monitor him and tail him and Conrad was going to find out as to exactly where he was staying and we were only waiting to identify his house positively.

MS KHAMPEPE: Now, on paragraph 37 you state that you went to Mr Shabangu's house and, this is what you say at paragraph 37,

"At Joe Shabangu's place we thought that our intended victim was there."

Why do you use those words "you thought" that he was there? No, you say you thought Mr Shabangu ...

MR SKOSANA: Was there.

MS KHAMPEPE: ... was there. Why do you use the word "think"? Why do you think that he was there? Was he not there?

MR SKOSANA: When we arrived at his house his car was parked outside so we thought he was inside.

MS KHAMPEPE: Thank you.

ADV DE JAGER: One further matter please. You stayed at Mr Adam Myanga's place.

MR SKOSANA: Yes.

ADV DE JAGER: Is that the same person who transported you too?

MR SKOSANA: Yes.

ADV DE JAGER: So he had a motor car?

MR SKOSANA: Yes, he has got a car.

ADV DE JAGER: I do not know, could you perhaps, do you know of any reason why he could not transport you that night?

MR SKOSANA: No, I do not know.

JUDGE NGOEPE: Mr Skosana, the, sorry to take you back to what I asked you earlier on. I understood you to say that, that is with reference to paragraph 38 of your statement, eventually you explained it to say that by saying you stood at strategic positions around the house. You excluded or you exclude Mr Joe Nkuna, because you have just told us that he was at a certain house some 40 metres away so he was not, you do not include him as one of the people who took strategic positions around the house. I understood you to say that a short while ago. Am I right?

MR SKOSANA: Yes, you are correct.

JUDGE NGOEPE: Why during your trial, why did you say that you and Joe Nkuna stood, took positions in front of Shabangu's house on the street?

MR SKOSANA: Not in front of Shabangu's house. I was the one who was in front of Shabangu's house, Joe was on the other side of the road.

JUDGE NGOEPE: No, this is what, how the record reads. The Magistrate says page, paginated page 12, typed page 11,

"Hy ..."

meaning you,

"... sowel as beskuldigde twee ..."

meaning Joe Nkuna,

"... was in die straat voor die huis. Beskuldigde twee .."

meaning Joe,

"... om toesig te hou oor die aangeleentheid."

I should repeat that for purpose of interpretation. I am not so sure whether I was too fast.

"He ..."

that means you,

"... as well as accused number two ..."

meaning Joe Nkuna,

"... were in the street in front of the house."

Did you understand that.

MR SKOSANA: Maybe the Magistrate misunderstood me.

JUDGE NGOEPE: And another thing, yesterday when it was put to you that Mr Nkuna could not run or something to that effect, you said that or let me put this way. I am not so sure whether you insisted that he could run or whether you said he could walk fast. What did you say yesterday?

MR SKOSANA: I said he could walk fast.

JUDGE NGOEPE: Does that mean that you are saying that he could not run?

MR SKOSANA: I am not sure, I have never seen him running. I do not know whether he can run or not.

JUDGE NGOEPE: What makes you think that any human being cannot run? What do you mean by that statement. It is a strange statement.

MR SKOSANA: Sorry.

JUDGE NGOEPE: It is a strange statement.

MR SKOSANA: I am saying I do not know whether he can run, but what I can tell is that I have never seen him running. Even that day he did not run, we walked.

JUDGE NGOEPE: Well, on that day did you not know that he had received injuries in his, in the attack on himself?

MR SKOSANA: He told us and he told us as if it is something which happened long time ago.

JUDGE NGOEPE: Did he, that night, did you think he could run.

MR SKOSANA: Yes, I thought so. Yes, I thought he could run.

JUDGE NGOEPE: Well, why yesterday, why did you not say, well, he can run? Why did you choose to say he can walk fast?

MR SKOSANA: It is because that night he walked, he did not run. If we ran I will say he can run.

JUDGE NGOEPE: But he did not walk fast either?

MR SKOSANA: Sorry.

JUDGE NGOEPE: He did not walk fast either that day.

MR SKOSANA: He did, we all did.

JUDGE NGOEPE: After the attack?

MR SKOSANA: Yes, of course.

ADV DE JAGER: But you were running ...

MR SKOSANA: Since we were taking a short cut and we did not want to alert other people who were from a distance from that house which we just attacked. We just ran from that house. When we reached the area where Joe was standing we decided to walk so that we do not alert other people.

JUDGE NGOEPE: Mr ...

MR SHWAKANE: Shwakane.

JUDGE NGOEPE: Shwakane, I am sorry. Mr Shwakane, are there any witnesses that you are to call on behalf of the applicant?

MR SHWAKANE: No, we do not have, Sir.

JUDGE NGOEPE: Any, any.

MS KHAMPEPE: Mr Skosana, sorry to be taking you back. In your evidence in mitigation you stated to the Magistrate that when you got to Mr Nkuna's house with Solly there were other Comrades who were staying at Mr Nkuna's house. Is that correct?

MR SKOSANA: That is correct. I was referring to Conrad, Mr Nkuna's brother, and Derrick Mnisa and there was another Comrade as well who disappeared before the execution of this operation.

MS KHAMPEPE: Just confine yourself to my question. Apart from Conrad who is related to Mr Nkuna, were there other Comrades who were staying at Mr Nkuna's house?

MR SKOSANA: I think Derick was the only one who was there according to the information which we had and this other Comrade use to come even though he was not staying at Joe's house, but he use to come often.

MS KHAMPEPE: When you got there did you find other people staying at Mr Nkuna's house? That is the gist of my question. I think I cannot simplify it enough.

MR SKOSANA: Derick was staying there.

MS KHAMPEPE: And the other person that disappeared was also there when you got to Mr Nkuna's house?

MR SKOSANA: Sorry.

MS KHAMPEPE: When you arrived with Solly ...

MR SKOSANA: Yes.

MS KHAMPEPE: ... at Mr Nkuna's house ...

MR SKOSANA: Yes.

MS KHAMPEPE: ... did you find other people staying with him?

MR SKOSANA: Yes, Derick.

MS KHAMPEPE: Was it only Derick?

MR SKOSANA: Yes.

MS KHAMPEPE: And not the other person who subsequently disappeared?

MR SKOSANA: Yes.

MS KHAMPEPE: Was he not there when you got there? Was he there, that person?

MR SKOSANA: That is the attack.

MS KHAMPEPE: No, when you arrived with Solly ...

MR SKOSANA: Yes.

MS KHAMPEPE: ... at Mr Nkuna's house ...

MR SKOSANA: Yes, he was there.

MS KHAMPEPE: Thank you.

JUDGE NGOEPE: Did you want to put any questions in re-examination?

MR SHWAKANE: No, no questions, Mr Chair.

