Episode 23 - Max Boqwana: Max Boqwana: Amnesty, The Untold Story

In conversation with CEO of Thabo Mbeki Foundation, Max Boqwana on

Transcript

SPEAKER_00 0:00

I think what I will do permit is do a a very standard question. Standard, standard. Why? And how did the idea of the fact that if people who committed or did atrocities confess the atrocities and they will be given immunity or amnesty? I can't remember the correct terminology. How did this idea who came up with this idea? Which brings us today to this problem of the fact that there are TRC cases that were not prosecuted. Why did Madiba do do or the ANC precisely want to achieve? Where did it come from?

SPEAKER_01 1:12

We say any thanks. But I think it was quite clear that as South Africa gravitates towards its freedom, we needed to do to deal with what has happened in the past. And you know our past, which was quite violent, quite brutal. And as the negotiations begin, we needed to say you can have all of the structures of government and everything else, but what about justice? And the question was then how do we deal with this justice issue? And I think at that point, South Africa then was faced with possible three options. The first option is the one that says, let's hang PW Porter and everybody else that he worked with in a similar vein as the Nuremberg trials. Or alternatively, and we say, no, we have now achieved our freedom. Let bygones be bygones, let's leave the past to the past and just go on, and that will be impunity. But the ANC in particular, as the dominant figures during this process of negotiations, thought that a method in between these two is necessary. And this is how then the idea of TRC was born. Because you needed to say, because we come from this violent past, very divided people, and in truth, there are no one, there's no one that was defeated in the military battlefield. The people that have been fighting have to live with each other. So what then you needed to do is to say, how then do you build a country that is based on reconciliation, that's based on unity, that's based on social cohesion. At the same time, you needed to say there are those who are the survivors themselves or their families that needed to be unburdened with what has happened to their family members. And it was important, therefore, to recognize that trauma. But more importantly, they needed to know the truth about what happened to their loved ones. And I think then the idea then of the TRC was born in that regard. But you needed then to say what is the carrot to those that you want to disclose the truth. And the carrot was then the amnesty that if they go through this process and they disclose the truth in its entirety, disclose the people that they have been working with, demonstrate a commitment to building a better country. And that's what we we thought it's necessary. But at the same time, um that will be important as well for the families. But if the at the same time, if they do not disclose this truth in its entirety, and there was an elaborate process, both of the TRC open process and the amnesty process that will be able to test those to test those approaches. So in the end, you had people that were granted the amnesty because of their disclosures, their commitment to building this new South Africa. But there are people that spoke half-truths in that process. And those are the people whose amnesties were denied. And they are the main category of people that the current processes we are talking about involves. And then there was another group that actually, from the instructions of their political principals, never participated in this process at all. For example, the comrades from APLA, you know, said, no, we're not going to participate in this process. But many of their combatants had already been convicted and they were sitting in jail. But there is another group that thought we might not be cut out. So in the end, we say South Africa had to make a choice between impunity and total vengeance. And it opted for this new methodology, which at the end of the day was to promote reconciliation, was to promote unity of the country, was to do away with retaliation, to do away with vengeance, because if we had gone that way, the war might have continued to perpetuate. It's a completely imperfect system. But I thought that was the best that we could deal with.

SPEAKER_00 6:38

You mentioned Nuremberg. What is that? That the first option was a Nuremberg option for us who are either younger or young. What do you mean by that?

SPEAKER_01 6:53

So it's quite clear that six million Jews were killed. And it was clear who gave the commands for those, uh for the killing of those uh those people. So at the end of that conflict, you needed to say, let's put on trial everybody, the commanders, the food soldiers, um, the promoters of the killing of the Jews, and let's put them on trial. And if needs be, they needed to be executed. And that's the option that we could have. Um Nuremberg is it a place in seven?

SPEAKER_00 7:33

It's a place in Sam, it's a place in Seminary. Is it where these trials? Because the trials, the trials in how it's what happened there precisely, because it means the first consideration in 1994, as you put it, was do we do with apartheid perpetrators what the Germans did with perpetrators of the Holocaust? Is is this more or less question? Yeah. What happened in Nuremberg?

SPEAKER_01 8:05

So so the all all the people that could be associated with the genocide, and those people were put on trial, you know, in large, in large numbers. And it didn't matter whether the people were food soldiers or were people that gave that gave the instructions or people that helped and and abated the process of the genocide. So that's that's that's really a very clear situation. But it was in the at the end of the day, those that are dealing with jurisprudence will tell you that was the justice of the victors. Because German has now has now been defeated. Because there was a war. There was a war. And the allies and the and the allies succeeded at last. So then Hitler and his people were defeated. And they're put on trial. And they were put on trial. So the victors then could design the rules. So that's the first part about the context. So in South Africa, you don't deal with the situation of victors and vanquished. As I was saying, this was not a final sort of resolution of the South African problem in the military battlefield.

SPEAKER_00 9:25

So what happened there precisely? Were they executed or they were given license? What became the sort of I mean, because you in 1994 are possibly speaking, well, two, three decades later, yeah. Uh when the resolution of World War II had happened, Hitler is defeated, and maybe then a New Rumbat process would have taken place. What happened there? What did they do at the at the end when you were found guilty?

SPEAKER_01 9:56

You remember those processes went on until maybe the 60s, much beyond just after, immediately after the Second World War. So so in it really depended on the gravity of the involvement. In in any event, the matters were brought to court, and there were different sentences than that that could be metered out from execution to long-term um jail sentences.

SPEAKER_00 10:25

So the first weakness with regards to South Africa by comparison, which you identify, is in this case there was no victor. What was hard at that stage with saying you are all just gonna go on trial? What would have that done since there's no victor, there's nobody who had uh or who could say we have defeated uh the apartheid army the way the uh Hitler's army was defeated? Why couldn't someone like Dietlerc, uh Porter and all these people, some of which lived well beyond 1994, if they were remorseful, why why wouldn't they agree in 1994 that they could go and try?

