Amnesty Hearings — Durban — 1998-10-20

MR SAMUEL: Thank you, M'Lord, I'd like to call Mr Sithole to testify.

ADV POTGIETER: Mr Sithole, please stand.  Are your full names, Andries Sibokwake Sithole?

ANDRIES SIBOKWAKE SITHOLE: That is correct.

MR SAMUEL: Thank you, M'Lord.
	Mr Sithole, you made an affidavit with the other two gentlemen who testified before you, applying for amnesty to this Committee, do you confirm the contents of that affidavit?

ANDRIES SIBOKWAKE SITHOLE: Yes, I do.

MR SAMUEL: What organisation did you belong to prior to your arrest in 1993?

ANDRIES SIBOKWAKE SITHOLE: I was in the African National Congress.

MR SAMUEL: And were you a member of that organisation, an ordinary member?  I was the organiser.

MR SAMUEL: You were an organiser?

ANDRIES SIBOKWAKE SITHOLE: Yes, for the branch.

MR SAMUEL: Mr Sithole, you heard the evidence of Mr Jeke who testified before you, do you confirm what he has told this Committee?

ANDRIES SIBOKWAKE SITHOLE: Yes, that is correct.

MR SAMUEL: M'Lord, I have no further questions.

ADV PRIOR: I've no questions, Mr Chairman.

CHAIRPERSON: No questions by the Committee, thank you.

MR SAMUEL: Mr Chairman, I have no other evidence to lead in this application.

ADV PRIOR: Mr Chairman, I do not intend leading any further evidence on this matter.  The Judgment I think was complete and comprehensive.  And as I've indicated earlier, I have had no indication of any objection from the families or the next of kin who were in fact served notice of this hearing.  Thank you, Mr Chairman.

MR SAMUEL: IN ARGUMENT Thank you, Mr Chairman, Ladies and Gentlemen.  I submit that if one looks at the evidence before this Committee today, which to a very very large extent has been corroborated in substantial and material respects by the Judgment of Judge Nicholson.
	The picture emerges that just prior to the 1994 elections the area of Bottlebrush became ungovernable due to the rise in prominence and in numbers and in strength of a gang known as "The Mafia" gang.  
	The area which was an exclusive ANC area and had an ANC branch formed in it, the community looked to the ANC to provide the governance that was lacking from the government of the day.
	Various efforts were attempted, including resorting to the assistance of the police and no help ...[indistinct] the way of the community.  The community tried its own endeavours, firstly by talking to the parents of the criminals concerned, in some instances assaulting them and in some instances banishing them but the problem didn't disappear.  The entire situation became unbearable and when the two young girls were raped, the community almost ...[indistinct] passed a sentence against these people.  
	Looking at it in retrospect, as Judge Nicholson pointed out that the death penalty has in fact been declared unconstitutional, but one must look at the prevailing circumstances at that time.  The community had no other option, they tried every other available means and it was the responsibility of the ANC to provide leadership and get rid of the criminal element.  	In that instance the three applicants were acting in furtherance of a political purpose, that is to provide governance which was lacking by the government of the day.  And in those instances I submit with respect, that the applicants have made out a case for amnesty and their actions were political and were necessary, given the circumstances that prevailed and the time and era in which it occurred.
	I'm therefore asking with respect, that the three applicants be given amnesty.

ADV PRIOR: Mr Chairman, I can't argue against amnesty, I have no objection from any victims or any family and I seem to agree with my learned friend.  The applications seem to fall fairly and squarely within the purport of Section 20 of the Act, particularly (2).  The evidence is clear that the conduct of the applicants indicate an act associated with a political objective.  	There doesn't seem to have been any evidence regarding any personal gain and it would seem from the Judgment of His Lordship, Mr Justice Nicholson, that when they sought out the members of "The Mafia" responsible for these acts of terror, in fact they had the community in large numbers with them.
	Mr Chairman, I don't have anything further to add and then leave the ultimate decision in the hands of the Committee.

CHAIRPERSON: It does appear doesn't it, Mr Prior, that this was not a case of mob violence in the ordinary sense of the word.  The people that were killed were members of "The Mafia" and it would seem from the evidence we heard this morning, had participated in the violent crimes of the night before and they were chose for that, not just as casual passers-by or anything of that nature.

ADV PRIOR: Yes, Mr Chairman, I must agree with that, that it wasn't certainly just mob violence, they had been identified as persons responsible for certain criminal acts, particularly rape and abduction and on that basis the community had decided that they had to be done away with.  Yes, I confirm that, Mr Chairman.
	Please all rise.

<UNKNOWN>: 19.10.1998

CHAIRPERSON: ...[inaudible] applicants in respect of the murder of certain persons on the 26th of December 1993.  We have had put before us Indictment, Summary of Substantial Facts and Judgment relating to that case and I don't consider it necessary to set out any of the details.  We have also of course got the applications of the three applicants.
	It is clear from the Judgment and from the evidence that was led before us today, that the killings took place in an area known as Bottlebrush, which was an ANC area and where the ANC committees sought to provide some form of government for the local community.
	There is evidence that a gang known as "The Mafia" was causing havoc in the area, committing crimes of violence such as robbery, rape and that despite requests the police appeared to be unable to do anything to prevent the recurrence of these offences.
	The community thereafter looked at the ANC and the representatives of the ANC for assistance.  All three applicants were either members or office bearers of the ANC at the time.  
	It is clear from the Judgment and the evidence that they took what steps they could to try to stop the gang behaving as they did but were unable to do so and finally on the day in question were driven to desperation by the kidnapping and multiple gang-rape of some young girls the night before.
	It is not necessary in my view to set out any detailed reasoning, that I refer to the Judgment which deals concisely with all that happened and to the argument advanced before us today by Mr Samuel, who also sets out sucintly the basis on which the application is brought before us and the reason why in his submission it should be granted.
	We are satisfied that the three applicants acting on behalf of the ANC which was seeking to provide governance and assistance to the community, acted to prevent further crime, acted to support the community view that they could look to the ANC for assistance.  And this is in our view certainly an act committed with a political objective. 
	The conditions existing at that time were such that people could feel they were driven to violence.  It is of course no longer an excuse for anyone to continue to take the law into their own hands in such a way but in the circumstances that existed then, we feel it is not an act of such a nature that the applicants should be deprived of amnesty because of the brutality of the  act.  
	We accordingly GRANT THE APPLICATION FOR AMNESTY OF ALL THREE APPLICANTS in respect of the killing of the persons set out in the indictment.  
	None of the victims have been present here today but we have been given a list which we'll submit to the 
R & R Committee for their consideration.  They are

MR B B LUBUZA: .
The names of these three persons will be submitted for further consideration.

ADV PRIOR: Thank you, Mr Chairman.