Amnesty Hearings — East London — 1999-11-02

CHAIRPERSON: I know that.  I know that.

MR NOMPOZOLO: Now it cannot be said exactly what would happen in a situation where they were but the issue is that they all of them associated themselves with their acts and with what could have been the end result.

CHAIRPERSON: I don't know, I can't - the Sharpeville Six case, what was the name of that case?

MR NOMPOZOLO: It was Sharpeville, it was Sefatsa.

CHAIRPERSON: Sefatsa.  Have you read that case?

MR NOMPOZOLO: I did, sir.

CHAIRPERSON: It deals with common purpose.  There are certain guidelines in that case that explains how this common purpose works.  Now let's forget about in the past how the courts were interpreting that and how the convenient interpretations of it in the past.  Let's talk about today and how it should be interpreted.  Not for convenience but on a legal basis.  As I remember it, in order to be guilty on a crime based on common purpose, one must actively or psychically associate therewith, it's commission.  How do you say this applicant associated himself, he could not have associated himself physically because he was away from the incident.  So in order to be guilty based on common purpose he must have associated himself psychically.  How do you say that in this case?

MR NOMPOZOLO: Because in this case whilst they said that they don't want to shoot at this policeman but they said "please cooperate with us".  Now the running away of the policeman is part of non-co-operation with them and in that non-co-operation, Nomabise then shot the policeman.

CHAIRPERSON: On behalf of everybody?

MR NOMPOZOLO: On behalf of everybody because they wanted this policeman to cooperate with all of them.

CHAIRPERSON: But that was never envisaged by the applicant was it?

MR NOMPOZOLO: But it is a consequence of what he got himself into.

CHAIRPERSON: You say he must have foreseen that?

MR NOMPOZOLO: He must have foreseen that somebody might have been killed there.

CHAIRPERSON: In those circumstances, not of robbery but purely for running away.

MR NOMPOZOLO: There's an aspect here Mr Chairperson, maybe it has not been canvassed but that aspect is that he does not know when the firearm from the policeman outside was recovered.  Now there mission was to get firearms from the police station.  It may be that Nomabise was busy trying to get the firearm when the policeman ran away.

CHAIRPERSON: So?

MR NOMPOZOLO: Which then makes him to be part of what Nomabise was doing.

CHAIRPERSON: But he doesn't know that?

MR NOMPOZOLO: That's what I'm saying, he has only told the Commission that "I don't know where the second firearm, how the second firearm was recovered, all I know is that it was recovered.  I only recovered one firearm inside" and it does not even say at which stage was that firearm recovered.

CHAIRPERSON: So how can we draw the inference that that was related to the running away?  Your own client doesn't know that?

MR NOMPOZOLO: He does know yes.

CHAIRPERSON: So how can we draw the inference and therefore bring the attempted murder under the veil of the applications?

MR NOMPOZOLO: The reason is that the attempted murder was part of the all encompassing mission they were in.

CHAIRPERSON: Was it?  Shooting at a policeman running away did not facilitate the robbery, it had nothing to do with the robbery, they were busy robbing already?  In fact they were close to finishing, isn't it?  He himself says when he got out he discovered a shot had been discharged and they all ran away?

CHAIRPERSON: He went inside after that to continue with the ...(intervention)

CHAIRPERSON: Just to collect the gun and go, that gun that was brought.

MR NOMPOZOLO: No, this running away because they even said to this policeman who was inside, "run away then" after they discovered that they could not find the key to the safe and take the firearms from the safe.

CHAIRPERSON: Okay, so it may have been if you want us to speculate, it may have been an intention to rob and allow the policeman to run away, not so?

CHAIRPERSON: Well we can withdraw it.

CHAIRPERSON: So see we're speculating but I'm not prepared to just dismiss the attempted murder without thinking about it and hearing what you've got to say.  We may except your argument, we may reject it, I'm not too sure what's going to happen but I don't want to go and discuss it and then think I never asked about that and I never asked about this.  Anyway, you say attempted murder?