SPEAKER_01 11:26

We say these are the people you are negotiating with. Um so the the the apartheid leadership is sitting on that side of the table, we are sitting on this side of the table, and you're saying we are negotiating a final outcome that might lead you to be um to be executed for what you have done. And it's actually quite interesting that this uh provision of truth and reconciliation is in the interim constitution of 1993. Was it a compromise? You can call it, you can call it a compromise. But it was not a secret deal. Never a secret deal. Was it a sunset clause? No. Remember, reconciliation must still be continuing even today. Um and the reason you had all manner of legislations, whether you talk about BE, whether you talk about land redistribution, whether you're talking about other preferential methodologies of including black people in the economy, in the in the other spheres of endeavors. It's still part of that process. Because imagine you are saying to yourself, what we are looking for is a non-racial society. So that non-racial society can't be this society that we have where poverty has a color, where opulence has a color. So that process must still must still continue. So you could not say we will start reconciliation on this date and we end on that date. And it it will have false starts, you will have um reversals that are taking place. So the process was envisaged to be a longer process, not just to say it's a cutoff date. Okay. What was a cutoff date was the processes of hearing of the commission itself, because you could not have a permanent commission. Okay, then Pranex, let's come to what is in dispute.

SPEAKER_00 13:42

Are there people that were not given amnesty at the end of Bishop Dudu's report? Are there people that didn't get amnesty? Whether they came in as you say, but they spoke half-truths or they didn't come at all, uh is it a fact that there are people who did not get amnesty?

SPEAKER_01 14:09

A lot. So so there's uh there's there's lots of people that appeared and in the in the commission, and they were never given, they were never given amnesty. Those people were and still are liable for prosecution.

SPEAKER_00 14:26

Why didn't the government prosecute them? Let's put it differently. Why didn't Mandela uh Tabombegi's government, Zuma's government, you know, Cupcake's government, why didn't those that look like a first catch? Correct. These people did not get amnesty. Uh they are suspects in the disappearance of so-and-so. They are suspects, you know, in the proper language of law, in the killing here, in the killing of this one, in the torture of this one, and so on and so forth. Those people surely are known. Why were they not prosecuted?

SPEAKER_01 15:08

So we're saying, you know, there's uh I'll I'll I'll finish this, but we must also not just simplify this matter and say these all the matters that need us to be prosecuted. Each of these matters had the difficulties of their own. Um so you will have you will have, for instance, the Bebco 3 in Port Elizabeth, or even the Cradock, the Cray Doc 4, or or Philip Powell in KZN, or you will have the Heidelberg massacre or St. James Massacre, Noctulas Melane case. So if you go through each one of these cases, each one of them has got its own peculiarities. And and one of one of those peculiarities is the amount of investigation that has to be done in each of these cases. And and if you go through all of them, you will find some of those difficulties. But you will also find the lack of enthusiasm to prosecute, in particular the apartheid generals, from their own comrades. Because remember, this is 19, just after 1994, the prosecution is still full of the same people that were working together in pursuance of apartheid. And the police and the security branch, it's still those people have not been fired. So you expect those people to prosecute these people. So that's that's one of your difficulties in this problem.

SPEAKER_00 16:54

Let's rig it down, Brahme. You mustn't assume anything. Apartheid prosecutors are still in the NPA. Correct. So people that before 1994 would have uh prosecuted Nelson Mandela, maybe that's too late, but would have prosecuted Terra Legord in 1986. Was it 87 when he was arrested again? Yeah. These people are the ones after the TRC process was closed by do. Would have been in the NPA, and now they have to prosecute who? Themselves for prosecuting Terra Legorta or prosecute the torturers of Terra Legorta?

SPEAKER_01 17:51

They will prosecute the gross violators of human rights. Those, I mean those that were those that uh tortured people, those that murdered people, those that are kidnapped.

SPEAKER_00 18:01

So the proviso here is a gross violation. Gross violation. There are violations and then there are gross ones. What is the category of gross violations?

SPEAKER_01 18:10

So these ones. It's so if you looked at the TRC process, um it let me say, for instance, the arrest for past laws and all of those things, you could not really categorize as a gross as a gross violation. But but there are violations that led to killing of uh comrades in particular, okay, and and torturing them or kidnapping them, lots of disappearances that has happened. So these are the categories of cases that were in the TRC, and it's some of those people that were refused amnesty. Then how then you prosecute them? Firstly, you need the police because because refusal of amnesty on its own, it's not sine qua non just for prosecution. You still have to investigate and the case.

SPEAKER_00 19:13

These are these are crimes. It seems to me they have to meet the test of beyond reasonable doubt.

SPEAKER_01 19:22

Correct. So let's come back to that movie, and and and it's the hindsight is always the best science. Let's let's assume, let's look at the difficulties that Bulelainga faces as soon as he receives these uh these matters. He has to go through all of them, whether 200 or 300 matters. Evidence is not immediately available. Um so what then he needed to do first was actually to run a process of categorizing these matters. Can we succeed in prostituting these ones? What more evidence do we need from this matter?

SPEAKER_00 20:04

To pass the test of reasonable beyond reasonable doubt.

SPEAKER_01 20:09

So then at that time, because we had to do something, he he invited and asked the former Secretary General of the National Democratic Lawyers Association, Vincent Saldana, and said to Justice Saldana today, he must look at all of these cases and make an assessment. What which of these cases can we succeed in prosecuting? And which of the cases we must put resources in ensuring that we are able to achieve this beyond reasonable doubt standard. Because for you to convict anybody, that's a standard that must that must be met. So anybody that says nothing was done, that's not correct.

