Amnesty Hearings — East London — 1999-03-25

MR MBANDAZAYO: I wanted, I was tempted to use that argument, but I had this slight problem that it is alleged that if there was evidence that at the time, as my learned friend was arguing, that he was assisting he saw these people were stranded and had to assist, my argument was going to be like this, but I refrained from that because there was no evidence to that effect.  It may have been that they regarded the person who was assisting as part and parcel, as a corroborator or whatever nature, that he's trying to save you know, the target, their target and as such he ended up being one of the targets also, as a result of that.  But Honourable Member, I agree with what you are saying, that's another possibility.

MR LAX: Mr Mbandazayo, I still don't feel you've addressed the issue of proportionality sufficiently.  Even if the intention was to kill, what was their direct political objective?  I just would like you to be clear about that.  And then in relation to that, the proportionality aspect.  Can you just help us there?  Because it's one thing to talk about white people being fair game so to speak, in terms of no distinction between soft and hard targets, I understand all of that, but these individuals had a specific objective in mind and I just want you to address again that objective and then in relation to that objective, the proportionality of these killing.

MR MBANDAZAYO: Through you, Chairperson.  I think in evidence here in the bundle it is clear.  When Mr Dolo was asked many times about that and he did not mince his words when he said
"Look, we wanted to stop them coming to Sterkspruit and wanted to drive them away."
In a way I think it was, if I'm not mistaken, Mr Lax himself, when he said that in a way he wanted to create a liberated area.  That is what he said in evidence.  That"
"We wanted to drive them away as they were doing in the farms, that we wanted to create liberated areas where we can operate in order to launch further attacks."
Hence their aim he said that it was to repossess the land.
	Now coming to the question of proportionality.  Through you, Chairperson, I'm always, there's one point which I'm always having difficulty to address and one would always ask in proportion to what?  Because what I'm - my argument is always and again I will use the same argument that this question of proportionality it's my argument, I may be wrong, that it should be applied to the policy-makers.  The policy-makers are responsible for that.  
	For instance, if the authors of apartheid, if I may make an example, the Parliament makes but it's not always the case that legislatures are the people who are applying that, ordinary people on the ground were applying it differently.  But if you look broadly you find that this emanates from somewhere and the reason why they were that, they know that they are protected because this is covered.  And as such you cannot then punish those people who are applying it, saying look it must be applied to them.  That's my argument, that proportionality should be applied to the people, to the policy-makers who are responsible for that, not the ordinary foot-soldiers.

MR LAX: Well Mr Dolo isn't an ordinary foot-soldier, he's a regional commander, he was the person who identified the target, he's the person who had an objective in mind.

MR MBANDAZAYO: Yes, he was not a foot-soldier, he was a regional commander, he was identifying the target, but at the end of the day the final decision did not lie with him.  As you can see in the record, he has to seek approval first and after that he has to report that here is my target.  He was not doing without seeking the approval first to show that he cannot do as he likes, that must be approved.
	If you still remember, for instance there was an exchange to that effect: when did you phone?  It was after another incident.  I phoned earlier to inform that there was that there was that, hence there was that commotion in Aliwal North.  It was because of those things.  That he has to seek permission and after that he has to again report about the outcome.

MR LAX: So you - sorry.  ...(intervention)

MR MBANDAZAYO: Although he has ...(indistinct), the target was identified by him but at the end of the day if they policy-makers had said look, you can't do that, definitely he can't proceed, then if he proceeded then he can be held, he must be the person who must be held responsible.  Thank you, Chairperson.

ADV PRIOR: Mr Chairman, Mr Mbandazayo has been given an opportunity to address you on other matters.  If at the end of it if I may just be able to make a closing statement on behalf of the victims.

CHAIRPERSON: Certainly.

ADV PRIOR: Mr Chairman, I don't think we should confuse the issues here.  We all understand that APLA was operating as a military organisation and they had specific targets and objectives for a specific purpose.  And even for example, if one looks at the attacks on motorists at the Mayaphuti Bridge, and even if one accepts that white people going about their normal business were legitimate targets, the question of gravity and proportionality must feature in the final analysis because APLA, as we've heard in the submissions, weren't an undisciplined organisation, they had structures, they regarded themselves as soldiers.  In terms of their own 15 points of conduct they weren't able to mistreat captives or prisoners and their own rules made provision for that.
	Now Mr Schroeder who had been injured seriously, shot through the body, lying there, to have his head blown away as it was, or Mr Tsemane who was assisting Mrs Brummer who had been shot or injured, I submit it goes beyond what a soldier does, it goes beyond the objective.  They had achieved their objective, it wasn't necessary, it wasn't justified, it served no political purpose or objective to execute the people as they did.  And that is the question that Mr Lax has properly put, therein lies the proportionality, that the deaths weren't justified in those specific circumstances.
	And understanding everything that has been said and understanding about the way they operated on the ground, we have understanding to that, but once they had finished the attack it seems that the people were in a very callous and cold-blooded manner dispatched, when it was totally unnecessary to do so.  So I submit that that is a factor or a feature that this Committee must bear in mind and must strongly weigh against the simple statement that we were carrying out orders and we had no ...  Mr Dolo was the regional commander, he wasn't a foot-soldier as has been correctly pointed out, he could decide.  They went on training runs, as the Committee heard, they tested their weapons, they were able to withdraw, they were able to choose, they weren't simply robots carrying out orders under pain of death.  Thank you, Mr Chairman.

ADV SANDI: Sorry, Mr Prior, can I just ask you to explain this.  Are you then submitting that maybe one at the end of the day, has to draw a distinction between Dolo and others, Dolo by virtue of the fact that he was the commander?