JUDGE NGOEPE: Well, obviously no witnesses from the victims side, Mr.

ADV TEE: No, there is no further evidence to be lead from victims or from our side at all.

JUDGE NGOEPE: Well then that concludes the evidence. Mr Tee, you indicated that you wanted to argue.

ADV TEE: Mr Chair we will be ready to argue if we may just, perhaps, have the tea break now and we will be able to start after tea.

JUDGE NGOEPE: Alright, we will adjourn then until after tea.

COMMITTEE ADJOURNS

JUDGE NGOEPE: Before you start with your argument, Mr Tee, with reference to the, this distance estimated by the witness earlier on that that is the distance between the house of Mr Shabangu and the point where Mr Joe Nkuna was. You will recall that we said we would provisionally accept the distance as being about 110m. During the adjournment we asked somebody to determine the distance with more precision and we are told that the distance is about 110 metres.

ADV TEE: Mr Chair, Advocate Black and I have verified the distance. The distance that we have agreed is 32 metres as the estimate.

ADV DE JAGER: What gate are you referring to?

ADV TEE: If one has regard, Mr Chair, to the gates that exist. The first gate is at the entrance to the building proper, the second gate is at the top of the steps and the third gate is at the exit of the car park where the policemen are. He was talking about the middle gate at the steps. If one paces it off, divides it by two, it is approximately 32 metres. Mr Black and I are in agreement with that distance.

ADV DE JAGER: Well, to the front gate it is 110 metres.

ADV TEE: That is correct.

JUDGE NGOEPE: Is that then common cause that, then that is the distance? Do we record now 30, how much?

ADV TEE: 32.

JUDGE NGOEPE: 32 Metres. Mr Shwakane.

MR SHWAKANE: Yes, I am satisfied.

JUDGE NGOEPE: 32 Metres.

MR SHWAKANE: 32.

JUDGE NGOEPE: Very well then. People might have been referring to different gates. Well then finally settled at 32 metres. Right. Thank you Mr Tee.

ADV TEE ADDRESSES COMMITTEE ON MERITS OF APPLICATION

ADV TEE: Mr Chair, members of the Committee in this argument for the granting of amnesty to the two applicants that I am representing I have divided the argument into seven main points. The first point will relate to the acceptance by this Committee of the version put forward by the applicants, in particular Joe Nkuna. The second will relate to my submissions concerning the effect of accepting that argument. The third relates to the commonality of versions between all the three applicants that this Committee has heard. The fourth argument relates to the fact that there is no opposition to the grant of amnesty. The fifth argument relates to the fact that there has been a full disclosure of the relevant facts. The sixth argument relates to the background and the context in which these events occurred and the last argument relates to the evidence of Mr Shabangu himself as stated by the Magistrate. With regard to the first point concerning Joe Nkuna's version ...

JUDGE NGOEPE: (Indistinct).

ADV TEE: I could certainly do that or I could certainly do that, Mr Chair. The essence of the evidence that is before this Commission is the following. When the African National Congress was unbanned in 1990 and the United Democratic Front joined with the African National Congress in 1991 what had happened is that there were three layers of political allies. There was the South African Communist Party, there was the African National Congress as a political organisation and there still existed MK. Inside the African National Congress there were three parts. There were members of the African National Congress who had been underground, there were members of the African National Congress who had returned as exiles and there were members of the African National Congress who had come through from the United Democratic Front.

It is also clear, certainly from the submissions of Mr Joe Nkuna, that the forces of South Africa who were looking after the security interests of the National Party Government at the time were aware of the overlays and overlapping of the liberation movements engaged in struggle against them. The overlapping and overlay was exploited and mercilessly exploited by the mastinations of the security police and various other persons who set out deliberately to sew dissention amongst the ranks. This was set out in the affidavit, at least in the submission which is now under oath, from paragraphs 43 and 44 and continuing through the document of Mr Joe Nkuna. The effect was that South Africa, even after the unbanning of the African National Congress and its various allies, suffered a time of trauma where there was a lot of internecine fighting, a substantial amount of which had been instigated by the political forces in favour of the Government operating against the liberation movement at the time. That is the general background and context in which all of these events must be viewed.

One of the simplest and most effective methods that was employed at the time, as set out in Nkuna's affidavit, is that a level of disinformation would be sewn between the parties. The disinformation necessarily then amounts to the following. A certain number of people would be impeached within the ranks of the ANC from different areas of the ANC itself and the South African Communist Party and members coming in from the United Democratic Front. There is nothing at the moment to say that this method of operation was not employed also by the former State in this province Mpumulanga.

As a result of this the security forces were able to exploit the divisions that necessarily existed by virtue of the overlay and the overlap between the organisations. Once the divisions began to be exploited there occurred the attack which forms a background to this application. An attack in October of 1991 upon Joe Nkuna himself. This attack had some fascinatingly interesting features with regard to the actual motivation of the attack. The first aspect was that it was certainly not a robbery. The second aspect was that the briefcase containing documents was the only thing missing from the scene of the attack after Joe Nkuna had been attacked.

Now, you will recall that in the cross-examination by Mr Patel a number of theories were put forward with varying degrees of forcefulness that the attack was precipitated by virtue of somebody being upset about Mr Joe Nkuna's infidelity with a member of the party. There is no evidence to support that. That the attack was done on the basis of some faction, there is still no evidence to support that. Indeed, the evidence of Mr Nkuna is that he believes, and with justification, that some form of security force agency was responsible for his attack. The significance of it being that his briefcase was stolen not his watch, not his money, not his clothes, not his shoes. What is even more certain is that all of his Comrades in the area who were members of the African National Congress at the time were quite convinced that the attack had been politically motivated.

The reason for the motivation of the attack would have been, probably, that he was an MK commander himself. It would also have been probable that he was, it was because he was a prominent member of the African National Congress. What is interesting further about that attack is that it is clear that the police made absolutely no progress at the time in bringing to book his attackers and, therefore, I would submit that it would be proper for this Commission to find that the attack on Mr Joe Nkuna had been part of the general campaign that was occurring at the time of attacks on activists and that the likelihood and the probabilities of that attack having been organised or sponsored or, in fact, actually carried out by agents of the State is extremely high.

We then move to Joe Nkuna's version of exactly what happened during 1992. He stated that after he had begun to convalesce during the early part of the year at a time that he actually cannot remember precisely, but reasonably early in the year, he had had contact with the leader of Umkhonto we Sizwe, Mr Chris Hani. In that contact, of which there were several, he had received an order which related to a general order. Now this general order was to eliminate state agents. It has been put to him in cross-examination that it is very convenient that Chris Hani would have given that order since Chris Hani is not here to contradict him, but it is also common cause that all the parties recognised Joe Nkuna as a trustworthy commander and that is the evidence here. There is no reason to believe that he did not receive that order and what is most significant is that there is no direct evidence contradicting his version.