SPEAKER_00 21:02

Before you go further, I'll take a case of uh Steve Biko. Right. In the arrest of Steve Biko, you are able to get the name Constable Filip Fender something. Arrested Steve. Steve was held at police station X. Surely you are able to arrive at who would have beaten him up. He was beaten up severely. And then in his transportation from Port Elizabeth, I think, to Pretoria, you know the van was taken by Constable So and so. So if in the autopsy the idea is that he was killed between there, it it must be either Constable So and so or Constable, because there would have been two. Maybe it was escorted, I don't know.

unknown 21:59

So

SPEAKER_00 22:00

You are able to get these individuals and say to them, You are all suspects, uh, you are charged with torture, uh, blah blah blah. You are charged with blowing the final blow, and so on and so forth. That seems to me like something you can do. Steve was killed in 1977. Uh his murderers by 2007 are still fairly comprehensive, uh, even worse by the year 2000. If they were 30, they were 20, they are still very, you know. So, can you take this example for us of Steve murdered by Apartheid in 1977? Why couldn't a case, if those people didn't get amnesty, which I assume they were not, why couldn't you prosecute those people and say you have been found guilty and pass the test of beyond reasonable doubt? And take us through that. Then I will take the case which is more complex, of somebody that maybe may have been missing. Yeah.

SPEAKER_01 23:13

So two things that arise out of that case. Let's take the the case you are making. It's actually so important that first and foremost, we know the truth about Bigo. Um and and that's why then there were inquests, because the inquest then becomes the first stage before we go to prosecution. Especially when the matters are old and many of the witnesses might not be there, and uh other people might have forgotten about the matter. So when you do the inquest, you bring matter closer to making it prosecutable. Criminally prosecution. Criminally prosecutable. And it's interesting that this is actually the case that uh uh uh uh Mr. Inluga was talking about. In their assessment, these people that have allegedly to have been part of the torturing and killing of uh of Steve Biko, it became clear to them that they do not have enough evidence to sustain a to sustain a prosecution beyond reasonable doubt. Now, can you imagine me? I'm a prosecutor in the position of uh Mr. Nug. You are faced with this uh with this reality that even if I take um Wiseni and these other people that are allegedly to have been part of this uh process, if I take them to court and there's a possibility that they might actually get a discharge, so so they might not even get to a position where they testify, then you will end up with a situation where a democratic South Africa had actually exonerated the killers of Bigo. It's actually better, that's what they thought, to leave this uh cloud hanging in the manner that you you are saying that we know that Miko was killed by the Boa.

SPEAKER_00 25:24

What would be the actual impediment? Would it possibly be the reasonable doubt? Beyond Reasonable Doubt test requires one of them to say Phil June did it, meaning to sell each other out. Correct. So or there were no cameras. The the what would be the difficulty really with the test of Beyond Reasonable Doubt that might lead to their uh what is it called? No, when you are not convicted to them being discharged.

SPEAKER_01 26:04

So let's take a similar case of uh Eugene DeGok. So Eugene DeGock was eventually um was eventually convicted of many cases. Atrocities, yes. And the advantage in Eugene DeGok is because many of Eugene De Gogh's juniors turned against him and became state witnesses. And they themselves they they themselves know we were there when so-and-so was tortured and it was led by this one. So that gives you a strength of the case to prosecute this fellow. You do not have a similar weighty evidence when it comes to to Steve Bacot, for instance. You've got all of all manner of people denying all manner of things, and you will still have to depend on them because you must bring witnesses. And and and there is no witness that will have been in that um environment. That's why then you needed to do an inquest, because the inquest can give you a possibility to investigate further, but bring this information in front of a magistrate.

SPEAKER_00 27:18

Or what might an inquest, for instance, in a situation where the police personnel are not selling each other out or they are not turning against each other, what might an inquest lead to in a case where they are not doing that? That might be prosecutable in a criminal case that requires this test of proving beyond reasonable doubt.

SPEAKER_01 27:42

Look at the, for instance, when we're saying the conviction of the killers of Chris Arlie. Um it's it's actually quite interesting that those guys will cover up uh from one another. But you had an accidental witness that saw that that event. But also you had a domestic worker that was working for one of the killers, and she was listening to all of the um to all of the conversation about planning to kill Chris Annie and eventually killing Chris Annie. So those witnesses became key in the conviction of these people. So, so in a sense, you are looking at a possibility whether is there any further evidence that you can that you can find to be able to sustain the conviction.

SPEAKER_00 28:37

So that's the second problem. First evidence. Let's summarize first. First problem is clearly the fact that the prosecutors are friends, former colleagues of the people that you want to prosecute. It's lawyers from the old apartheid national prosecuting authority who under abart date would have been leading cases that they must now turn against. It's an interesting paradigm for me. Are you able to come up with names that some people know that are known who were prosecutors under abart aid, but who are also prosecutors around the TRC cases?

SPEAKER_01 29:28

No, they there's there's a number of prosecutors if you're following the Hampepe Commission and you listen to the way Menzi Semelan and the team are uh labeling people as apartheid prosecutors. I I don't want to go too into that point, but because some of those prosecutors, despite the fact that some of them might have been part of the old order, they some of them may have been very useful. But is it possible?

SPEAKER_00 29:58

And you can answer me later, if it helps. If I was prosecuting, I mean, Steve didn't go to a court, but someone like Terra at the conclusion of his case, he was sent back to Robin. Hey, ladies, yeah, there was a prosecutor there.

SPEAKER_01 30:18

Yes.

SPEAKER_00 30:19

You're saying to me that person, the likelihood that that person would have now been in the same system that must take the case that he worked on to turn it and say, where are the torturers of Teral God? Is this what you're saying?

SPEAKER_01 30:37

Yeah. So so because these people are still part of the system, the same police that were investigating and arresting people are the police that's let's let's take, for instance, the Bebco 3 case in Port Elizabeth, which links with um Craig 4. There's a fellow there, Fan Zale, uh, who's an old order general that that um actually was um is allegedly to have confessed to Eugene T. Kok on these matters. But just the delays and the speed harms that they've put on the way of him not being not being prosecuted, and and this is where I'm saying you also have then this lack of enthusiasm amongst his former comrades uh within the prosecutorial system, within the police system, um, that will not be as enthusiastic as as maybe if the prosecutors were people who are themselves part of uh anti-apartheid forces.

SPEAKER_00 31:50

Correct. Okay. That's the first part. The second part is this one of the test of reasonable doubt beyond a reasonable doubt. That's the second impediment. What is the third impediment?

