Amnesty Hearings — Middelburg — 2000-05-11

CHAIRPERSON: Yes, it could have been a criminal gang, it could have been the Naughty Boys or whatever, but now we need material, we need evidence.
	The evidence before us suggests that this was a politically motivated matter, it wasn't a criminal matter.  If you are submitting that we must disregard that and we must actually find that these people are lying to us, that they were really a bunch of criminals who had gone to execute this lady for no reason, innocent victim ...

MS MTANGA: If the Committee is of the view that if an offence is carried out by, even if it was not initially in a political context, if by the fact that it is embraced by a political organisation, then it becomes political, then I have no, I have nothing else to say.

CHAIRPERSON: No, you must, the point that I am making is that if you submit that it is not political, it is criminal, then you must persuade us in some or other way.  The obstacle that I am pointing out to you is that there is certain evidence placed in front of us, and nothing else.

MS MTANGA: Well Chairperson, I will agree with you on that, because the family is not here to contradict what is said, and maybe point out to some other reason why Mrs Emma Mtsweni was killed.

CHAIRPERSON: Yes.  Of course it doesn't mean that because there is only one version before us, that we are forced to accept that version or accept it in its totality.  We are entitled to reject a version that is put before us which doesn't persuade us and doesn't satisfy us, and that is why I am saying you've got to actually put something that is compelling, before us, so that if you want us to make the finding that you are arguing for.

MS MTANGA: Chairperson, it is difficult for me to do that because I don't have any material evidence that I can put before the Committee, except to argue that it is, it will be quite a dangerous thing for the Committee to accept the mere fact that the offence was embraced by a political organisation, then in the absence of any other evidence, then it qualifies as a politically motivated crime.

CHAIRPERSON: Yes, that is right, an uncritical acceptance just of that evidence, that is a failure of the duty that the Committee had.

MS MTANGA: Yes Chairperson.

CHAIRPERSON: We have to be satisfied and in order to be able to be satisfied, we have to apply our minds and be persuaded in some way that this is indeed a politically motivated and not just as you are submitting, just a random act of violence  by a bunch of blood-thirsty youth who had nothing else to do on that night, but to attack the deceased?  If so, then they are not entitled to amnesty.

MS MTANGA: That is so.

CHAIRPERSON: We have to bear that in mind, I am with you on that submission.

MR SIBANYONI: Is it perhaps your submission that in that area witches were not legitimate targets?

MS MTANGA: Chairperson, witches were legitimate targets by the youth, particularly the ANC Youth League at that time, that is the evidence that we have from the material that we have, and we have also heard from these applicants and the applicants that we had yesterday.   However, I would like to refer the Committee to the argument of my learned friend in yesterday's matter where he said perhaps the Committee should make a distinction between a perception that is based on reasonable grounds in the logical sense and the perception that is based on the reasonable grounds in the cultural sense.
	With that one will have to look for evidence that creates the basis for the perception that this person was a witch and her witchcraft affected the political organisation and this must have a basis in the cultural sense of the applicants.

CHAIRPERSON: Yes, I understand that, we have to be satisfied at the very least, subjectively, these people first of all held the belief, the applicants, or the people that lived in that area, society, and secondly that objectively looking at the case, there was some grounds for bona fide believing that they were acting against a political opponent, because that is the requirement of the Act.  It must be an act bona fide in furtherance of a struggle against a political enemy.  There must at least first be the subjective belief which satisfies us and secondly, that is not the end of the story because if it is so unreasonable on the objective facts of the case, then of course we are entitled to find that there was no bona fides in the particular instance.  We have to look at both those two elements.

MS MTANGA: Chairperson, I would like to end my submission of this matter.

CHAIRPERSON: Thank you Ms Mtanga.  You do raise issues of importance.  Yes, Mr Richard?

MR RICHARD IN REPLY: My reply to my learned colleague is I must point out that the circumstances and context of this event was the struggle in 1990.  It was a period when as I argued last night, make the country ungovernable, was the crime.
	The deceased by her confession, however it was obtained, established in the minds of the crowd and that is certainly the third, fourth and fifth applicants, that she was associated with witchcraft.
	We have argued the position of witches in the context of the time before.  They were perceived to be the enemy of the struggle.  My learned colleague then seems to create two categories - one is the Mtsweni family and that of the others.  Without labouring or repeating my previous argument, subsection 20(2)(f) speaks of any person who associates him or herself with an act committed within the meaning of subsection 20(1)(b) as read with 20(1)(2)(a), (b), (c), (d), (e) and (f).
	While it might well have been as has been pointed out at the initial stages of the transaction, that it was a family affair, as soon as the talk of witchery penetrated into the comrades' minds, it became a very public affair.  Whether and I believe the only one who might be affected by my learned colleague's argument is the first applicant, July ...

CHAIRPERSON: Even that, I don't quite read subsection (g) as referring to a person in the position of the first applicant in these proceedings.  That seems to my mind to refer to people who don't fall into any of the categories which are spelt out there, a supporter, member of a political organisation or a liberation movement or a member of the Security Forces, those categories that are sketched in the earlier subsections of (20).  If, the way I understand subsection (g), if you have somebody who stands completely outside of those categories, he is not a supporter of any political organisation, he is not a member of any political organisation, he is not a member of the Security Forces, he is outside of the formal structures of the contending Forces in the political struggle, he stands completely outside of those categories, he can still quality for amnesty if he can show that he associated himself with an act committed by a member or a supporter of a political party organisation.
	But that applicant, if I understand his evidence correctly says, he puts himself in category (a), he says I am a supporter of the ANC.

MR RICHARD: Correct.

CHAIRPERSON: So he is not outside of the category?

MR RICHARD: Correct Chairperson, but he did make the statement which I did allude to earlier that even if the comrades had not been involved, he might have done something.

CHAIRPERSON: Yes, it is just indicative of his subjective state of mind.  It is indicative of his view that it was justified to act against the deceased.

MR RICHARD: And clearly on the evidence before us, even if that was one of his points, a person may have more than one intention in their mind at one time.

CHAIRPERSON: Isn't the determining factor that he did associate himself with the ...

MR RICHARD: That is my argument Chairperson.

CHAIRPERSON: And he expressly testified to that effect, he said "I wasn't there, I came back with the Police, but certainly I associate myself with what happened there".