Amnesty Hearings — Johannesburg — 1998-10-13

MR SHAYI: The rest of the sentences are 12 years for the attempted murder of Ms Ruth Jennifer Barker, 18 months for the robbery with aggravating circumstances, excuse me, it is 12 years, 18 years, three years for illegal possession of a firearm, and six months for illegal possession of ammunition.
	He was sentenced on the 2nd of June 1995.  My submission is one now has to look at the provision of Section 20 of the Promotion of National Unity and Reconciliation Act, 34 of 1995 and the Committee has to satisfy itself as to whether if one looks at this Section, he qualifies to be given amnesty.
	The first thing that one has to look at is whether the application complies with the provisions or requirements of the Act, and my submission is inter alia that according to the bundle, the application itself was brought on the 1st of November 1996, and the cut off date was supposed to be the 10th of May and my submission is under that leg, he does actually comply with that requirement.
	Then, now one has to look at the provisions of subsection (2)(a) of the Section 20, which in short deals with whether he was a member of any political organisation or a supporter thereof and my submission is, according to the evidence or the submission that was made by Mr Manyamala, he says that he was a member of the African National Congress and a member of the Self Defence Unit.
	If one looks to the (b) part of Section 20, that is 20(1)(b) whether the act, omission or offence related to any political objective, and I will come to these when I deal specifically with the facts or the incident itself, and dealing with the evidence that was given by Mr Manyamala to this Committee, then whether the applicant has made a full disclosure of all relevant facts that were involved in the commission of the crime.
	Now, in dealing with the (c) part of Section 20(1)(c), of Section 21, I will actually look at what my learned colleague, Adv Steenkamp, alluded to when he said that in other words he lied to the Court, during the time of the trial.
	Then I will also deal with the provisions of subsection (3), more specifically the (a), (e) and the (f) parts of the Section.  
	Now in dealing with whether the act committed was actually related to any political objective, the issue here is overshadowed by the fact that in it we have a person who is now facing, or who has been sentenced for inter alia robbery with aggravating circumstances.
	One should never try to look at the court document without looking at the plea that was given by Mr Manyamala to the Court.  My submission is in giving a ...(indistinct) denial to the Court in question, any possibility of him stating to the Court as to how he came to commit the offence, was actually excluded, because in giving explanation as to the killing, he would by so saying, have been saying that he actually committed the crime.
	If one looks at what he says led him to pleading not guilty, because he says that the Attorney or Advocate who was representing him, told him that he stood to gain by pleading not guilty, then pleading guilty, because if he pleaded guilty, then he would have been given a direct life imprisonment, or a death sentence.
	He didn't want to follow that route.  That should be looked at in the light of the circumstances of Mr Manyamala himself, namely that he at that stage, even though he didn't actually mention that, he thought that by pleading guilty and being given a death sentence or life sentence, would have aggravated his position and as such he deemed it fit to lie to the Court.
	But he actually took the route to the truth, hoping for reconciliation with the victims of the said crime.  If one looks at the crime itself that was committed by Mr Manyamala, one will say that it is a purely, if one looks at the court record, that it was a purely criminal activity, but if one looks at the provisions of subsection (3)(a), (e) and (f), more specifically whether he stood anything to gain by so robbing the people, then one is left with no choice, but to look at Mr Manyamala's submission that when they so robbed the motor vehicle or they so took the motor vehicle from this person, they never had an intention to use the said motor vehicle for their personal gain, but they merely wanted to use it for transporting the said firearms to Soweto.
	If one looks at this in the light of what was actually led in the court, more especially if one looks at pages 36 and 37 of the bundle,  and in summarising the facts, mention is made of - I am going to quote from the second line of page 37, that is 584 of the judgement.  He said that accused 2 brought the vehicle there.  He says that he knows accused 2 very well.  And later mention is made of accused 3.  On line number 8, late that evening accused 3 arrived on the premises, with the police.
	No mention whatsoever if one goes on with the judgement itself, is made of accused 1, who is now the applicant today, of ever having been in possession of the motor vehicle from the time that the said vehicle was taken away from the victims.  My submission is looked at in the light of what he actually alluded to, that he gave orders to the two people to dispose of the motor vehicle after it was taken away from the victims, then one could actually come to the conclusion that what he is saying, is the truth.