SPEAKER_01 32:04

So so there's a there's another case which is a really blight in in the face of our justice system of voter person. You know, so so this is a typical case where the fellows that arrested person and the ones that prosecuted person and judge that he had the case of person, they actually did the shame. So person is prosecuted and is is arrested, is prosecuted. He he is allowed to leave the court smelling of roses because the combination of this is an older bird judge is an older birdway judge, prosecutors. Um and in this instance, Ackerman was very enthusiastic in prosecuting in this in this matter, but the entire system around that was the system that is undermining any possibility of a proof beyond reasonable doubt. And in the end, the judge spent quite a lot of time drafting the most comprehensive judgment to even anticipate what the Supreme Court of Appeal or the Constitutional Court might say, at the end of the day, you end up with voter person out. So I'm saying you've got those that are not uh very difficult to prosecute, like uh the Big O case. You've got those that there were people within the system that were frustrated them. No, no, in this instance that were willing to be to be the witnesses like uh Eugene Decock. You had the others that were committed to frustrating the system, and the system is frustrated out to the judiciary. And then you end up with a voter person, which everybody knows um of what um of what he has done.

SPEAKER_00 34:16

But this story is only explaining uh what I'm hearing to be the difficulties. The accusation is political interference. Correct. Is that Mandela uh I don't hear his name anyway, but uh uh Taboom Beki, Jacob Zuma, and Sal Ramaposa's government stopped the prosecution of the chaps that did not get amnesty. And the idea, as you know, is that they kept saying, wait, we are passing a policy on how to prosecute them. Take me through that.

SPEAKER_01 35:07

So so so within there is there's also a very serious confusion around these matters. Let me just explain it. So there were matters where amnesty was refused. Um so those people are in the hands of the prosecutors. The prosecutor don't need a policy, don't need guidelines, don't need anything. Were they prosecuted? Those people, many of them were not prosecuted. And that's the answer that that the Hampebe commission must uh produce. Because in reality, but it seems to me from what you're saying, that has nothing to do with politics. That's the point. I'm coming to that one. Okay. This is absolutely nothing to do with politics. 1998, the report is given. This is the list of people that have not been given amnesty. So these people have to be in the hands of the police and in the hands of the prosecuting authorities. So they needed to prosecute those people. A number of those people have not been prosecuted, either because of difficulties within as I was, as I was explaining, of individual cases or sabotage internally by the police.

SPEAKER_00 36:24

But you are saying these ones had nothing to do with the conversation about the policy. Zero. What did? I'll come back to that. Okay? So that's the first list. Oh, wait, but you are saying some of the explanations for why these people you are speaking about, the ones that did not get amnesty, did not get persecuted. Those who were supposed to persecute them are saying the policy that you are about to explain, I hope, bound their hands from prosecuting them. Is this not the accusation?

SPEAKER_01 37:02

No, no, they they they will be lying if they say that. So that's not that's not So that then why didn't they? So that's why I'm saying that's why I'm saying What would be Bulelani Muga's defense in that case? Is the rest of the things you have said? Yeah, Bulelani doesn't defend this thing. Bulelani did as much as he could. Um to to top. And the heroic Picoli? Sorry? The heroic Vus Pigoli. So Picoli, as well, he there was nobody that stopped Picoli from doing this. He will explain why these people were not. Okay, what did the policy have to do with that? So then let's come back to your policy thing. So remember the last report is now given to President Mbeki when he was a president. The last, the second volume or last volume of the last volume, yes. I said, now we finish this process, it ends here. President Becky says, no, but it doesn't look like the process is complete. Because this one, it's okay, let's prosecute these people, the the legislative process must take its own course. But there are many people that have not applied for amnesty. Right? And those people, you will see later what some of those people did. And and those people are claiming the fact that they've been convicted because of their political activities. So whatever crime they had committed, it was in pursuance of a political objective. So they are still they are still in they are still in jail. The question is, what are we going to do with those people? Okay, slowly.

SPEAKER_00 38:53

There are people who did not apply for amnesty. Correct. Because they were already in jail. Some of them. Therefore, from jail and they didn't think they should apply.

SPEAKER_01 39:14

So let's let's take for instance, let's think, for instance, we send what the case I've made earlier on. The TAC takes a position that its own combatants will not go through uh the TRC. As a political position.

SPEAKER_00 39:33

So at the end of the TRC, the question is, what do you do? What do you do with those fellows? And some of which are in prison. Some of which are in prison. Some are still not. Why is this a problem? Because when you started, you did say if you don't come, I'm gonna process. That's correct. That's correct.

SPEAKER_01 39:49

But I'll explain what it happened later on. Then you've got others that that will would not have taken that process serious anyway. Yes. You know, but there are others that that might be found, but um they they thought that they will never be found. Let me explain why these things are important, we said. Let me give you a case of um arms cachiers. So there were lots of arms that were all over the country because the old order people had some of these arms. I was speaking about Philip Power. So many of the people that were still holding arms and understanding that as you build a new society, these people hand over these arms into the criminals. And they didn't apply. So it was important, therefore, that if there are some of these people, they must disclose the truth. You know, so so it was in the interest of the country to hear some of these people that didn't apply in that fashion. But you also had, you know, a very, very vicious um national management uh system of the national intelligence services of apartheid. And many of those people were still at large. And it might have been possible for those people to come and disclose some of the things that they have that they have done. Later on, President Becky receives, for instance, about 1,600 or so pardons application by those that are sitting in jail, including these combatants of APLA, for instance, I'm talking about. And this is after the report. After the closure of the report. So now he's So people that have been convicted are asking for pardon. Are asking for pardon. 1,000 of them. Yeah. But more than 1,000 of them. From jail. From jail, because remember, they have been convicted and convicted under apartheid crimes. Correct. But by apartheid. By by apartheid. Others, it might have been beyond that. I I can't go through that that list in totality. But the reality of these people are saying no, we are political prisoners. So what then President Becky starts doing, um, there was there was a number that he pardoned. Because in terms of section 84 of the Constitution, the president of the Republic is allowed to pardon people. So he pardoned some of them.

