Amnesty Hearings — Durban — 1998-10-22

MOKOTEDI MPSHE: On this incident only.  The first incident, I have no problem.

MR LAX: Thank you.

CHAIRPERSON: Mr Mbandazayo, do you have any reply?

MR MBANDAZAYO IN FURTHER ARGUMENT: Yes Mr Chairperson.  Mr Chairperson, I would not go back to the first incident as my learned friend has conceded.
	I was going to deal with (e), (f), (g), but the Honourable member of the Committee, Mr Lax, asked me does it matter whether he was a member.  I was trying to stress that point, but as it has already been ironed out, I am coming to the point that is raised by my learned friend regarding that the applicant shot this person by mistake.
	If it was deliberate, then we would say it was in furtherance.  Mr Chairperson, the argument is that the reason why it was by mistake, the applicant has put before this Committee that if we shot him in a moving car, we would not have achieved our purpose, because we wanted the car.  We would have been injured, also ourselves.
	Hence the accidental shooting.  What we wanted was the car.  If we shot him, the car would have been damaged also.  We would not use it for our specific purpose.  Definitely the threatening and the accidental going off of the - was in furtherance of that objective, to be able to fulfil their mission, because if we shoot this person, we would not fulfil our mission, which eventually happened.
	They did not fulfil their mission.

CHAIRPERSON: And I think on that one, you see one might say well, why then do the threatening at that stage, why not wait till the car comes to a standstill when you can just threaten the person and say okay, out, and he can walk away, but then it comes to mind, they were approaching a security gate, and they would have stopped in the presence of somebody who might be armed, and then once through the security gate, they would be in a highly populous, you know, on the University campus and it wouldn't be a place to do it, so they had to do it before they got to the destination.

MR MBANDAZAYO: That is the position Mr Chairperson.

MR LAX: Mr Mbandazayo, can you just address us on this one aspect, which is that in the judgement on sentence, if you look at page 41, the learned Judge in that matter, appears to have found that your client did in fact shoot this person.  It doesn't appear to have ever been raised in the trial, that it was a mistake.
	If you look in the last paragraph, at about line 23, he says now on Count 1, the Prosecutor has argued that it is a feature of aggravation that the second accused shot the deceased when he refused to stop at the command to do so instead of merely just threatening or frightening him with his weapon.
	So it is clear from that that the Court at least found in its own mind, that there was clear intention to shoot.  I am just interested in if we'd addressed it.  Perhaps you should have questioned your client on it, but it only struck me now as I was rereading it.

MR MBANDAZAYO: Mr Chairperson, through you Mr Chairperson, unfortunately I didn't ask the client about that, because I saw it Mr Chairperson, and his explanation to me was that yes, indeed the Court found that way, because the way it happened was such that they did not believe that there was, he was threatened, because he would have stopped had he be threatened properly.
	He told me that the circumstances were such that they were approaching the security gate, everything happened so fast.  Even himself, when I was, even the way it went off, it was because at the time he put the gun at him, look, stop this car, initially he refused, because they said it must be him, because he is able to speak the language, the driver who was driving.
	He pointed him with the gun, and at that time, it is when the car started to move this way, which I took it that also himself he was in a way shaking because he could see the danger, that this thing can happen, the car can get damaged and they can also be killed as a result, the car can capsize.
	It was in that process that the gun went off.

MR LAX: In fairness to your client, he did say that they did initially order the guy to stop and then when he refused, the gun was produced.  I do recall that as part of the evidence.  Thank you Mr Mbandazayo.

CHAIRPERSON: Were you wanting to say something Mr Mpshe?  I saw you getting somewhat excited when Mr Mbandazayo was talking?

MOKOTEDI MPSHE: Mr Chairman, thank you for the opportunity Mr Chairman, I was not going to say anything in as far as Mr Mbandazayo is concerned, but I feel tempted to do so on what was then by the Honourable Committee member, because what Mr Mbandazayo said, doesn't take the matter any inch of a distance, there is no reason for me to comment on what was said.
	I wanted to comment on the respected member of the Committee's comments, as to the judgement.
	Indeed this is what the Judge has found, but I wanted to, I don't know whether to call it a (indistinct), to be in the Committee's mind that the criteria and the manner of arriving at the judgement in the criminal court, is different from the forum here, this Court had all the ample time to listen and to cross-examine on all the nitty gritty's.  Perhaps they may have arrived at this decision because they did not believe that a person could be hit accidentally in that fashion, having listened to the evidence.
	But here we are confronted with the applicant's version himself, he says it was a mistake, and his application also says it was a mistake.  He repeats this on both applications.  He was not a target at all.  I want to plead with the Committee to be confined to what we hear from him, and what is contained in the application form, because the criteria is different in both forums.  Thank you Mr Chairman.

CHAIRPERSON: Thank you Mr Mpshe.  We will reserve judgement in this matter and hopefully it will be handed down as soon as possible.

MR LAX: He is not quite finished.

CHAIRPERSON: Oh, wait sorry, I always keep forgetting, we need the victims' Mr Mpshe, do you have ...

MOKOTEDI MPSHE: Mr Chairman, the victims in this matter, in both incidents, could not be served, but to state with regard to incident number 1, the next of kin is the brother to Meheza, who stays at M1447, kwaMashu.  They went there to go and serve on him, he has moved, the house was sold to one Zuma and it was sold through the bank, they cannot trace the brother to Ndlandhla Meheza.
	With regard to incident number 2, the address given even in the papers, I have seen that, of the brother to Kanyile, was kwaMashu men's hostel.  They went there, this person is no more at the kwaMashu men's hostel, so no service was done on either of them.
	But the names can go on record Mr Chairman.

CHAIRPERSON: Yes, I think the names and then we can just indicate that their present whereabouts are unknown.  Maybe the Reparations Committee can cause some form of public advertisement to try to get them to come.

MOKOTEDI MPSHE: Thank you Mr Chairman.  I will then give you the name of the next of kin of incident number 1.  Sibusiso Blessing Meheza.  He is the brother to Ndlandhla Meheza.

MR LAX: Is he the only brother?  What about parents?

CHAIRPERSON: We heard about a pregnant wife?

MOKOTEDI MPSHE: Yes, according to the IU report which I have, they only mentioned the brother, they didn't mention any other person, but that is a good point that we can take further and trace whoever we can and refer also to R&R.

MR LAX: Similarly with Kanyile, I would suggest that you speak to his employer, he probably have other records, his ex-employer.