Amnesty Hearings — Pinetown — 1999-03-08

MR STEWART: That is so Mr Chairperson, that would be my submission on that, and there isn't, I think the, our relative inability to find this mention that we seem to have a recollection of, is indicative of the fact that there wasn't any causal, or significant causal link, that that wasn't the motive.  It may have been something en passant but we are looking for it and we'll come back to it.
	That then takes me to the next eliminating consideration, as it were, in Section 20 sub 3, Roman two of the Act, which is the question of personal malice or spite.
	Now, as I've suggested in my heads there is no evidence of this.  Of course, I say there isn't even a suggestion of it.  Well in cross-examination there was a suggestion of it, and it came in particular in relation to the murder by Mr Khumalo of Mrs Xaba in Mpumalanga, and as Members of the Committee will recall, this was the case where he had, a particular target had been identified, it's Mr Khumalo's incident number eight, a particular target had been identified as supplying guns, I think it was, to ANC people in the area, and it was decided that Mrs Xaba being the target should be eliminated.  Mr Khumalo enlisted the support of Mr Musa Gqulu and early one morning they then followed her as she went towards work, and it was dark, and Mr Khumalo followed her, and as she was going up some steps he caught up to her and he trod heavily to attract her attention, he was about two and a half metres away, she turned round, and he shot her.  And the suggestion that was made in cross-examination, well that is evidence that really he was doing this not because she was a political target that needed to be eliminated, but because he enjoyed killing, or he was wanting to torture her because of his lust for killing.  Now the suggestion is there of course.  There's no suggestion thought that there was personal malice as between him and her, or personal ill will or spite.  It's not something which arises out of some other private as opposed to political feud, which has now been dressed up in political clothing.  The criticism, it seems to me, of Mr Khumalo in the circumstances, is that he was being inordinately callous, where he could have killed her without her knowing, he ensured that she did know.  His explanation for that, such as it was, was that he had a policy, a personal policy which he pursued, of not shooting people in the back.  
	The murder of course, one way or another, was a brutal murder, but it was one, in my submission, which was clearly one with, associated with, a political objective.  There wasn't really besides this suggestion of a lust for killing, there was no, there's nothing more to show that it was out of personal spite or malice.  There's no connection between Mr Khumalo and the late Mrs Xaba in that respect.

CHAIRPERSON: Another one where it might be argued, although you've dealt with it, is the Clewer incident again, where you get the insulting remark and then the reaction by shooting.  One might say, argue that that shooting was done out of malice because of the insult, but you've argued that it's not the insult, in the proportionality when you were talking about proportionality, that must be weighed, but they had a wider objective, but that is another case where malice might be considered.

MR STEWART: Indeed, thank you, thank you Mr Chairperson.
	That then in my submission deals with the formal requirements, and as I say for issues that may be raised by my learned friends, indeed by the Honourable Members of the Committee in discussion in due course.  As I've said of course, I haven't focused on each individual incident, I've sought to draw out those which, where there may be more concern than others, and we would welcome the opportunity to address whatever concerns the Members of the Committee may have.
	Finally what I deal with, and in my submission it is significant, is the attitude taken by the communities and victims in these particular cases.  Of course, it's not a formal consideration for the Committee at all, and I raise it really by way of informal consideration, or in a sense mitigation, that it's reflective as well of the extent to which the applicants took the Committee and took the communities and the victims and the survivors who were present into their confidence, by telling them this very long and sad and tragic story, that in Izingolweni and in Hammarsdale, those victims and community representatives who were, or communities that we represented, placed the matter in the hands of the Committee and don't oppose amnesty, and that weighs somewhere in the balance.
	And Honourable Mr Chairperson, Members of the Committee, that's as far as I take the argument.  Thank you.

CHAIRPERSON: Thank you very much Mr Stewart.  Mr Wills.