SPEAKER_00 42:37

Some of these people would have been convicted of murder?

SPEAKER_01 42:42

Some of these people were convicted of murder, sabotage, and all would have been black and white. Largely, largely black, largely black. Yeah. Then when he started issuing these pardons, there were two complaints, legitimate complaints. One complaint, for instance, comes from the Helen Susan Foundation, saying, but no, this is giving amnesty through backdoor. And another complaint vociferously from Bishop Dudu. And then this is when then President Beggy says, no. Then I hear these complaints, despite the fact I've got this constitutional power, let me take this thing to parliament and get all the parties to advise as to what do we do with this category, with this category of people. So this is where the policies and guidelines come from. And then you end up with a parliamentary task team, interestingly led by the former MP Teshias Delport. I don't know whether Teshias was with the uh originally was with the Nationalist Party. I don't know whether he was with the Democratic Party at that stage.

SPEAKER_00 44:00

But but Tasha's Delport and them had to look at this um had to look at this what do we do with this way the origins of the process of TRC had been parliament itself. So you are taking the question of do I pardon people who are convicted who were in jail of crimes that are otherwise known as political crimes. Correct. You're taking the decision about what to do with those pardons. Exactly. To the same body that decided the process of the TRC.

SPEAKER_01 44:42

Correct. Okay. And you can see there's nothing secret about this. So it's public. It's public. Okay.

SPEAKER_00 44:48

And that committee started working interestingly with Is it possible that at that stage, if I was a different entity, if Helen Susman says no, that's giving Amnesty through a different door. Those who are convicted must have full sentence. Is it possible at that stage when Mbeggy says I'm gonna go and take it to Parliament to request what do I do? Give me policy. That I at that stage, if I was maybe the Freedom Front, or if I was the PAC, is it possible that I could have at that stage did a court application equally to say the opposite? It's it's it's it's possible.

SPEAKER_01 45:36

But nobody did? Nobody did. But remember, the pardon is largely a discretion.

SPEAKER_00 45:44

Agreed, but I could have legally had rights. I could have had some ground for a court hearing that this is no longer a matter of parliament and TRC. It must rest with the president. It is what the constitution says it is, discretion. Correct. So this president must decide and close. I could have, if I was one of those prisoners, for instance, I could have said, no, my my request is to you, is not to parliament. Parliament doesn't have the discretion. You have the discretion, please use it. Of course, the president may have replied, says it's my discretion to take it through parliament. Correct. Okay. But nobody did. Nobody did.

SPEAKER_01 46:24

But remember, these matters were quite controversial even at that stage. So that's why this approach was possible, the best approach. Yeah. It's very interesting, for instance, that um the team of Tesha Stelport um did something that President Becky rejected. It says, no, I see the list, I see the category president you're talking about. Can we also include in this those people whose amnesty has been refused? Now, sneaking something in. Truly sneaky. That was something that was rejected outright.

SPEAKER_00 47:04

And this in Norway, I mean, I have to really repeat this question. This has nothing to do. Still, this process, you were able to produce documentation to this effect that it had to do only with the category of people in relation to the pardons that were in front of President Sabombe. Correct. And those pardons had to do with convictions that were standing.

SPEAKER_01 47:30

This one, it has to do with convictions that were standing, but also it had to do with some people, like I was saying, that might come and provide useful information.

SPEAKER_00 47:42

I don't get that part. So if I come and give useful information, but I am not. Okay, so this is another category. The category that is completely excluded is I applied for amnesty and the TRC refused. Yeah, that that it's it's in the hands of the police and the police. As long as we separate, I I will come back to this one, the second part. Only that they steal an entire ocean of separation. Yeah. Mbeki's policy together with Delport have absolutely nothing to do with the person whose amnesty was refused.

SPEAKER_01 48:25

No, not at all. Is the Delmas tribe?

SPEAKER_00 48:39

Where in which of these categories does it fall? What the Delmas um uh yes, the the not the Delmas, the Credok for. The Credok for, yeah. In which category do the Credok for fall?

SPEAKER_01 48:54

It falls from on the first category. Of the refused amnesty. Of the refused amnesty. Let's I'm saying, for instance, one of the accused there is Fanzale. Right? There is nobody that says Fanzale must not be prosecuted. But Fanzel was playing lots of tricks. And he his amnesty was refused. He took his amnesty for a review and all manner of and all manner of things. It has absolutely nothing to do with anybody stopping Fanzale from being prosecuted.

SPEAKER_00 49:29

Did I interrupt you? Because now I need to know why, for instance, Nicolata Fenneli, which is at the forefront of the accusation of political interference, would make this accusation.

SPEAKER_01 49:58

Um that that will be um feeling a sense of loss and a sense of suffering. And there might be in the process as well lots of ill advice and and and confusion. Because to put these matters together, it's not correct. These matters are these matters are separate. But at the same time, it must be made clear who actually did the interfering. So, so it's at this stage, the idea is political interference relates to this policy.

SPEAKER_00 50:39

Now let's have read the papers. Is there a practical case? And that's why I brought the credit for. What is the accusation related to there of political interference beyond a policy which you have completely explained and shown how it's not related? So, what else could have been a political interference in terms of their complaint?

SPEAKER_01 51:09

Yeah, so so for instance, as far for instance as President Becky is concerned, I don't understand anything else except this policy. Because, in actual fact, the policy we're saying comes, follows a speech that President Becky made in 2003 in parliament. And in that speech, when he received the report, thanking the TRC for giving that report, but making it very clear that the journey of reconciliation is not over. And we still have to look at these other categories. And we must, as a country, find a way, how do we deal with the rest of this country?

SPEAKER_00 51:51

How were these categories not included in the TRC process? Could somebody say these people who are asking pardons from the jail cells had the opportunity themselves to go to TRC? Is is it is it a lacuna in the TRC, or would I would this be a legitimate defense?