MR NOMPOZOLO: Attempted murder on the police at Frankfort.

CHAIRPERSON: Yes?

MR NOMPOZOLO: Attempted murder on the police at ...(intervention)

CHAIRPERSON: Wait let's deal with Frankfort first.  What all?

MR NOMPOZOLO: Frankfort, it's possession of unlicensed firearm, it's ...(intervention)

CHAIRPERSON: And ammunition?

MR NOMPOZOLO: And ammunition.

CHAIRPERSON: Yes?

MR NOMPOZOLO: Robbery of firearms and ammunition.

CHAIRPERSON: Yes, what about M I Tupi?

MR NOMPOZOLO: M I Tupi yes, inside the police station.

CHAIRPERSON: Anything else?

MR NOMPOZOLO: Pointing of firearms.

CHAIRPERSON: Well isn't that part of the robbery?

MR NOMPOZOLO: Oh, yes it is.

CHAIRPERSON: I don't know maybe ...(intervention)

MR NOMPOZOLO: It is, no, it is.

CHAIRPERSON: Yes, is that all at Frankfort?

MR NOMPOZOLO: At Frankfort.

CHAIRPERSON: And then we talk Mdantsane?

MR NOMPOZOLO: Yes.

CHAIRPERSON: What we're going to do there?

MR NOMPOZOLO: Mdantsane, attempted murder.

CHAIRPERSON: Two.

MR NOMPOZOLO: To the police.

CHAIRPERSON: Two counts of attempted murder?

MR NOMPOZOLO: Two counts of attempted murder yes.

CHAIRPERSON: Do we know whether anybody was injured there?

MR NOMPOZOLO: I think he said that ...(intervention)

CHAIRPERSON: He said he thought they looked dead, I don't know.

MR NOMPOZOLO: He said that they looked dead.

CHAIRPERSON: There's a difference between being dead and looking dead.

MR NOMPOZOLO: Well the inference is that they shot at the policemen and the policemen were injured.

CHAIRPERSON: Mr Mapoma, do we know what the results of those investigations were?

MR MAPOMA: Unfortunately, Chairperson, we do not know became of that actual shooting.  Information of court and the victims that are available here are with regard to the Frankfort shooting.

CHAIRPERSON: You see, Mr Nompozolo, we have come across instances where policemen roll over and play dead to avoid being shot, we never know.  But there must be an attempted murder because they shot at the police van, I assume expecting there could be a case but we don't know if there have been deaths and we don't know the identity of those people, do we?

MR NOMPOZOLO: No we don't.  We've ...(indistinct) the application, it just said "shoot out with Ciskei Police".

CHAIRPERSON: Yes, what else?

MR NOMPOZOLO: Because they shot at the van although there is no clear evidence, we have included malicious injury to property, that is on the police van.

CHAIRPERSON: Yes?

MR NOMPOZOLO: Also the theft of firearms.

CHAIRPERSON: Well that was robbery.

MR NOMPOZOLO: I don't think they were robbed Mr Chairperson because they, the police tried to stop them and when they were shooting at the police their aim was not to rob them, the firearms.

CHAIRPERSON: What was there then?

MR NOMPOZOLO: They were defending themselves because ...(intervention)

CHAIRPERSON: Is defence a good case for amnesty?

MR NOMPOZOLO: No, hence I'm saying theft of firearms because when they saw that the police were looking like dead they took the firearms and they had no authority to take the firearms so it amounts to theft.

CHAIRPERSON: So that attempted murder, those two attempted murders, are those crimes then if they were defending themselves?   They were not defending themselves, they shot themselves.

MR NOMPOZOLO: Nomabise started to shoot at the police.

CHAIRPERSON: Yes so it was an attack on the police?

MR NOMPOZOLO: Yes so ...(intervention)

CHAIRPERSON: It's not defending?