	Because from there, if one looks at the summary of the judgement by the learned Judge, no mention is made whatsoever of any connection of the motor vehicle to the applicant, after it was taken away from the victims.  Meaning if there is anything that was actually gained by whoever took part in this activity, it definitely couldn't have been the applicant.  At most, it was actually the two co-accused, who are not before this Committee.
	My submission is, as far as the provisions of subsection (3)(a) are concerned, which is the motive which can be said to be directly linked to whether he had some personal gain by so committing the offence, are actually satisfied.
	That should be looked at in the light of what he actually alluded to this Committee.   If one looks at the provision of subsection (3)(a), the motive, he says the motive at that stage, was to take the motor vehicle and to transport the firearms.
	He says when so killing, in the shooting that occurred between him and the driver of the motor vehicle according to his version, when that shooting actually occurred, that was not his intention, to actually shoot the person who was in the motor vehicle, that was when he first approached the motor vehicle.
	That was something that came to him, immediately after the occupant of that motor vehicle, that is the driver, started shooting at him, and then he returned fire.  Now, that should be looked at in the light of the injuries that were sustained by the passenger of the motor vehicle, of the Toyota Corolla, that is Ms Barker.
	For that, one has to look at page 35 of the bundle, that is the summary of the judgement, that is the penultimate paragraph.  She herself, sustained three gunshot wounds.  Two in her right leg, and one behind the right upper hip or side.
	One is left with the question, if the intention of Mr Manyamala was to kill the occupants of the motor vehicle, why would he go for the legs of the female occupant of the motor vehicle?  My submission is that his evidence that she was actually not intended target in the shooting, that she was actually hit by the bullets that were intended for the male occupant, is the truth.
	Why would he shoot her on the leg and after shooting her, according to the version that is now before the Committee, no attempt whatsoever was made by Mr Manyamala to finish off the female occupant of the motor vehicle, who could have subsequently secured a conviction for Mr Manyamala.
	Then one is left with no other alternative in the absence of any explanation to the contrary, that Mr Manyamala never had any intention other than taking the motor vehicle away from them, of killing the occupants of the motor vehicle.
	My submission is if he lied to the Court as Adv Steenkamp was harping at yesterday, why would he lie to the Court, why wouldn't he disclose the whole truth to the Court?  My submission is, and it is now common cause, people who were involved in political activities at that stage, never had any trust in the judicial system.
	Even after the elections themselves, and if the Committee could actually look at the applications that are actually brought by the applicant or applicants who approach the Committee, there are many of them who were convicted and none of them, pleaded guilty in the trial court.
	My submission is he is pleading not guilty in court, thereby not disclosing the truth to the trial Court, can in a way be seen to be linked to his not telling the truth and he is here to disclose the truth of what happened during that fateful day.
	One may pose the question, why would he actually decide on killing in order to get hold of the vehicle?  One has to guard against taking an armchair approach to the situation that Mr Manyamala was actually faced with.
	Ex post facto one can say that was not a good decision to make, but during the course of the event, in the heat of the moment, what was it that he thought about.  He said to the Committee when Adv Gcabashe, one of the Commissioners, was actually posing a question to him ,why the urgency, he says the urgency was and that is what was in his mind, I have to protect my people.
	That is what the urgency is.  That should be looked at in the light of the proportionality of the offence that is still under Section 20, the proportionality of the offence that was committed in relation to the objective that was sought to be achieved.
	Now, if one looks at the proportionality, my submission is a person's life is a person's life, that is the ultimate right, right to life, but now in killing that one person to protect the lives of more than 10 people in the location, could one not come with that kind of proportionality?
	One should look at what was happening when the shooting took place.  The occupant of the car was shooting, he was also shooting.  In that respect, one can say he had to shoot to secure the motor vehicle.  In the same tone, he had to shoot to protect himself from the occupant of the motor vehicle, although that was not said and that was not raised in the trial court.
	My submission is although it may be said that this looks far removed incident from furthering a political objective, if one looks at the events in one chain, there is no doubt that in transporting the firearms to the location, that motor vehicle was needed.  Even though he says that he drove in another car to the scene, he gave an explanation why he had to go for that specific car, but not the car in which they were travelling.
	My submission is that it satisfies all the requirements for amnesty.  If there is any question in particular, I am available to assist the Committee.