SPEAKER_01 52:19

No, it's it's their choice, Mm-Sen. Like I'm saying, it's not um it's it was not compulsory for anybody to go. Um because they could have said, I was happy with the job I've done. I've uh I've killed so many people. It was in the process of uh political struggle. Political struggle. If if I must stay in jail, I will stay in jail for that. But I have now served 10 years, I think I deserve a pardon. Yeah, so the but things like that. But but in the end, it's the people that remember, many of as I was saying to you, other people were told by their political parties, don't go to that thing. Because remember, the TRC was not a a set a some sort of a a section of the Catholic Church. It it had lots of people that were attacking it.

SPEAKER_00 53:17

Um they were attacking this. But I see the the angle. ANC. Someone can sit and say, it was not in the best interest of the ANC to have uh people, for instance, in the self-defense units, people in ANC's exile structure called Mbogoto. It is not in the best interest of the ANC to have those people prosecuted, or to have people that you know killed white people in the ANC, that this policy may have, in all honesty, uh, you know, protected people of this category.

SPEAKER_01 54:38

What would your response to that? No, Mbisen, the the people that had to be prosecuted, they will be prosecuted in their individual capacity, not as a club. There was no club of SDUs, there was no club of Mbogot or anything. Mwisen will have been prosecuted because of the crimes he had committed. But let's look at where now the confusion again is created deliberately. Let's look at the two categories, or maybe let's start somewhere else. The the uppertage generals, some of the uppertage generals actually sent an SOS to the ANC that um that they are being uh taken in front of the TRC, they will be prosecuted, but they are commanders, and those that gave them orders are not here. And and the ANC, in its own wisdom, thought that they need to force the clerk and his leadership to also go to the TRC and not just leave the things to the low-ranking um operatives.

SPEAKER_00 55:56

So I remember because Eugene, not Eugene Dekok, this one. Prime evil. That's him. Who was the other guy? I forget his name now. But let me but let me finish this. He says that no, but if if if now suddenly I'm here alone, I can produce medals where I was given medals by my bosses for my by my bosses for all these crimes I'm now paying. And they knew I was a killer. And they knew that precisely my yes, yes.

SPEAKER_01 56:30

So so so I'm saying then the ANC decides, and then you're still talking about the ANC, which is a leader of society, decides that to force the clerk and all of them to do the same thing. Let's get some of our leadership to go and apply uh for amnesty. And that amnesty was we are taking response full responsibility of what MK operatives were doing. And so those people must not be isolated from the rest of the ANC. And that's what the apartheid government was refusing to do.

SPEAKER_00 57:08

I mean But in a way, be that as it may, if a specific MK combatant, your first part, an individual, would have aggrieved anybody, they would have not been protected by ANC's admission of political ends.

SPEAKER_01 57:32

Yeah. Let's let's finish this thought. It's correct. But let me finish this thought because now the ANC takes that position and says we take collective responsibility for what MK has done, so whatever might have happened, and and then they apply for amnesty as this collective. Initially, they were granted amnesty. Yes. As a party. As a party, but later on, that was overturned by a court. Yeah. So so, in the sense that the court says no, but this is in breach of the TRC uh legislation, because the TRC legislation doesn't provide for collective responsibility. There's no such a thing. Now, now that's the 37 ANC leaders that were there. Now, what you are hearing being peddled either by Karen Moon or other people that work with them, they're saying no, the reason Mbake um uh protected the upper rate generals is because he was covering up for these fellows. Um, for his comrades, 87 NEC members. For 37 which included Mandela. I'm not sure if Madeva is in that list, but uh but but these were random um membership in the sense that it's not to say you were a place, you know, you you did you you were at church.

SPEAKER_00 59:07

Take responsibility for the decision that we're gonna take up arms. Correct. Uh and we will be prepared to kill if needs.

SPEAKER_01 59:14

Exactly. Yes. And and so those that eventually went to bomb Sassol to do all of those things were acting on our instructions. So you couldn't left leave those guys to try.

SPEAKER_00 59:26

Did I hear the strategy? It was to try and get Ditleck to also come and say the same thing. To do the same thing. Did he?

SPEAKER_01 59:35

No. So they didn't. So so that they they they did they did not. And and that's why sometimes a person like P.W. Porter, for instance, um would even refuse when he was subpoenaed and eventually found guilty. So so the the Nationalist Party never took that collective responsibility because it continued the line that these uh operatives, whether you're talking about FLAG Plus or everywhere else, they say these people were working on a frolic of their own. So but the point I was trying to make is not just about that. It's about saying, no, there is a motive uh for protecting these apartheid generals because you are protecting these 37 ANC members. No, there's no there's no such a thing.

SPEAKER_00 1:00:28

In any way, what how could okay? I get it, at the level of a motif. But okay, I have to ask this now. Uh the Kalata family lost a member of their household was a leader to a cruel, cruel, cruel uh death, kidnapping, torture, burning, banning. This loss, regardless of the fact that you say it doesn't include whatever case that had to be decided by police. I mean, surely Bramek, someone like President Tabumbeki, who himself has two members of his family that were killed. We we must assume they were killed. The father serving a death sentence, which was a life sentence, he would have been himself hung. Just take me through firstly, how does this person get to have a motive who has experienced the same loss as you? How does how do they justify that Becky, who has a bone to pick, his son is nowhere to be found, kidnapped, blah blah blah? He has been himself to the TRC to say, can we try to get somebody to confess at least the whereabouts? Many of cases of this similarity. His brother. How does this person have a motive to protect his the perpetrators or the people who have harmed him through a collective responsibility statement?