There was ample opportunity by any of the parties interested to have brought evidence specifically to contradict that fact. That has not been contradicted. Indeed, the approach of the attorney for the, for Mr Skosana, has been not even to cross-examine on that aspect. Now, in cross-examination by Advocate Black this Committee will recall that at a time in the later part of that cross-examination, Mr Nkuna got the time, date line of that year wrong. If one has regard to the record, which is luckily typed, one will see that initially his time, date line was correct. A few extra questions were posed by Mr Black after which Mr Nkuna started to get confused in his answers and the confusion was later then confirmed when he was posed a question by one of the Committee members, Advocate de Jager. My submission in that regard is the following. That the original answer which he gave is the following and this is the one that should be accepted and is correct.

"The general order to eliminate agents of the State masquerading inside the organisations occurred early in the year probably February or early March in the meetings he had with Mr Hani, but that was a general order. Thereafter a specific order was given where the name of one agent was produced and that agent was alleged to be Mr Shabangu".

Now, I am leaving my address relating to Mr Shabangu last, because I have some very important aspects to put before the court about Mr Shabangu. The most important one will be that it is quite clear that the information that he was an agent was and is always false. It was never true. It was a feature of the disinformation that was going around at the time, but the time, date line of 1992 I would submit should be found to be the following. First came the general order then came the specific order. It is also significant, because this Commission necessarily has to look at the applications of all three applicants when deciding these applications, because they relate similar facts and the same incident. That twice in the submission of Mr Skosana he mentions the general order and then only the third time does he mention the list of the persons who should be eliminated. Now where the two versions overlap is that both versions have general order first, specific person second and where both versions can be clarified is that under Joe Nkuna the general order was early 92 and the specific one late 92 and in Skosana's version the general order and the specific order are both late 92. What that means is that both parties are, in fact, correct, but that Skosana has not accurately placed the timing of the general order, but Skosana is correct about the timing of the specific order. The timing of the specific order is October, the timing of the general order is February or March and that would make sense and that is why the attack was carried out, but it does not mean that the information upon which that order was based was ever correct and I will deal with that presently.

The effect of accepting Joe's version, that is Joe Nkuna, will be the following. If this Committee accepts that the evidence given by Joe Nkuna is correct this Committee, I submit, will have no option to do anything other than immediately grant amnesty to Skosana and immediately grant amnesty to Conrad Nkuna. The reason why amnesty will have to be granted to both of them is because they were clearly soldiers under the command of Joe Nkuna and the essence of their applications, I would say, is quite straight forward. Both of them bona fide carried out orders and the question of whether or not their versions are exactly the same can also be explained when I deal with the question of the commonality of versions.

This commonality of versions, I would submit, is the most significant aspect of these applications. It is quite clear that Mr Skosana met first with Solly Morape and then together they went to Joe. Solly Morape, according to Joe's version, was a member of the intelligence. According to Joe Solly and Derick, as he calls them, brought the specific order. Objectively, he said that specific order arrived in October and objectively we know that they did arrive in October. Joe Nkuna has made a mistake. He has assumed that because the two arrived together they both brought the order, but my submission is that this Committee should find that, in fact, Solly alone could quite easily have been the bearer of the name on that order. If that is so then there is no conflict of versions between the two in any event.

Now, why is it then that Mr Skosana's version differs in some slight aspects to the actual attack, because the attack is common cause, it was carried out.

ADV DE JAGER: But what about the three names?

ADV TEE: Now, the question of the three names is the part that would relate necessarily to the submissions I am going to make about Mr Skosana's evidence. Mr Skosana was arrested and admitted quite frankly, and I submit, totally honestly that he was assaulted by the police. Now, Skosana is a member of MK. The people in MK were not softies. MK was a very, very difficult soldiering work to do. The fact that a MK soldier very soon changes his plea to guilty and then comes to give evidence against his former commander must be explained in the context of the admission made by Mr Skosana that he was assaulted by the police. When it was put to him, did the police add those names to your list. Well, he denied that, but he would deny that necessarily to remain as consistent as he can. He would deny that to remain as consistent as he can with the evidence which he had given in his trial and in the trial of the Nkunas'.

What is significant about Mr Skosana is that he has a number of competing versions where, I would submit, had it not been for the assault of the police which he has agreed occurred with him, would have been incomprehensible. Why would he have one version for his mitigation, another version for the Nkuna trial and a third version here if his plea had been fully voluntary and if his evidence giving in the trial against the Nkunas' had been fully voluntary. Those documents which are before the Commission tend to suggest that his plea was done voluntarily. Those documents before the Commission tend to suggest that he was the chief witness before the, against the Nkunas' and that he was doing that voluntarily. Well, if he was doing it voluntarily then, why the difference between what he said then and now and I submit that this Commission is singularly in a position to be able to take that into account. Those names, I submit, this Commission can find were submitted by the police and they were put to Skosana and that was part of the evidence which he gave and ultimately it has become something which he now believes, but when one goes to the effect of the actual substance and probabilities on that evidence, the most significant question relating to that point arrived from the Committee this morning in relation to the attacks against the three people that were to be taken, that were to be performed on the night of November.

Three people were to be attacked, but there were only two grenades. There was no transport, two people were to be attacked, but there was still only two grenades. It is inconceivable that at any stage the three people on that list is the truth. There was only one. In cross-examination yesterday Mr Skosana said that the documents had been stamped by the police. These were the documents shown by Joe Nkuna. The probabilities of Joe Nkuna having documents stamped by the police that contained a list of people that he should execute on behalf of MK are so staggering that it is laughable. In that regard I would submit that the evidence is tainted, but it is not tainted because Skosana is a bad person. It is tainted, because Skosana has shown that he is singularly human, that eventually the police broke him down and that must necessarily be the way to deal with this.

Now, I am not saying this simply out of, out of the blue. In Skosana's application there is a document produced which I have read which is in Afrikaans which relates to correctional supervision and the fact that they are going to give the man parole after two-thirds of his sentence and a further document which was handed to us in a memorandum which is written in Afrikaans and I quote from this memorandum,

"The memorandum of background information with regard to Derick Skosana as well as completed SAP 62".

MS KHAMPEPE: Mr Tee, will you please tell us where you are reading from. Is that, are you referring to the document which is attached to the letter from the Amnesty Committee by Mr Black to the Department of Correctional Services which is the last page?

ADV TEE: The last two pages. It seems to be numbered 42 and then (indistinct) the typed page ten.

MS KHAMPEPE: I have it, thank you.

INTERPRETER: The speaker's mike is not on. The speaker's mike is not on.

