DECISION
Mr Wagener, the legal representative of Mr J. van Eck, a victim of a landmine incident in the Messina district, has made application for three persons to be subpoenaed to testify in this matter. The application is supported by Mr de Beer, who appears for Mr J. De Nysschen, also a victim, but is opposed by Mr Koopedi, who appears for the applicants, and Ms. Lulama, the evidence leader.
The persons asked to be subpoenaed are Messrs. J. Modise, the Commander of Umkhonto weSiswe (MK), L. Maloi, the Chief of Operations of MK and R. Kasrils, the Chief of Intelligence of MK.
The incidents which are the subject of this matter were landmine explosions which occurred on rural roads in the Messina district during the latter part of 1985. The explosions resulted in the deaths of a number of civilians.
The three applicants were all members of MK and were part of a twelve-man unit which was tasked to lay the landmines. The unit was split into two groups of six. Applicant Nondula was in the group commanded by one Agrippa and Applicants Mncube and Mbuli were in the group that was commanded by one Chili.
The applicants were not involved in the reconnaissance of the area where the mines were to be laid. Their only involvement in the incidents was to attend a briefing prior to infiltrating into the country and, once in the country, laying mines on roads. They did not select the places where the mines were layed. They layed the mines in execution of orders given to them by their commander.
The evidence of the persons requested to be subpoenaed is required to establish the policy behind the MK landmine campaign, the mandate given to the unit tasked to carry out the campaign, the extent and the quality of the reconnaissance carried out as well as other intelligence gathering and in particular, whether the group of which Applicant Nondula was a member carried out their mandate or went on a frolic of their own when they layed the mine on the road on the de Nysschens farm.
We are of the view that the evidence of the aforesaid persons wanted by Mr Wagener to testify in this matter will have no bearing on the applications of the applicants and is not necessary in order to arrive at a proper decision in these matters. This is so as all three applicants were so-called foot soldiers. They made no decisions themselves in regard to the laying of the landmines. They were personally unfamiliar with the area and they merely followed orders. Even if the evidence of the three aforesaid persons established that the laying of the mine on the de Nysschens farm was contrary to policy or instructions, such would be pertinent in respect of the applicants commanders and not the applicants.
The application to subpoena the said persons is accordingly REFUSED.
SIGNED AT CAPE TOWN THIS THE
: DAY OF
: 2000.
MILLER S J
ADVOCATE F J BOSMAN
MR J B SIBANYONI
