Amnesty Hearings — Durban — 1998-11-25

CHAIRPERSON: Perhaps, if you could just address us on one point that you have just alluded to now.  You have said that in the applicants' minds, the only way to stop the killing of their people, people and supporters of the ANC, was to kill the deceased, who was an informer, a member of both the ANC and the IFP.
	On that question, that then raises the point of proportionality.  Could they not have expelled her from the community, got rid of her that way, rather than take it upon themselves, although I did take it into, we are aware that they didn't only take it upon themselves to kill her, there was this order from Msolo, but if you could just briefly address us on the question of proportionality as that is one of the criteria we have to take into account, in terms of Section 20(3).

MR SIPHO: I think we have to take into account the factors and the circumstances which existed at that particular time.  I think it was something that was being done all the time, where if somebody belonged to a different faction, they were a danger to you, it seemed that the only way in which that could have been put an end to, was by actually killing them.
	I am not saying that that was the right thing to do.  That was the thinking at the time to a very large extent and that is why there was a lot of deaths during that period.
	As far as they were concerned as well, if one had to expel her from the community, they would never be sure what further harm would befall them, because they would be letting a person loose to which ever other party she may want to go to, knowing everything about them.
	That might in itself have created a further danger, it wouldn't have put an end to the problem, as far as they were concerned.

CHAIRPERSON: Do you have any further submissions Mr Sipho?

MR SIPHO: I simply wish to submit that it was a political killing and (indistinct) amnesty which we have applied for in this matter.

CHAIRPERSON: Thank you.  Ms Thabete, do you have any submissions to make?

MS THABETE: Yes Mr Chair.  Clearly what the applicants did, could not be perceived as a criminal act so to say, nor ...

CHAIRPERSON: A purely criminal act?  When you say a criminal act, you mean a criminal act without ...

MS THABETE: Purely yes.

CHAIRPERSON: A political motive?

MS THABETE: Yes, without a political motive.  And also it doesn't look like they committed the act for any personal gain per se.
	However, I think there are weaknesses in the whole scenario of their actions and other factors that I would like the Committee to consider.
	For example, the issue of proportionality that is the way and the extent of violence used  to kill the deceased.  Why I am saying this, it is because it appears from the judgement or the indictment that the deceased was 20 years old, she was very young.  The applicants as well, were very young.
	What they did, that is the applicants, it is true, it can't be said to have been right or wrong, but they attacked a 20 year old, who was naive like them, who was defenceless and the extent of violence that they used, maybe the Committee members can consider that, or maybe my colleague can explain.

CHAIRPERSON: I think they have explained the violence, we know that the deceased, well, she died of multiple stab wounds, and we know that there were eight or more than eight attackers, about 10 and that they  all agreed that each and every one of them, would have to actually stab her because they all started it, they must all end it and they didn't want anyone to say well, why did you do it, I didn't?

MS THABETE: That is exactly my point, I think it could have been done in another way.  I am not questioning whether it is wrong or right, but I am just looking it as a short sightedness on their part, that I mean, this person was young, she was defenceless.  It was not like she was armed or anything.
	It wasn't necessary really for them to attack her, all of them, to stab her.  I mean there were eight of them.  She was the only one, and she was the same age as them really, so to say.  That is exactly my point.
	However, I do not object or question their political beliefs or the political climate of the day at that time.  Even the judgement, as my colleague has said, refers in a number of pages, refers to the political climate at that time, more especially the rivalry between the IFP and the ANC.
	Also what I wanted the Committee to think about, and maybe my colleague to respond on, is the fact that it would seem that the applicants decided to assault and eventually kill the deceased, long before she even responded to their questioning, as to what she was doing in the compound.  It looks like by just going there, they had decided that they are going to kill her.
	Such that it didn't matter whether she would have admitted to the fact that she was a spy or she would have denied it.  It looked like they had already decided that they were going to deal with her and probably kill her.
	Maybe you can respond on that as well.  I also - but the Judge has raised that, maybe I should leave it.

CHAIRPERSON: You can address us on any point, whether I have raised it or not.

MR LAX: Just on that point, maybe you can in the light of your remarks, if they had already decided to kill her, just address this issue, why then didn't they kill her there and then, instead they took her to Msolo's place, they went through a trial, Msolo then gave an instruction.  Doesn't that mitigate against the thrust of the point that you are making?

MS THABETE: My point was the assault happened even before the questioning that took place, so maybe the decision to kill her, was taken after she had been questioned, but it looks like to me, by the time they went there, they had already decided that she was - I don't want to say guilty - but she had you know, the relationship, or she was working in collaboration with the IFP and the police.
	Another matter I wanted to raise, even though it was raised by the Honourable Judge partly, is the fact that it is interesting that considering the age of the victim as well, and the fact that she was naive and probably politically ignorant to the implications of what she was doing, or rather the consequences of her actions, just like the applicants appeared to have been ignorant and naive.
	It is interesting that a warning wasn't considered or another punishment, short of death wasn't considered, which also brings the issue of proportionality.
	However, like I have stated before, in the judgement it refers to the political climate of the day.  In my opinion really, and as the judgement has put it clearly, there was political violence between IFP and ANC, and I wouldn't object as such to the Amnesty Committee granting amnesty on the applicants.

CHAIRPERSON: Thank you Ms Thabete.  Mr Sipho, do you have any reply?

MR SIPHO IN FURTHER ARGUMENT: Just on the point at which I was invited to respond, and that was whether there was any intention that was formed at the point which the deceased was first accosted by the applicants, and I agree with the learned Committee member, that if that had been so, why would they have taken her to Msolo, they would probably have done what they had to do there and then.
	And it also seems as if that when they got to Msolo's place, Msolo's initial instruction was to leave her there overnight, and I think the enquiry was to take place the following morning, except that he thereafter gave some sort of signal as to what should be done.
	I seems as if the applicants would have been quite prepared to comply with his initial requirement that she be left there that night, and if he hadn't given that signal, possibly nothing further would have happened that night.  I think that we are speculating a little bit too much to say that they had already formed the intention to kill her at the time they first accosted her.