ADV TEE: Sorry. The significant part here is that paragraph three reads as follows,

"whether or not he possessed leadership skills and whether or not he could be regarded as a leader. He possesses no leadership qualities. He can easily be influenced by leaders and is very submissive".

Now, what that means is this. The man is a good soldier, but some people are born to be soldiers and some to be leaders. Skosana is a good soldier, but he is not a leader, but what they are also admitting is that put him under a position of authority, for example, under the thumb of the police after arrest. He has got no power to withstand their influence and I would submit that this is a pretty accurate document stating that the man is dedicated, but he can be influenced. The word they used is "beinvloed" and the tragedy for Skosana is that he can be influenced both ways. That is why he had to take the order, that is why he must get amnesty, but it is also why he came to give evidence which conflicted three times. In his own mitigation slightly different to what he said in the Nkuna trial and quite considerably different from what he said here. Does that mean that the man has not made a full disclosure. Well, I am not going to argue his case on that, but suffice it to say that a full disclosure operates in terms of the Act under the rubric of a full disclosure of all the relevant facts and in my submission Skosana clearly falls well within that definition and I will be dealing with that aspect with regard to the Nkunas presently.

The question of no opposition is also significant here for the Commission. We know that the attorney of Skosana did not cross-examine the Nkunas. We are also aware that this is not a Court of Law, but the Commission will take it into account that the attorney who was present throughout or his employee had access to the statements made by the Nkuna brothers from the first Monday, a good three days before I personally became involved in this matter. Despite that there was no cross-examination. In other words ...

JUDGE NGOEPE: Sorry, there was no attorney representing Mr Skosana when your clients applications were being heard.

ADV TEE: Mr Chair, that is not the point I am making. The point is that the attorney who currently represents him had possession of those documents from the Monday, because he himself was here as well I believe. So he knew about the statements made by the Nkuna brothers throughout the entire time before he was appointed to represent Skosana, during the time that he represented Skosana and yesterday he stated to the Commission that he would not be cross-examining. Now, this is not a Court of Law where the failure to cross-examine sometimes necessarily means the acceptance of the version of the other side, because this is a Commission where the Commission looks at a broader perspective, but it is significant in the following respects. He did not see it necessary to contradict Joe Nkuna.

JUDGE NGOEPE: But was he in the matter when Joe and Conrad testified. Was an attorney for Mr Skosana part of the proceedings?

ADV TEE: Yes, Mr Chair, yesterday certainly when Conrad testified he was part of the proceedings.

JUDGE NGOEPE: I do recall that I saw Mr Mojapelo, if you are referring to him, I do remember that I saw him at some stage in the hearing, but I do not know whether at that point we were busy with Conrad's application or not and I do not know whether he was actually part of the proceedings at that stage.

ADV TEE: If I recall correctly he was given the opportunity to cross-examine Mr Conrad Nkuna and declined and said he did not need to and moved off to go and prepare his own application. Maybe Mr Black, Advocate Black can help us on that.

MR BLACK: Mr Chair, may I just in defence. Mr Mojapelo is not here, but I understand that this argument will be recorded, it is being recorded and he will be afforded an opportunity of submitting his written statement and argument, but the actual position, as the Committee will recall, that during the course of the hearing, of the initial hearing Mr Skosana's name was mentioned in a statement which was prepared and, on the first day of the hearing.

JUDGE NGOEPE: Sorry Mr Black, let us take it only from yesterday. We know the history, the whole history. I just want to know at the time when we took notice of Mr Mojapelo precisely where, where were with the proceedings.

MR BLACK: I think I must deal with a little bit of the history not the proceedings. As far as access to Nkuna's statements and documents are concerned my learned friend is not correct in saying that Mr Mojapelo had access to those documents. It was only yesterday and I have and I think he was present, Mr Tee was present, when I made a copy available, because Mr Tee indicated that he would be referring to those documents. So in that aspect, and Mr Mojapelo would, I want that to be corrected. He had not had access to the Nkuna documents from the beginning. When Mr Mojapelo appeared yesterday in court he was not present throughout, as the Committee is aware, he was in the process of preparing a statement for Mr Skosana and he was going to represent Mr Skosana in presenting his application as I understood it. I do not recall him ever declining or indicating that he had no intention or wish to cross-examine.

ADV DE JAGER: But in fact did not cross-examine and he did not ask for an opportunity for cross-examine. So it is common cause there was no cross-examination and we should deal with it on the basis that there was no cross, what the reason might have been that may differ, but there was not so let us deal with the facts as they stand.

JUDGE NGOEPE: Except that you want more than that. You want us to say, to attach some weight to the fact that Mr Mojapelo did not cross-examine. You want us to do that and I am saying to you we cannot attach the weight till his failure to cross-examine the witness, because he was not here. I mean he was just not, he did not, he was not part of the proceedings and the fact that he did not cross-examine cannot be used as an argument to confirm the truth of what your client said, because he was simply not here to cross-examine. We can only note that he did not cross-examine, but we cannot attach weight to the fact that he did not cross-examine and read a lot more into that. It does not really help us.

ADV TEE: Mr Chair, the first submission is I accept that it is common cause that he and I think that is the proper way to deal with it, that it is common cause that he did not cross-examine, but if I recall correctly and perhaps one will have to read the record, I thought he was actually invited by yourself whether or not he wanted to cross-examine.

JUDGE NGOEPE: What I know is that we excused him, because he wanted to go and prepare statements. I am not even sure whether he would have made any meaningful contribution by cross-examining witnesses that he never listened to anyway.

MS KHAMPEPE: I recall that Mr Black drew our attention, in fact I think it is the Chairperson who drew Mr Black's attention to the fact that Mr Mojapelo had come into this forum, but Mr Mojapelo came in long after Mr Nkuna, Conrad Nkuna, had begun to give his evidence and he requested to be excused in order to go and prepare for My Skosana's application. So I do not think he was part of the proceedings at all in so far as Mr Conrad Nkuna's matter is concerned.

JUDGE NGOEPE: Deal with other aspects. We are not going to attach weight to the fact that Mr Mojapelo did not cross-examine the, I mean, the applicants.

ADV TEE: As the Committee pleases. The second aspect relates to the fact of no opposition to the application for amnesty and in that regard we have luckily got the record typed. If I may refer to page 22 of the typed record and what is stated there by Mr Patel in answer to a question by the Chair. The people that you represent is the question.

"Do they oppose the application for amnesty or do they not?".

and Mr Patel's answer is,

"In so far as there has not been disclosures made as far as all the relevant facts are concerned to that extent".

And then again,

"They oppose the application".

and his answer is,

"Yes, they oppose the application".

Now, that was Mr Patel's answer first position. Later during that day he was then given an opportunity to consult and if you recall we stood down and then commenced straight after lunch. The next aspect occurs on page 36.

