Amnesty Hearings — Durban — 1998-11-30

CHAIRPERSON: Yes, no, but this is the point which I would like you to address us on.  It actually wasn't cross-fire.  If I've got a target and I am going to kill somebody and he happens to be standing amongst a crowd of people at a bus stop and I am driving passed and I shoot, and in the process I don't only kill my target, but I kill somebody next to him, that person might be said to be in the cross-fire.
	Here the killing of Mr Mlaba, the deceased, was a dolus directus a direct intention to point a gun at that particular person, and to kill him for a particular reason.  It wasn't just a cross-fire and that was to prevent him from getting out of the window, because he may go and tell the police.
	Then this raises the question if that is so, why then would they walk into a room where there is three people, one the target, and they say look, this is your last day, we have come here to kill you, right in front of the other two people?
	Okay, we know that he respects and knows one of them, and that person may have gone for training, but something prevented him from going, so he trusts him completely and the other person is in his house, would it not be reasonable to infer that they shot them in front of these people because they knew that they wouldn't be told on because they trusted them?
	Otherwise, why not take him out to the mealie field and kill him there, and throw him in the river?

MR WILLS: I think it can be inferred reasonably from the evidence Mr Chairperson, that one can distinguish between the two persons that were in the room.
	Clearly from the questioning of my colleague, there was a closer relationship between the accused, the applicant and the person who was released from the room, and the second deceased.  Clearly I think, the Committee member Mr Lax, established in the evidence that the relationship between the applicant, sorry the relationship between the applicant and the person who was released, was such that the applicant trusted that person.
	But the same couldn't be said of the second person who judging from the questions of my colleague, Ms Thabete, was that he really hardly knew the person.  He didn't even know the extent of the relationship.
	I think one can make that distinction.  I also submit that whilst the actions of the second attacker, the now deceased person who was a State witness, was such that it was part of the operation which can be related to the political motivation of the killing of the prime target.
	It was an incidental to that operation.  I submit that in those circumstances, it can be said that he died as a result of a politically motivated act.
	The sine qua non would be that had the deceased, the target, not been present, clearly the second deceased would not have died.

CHAIRPERSON: And then on proportionality, if you want to take out an informer, and you go in knowing that there is somebody there, at least one of the two of you going, will have to die for no other reason than just being there, because it is a witness.
	With regard to the question of proportionality, are you justified in killing that innocent witness to your killing of your target?

MR LAX: Especially perhaps, if I could just add this, that on your client's own evidence, he didn't know this other guy at all, so the chances of ID afterwards and all that stuff, were pretty limited.

MR WILLS: Proportionality at war, is always a very difficult thing to justify.  We are aware that one cannot sit in an armchair analysis of events in a situation like that.
	Clearly the applicant did not kill that second person.  His actions were directed at the target.  However, he has taken political responsibility for the death of that second deceased in the sense that he was a Commander of an operation and the person who accompanied him on that operation, was one of his fellow SDU members.
	I think it is my submission that as a result of the fact that that person was killed in an operation such as this, it is enough to indicate that the matter was politically motivated, particularly in view of what I said earlier, that had the target not been identified clearly, that second accused, the second deceased would not have been killed.
	It is also my submission that one cannot rely too heavily on the judgement in this matter, with respect.
	In addition to the trite legal position that a judgement of one Court cannot be accepted by another forum, there is the evidence in the judgement where the Judge actually refers to the inexperience of the legal representative that was representing the accused at the time, which was obviously a pro deo appointment, and I submit in those circumstances, it makes the judgement even more - it makes it even more dangerous in those circumstances to rely on findings of the judgement with respect.

MR LAX: Mr Wills, perhaps you could just assist me with one line of thinking and that is your client was convicted of directly shooting the second deceased.
	It is against that conviction that he is applying for amnesty.  However the evidence indicates that he did not shoot that person at all, how can we grant him amnesty for something he says he didn't do?

MR WILLS: Yes clearly his evidence is that he did not kill the second accused, and I submit the second deceased, I submit that he must be believed in that regard, because it wouldn't serve him any purpose whatsoever to deny shooting the person, if indeed he did so.
	In fact, in this instance, it would be to his advantage.  I submit that that very fact that he continues with his version, as has been his version throughout, that it wasn't him who shot the second deceased, supports his application particularly in so far as full disclosure is concerned, because he is prepared to continue with that version, even though it is to his disadvantage.
	But getting to the question of how one can grant him amnesty for something that he didn't do, it is my submission that the applicant has indicated that he is responsible for that death in so far as he was on an operation with a colleague of his who was a fellow SDU member.
	He is taking the full consequences of the events that, or full responsibility for the events that occurred that evening.  I return to my earlier submission that in these circumstances, it is not ...

CHAIRPERSON: It is hardly a noble thing at this stage, to take the full consequences of it, because at the trial he denied any implication at all, but now to say well, I am responsible for both deaths, after he has been sentenced in respect of both deaths, it is quite easy to take those - the blame  for it.

MR WILLS: Yes indeed.  My position goes back to possibly the inexperience of the Counsel that he received, but in addition to that, the forums are entirely different.
	The fact that the accused has openly admitted to the Committee that he gave false evidence in that trial, I submit again ...

CHAIRPERSON: Well, he had to do that, because we've got it here, what he said was a denial.  I mean he can't come and say I didn't, I mean he had to deny that.

MR LAX: Sorry Mr Wills, can I, I don't want to cut you off unfairly, but do I understand your submission correctly, you are saying that your client was Commander of the operation, he killed the first deceased, to the extent that the second deceased died as you would have it, as a logical corollary of the killing of the first deceased, that it was therefore proportional and proximate, his death and furthermore that as Commander in a sense, the intention of his underling, who killed the second deceased, should be imputed to him and therefore we should grant amnesty?  Have I summarised it sort of adequately?