Amnesty Hearings — Pinetown — 2000-02-15

MR DEHAL: I agree, I have no argument against that.  All I want to suggest is this, if there is testimony uncontroverted from the applicant that there were some problems in regard to this statement, why for example my knife, the deceased's knife, he says "I never said that."  He says he didn't read the statement before he signed it.  When asked pertinently about that aspect as to whether you turned around he says
"I never turned around, I never chased the deceased, I fell.  I dispossessed him, I wanted to subdue him"
And that's the level at which he pitched version.  No amount of cross-examination defeated him on that.  It's only the statements, which he, the applicant, also casts doubt on which stands against him.
	Mr Chairperson, there is this aspect that you've asked us to consider and address you on, namely whether there is an offence.  I have just a few submissions to make on that.  Basically two.  The first is this, the applicant no doubt has been convicted.  I accept that this is not a court of appeal.  He is endeavouring in the hope of if he gets amnesty granted to have his slate cleaned.  That's the most positive effect he can achieve from this process.
	But secondly, not his view but my view as a lawyer looking at his version, if one looks clinically at his approach of self-defence, it seems to me it is not one that really succeeds as self-defence for here is a man, who on his own admission, is in the company of Nsomi who holds down the deceased at a time when the appellant - sorry, when the applicant dispossesses the deceased of his knife.  Now at the level of arguing his activity hadn't gone beyond the bounds of self-defence one can see clearly that if he dispossessed of the knife he could well have taken that knife and run away.  He needn't have stabbed the deceased, he needn't have stabbed him to such an extent that three stab wounds were inflicted which indeed common cause caused the death of the deceased.  At that level of exceeding the bounds of self-defence it is murder with the firearm but yes, that was negated by the time the applicant got to him.

CHAIRPERSON: He fired one shot which means it has to be reloaded?

MR DEHAL: Yes.

CHAIRPERSON: So you don't give a man a chance to reload his gun while you're running away, you stab him?

MR DEHAL: With respect, that would be acting on the premise that there was another bullet to rearm the gun.  I would accept the argument that had there been another bullet, presumably the deceased would have loaded it.

CHAIRPERSON: But he had been running after him?  He fired and chased them?

MR DEHAL: Yes.

CHAIRPERSON: So?  To save himself, he stabs him?

MR DEHAL: Yes, there are difficulties in that argument, I concede that and my first submission but the point I'm making crisply is that if one accepts at the worst that the applicant has exceeded the bounds of self-defence, then there is an offence and that offence is murder.  At worst, at best assault and GBH.  There is an offence for which he needs to apply for amnesty.

CHAIRPERSON: Have you seen the judgment?

MR DEHAL: Not at all.

CHAIRPERSON: Has anybody?  Is it available?

MR MAPOMA: No, it is not Chairperson.

CHAIRPERSON: It is not available?  Have any enquiries been made of the prosecutor or the magistrate?  I tell you why I ask this, because of the sentence imposed.  If the court had found - argument rather, it's not conclusion, but if the court had found that three men deliberately set upon an unarmed man and repeatedly stabbed him wouldn't six years have been the sentence imposed?

MR DEHAL: I see the point you're making Mr Chairperson, I agree and I think looking at that judgment would have been correct.

CHAIRPERSON: But if it's not, if we can't get any further information we just have to draw conclusions.