JUDGE NGOEPE: Can we assist you on that point to indicate to you what Mr Patel's positions is and, in fact, that is the point on which he is going to submit written argument. His position is that, his, the application is being opposed on the basis that there was no, there has not been any full disclosure. Otherwise they would not be opposing the application, but they feel that there has not been a full disclosure on that point and he is going to make submissions on that point and say there has not been a full disclosure in particular with regard to the fact that Mr Joe Nkuna was present during the attack. So let us not fool ourselves in trying to think that, well, Mr Patel is not opposing the application and then try to argue that therefore the applicant is in entitled to amnesty because Mr Patel is not opposing the application. It is, if ever he said that he did not oppose the application. He did so with a very strong qualification and yesterday when he left here he told us that he is going to submit written argument and it is obvious his written argument is, which he is going to submit, it is not in support of your client's application. The written argument he is going to submit will be in opposition your client's application on the basis that there has not been a full disclosure in the sense that I have described to you.

ADV TEE: Mr Chair, if I may just complete the argument, because it is important if I read to you, I agree exactly with what you have said here, because he said at the top of page 36, he directed the statement to Mr Joe Nkuna. He said,

"Mr Nkuna, we want you to bear in mind that our clients, that is the ANC and the victims are not opposing your application for amnesty, but opposing the incomplete disclosure by you in support of your application".

and that is where I wish to address my argument. Now, in reply to me, Mr Chair, you have just said that one of the reasons why he is going to oppose it is because Joe Nkuna did not say that he was present at the actual attack. Now, I do not recall Mr Patel ever having cross-examined to that point. What seemed to be the tack and the trend of the question relating to disclosure varied all the time, but what we do not have out of the mouth of Mr Patel is where does he allege the disclosure was not full, on what actual points. There has been no evidence led by the victims despite frequent requests and so on as to what could have been disclosed that was not disclosed. There has been no aspect of this case in respect of which we can say Joe Nkuna's evidence can be gainsaid by something else that has been led to contradict that.

What we do know is that some cross-examination concerning the initial attack on Joe Nkuna himself related to an affair, but that was not taken up. Some cross-examination related to the conflicts within the ANC relating to funds, but ...

JUDGE NGOEPE: (Indistinct).

ADV DE JAGER: Yes, Mr Tee, we are speculating now on what Mr Patel would say. He is going to submit a written arguments and I think we will request Mr Black to forward the argument to you and you could respond to the argument whenever you receive it, because we do not know on what basis he would say that there was not a full disclosure.

JUDGE NGOEPE: You will recall that the other people like Mr Patel and, well he is not, it is now going to be the case with Mr Mojapelo as well. They are going to submit written argument and you indicated to us that you preferred to argue.

ADV TEE: Correct Mr Chair.

JUDGE NGOEPE: You see, the awkwardness of the situation is that you are appearing for the applicants and we may try to assist you in identifying points which other people are going to argue. It may just be a futile exercise for you now to try and deal with them and it almost certainly means that you are going to have to submit written argument, because you cannot argue in, their points in anticipation. You may mis-anticipate their arguments and find that you mis-argued against them when their written arguments come. So it is almost a certainty that you are going to have to get a copy of their written arguments, read their written arguments and then reply thereto. That is, must just happen. That indicates therefore, I think that instead of wasting a lot of time trying to argue what other people are likely to argue, you should restrict yourself maybe to essential points which you want to make orally bearing in mind that you are going to get yet another opportunity and therefore keep yourself brief and to the points that you want to argue now.

ADV TEE: Thank you Mr Chair, I am indebted, and that would be an appropriate way to deal with it, yes, because in essence I would have liked to have had a reply and without the arguments I would need to have something in writing.

MR BLACK: In that regard, Mr Chair, then may I just get a directive as well. At this stage of the proceedings from my position, I will note the oral submissions which Mr Tee wishes to make at this stage and I too will have to reply in writing after I have received the full argument of all the parties. So I will not be submitting argument in, orally at this stage.

ADV TEE: Mr Chair and members of the Committee, then I am going to move to the argument concerning the full disclosure of the relevant facts. I would submit that the proper way of interpreting that aspect is that the full disclosure of all relevant facts relates to the question of what is relevant. A full disclosure of what is relevant is not the same as a full disclosure and the reason is that lawyers have long known that there is a difference between evidence which is admissible by virtue of relevance and evidence which becomes inadmissible by virtue of irrelevance or hearsay. Now, if one takes that as the bench mark of what needs to be stated, the relevant facts here relate to the question of what actually took place and I would submit that their are four key relevant facts.

The first one is the fact of the order and that is divided into two parts. The general order and the specific order relating to Shabangu. The second one relates to the fact of the chain of command. The third one relates to the fact of the attack and the fourth one relates to the fact of their motives, because that necessarily then brings into play Section 20, sub-section 3 of the Act where they justify. Now, for example, where the Commission is faced now with a conflict of versions relating to the individual facts, because one party says two people threw grenades and another party says one person threw a grenade, is that a relevant factual dispute and my submission is clearly it is not, because both are common cause in the following aspect. The attack took place, we were all party to it. So there...

JUDGE NGOEPE: Wait, maybe just argue to the real fact, because you know it will depend. If one applicant says one person threw a hand grenade or another one says two and it turns out that the person who says so is one of the applicants and he is absolving himself, he is, all other evidence indicates that he is the one who threw the hand grenade, but then although they all say that two hand grenades were thrown, but if he says he did not, he is not the one who threw the hand grenade then he has not made a full disclosure. If other people say that he did throw a hand grenade (indistinct).

ADV TEE: As the Committee pleases. In that regard I would submit that the evidence that was found proved in the Magistrate's Court of the fact that one of the grenades exploded inside the bedroom and one of the grenades exploded outside of the house is clearly consistent with the version that was bought before this Committee by the Nkunas. What is also, I would submit, very important in this regard is to accept that their is an inherent improbability that Joe Nkuna himself would have been part of the mission and the inherent probability relates to a structural aspect of MK, the fact that commanders generally did not go on raids. They were the ones who organised them in the background and then the physical probability that as a result of his injury he would not be participant to a raid by virtue of the fact that he would not be able to get away particularly because we know that that raid was carried out on foot and that there was no vehicle to assist them in the getaway. The probabilities that he himself were present are staggeringly low and I would submit that his evidence that he was not present and that he had organised it is what should be accepted by this Committee.