SPEAKER_01 1:02:41

How does this work? So, Musin, I I I I have um sympathy for the Galata family and the trauma that they have gone through. And and I think I don't I don't want us to say they should have reacted this way or that way. But I take issue with their advisors. I think the people that are advising exactly this scenario you're talking about is a very, very cruel lot. Um, because there could have been no issue. Um, I mean, if you if you look at um, there could have been no issue that President Becky will say, the people that have done this to his comrades must not be prosecuted. Him and other comrades had taken a different view. And that view is expressed in the TRC, where there is a category of people in the TRC that says, we are survivors, but we are not victims. When we got involved in the struggle, we anticipated four things. One, that we will be killed, two, that we will be exiled, three, that we will be jailed, but four, that we will achieve our liberation. There's that category in the TRC that says we're not going to be making any demands of any sort. And the classic of that group is the Rivonia trialists. You never hear the Rivonia trials even coming to the TRC because they had taken a view that in the execution of the struggle, we anticipated all of the people.

SPEAKER_00 1:04:26

Could this be Zuma's argument as well, that he was incarcerated, uh, exiled, hunted, and uh could have made the say, could is this possibly the defense that we might hear from someone like Zuma went to Robin Island for 10 years? Uh he says that he went for 10 years in relation to an arrest that had to do with joining MK. But secondly, someone like uh I mean I uh one of the people that is a hot potato to the establishment. Uh you know, the ones that were at the forefront, for instance, of uh the former general of Mkundu of the South African National Defense Force who Spiwenyand.

unknown 1:05:17

Ms.

SPEAKER_00 1:05:17

Spiuwenyand himself has uh lost family members in some terrible, suspicious way, was MK. Possibly is part of those categories of people who say it's fine.

SPEAKER_01 1:05:33

Correct Misen, you see, it that that was very important. Because there is no one who is black, and at least that grew up before 1994 was not a victim of upper date. So whether you're talking about past laws, whether you're talking about group areas, act eviction, whether you're talking about Bantu education, whether you talk about all manner of things. But we We did not have a struggle that was conducted by victims. Our struggle was conducted by heroes. And at the end of the day, it's no point that we say, no, no, no, we are victims. We actually convince ourselves that we will defeat this system. We're still convincing ourselves today that we have defeated this system. So you can't individualize this thing. But the TRC recognized that there are people that will not think in that fashion and they should be fully respected. And now it's for me when there are advisors who abuse, who abuse that respect in the manner that is being emitted out to President Mbeki and Bridget Mabadra. Because let me say this again. If there was anybody that interfered, we say President Mbeki or Bridget Mabandra or anybody interfered when Pigoli was the national director of prostitution. That person would have been arrested by Pigoli. Pigoli never was never scared to arrest Zuma, never scared to arrest uh Jagi Salid. Why would he not arrest anybody that is interfering with his work? Or blow the whistle. Or blow the whistle. Because even if so, so and as Mr. Akerman was uh testifying, he's making a number of deductions. If this happened and that happened is what President Baker would say, one plus two is equal to seven. So that's that's essentially what what we are dealing with here. But these matters of interference, for me, are very clear, factual matters. That I was on the way to arrest so and so. Um the minister called me and said, wait. And said, don't arrest police, don't prostitute, right? So there's nobody that that has been stopped from doing that. And I'm saying that person, that person should be arrested immediately, whether it was a minister or whether it was President Mbek.

SPEAKER_00 1:08:13

The last one Gepra makes relates to telling a fountain judge or former justice Hambet. Why are you saying she shouldn't be presiding over this commission such that it needs an agent interdict to withdraw her from the proceedings?

SPEAKER_01 1:08:41

You know, this TRC process has been a long and a traumatic process. At some point, all of these machinations you see on television, in courts, waste of time, waste of money, this thing must come to an end. And our country continues um to move forward, and moving forward includes prosecution of people that need to be prosecuted. Now, the the entrance of Justice Khan Pepe in this process doesn't allow that process um to happen. Let me tell you why. So the first problem we raised was that Justice Khan Pepe was part of the TRC and the amnesty committee. So she's the one that was making adjudication, who must be prosecuted and not prosecuted. She actually is the one that even heared this ANC matter. So our view was that she is not in a position to bring an independent mind on this day. The second thing is that Justice Khan Pepe was a second in command to Bulela Ninguk. So when all the formula In the national prosecution authority.

SPEAKER_00 1:10:10

So she is one of the prosecutors, retrospectively claiming there was political interference from her prosecuting the murderers of the Credok Four?

SPEAKER_01 1:10:24

No, no, no, she's not. She's not in that sense. She's not making any of that allegation.

SPEAKER_00 1:10:31

But she was Well, I could make that allegation that you were in a position to prosecute the murderers of the product. Correct, from day one.

SPEAKER_01 1:10:41

Why is this even space? I don't know. So I'm saying if not prostituting, she's part of the policy making. And if I was telling you about Vincent Saldana, for instance, that was giving the advice, surely Vincent must have reported that to Bulelan and her, because these are two top prostitutors in the country. So she is in the in the formative stages of dealing with these matters. And and and and one genuinely is concerned about her bringing an independent mind in this thing. So our point about her was that we don't accuse her of any specific thing that she has done, but we're saying we are apprehensive to come before her. She coming from systems.

SPEAKER_00 1:11:38

If you were to say there was political interference to the NPA, she could as well be summoned as a witness. Correct. Because for instance, her boss, Bulelan, was a witness. Okay, but how did it become the case then that she chaired the commission?

SPEAKER_01 1:12:00

She's appointed by the president. But let me let me finish this thing so that it makes sense to you. So I'm saying these are the two reasons. Those of us that know Justice Khanbert, we we we know her very well. We don't doubt her integrity, we don't doubt her credibility, but we think she is not doing herself a favor, she is not doing this process a favor, neither she's doing us a favor. Then the third thing that happened, um, because I think this is important, whilst the National Prostitution Authority, the current one, the current one, brought an application before her when she was in the bench. When she when the commission starts started, right? This application was they the National Prostitution Authority is very worried about the evidence leader, uh, my brother Ishmael Suming. And they were saying, firstly, um Advocate Sumenea had a private deal um with the advocates of the of the Galada group on how the matter is going to be is going to be conducted. And and that deal had not been disclosed to all of us that are involved in the matter. But secondly, they raise a worry that advocates mena as the evidence leader, this policy that you were having about, he was the advisor in the formulation of that policy. Which policy now power of remember Vicky took it to parliament and then it became then you put interdisciplinary multi-party. It was multi-party, yeah. But also there was an interdepartmental team that was dealing with that uh with that policy. In the in on the side of government. On the side of government. And interestingly, that team was led by Vossipigol.

