Amnesty Hearings — Phokeng — 1996-05-20

MR CURRIN: That is correct, one of the factors.  But the one, the next one which we really turn to then really, is you have to consider - if one looks at (d) - the objective of the offence and in particular, whether the offence was directed at a political opponent or State property or personnel or against private property or individuals.  Now we have already argued that in our view the political objective was to regain control and power over their own affairs. That objective was certainly aimed at a political opponent.  There is evidence of that and I think that is indisputable.
	The next aspect to which you need to have reference, is whether the act, whether the offence was committed in the execution of an order or on behalf of all, with the approval of an organisation, institution, liberation movement or body of which the person who committed it was a member or agent or a supporter.
	Now I have already heard you on an issue which is similar to that one, but not identical.  All we would like to say there is that the two applicants were either members 
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or supporters of a liberation movement.  It is not our case - we would like to emphasise - that the offence was
committed either as an order or on behalf of or even with
the approval of the tribal council or the action committee.  It has never been our case.  Our case is though that it was committed or the case of the applicants, that it was committed with the approval of the political organisations to which they belonged.  
	Now we have ... (intervention).

JUDGE WILSON: (Indistinct - microphone not on).

MR CURRIN: I don't see that the Act refers to prior approval. It refers to approval.  What I would like to submit is that it is common cause that the African National Congress had a particular policy with regard to people they referred to as collaborators.

JUDGE WILSON: (Indistinct - microphone not switched on).

MR CURRIN: No, that was - I am saying, and I think it is common cause, that was the policy of the African National Congress.  That doesn't necessarily relate to the mindset of the people that committed the offence.
	What I am saying, Judge ...

JUDGE WILSON: (Indistinct - microphone not switched on).

MR CURRIN: I am talking about the removal of collaborators.  I believe it is common cause that that was a policy of the African National Congress.  Is it an issue in respect of which you ...
	Sorry, Judge, is there something ...

JUDGE WILSON: (Indistinct - microphone not switched on).

MR CURRIN: No, I am not saying that, Judge, with respect, you are not hearing me.  Maybe I am not expressing myself well enough.
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JUDGE WILSON: (Indistinct - microphone not switched on).

MR CURRIN: For a particular purpose.  For a particular
purpose.  Whether it was the intent or not, they committed an act which removed from society a person who was perceived as a collaborator.  That is a fact.  That is what actually happened.  Now having done that, having done that, the question is:  that act and other similar acts, was there general approval of that type of act in the political context that we experienced in this country at that particular time.  That is all I am saying.

HASSAN MALL: Mr Currin, I think that you are travelling into very deep water.  To start off, there is no evidence as to what the policy of the ANC is.  You can't take judicial notice of such things.  But be that as it may.  Surely, it is not - I am going back to what I mentioned to you earlier on.  Let's forget about this ANC story. If you read this (e) further on, it says
"In the execution of an order of or on behalf of ..."
And then it goes on -
"... or body of which the person who committed the act was a member."

MR CURRIN: "... or agent or supporter".

HASSAN MALL: Yes.  Didn't they on their version, didn't they commit this - the applicants, when they committed this, was it not on behalf of or the body - were they not members of the body known as an action committee?

MR CURRIN: They were.

HASSAN MALL: Yes.

MR CURRIN: They were.

HASSAN MALL: Yes.
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MR CURRIN: But it wasn't committed with the approval of the action committee.

HASSAN MALL: Sorry?

JUDGE MGOEPE: It was on behalf of the body of which they were members.

MR CURRIN: Okay.  If your understanding of the evidence is that, that they committed it on behalf of the action committee, I will not take that any further.

JUDGE MGOEPE: It was ten of them. Almost the whole, the full committee membership of the committee.

MR CURRIN: If you will accept that that is the case then I will not take that point any further.

HASSAN MALL: Yes.

ADV DE JAGER: And to add to that, the second defendant, the second applicant gave evidence that they had a sort of discussion and that the majority voted in favour of killing.

MR CURRIN: That is correct.  If one accepts that in those circumstances decisions were taken.  And if that is the conclusion that you have come to, I will accept that and not take the point any further.

HASSAN MALL: That eliminates the argument of the de-individuation once and for all, doesn't it?

MR CURRIN: It would do.
	The next issue, in respect of which you need to have reference is the relationship between the offence and the political objective pursued.  And that would then obviously be the associated political objective, which is referred to in the Act.  In particular, the directness and proximity of the relationship.  I would like to pause there for a moment.  In relation to proximity between the offence and the objective. The proximity is direct.  The proximity could 
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hardly have been closer.  The proximity, the offence associated with the political objective was aimed at the person who represented in this local community the
Government of Bophuthatswana.  It was directed against the person who almost symbolised the power which had been taken away from the tribe.  We believe that proximity could hardly been closer.  
	The section goes on and then refers to the proportionality of the act to the objective pursued.  Again, we would imagine that we need to deal with that in some detail.
	We have already dealt with the associated political objective.  Namely, regaining governance, power over their own affairs.  We ask ourselves:  what was done in order to do that, in order to achieve that?  Regretfully, a life was lost.  Regretfully, the liFe was lost in a brutal fashion and caused pain to this community, and we have heard about that pain.
	Having said that, and not in any way wanting to diminish that pain, and the seriousness of the offence, one can say that it is almost a miracle that many people were not killed in that immediate conflict.  That one person was murdered during an attempt to regain control of their own governance.  
	Furthermore, one needs to see it in the context of their own suffering as a people.  The context of the oppression, of the exploitation, of the brutality, of the torture which they suffered at the hands of the security forces under the control of the then government.  
	In that regard we have been told that the Human Rights Violations Committee will be here tomorrow, to begin to take PHOKENG HEARING	AMNESTY/GAUTENG
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statements from the people about that suffering.
	We are saying that if one looks at the killing, at the murder in that context and in the context of what the action
committee which had been elected and which represented the people, set out to achieve, that we do not believe that the offence was disproportionate to that objective.