Now, when it comes to the disclosure relating to how he got the orders, again I would submit that there is nothing to gainsay that he had the order as a general order from Mr Hani and then as a specific which he thought had been carried through from military intelligence by two people, but in fact it could well have been only one and that is Solly himself. The problem that both Skosana and the Nkunas' have is that both Solly Morape and Mr Chris Hani are dead, but the fact that they are dead, does that mean that we have to reject their application for amnesty because there is nothing to corroborate it when indeed if one looks at the whole sequence of events everything else is corroborated and what is even more important is that there is no hard evidence before this Commission to set up anything in substance that goes against Joe Nkuna's version. There is no hard evidence. There has been more than ample opportunity for any of the victims to come in. There has been more than ample opportunity for any of the parties to lead conflicting evidence, but there is not the type of evidence which says we know as a fact that Joe Nkuna could not have got the order from Chris Hani, because Chris Hani, for example, was out of the country at the time.

MS KHAMPEPE: Mr Tee, Mr Nkuna has been quite emphatic that the information identifying Mr Shabangu came from both Derick and Solly. How do you address that?

ADV TEE: Necessarily on the same basis that he has changed what originally happened and in essence his evidence is unreliable by virtue of the series of events that he has gone through. First he pleads not guilty then guilty. Then his guilty plea in mitigation is not quite the same as his evidence in his, in the trial, it is not quite the same as his evidence before this Committee. He is not reliable where he denies that. Joe Nkuna is quite clear about it. What is significant as well about Skosana's evidence, not only does he meet Solly, but he has also met other Comrades and on two occasions he mentions the other Comrades, but you do not really know who they are.

Now, even if, and one is trying to argue a reconciliation of the versions so that in fact all applicants versions can be accepted if one looks at what could possibly have happened. Nkuna is absolutely sure he got the order from two people, but it is possible, it is possible that in fact when he says he got the order from two people he is wrong, because he is making an assumption. He gets the order from Solly, but because the two have arrived together and the order is not contradicted by Derick Skosana he in his mind accepts it is an order from both. Therefore the versions are, in fact, seemingly to compete, but capable of reconciliation, but what there is nothing to gainsay is the fact that Solly, according to Nkuna, was definitely a member of military intelligence and there is something to gainsay that Skosana is, because he denied it himself, but that is not Nkuna's version and there is a conflict which will have to be resolved as the Committee sees fit.

MS KHAMPEPE: That would have been my next problem, because he has also been quite emphatic that both of them came from the intelligence unit and Skosana has already insisted that he was not a member of the intelligence unit.

ADV TEE: Necessarily when I am arguing for the applicants I am arguing not as one would do in a Court of Law. In a Court of Law I would be arguing that you accept my clients and you demolish the opposition, that you crucify them. That my clients are telling 100% accurately the truth. Now, all judges know that a witness can come to a court and be totally, totally honest, but yet wrong. That often happens. There is a case which is sited in Hofman and Zeffit which is a fascinating case relating to two Barristers in England who identified a robber having been in London on the day of the offence and the Barristers gave evidence in court and the robber was on the point of being convicted when it transpired that in fact he was in a different place and that was capable of proof beyond reasonable doubt.

What it means to say is this. That a person with all the good intentions of telling the truth can tell the truth as they perceive it, but it does not necessarily have to be factually correct. Now, in a Court of Law one has to get truth and fact to coincide totally, but in a Commission where ...

INTERPRETER: Speaker's mike is off. Speaker's mike is off. Speaker's mike. Speaker's mike. The speaker's mike is off.

ADV TEE: Mr Chair, I am using it as the point that honest people can give truthful evidence and yet be wrong. That is the point I am making about that example. So what I am saying is that here I am trying to argue for a broader perspective to give the Committee an aspect that I understand that in the length of time that has transpired since the events, in the fact that there was this context of disinformation, that what seems to be lawyer-style irreconcilable versions are not necessarily completely irreconcilable. There are aspects that overlap to the extent that this Committee could be quite satisfied in accepting Nkuna's version and yet granting amnesty to all three.

The acceptance of the Nkunas' version does not mean that this Committee has to reject the other applicant. The acceptance of Skosana's version does not even mean that this Committee has to reject the Nkunas, because on his version, his version is that the order came, according to what he had been told by Joe, from MK head office, Chris Hani himself and then he goes on to say in his application,

"And we regarded Joe as trustworthy".

ADV DE JAGER: I do not think we have got a problem as far as Skosana and Conrad's, they have acted on instructions. Whether it came from, according to both of them it came, they acted on the instructions of Joe. Whether Joe had instructions from up top is another matter. He says, well, he has received, in his application he said he received instructions from Chris Hani. It is not quite clear whether he received it personally, as far as the specific instruction is concerned, from Chris Hani or whether he received it via the message of Solly and I think you should address us on that whether you accept, in fact, that Chris Hani gave an instruction and that Solly was a messenger or whether Chris Hani gave the instruction to Joe personally and whether there, the instruction was to kill three people or one and that is the crucial difference and then the other difference, as far as the evidence is concerned that may be relevant, is whether he in fact took part in the attack itself, whether he was present.

ADV TEE: Mr Chair, with regard to taking part in the attack I have already made the submissions that it is so improbable as to be discounted. My submission is that the general order had come from Chris Hani and that should be accepted as it was early in 92. The precise date we do not know. The specific order also must have emanated from somewhere, but it was certainly transmitted, by what Nkuna says, Solly and Derick to him. Now, this is where the application becomes subtle and this is where this Commission might accept or reject the application and there is no doubt about it that as a matter of Law it is a question of the interpretation of the concept of full disclosure of all relevant facts.

You will recall that Joe Nkuna said I am not coming here to make a whole lot of comments that it has been speculated I will make. What he is saying that he himself accepts responsibility for the carrying out of that operation. He says that the information that he received relating to Mr Shabangu is clearly wrong and he is sorry about that, but he says that he believed it at the time and the reason why he believed it at the time is because it had come from two former MK Comrades who he regarded as working in military intelligence and whom he trusted as bringing a proper message, but furthermore he himself says that at the time he was not thinking clearly, because of the attack and the paranoia that he was feeling and what he should really have done is he should have double, double, double checked, but ...

JUDGE NGOEPE: Sorry, double checked what?

ADV TEE: He should have double checked the information coming from Solly and ...

JUDGE NGOEPE: And Skosana.

ADV TEE: He should certainly have double checked that.

JUDGE NGOEPE: Double checked in what sense?

ADV TEE: When a commander gets an order like that surely a commander is able to think, which he should have, that this is a high official in the ANC. I would like to check it before I carry out the operation. Now, ...

MS KHAMPEPE: Sorry, Mr Tee ...

JUDGE NGOEPE: Check it up with who?

ADV TEE: What he can do is he can check it up with the military intelligence sources. The problem is he accepted the order and he thought it was genuine and he believed it was genuine and he acted in the bona fide belief that it was a genuine order and ...

JUDGE NGOEPE: But that is not what he testified when I put a few questions to him last time. He said that he got specific order directly from the late Mr Hani. Is that not so?

