Amnesty Hearings — Johannesburg — 1998-10-13

ADV GCABASHE: Mr Motahung, I understand you to say that Patricia and Gladness were shot at because you suspected them of informing the IFP of township ANC activities, yes, is that correct?

JERRY CHIMANJANA MOTAHUNG: That is correct.

ADV GCABASHE: Now, had you as the small grouping of SDU activists, taken a decision to deal with all informers or was this an isolated incident?  I just want to understand that?

JERRY CHIMANJANA MOTAHUNG: We met sometimes and we discussed this.  We discussed the issue of the attacks in the township and we were aware that they had information.  When we were patrolling, they never came to the township, but the day when we do not patrol, they will come and attack.
	That is when we decided that the people who belong to the IFP who lived in the township, were operating underground in the township, are the same people who were giving information to the people who were living at the hostel.  That is what made us to shoot them.  They were all members of IFP, all the people that I have mentioned, are all members of IFP.  I do not doubt that.

ADV GCABASHE: Now, tell me, apart from Patricia and Gladness, as a group of SDU activists, did you also then shoot other people who were informing in the same manner?  I just want to know if it was a consistent thing you were doing, or just this was the only time you had an opportunity.  Just help me to understand that.

JERRY CHIMANJANA MOTAHUNG: After shooting these two people, we didn't continue killing people, because after this incident, we  realised that the attacks were decreasing and the situation was not changing in the township.  We decided that we were not longer going to continue because now the situation was now becoming normal.

ADV GCABASHE: How long after this incident were you arrested?

JERRY CHIMANJANA MOTAHUNG: This happened on the 16th, I was arrested in April.  I am not quite sure whether it is on the 23rd or the 25th, but it is somewhere there.
	I cannot remember clearly the exact date, but it is between the 20th onwards.

ADV GCABASHE: How did you come to be arrested?

JERRY CHIMANJANA MOTAHUNG: I was going around with some, a friend of mine called Sam, we were at Sebenza and the people stopped us and they got the bullets from me and they arrested me.  They told me that they had been hunting down, looking after me.  They took me to the police station.  They beat me.

ADV GCABASHE: Thank you Mr Motahung, thank you Chair.

CHAIRPERSON: Thank you.  Mr Mhlaba, re-examination?

MR MHLABA: No re-examination Mr Chairman, thank you.

MR MHLABA: .

CHAIRPERSON: Is that the case for the applicant?

MR MHLABA: Certainly Mr Chairman.

CHAIRPERSON: Any witnesses?

ADV STEENKAMP: No thank you Mr Chairman.

CHAIRPERSON: Would you please like to address us Mr Mhlaba?

UNKNOWN: Thank you Mr Chairman.  Mr Chairman, it is my submission that the applicant here has met the requirements for the granting of an amnesty.
	The application form, I submit it is in order.  I further submit that there was full disclosure on the part of the applicant.
	I just want to deal with the aspect of political objective.  Initially it was a little obscure where the political motive was, but it became apparent that in view of the fact that the African National Congress was at war with the IFP in the East Rand then, anybody who was seen to be associated with the IFP, was regarded as frustrating the objectives of the ANC.
	It is on that basis that this applicant committed these offences.  I will further wish to draw the Committee's attention to the fact that I submit, the meaning of the wording of the Act, suggests that the test which needs to be used, it is a subjective one as opposed to an objective one.
	Objectively it may appear that there was no motive, whereas on the part of the applicant here, he believed that this person was an enemy of the ANC, and it may further Mr Chairman, transpire that the victims were not members of the IFP or supporters thereof at all, but in his heart of hearts, he believed that they were supporters and sympathizers of the IFP and therefore a stumbling block to the objectives which the ANC sought to achieve.
	It is on those basis Mr Chairman, that I submit that he has met the requirements of the granting of amnesty and accordingly request that it be granted to him.  Thank you Mr Chairman.

ADV GCABASHE: Mr Mhlaba, can you just address the question of proportionality in these circumstances, considering the evidence that was available to the applicant at that time.  Was this a proportionate act or was it, what would you relate that proportionality to, the circumstances of the time.  Please address us on that.

MR MHLABA: Thank you Mr Chairman.  It is not the case of the applicant that there was proportionality there, but Mr Chairman, I will want to submit on behalf of the applicant, that this information gathering process, was not as transparent as it is in these days.
	On mere suspicion, on a rumour circulating, the applicant has acted and if such rumours circulated Mr Chairman, that the deceased and the other victim, passed information over to the IFP, it could not be easily ignored.
	To stop them from passing such information, the applicant viewed it to be necessary to kill them.

CHAIRPERSON: Should we judge the question of proportionality in view of the overall situation, where numbers of people were killed in this conflict and not necessarily limit it to the circumstances of this particular incident where these two persons got killed?

MR MHLABA: That is correct.  It is my submission Mr Chairman, that the passing over of information from one camp to the other, may by its very nature, look trivial, but the consequences thereof, may result in what the applicant was fearing, that the Inkatha was going to attack the ANC supporters in the township.
	I would submit that this piece of information or this conduct of passing over of information from one camp to the other, should be viewed in a very, in a trivial way.  It is very substantial, and I will further submit that I see some degree of proportionality to the subsequent conduct of the applicant here.

CHAIRPERSON: In other words if subsequent to this particular attack, the overall attacks had diminished as the applicant had indicated, that it be a relevant consideration in weighing up the question of proportionality?  If the one incident leads to stopping a much larger number of incidents, then that would be something that one should take into account when looking at the proportionality in these circumstances?  Is that your submission?

MR MHLABA: That is my submission Mr Chairman.

CHAIRPERSON: Just one other issue which we had raised, one legal point.  Is the position not such that the applicant has to show that he acted in good faith, he acted bona fide in what he did, so that what we have to do is to look at what was available to him, look at the situation that prevailed, look at how that information impacted upon the applicant in his, in that particular context and then to consider the question whether under all those circumstances, the conclusions which he had drawn, were bona fide in good faith or not, so that you take into account not only objective, or not only subjective, but both.  You look at the overall situation, you look at his state of mind, you look at the circumstances which applied, you look at the rumour, you look at the information which is available to him, his belief that the brother was an IFP hitman and that sort of thing?
	So that what we have here is not as in the normal legal situation, as we know it, a cut and dried, either objective of subjective test, but that it is rather a combination of looking at everything, trying to come to a fair decision in all the circumstances of the case?