Amnesty Hearings — East London — 1999-04-15

MR MAZAHAM: Thank you.  In addressing you, I propose very simply to follow basically the requirements that need to be satisfied in terms of Section 20 of Act 34 of 1995 and in so doing, hopefully will then be able successfully to argue the cause of the applicant.
	It is in the first instance my respectful submission that the application obviously complied with the requirements of the Act in so far as the presentation, otherwise I don't believe we would have been afforded the opportunity of the hearing.  
	In so far as full disclosure of all relevant facts, I wish to raise only one aspect at this stage, and that is the possible, very unintentional divergence to the extent that in the written application the applicant refers to an express authorisation from Gen Holomisa, whereas at this hearing he had indicated that it was assumed by him rather, that the express instruction came from Gen Holomisa and was conveyed to him in turn, by Major Mzwaiba.  For that, on behalf of the applicant, I do apologise if it is construed as a divergence, it was not intended as such.
	I further submit that throughout this hearing, the applicant has been totally honest with this tribunal and has answered the questions to the best of his ability.  There was only one aspect he may have held reservation in so far as disclosure, and that was in identifying personally the names of the parties with him, but on a reflection, he elected to be totally open and disclosed the names.  I therefore submit that he has made as full a disclosure as is possible in the circumstances.
	In addressing the question of the nature of the act and whether or not we are looking at a political objective, I look at the following considerations:  It is my submission that in the first instance the act in question certainly and very clearly, comprises a criminal offence of kidnapping and satisfies the elements thereof.  However, it is further argued that this was an act associated with a political objective and in looking at what constitutes political objective, one has to with respect, look at Section 20(1)(c) of the Act in question.
	An act or omission which constitutes an offence or delict which according to the criteria in subsection (3) is associated with a political objective, and which was advised, planned, directed, commanded, ordered or committed within or outside the Republic, during the period 1 March 1960 to the cut off date, and then by various categories of persons or bodies.  In assessing these criteria, I submit firstly the act in itself as stated, constitutes an offence.  It is associated with a political objective and it was advised, planned, directed, commanded, ordered or committed, in fact each of those aspects, will relate to certain of the categories mentioned in subsections (a), (b), (c) which follow Section 20(3).
	If we look at the facts as outlined by the applicant, the initial instructions would appear to have emanated as far as he is concerned, from the then Director of Military Intelligence, Major Mzwaiba, who was at that time an employee of the State or former State and it was in the course and scope of his or her duties.
	The parties in question were clearly engaged in a political struggle.  The evidence adduced will indicate that we were attempting at that critical time, to avoid an imminent further coup.   If one has to analyse the actual role of the applicant, while he might not personally have been a full-time employee, State employee, Security Force employee, I respectfully submit that to the extent that he was involved, he identified with and was clearly associated as would be envisaged in terms of - just let me get this - it would be Section 20(3)(g) of the Act, as he was associated with members who were clearly from the Department of Military Intelligence of the Transkei at that time.
	Whether or not the act in itself, is an act associated with a political objective, the various criteria, seven basic elements, are set out in subsection (3) and in analysing those, if one looks at the motive, on his own evidence the applicant states that his motive was clearly to assist in the prevention of a further coup attempt, especially since the Transkei authorities at that stage, had already very recently quashed an earlier coup and the political situation was hotting up as a direct result of the intervention of the South African government in attempting to replace Gen Holomisa's administration.
	The motive at the same time was certainly not a personal motive on Mr Moringer's part, it was not a motive for financial gain.  In dealing with the question of finance, certainly I submit that in any question of a political nature, at some stage or other, the bottom line consideration might be the financial benefit of the economy as a whole, and in turn, myself personally.  But it was not the overriding, and it was not even a significant motive.  The motive here was very clearly, and I believe the applicant is to be believed when he says simply to comply with the request given to him to assist in avoiding a further coup.  There has been absolutely no evidence before this hearing which would gainsay Moringer's allegation that he derived no pecuniary benefit, nor that it was his intention to derive such benefit.
	The evidence was further clear, one had to distinguish between what transpired in 1988, when he did have a business interest in the region and in 1991.  Any hope of resurrecting the business was forgotten.  His pure reason for coming down, was at the request of Major Mzwaiba to pursue the tracking and the subsequent kidnapping of the victim.  
	The context in which the act took place was I submit, at very least, in reaction to prior possibly political uprising, coups, and as a direct reaction to avoid further disturbance.  The legal nature of the act has been analysed, the facts have been very clearly highlighted.  The applicant has in no way barred any holes.  He has certainly categorised the nature of the act as a very pure and simple criminal offence.
	The object of the act, the prime concern was as highlighted virtually exclusively political in the sense that the applicant identified with the Major over a long period, could foresee the track and course of events that were imminent if this course of conduct was not followed.  It was an act directed at a political opponent, a direct political opponent.  In fact I think I am not wrong in saying possibly one of the prime opponents, if not the prime opponent at that particular time.
	On Moringer's evidence, the victim was possibly the only likely candidate to succeed, should a coup have resulted.  The act was committed with the approval and on the instruction of the Transkei Military Intelligence department.  There was no ulterior or personal motive and in so far as possibly disqualifying the applicant from being granted amnesty, it is my respectful submission that no personal gain, nor remuneration was derived, there was no personal malice, nor ill-will against the victim whom the applicant knew personally.  In fact it was his express wish and very clear intention, that no harm should come to the victim.
	From the political point of view, the entire operation was directed by the Transkei Military Intelligence, the Task Force was supplied by that department.  The victim, on reaching the Transkei, was surrendered to the Transkei Defence Force authorities.
	I finally submit that what I highlighted at the introduction of this matter, with reference to the letter from the Office of the Attorney General, bears careful consideration in that if one analyses the nature ... (tape ends) ... causing the person who read the particular docket to reach the decision reached, that contrary to those press reports, the applicant has explained satisfactorily his involvement in the prior business operations, but has very carefully distinguished between those operations and has completely excluded them from any motivation that might have guided the actual kidnapping that took place.
	Bearing those considerations in mind, I humbly submit to this Committee that the applicant has satisfied the requirements requiring to be satisfied in terms of the Act and that his act was politically motivated, it was an act with a political objective and that he has not only satisfied those requirements, but has further reached out to the victim in a spirit of reconciliation, and I think that the application in general has sufficiently stated the facts warranting the granting of amnesty and on behalf of the applicant, I accordingly pray that his application should succeed. 
	I don't know if there are any questions that the Committee would like me specifically to address?