ADV TEE: Now, Mr Chair, I have dealt with that. What I am submitting is that if one reads the record he was starting to get confused at that stage of the questions from Mr Black as to the general and the specific order and if one reads the record again it becomes quite clear if one keeps in mind that he had started to get confused, because it is true, it is true that he did say at one stage, yes, the name came from Hani, but he was backed into a corner.

JUDGE NGOEPE: Now, wait a minute. Just a minute. I do not think whether you will be right to say that he was confused. If, I am looking at the record, for example, page 53. Mr de Jager asked a question.

"Can you tell me did you on visiting head office and speaking to Mr Hani, did you mention the name of Mr Shabangu".

and then Mr Nkuna answered,

"I mentioned it, not it alone, with many."

and

"Was it then planned that he should be removed?"

Mr Nkuna,

"Of course".

And then Mr de Jager,

"And did Mr Hani approve of that".

Mr Nkuna,

"Yes".

Mr de Jager,

"So that was not a general instruction, it was a specific instruction there?".

Mr Nkuna,

"Yes, it became specific in that manner".

and then he went on and then Mr de Jager came back again,

"Yes, could I summarise it. Do I understand you correctly that he said as a general order eliminate agents?".

Mr Nkuna,

"Yes. Of the Government? Yes".

Then Mr de Jager came back again to the specific order

"As a specific order he told you to eliminate Mr Shabangu?".

The answer,

"Yes".

And then at that stage I intervened precisely because I wanted to clear this possible misunderstanding about the general order and the specific order. I interjected at that stage and I said,

"Sorry, we must make sure that we are on the same wavelength here".

Mr Nkuna said,

"Yes".

Then I continued,

"So, are you saying that the name of Mr Shabangu was actually mentioned in the discussion with the late Mr Hani?"

Then he says,

"Yes".

And then I said,

"That Mr Shabangu should in fact be eliminated?"

Then he says,

"Yes".

Then I asked him,

"In your presence?"

He said,

"Yes, in my presence".

And then Mr Patel took further from that point, but what I am trying to say to you is that if you go back to the point where I actually came in, my purpose of coming in at that stage was precisely to clear up the point you are trying to raise now, that there was a confusion about the general order and the specific order and that is why I came in at that stage and I said let us be sure that we are on the same wavelength and I do not think I could have put it any clearer than that.

ADV TEE: Now, Mr Chair, what my submission is there that his statement that was read into the court record at the start sets out correctly the time, date line. It sets out correctly that time, date line. Now this is one of the aspects which is subtle about this application. I submit that it is quite clear from the general body of evidence that the general order came early in the year and the specific later at ...

ADV DE JAGER: I do not think we are quarrelling with that. There was a general order, I think it was well known that agents of the State should be acted against, because they were seen as sell-outs and traitors. So we do not quarrel about a general order or that his perception that they should be dealt with.

JUDGE NGOEPE: I do not know, Mr Tee, you are free to go, to pick up maybe a few points and just and, you know, and highlight, but I am quite convinced that it would help a lot if you revisited the record. I am saying that you are free to argue points if you want to argue them, but I really believe that it would help a lot if you would revisit the record.

ADV TEE: Mr Chair, what I will do is I will be able to deal with those submissions then more fully in the written, as the court pleases. I want to get then to the last aspect of the full disclosure, because it necessarily relates to Section 20 subsection 3. It is one of the facets that is going to be exercising the mind of the Committee when the Committee decided on amnesty and this relates to the Act of Parliament itself. Now, in brief that Section relates to whether a political act is an act associated with the political act, objectives shall be decided with reference to the following criteria. The motive, the context of ...

MS KHAMPEPE: Mr Tee, I think we are familiar with (indistinct) so you can skip having to read the criteria. We are familiar with that. Get to the point.

ADV TEE: The question of the one that has not yet been highlighted is C. The legal and factual nature of the Act omission or offence including the gravity of the Act. Now, when you are granting amnesty this Committee operates in a position where it is actually exercising a discretion, because it is not a hard, a hard court case where there has to be a precise decision. There is an element of discretion, because the Committee takes into account all of those factors. One of the factors that needs to be highlighted is that although the act that they set out to perform is completely reprehensible. It is the killing of somebody. In fact, the gravity of that transpired by virtue of the failure of the attack not to have been as severe.

In other words this is not an application of some people who are convicted of the crime of murder. This is an application of people who are convicted of the crime of attempted murder and that necessarily would weigh in the Commission's mind.

ADV DE JAGER: If in fact there was an instruction and in fact if he believed that this man was a sell-out and a traitor, I think in the prevailing circumstances we will accept that the act was, could be carried out.

JUDGE NGOEPE: In other words it can have been out of proportion.

ADV DE JAGER: Yes, I mean ...

JUDGE NGOEPE: To start off with they did not know that there were seven people in the house. I mean, the fact there could have been 20 people and all that kind of thing and the fact that they are convicted on six, five counts of attempted murder really is neither here nor there as far as we are concerned. After all they did not know there were so many people in the house and the like. So it can be out of proportion. Most probably even if they killed him given the nature of the conflict, that might not have been out of proportion. I do not know whether it will help you if one were to point out certain things which perhaps are a little bit troublesome particularly with regard to Mr Joe Nkuna's application. The rest of the things, maybe, you can fill them up after revisiting the record in the line, but we are particularly keen to hear you on one or two points which are a little bit troublesome. You may deal with them again in your written arguments.

You see the point was raised that possibly the attack could have been as a result of certain allegations made by Shabangu or discovered by Mr Shabangu with regard to misappropriation of funds.

ADV TEE: Now, the first, that was why I was going to deal with Shabangu last. That allegation is without substance for the following reasons. Firstly, Mr Shabangu did not agree with that approach when asked specifically about that by the Magistrate and what that says about Shabangu is the following and I would ask this Committee to make this as a finding. It means that Shabangu is a man of the most exceptional integrity. It means that Shabangu is a very balanced, evenhanded and fair man. Where does one find a victim who has nearly been killed by his attacker saying I am not going to speculate that that was the reason. Shabangu is clearly a man who is so fundamentally honest that he is not even prepared to stoop to the level of imputing a motive be it false or true, but the fact that he did not shows that because Shabangu himself is a man of integrity and balance and honesty is that he did not believe that that was the reason and that is the significant aspect. He did not believe that is had anything to do with that.

He, Shabangu, was also aware, he must have been aware of the problems that had been going on at the time with the disinformation and Shabangu has been in the hearings and was a victim and has not come forward to discredit Joe Nkuna and what is even more significant, Shabangu and Nkuna were friends. He knew, he knew the man and he knows that Nkuna would not be motivated by the pettiness of trying to get back at an individual where a collective decision had been made to suspend him and where he had survived the suspension and, in fact, there is no direct evidence that at the time of the attack there was any correlation between his suspension from the African National Congress and his position as a MK commander and that, I submit, is the most significant aspect there. As a MK commander he stands apart from the political organisation.