SPEAKER_00 1:14:29

So so then No, but you I wanted the name of the MP. It's important to repeat the MP that led the multi-party. That was Tesha's Telport.

SPEAKER_01 1:14:41

Yeah. So what then we what then happened. Oh, because no, he's late. So what then happened is that the NPA raised this thing that, but uh but our brother was the advisor on this policy that is today in question. But also there's lots of things that are being raised about the Jinwala uh commission in the mixer, in the mixer. What was the Jinwala Commission? So that was the commission to test the fitness of Fusi Picoli as to hold office. But again, our brother was the advisor to that commission. This is Praish. Yes. So this is what the NTA raised. They say, no, but Ish is not suitable.

SPEAKER_00 1:15:33

And why is this important in a commission? Ish is going to play the role of Chaskelson.

SPEAKER_01 1:15:39

Correct. He is a Chaskals in this process. So leading witnesses. Is supposed to lead witnesses.

SPEAKER_00 1:15:46

He must be more or less.

SPEAKER_01 1:15:49

You must bring all perspectives. I see. Right? But then our objection was not we really didn't mind Ish continuing. Our objection was the sustainance of the deal that Ish had made. And that deal was that the Galate people will need their own evidence. So there would be no evidence leaders, so to speak. So the evidence leaders will just ask clarifying questions. So as you were, you must have seen that process very different from your Madlanga process where you've got clearly defined evidence leaders. In this instance, you've got people that are coming to lead their own witnesses. And we were saying we don't believe that process will be a correct process. Because we need to make sure that the evidence leaders must be the ones that investigate the matters, they scrutinize the evidence, they assess it, they synthesize it, and make sure that it deals with the framing of the objectives of the inquiry, which is to assess this political interference. So both these applications come to Fort Justice Khampepe. She says, Ah, don't worry, Ish will stay. And then for us, she says, no, don't worry. So we ask her for reasons so that we can deal with this. No, I'm not giving you any reasons. Now you realize it's going to be very, very difficult to work under this circumstances.

SPEAKER_00 1:17:47

What is this? Why at this stage would something of this nature around such a painful past happen? Why would it it sounds to me anyway, you know, like just legal games, uh lawyers and lawyers, just but maybe I don't see the picture. If you may, you don't have to. Politically, what am I supposed to make of everything you've just said? What does it mean politically? Because aparte it was a crime against humanity. These are real, real stories of trauma as you've put it. Why would people do all of this around this?

SPEAKER_01 1:18:41

So let me let me start somewhere else, and we said just understand that what we've got as a Hampe commission, it's a sideshow of the main action in court. There's an application in court which is premised on the fact that there was a breach of constitution. Right? And that constitution, essentially, the premiers of the breach of that constitution is uh President Mbeki and Bridget Mabandra, and to some extent, some of the cabinet leaders, Ronnie Castrells, uh um um um Charles Nagula um in the security class. In the in the security class, the dogetizer because uh at some stage she acted for for Bridget Maban. So so there's an there's an application in court that says these people have breached the constitution. Now, as a result of their breach of the constitution, the victims are entitled to a to constitutional damages. How much it's anything between 160 to 200 million somewhere somewhere there. So that's that's the case in front of the court as we speak. But look at this irony. We go to that court because the matter originally was not being defended. So President Beke and uh Bridget Mabandra applied um to be able to defend themselves because remember the allegations are centered in particular around the two and these other cabinet members. If the court comes to the conclusion that they breach their oath of office, that's a cry. So they need, they have to be arrested. But interestingly, the judge said to us, No, you do not have to be here. Because there's no factual allegation against President Mbeki, neither any factual allegation against Bridget. What is in front of me is some people that have written books and some newspaper journalists that have repeated the story. So my court is not a place where you're answering journalist literature. So on those bases, we were asked to go home so that our application was not entertained. So what then is happening now, you need to consolidate as much evidence as possible from this Hampepe process to be able to go back to court to bolster that argument that there was a constitutional breach. So that's why we take this matter very seriously. Serious in that sense, but also serious in the sense that we think it's very important at some stage when we finish this process with Justice Khabebi, we think we've got an obligation to go to that commission to be able to explain to the nation, not in a narrative sense, but in a factual sense, where do we come from? What were we trying to do? What are the shortcomings of that process? And what must this country do going forward to him?

SPEAKER_00 1:22:28

What I am worried asking for the politics is what would it mean politically if a conclusion were to be reached? That the ANC literally protected, shielded abarded generals from being prosecuted. That's if that's the the question in front of the commission is that it could reach that conclusion. Politically, it it just means I could sit in 20 years from now without details and give credence to the fact that ANC perpetuated apartheid.

SPEAKER_01 1:23:21

So you will remember you will remember one of the troubling issues during this period of transition and around the TRC was um the moral equivalence of the struggle against apartheid and the efforts to defend apartheid. So that's why that's why Harinel is a very active participant in this process. Because he's coming to that commission to say whatever the ANC had done, it must be taken equally to what the apartheid generals were doing. Now it becomes very, very worrisome that the ANC today doesn't follow through that argument that was made in the early 90s that this is a just war because it's a war against apartheid, which is a crime against humanity. Today we are involved in the rewriting of that history to say this crime against humanity can be equated to the struggle for liberation. So that's why then the papers throughout this process are framed as ANC betrayal. So the ANC is not being destroyed just today, but you are also destroying its heritage to say the struggle for liberation. That's the heritage of the people, which is the heritage of the people, that the struggle that was waged by people for this very, very long time was not worth it. That's why then the ANC defends the apartheid generals. And I think that's a very, very painful position to get into. I wish just one day a single member of the ANC can stand up and say that is not the definition of who we are as the ANC. Thank you. Thanks, Doc.