Amnesty Hearings — Durban — 1999-11-17

MR MAPOMA: I have no further evidence to tender Chairperson.  I think Chairperson at this stage I must point out that our investigations have unfortunately drawn a complete blank in tracing the next of kin or relatives of the deceased person, that is Arthur Duncan Johnston who was killed there.

CHAIRPERSON: Thank you Mr Mapoma, we have noted that.  Mr Sewpal have you got any submissions on the merits of the application?

MR SEWPAL: Thank you Mr Chairman.

UNKNOWN: I have to concede that this was a gruesome and horrible killing of a human being, but I submit that all of that was taken into account in the High Court as well as in the Appeal Court, when Goldstone J, confirmed the death sentence in this matter.  However, without trying to get away from the gruesomeness of the offence, one has to take into account the fact that the applicant and his witnesses stated throughout the hearing, they in fact believed that the deceased in this matter was supplying arms to members of the IFP, that there were problems with the IFP at the time and that the second witness actually lost his mother as a result of the violence of the IFP and I submit that there is nothing basically to contradict what
they say in that regard, that this offence was basically politically motivated, arising from those issues.  I know that there could be other criticisms directed at them with regard to detail of exactly what happened and so on, but I would ask you to take into account that this offence actually took place 9 years ago and one would expect to find that sort of discrepancy.  In those circumstances, I would submit, or my instructions are to submit that the application should in fact be granted.

CHAIRPERSON: Thank you Mr Sewpal.  Mr Mapoma, have you got any submissions?

UNKNOWN: Chairperson apart from the fact that the act itself is so gruesome, there doesn't seem to be any political objective which was intended by killing the deceased person in this matter.  The applicants throughout are saying that their political objective by launching that attack, by going to raid, was to get weapons and in that process they went out of their way to kill the deceased person.
	Chairperson it is quite inconceivable that three young men, armed with knives, could be overpowered by an 64 year old man, one 64 year old man, to the extent that he had to be killed.  Interestingly, not only was he killed, his body parts were mutilated.  The evidence as it is, the explanation that has been given by the applicants as to why the body was mutilated, is not satisfactory, Chairperson, that is my submission.

ADV SANDI: I thought one or two of them says at some stage there was a struggle between the deceased and one of them and they saw some intestines and they were not sure whose intestines those were and I thought the witness concerned went on to say he thought this was the intestines of his colleague and they attacked the deceased, they started stabbing the deceased.

MR MAPOMA: Even on that version, Chairperson, there is some inconsistency because the applicant's version was such that the deceased was hit with a pipe and fell down and when he was down, then he was stabbed.  That is the version of the applicant and the applicant is the most crucial witness at this hearing because he's the man who applies for amnesty, he's the person who bears a responsibility to convince the Committee that he's making as a complete a disclosure and candidly as possible, so I submit Chair, that the testimony of the applicant bears much more weight than that of the other persons who have testified.

ADV SANDI: We cannot ignore evidence that has been led, be it an applicant, a co-applicant or just a witness in support of the application of the applicant, but maybe that's beside the point.  Did they have an order to do this?  Isn't that required in terms of the Act?  What is an act associated with a political objective in terms of the Act?

MR MAPOMA: Yes, before I deal with that Chair, I just want to respond to the point which is beside the point.  I do not submit that the evidence of others ought not to be taken into account, but all I'm saying is that there are serious contradictions from the applicant's case as to the reason why this man was killed.
	Now coming to the political objective, we now know that none of the applicants was ever involved in the conflict that was taking place between the IFP and the ANC there and for that matter, none of them was a member of the ANC.  They may have been supporters, the point is that the policies of the ANC were not followed and the action as it is had nothing to do with the policies of the ANC, it just was not an action which was intended to further the aims of the struggle waged by the ANC, in whatever manner as it is and on that basis and that basis Chairperson only, the application should be dismissed.  There are some other issues as well which I may take up, but I can only do so if the Committee may require me to at this stage Chairperson.

CHAIRPERSON: Yes, thank you Mr Mapoma.  Mr Sewpal have you got any further submissions?

MR SEWPAL IN REPLY: Perhaps I should just add one more factor that should perhaps be taken into account and that is that, I think it was the second witness who made the point that not only were they trying to get these arms in order to arm themselves to attack members of the IFP.  The simple removal of those arms from the deceased could have meant that Inkatha's
supply could have been cut off and I think that could also have been taken into account in regards to a political motive.

ADV SANDI: Yes, but was it not the evidence here that the deceased was believed to be supplying the IFP with arms for quite a long time and no action had been taken against him.

MR SEWPAL: No action had been taken until this incident.  Of course there is no real explanation for why it took so long for them to act because the second witness' mother died sometime in 1988, that was conceded, so I concede that there was a long period of time between those two things happening.

ADV SANDI: If it is true that the deceased was in fact supplying arms to the IFP, then this must have been a very serious problem, not so?  He must have been causing a lot of problems for the ANC people in that area.

MR SEWPAL: I submit that that would have been so, but I think the way in which this case has been pitched, neither the applicant nor the witnesses that he called were any high profile people in the ANC, they were simply ANC sympathisers and perhaps they would have thought that more important people would take action in this sort of matter.  I can only speculate on that but if one has to try to find some justification for why it took so long.

ADV BOSMAN: ...not to have expected them to at least have consulted with the ANC, if it was their purpose to cut off arms being supplied to the IFP.

MR SEWPAL: I have to concede that is perhaps a weakness in my case.

CHAIRPERSON: Yes, but you're submitting that that is just another factor, your case is pitched on the basis that they went to acquire arms and it's a secondary consideration, that's not the thrust of your case.

MR SEWPAL: No, it isn't.

ADV SANDI: My understanding of the evidence is that they did not belong to any formal political structure, did they?

MR SEWPAL: There was no evidence to that effect.  I concede that.  They pitched their case on the basis that they were sympathisers of the ANC.  They didn't say that they were members as such.

ADV SANDI: Would one be able to say, I mean looking at the requirements of the Act, would one be able to say they were carrying out a political order?

MR SEWPAL: There was no order given by anybody.

ADV SANDI: One of them says, Mr Mutshiako he says there were no order but just our own initiatives.