So, Shabangu knew that. Shabangu knows that he is not prepared to come and add grease to the mill. He is not prepared to make a statement that because of a problem in the political arena Nkuna took it out in the military arena, no. He knows when Nkuna, the trustworthy one, was acting Nkuna believed what he was doing.

JUDGE NGOEPE: (Indistinct).

INTERPRETER: Speaker's mike. Speaker's mike.

JUDGE NGOEPE: I am sorry. The other problem which worries us will be the one which would require of you to go through the record and comb through the record. That is the question of the origin of the instructions. Pay particular reference to the page that I have, that I read earlier on which was page 54 which I just picked up during your argument. There might be more in the record and perhaps you can balance them in your written argument. As I say that we will have to, will require of you to really read the record very carefully. Well, we leave that one at that point and the other one would be, you see if Mr Nkuna, Joe Nkuna did go to, well you have dealt with it anyway to some extent. Our concern was just that if he did in fact go to the scene he would have withheld relevant information and that would amount to non-disclosure on a material and relevant thing, aspect and why must we disbelieve Mr Skosana when he says that Joe was there. I mean he has been consistent, well, maybe he misplaced the, him with regard to distances and the like.

ADV TEE: Mr Chair, I have dealt with that on the structural probabilities of the way MK commanders operated and on the physical. That he just was not in a position to be able to run away and the object was that they would run away. Now, you will recall that the members of the Committee, Advocate de Jager also asked a number of telling questions in that regard. I thought that would have clarified the issue forever. He is clearly wrong about that. He is clearly wrong.

JUDGE NGOEPE: For our part I think just for your benefit in case you want to re-argue those points again in your written argument. I think we have summed them up for you. One was the question of the origin of instructions. We have less problems with Conrad and Derick Skosana on that, because both of them got instructions from Joe and that is not in dispute. That point, that difficulty is only in relation to Joe, the origin of the instructions. As I said that would require of you to read this, the record and then the second thing was, well, his presence, alleged presence at the scene, you will deal with that. We have mentioned that to you and, sorry, I have just forgotten, Mr ...

ADV DE JAGER: The three names.

JUDGE NGOEPE: The question of the three names, three people to be killed that day and I have already indicated the question of possible motive. That, you know, the motive that you are putting forward may very well be, may look differently if one takes into account certain things such as a previous attack on him. The fact that Mr Shabangu made revelations and the like. You have dealt with that, but those are the things which really worry us around Mr Joe Nkuna's affidavit, but do deal with other points in your argument. We are not, you should please not be mislead into thinking that merely because we do not raise these issues in relation to Conrad automatically he is entitled to amnesty and I hope Mr, no, Mr Shwakane, I got there before you got there, I got there before you, before Mr Shwakane, I think Mr Shwakane you too you may not be under a wrong impression that we are suggesting that your client is automatically entitled, we feel that he is entitled to amnesty. So, you people when you submit argument try to cover all aspects.

MR SHWAKANE: Sure Sir.

JUDGE NGOEPE: Yes.

ADV TEE: (Indistinct)

JUDGE NGOEPE: We wanted to sound you orally today unless there is something else that you wanted to add on that.

ADV TEE: Mr Chair, if I may just enquire on one final aspect relating to the evidence. In this Committee what is the evedentuary burden borne by applicants. As I understand it it could not be more than a balance of probabilities.

JUDGE NGOEPE: Where is that, that will be, where is that is what it is. If the applicant carries any onus at all, if the applicant does carry any onus then it will be dischargeable on a balance of probabilities.

ADV TEE: And then if I may require, enquire if there are parties in opposition necessarily the onus would be to that level as well. That on a balance of probabilities their version is correct or would it simply be their duty to educe evidence and then the fact that they have not automatically means that they are starting at a position where they are very, going to find it very, very difficult if not impossible to gainsay anything of the applicant.

JUDGE NGOEPE: Well, except that one must be careful not to confuse concepts here. One must remember that they do not seek any judgements, they are not litigants in the true sense of the word. I am talking about the other people you are referring to. They are not like a defendant in a case where they will, they may have to seek judgement in their favour or whatever. What they say, the evidence they give, their arguments all go into the same melting pot. We take them into account in considering whether or not the applicant has shown that he has, he is entitled to amnesty. They are relevant for that purpose. Not as to whether or not they have proved that the applicant is not entitled to amnesty.

ADV TEE: Thank you Mr Chair. The final question is would I be permitted then to put in these arguments in writing as arguments of reply? In other words after I have received the written arguments of the others or does the Commission want me to put in arguments in advance of their, of their submissions?

JUDGE NGOEPE: Well, you can do both. You can submit your argument right now even before they file theirs and then of course give them copies and then they will be able to, in their replies, oppose or deal with your argument and then you can also file a further, you can replicate.

ADV TEE: Then for today Mr Chair and the Committee members, that is the application.

JUDGE NGOEPE: Maybe we should put everybody on terms. As you know we, the Committee does not have, I mean we must finish our business by the end of the year and we have got a lot more applications waiting for us so, Mr Shwakane, we would prefer that we should receive your written argument by the latest within the next, would you see to it that you file your written argument by the 24th of this month which will be, it will be a Tuesday.

MR SHWAKANE: Can I fax it please?

JUDGE NGOEPE: And a copy to, fax a copy to Mr Tee and to Mr Black and to Mr Patel as well.

MR SHWAKANE: Okay, as the Committee pleases.

JUDGE NGOEPE: Yes. And then the week thereafter Mr Tee, that will be the 30th, would we, if you could just fax us your written argument. Mr Shwakane, you fax your return argument to the attention of Mr Black.

MR SHWAKANE: As the Committee pleases.

JUDGE NGOEPE: In our, at out office in Cape Town. You do the same Mr.

ADV TEE: As the Committee pleases.

JUDGE NGOEPE: And if you want to submit other written argument in advance of, you could do that sometime next week.

MR BLACK: Mr Chair, in the light of these submissions, written argument if, one could just also place a record a request for the transcription of the record be dealt with as a matter of priority. We sometimes have delays in having the record transcribed in the Cape Town office and perhaps both Mr Tee and Mr Mojapelo would like copies of those records to assist them and speed up the submissions. I would, I am just asking for a ...

ADV DE JAGER: You accept the responsibility, well we are asked, place it on record that we consider it urgent and we want the transcriptions as soon as possible.

MR BLACK: Thank you Mr Chair.

JUDGE NGOEPE: Well that concludes this session. We will now adjourn.

COMMITTEE ADJOURNS