Amnesty Hearings — Cape Town — UNKNOWN

<UNKNOWN>: s I understandthere are copies of the documents which people propose to use, being preparedat the moment. We do however, have a number of copies presently available. Iam not just quite sure as to on what basis we should at this stage distributethem among the various interested persons until the required number have infact been prepared.

CHAIRPERSON: Did Mr

<UNKNOWN>: rendse and Ms Goza have adequatenotice of what is contained in your papers? The sooner they know about it, thebetter it would be for us?

<UNKNOWN>: ertainly we are in a position toprovide them with copies right away and we have also a certain number of copieswhich we could provide to the

<UNKNOWN>: ommittee right now.

CHAIRPERSON: You maydo so as soon as you can.

<UNKNOWN>: DDRESSES Mr

<UNKNOWN>: hairman and learnedmembers of the

<UNKNOWN>: ommittee, then just by way of an opening statement, can we justput the following on record. Unfortunately developments before this

<UNKNOWN>: ommitteehave caught up with us and we haven't managed to put this together in writingthis time, so I am afraid I am just going to have to read this back to you.Mr

<UNKNOWN>: hairman and members of the

<UNKNOWN>: ommittee, on the 3rd of March 1995 GcinikhayaMakoma was found guilty of eleven counts of murder of the attempted murder ofat least 58 people and of the unlawful possession of arms and ammunition. Thisincident took place at the St James

<UNKNOWN>: hurch in Kenilworth on Sunday, the 25thof July 1993. It is notoriously known as the St James

<UNKNOWN>: hurch massacre. Makomawas sentenced to 23 years imprisonment and he is currently doing his sentence.In the judgement the court, the trial court found that "it was plainlya joint enterprise". Makoma was the only accused in the trial. That isat page 69 of the record. The applicants Mkhumbuzi and Mlambisa were part ofthat joint enterprise. They currently face the same charges relating to theSt James incident and they are out on bail at the moment. We will be submittingMr

<UNKNOWN>: hairman, that the applicants Makoma, Mlambisa and Mkhumbuzi be granted amnestyfor the following reasons Firstly, at the time they were all members of

<UNKNOWN>: PL

<UNKNOWN>: .Secondly they carried out the orders of

<UNKNOWN>: PL

<UNKNOWN>: ommanders, more particularly SichumisoNonxuba. Nonxuba is now deceased. He died in a motor car accident in Novemberlast year, while he was out on bail in connection with this matter and he wasaccused 1 in the subsequent matter, not the one that Makoma was in. He was the

<UNKNOWN>: ommander of the operation and he was one of the persons who was in church,who came into the church, threw a handgrenade and fired the shots which causedthe deaths of 11 people and injured many others. Mr

<UNKNOWN>: hairman, members of the

<UNKNOWN>: ommittee, if it is of any value, myself and Ms Goza also represent the accusedin the second St James trial, if you can put it that way, and we know this asfact. Those instructions were given to us. Just in case, we are not saying thisbecause the man is now deceased and we can take the liberty of using his name.The other person I was saying Mr

<UNKNOWN>: hairman, who gave an order was Letlapa Mphlalele,and that will also appear from his application form which one finds at pages15 to 21 of the bundle. He was the Director of Operations of

<UNKNOWN>: PL

<UNKNOWN>: at the time.The third reason which we advance for submitting that they should be grantedamnesty, is that

<UNKNOWN>: PL

<UNKNOWN>: is the armed wing of the P

<UNKNOWN>: , was a political liberationmovement as defined in the

<UNKNOWN>: ct and at the time

<UNKNOWN>: PL

<UNKNOWN>: was waging a struggle againstthe State, private property and private individuals in pursuance of their objectives.We will also submit Mr

<UNKNOWN>: hairman, that the acts were associated with a politicalobjective, that of

<UNKNOWN>: PL

<UNKNOWN>: , namely to free the country for the

<UNKNOWN>: fricans so thatthey can get their land back. The applicants acted or orders, on instructions.The acts took place in a political context when this country was being ruledby a White minority, regarded as illegitimate by the

<UNKNOWN>: lack majority. The StJames churchgoers were regarded as part of that White minority. Now Mr

<UNKNOWN>: hairmanand members of the

<UNKNOWN>: ommittee, we must just pause there because it is clear thata number of so-called

<UNKNOWN>: oloured people and I think Mr Smith, whom I happen toknow personally, was also in church at the time.

<UNKNOWN>: nd we will submit that theapplicants assumed that because St James was in a White group area, as it wasdefined then, that all the churchgoers were White. They were obviously wrongin assuming that. We will also submit that the acts were performed in the executionof an

<UNKNOWN>: PL

<UNKNOWN>: High

<UNKNOWN>: ommand order, that having regard to the political context atthe time, that the offences were directly proportionate to the political objectivessought to be achieved by

<UNKNOWN>: PL

<UNKNOWN>: and lastly Mr

<UNKNOWN>: hairman, that the offences werenot committed for personal gain and were not done out of personal malice, ill-willor spite against any of the deceased or the victims concerned. Thank you Mr

<UNKNOWN>: hairman.

ADV DE JAGER: Mr

<UNKNOWN>: rendse, as far as Mr Mphlalele is concerned,were you originally instructed to appear on his behalf, what is his position?Was he given notice through your

<UNKNOWN>: ttorneys or Mr

<UNKNOWN>: rink perhaps could assistus there? Is he in default today or how should we treat his application?

ADVARENDSE: Mr De Jager, Mr

<UNKNOWN>: hairman, Mr Mphlalele has always given us instructions.Mr Mphlalele, it is well-known for what it is worth, to the staff here at theTR

<UNKNOWN>: , that he actively, he in fact brought in boxes full of applications foramnesty being made on behalf of

<UNKNOWN>: PL

<UNKNOWN>: members. He had been involved with us aslegal counsel in this matter since last year already. We were in fact presentduring the course of last year, when the applications were made the first time.I think they were only confirmed though, in May this year. That appears fromthe application. So, we can't understand and we don't have any reason why heis not here.

<UNKNOWN>: nd we just hope that for his sake, that nothing happened to him.He has got every reason to be here. So we want to ask that as far as his applicationis concerned, that that be withdrawn at this stage and be re-enroled at a subsequentstage.

CHAIRPERSON: Very well, we will do that.

NORMAN ARENDSE: Thankyou Mr

<UNKNOWN>: hairman. Mr

<UNKNOWN>: rink, you will make note of that.

BERNARD MAKGABO NGOEPE: Sorry, let me just interrupt you on that. I notice that in your opening address,you made reference to Mr Mphlalele's application. I don't know what you hadin mind in that regard.

<UNKNOWN>: re we going to be at large to use the contents of hisapplication, for example in cross-examining the applicants?

NORMAN ARENDSE: I would submit yes, that regard can be had. I think these applications are madebefore a

<UNKNOWN>: ommission of votes, so it is in the form of an affidavit and certainly,we want to rely on what he says in his application.

BERNARD MAKGABO NGOEPE: Youmight have to give it a more careful thought, because it could have the kindof consequences that may cause problems to the applicants, may prejudice theapplicants.

<UNKNOWN>: nd I think you should as the

<UNKNOWN>: hairman has asked, you said you arewithdrawing his application, you want it to be removed from the role as it were.You are not withdrawing his application, because if you withdraw his application,you may not make it later, you will be out of time to make another application.You are just asking us to remove it from the roll?

NORMAN ARENDSE: Thatis correct, Judge Ngoepe.