Amnesty Hearings — Phokeng — 1996-05-20

MR CURRIN: In conclusion,  I would like to refer you to the preamble of the Promotion of National Unity and Reconciliation Act, and just, I think, highlight, if I may,
that when considering this application and others, and in particular when you have reference to the criteria set out in section 20, we believe that that reference must be informed by the preamble, which we also know comes from our Constitution.  The objectives of the Commission, and certainly of your Committee, I believe, are as set out in the preamble to the Act.  I would just like to record the sections that we believe are pertinent, we believe provide the paradigm in which you need to apply yourselves when considering the criteria.  And they are, the Commission states that:
"The pursuit of national unity, the well-being of all South African citizens and peace require reconciliation between the people of South Africa and the reconstruction of society."
We have heard here today, and yesterday, but particularly today, how reconciliation could be served, has already been served by the presence of this Committee, but we believe could be served even further, if the two applicants are released and granted amnesty.
	Furthermore, the preamble to the Act refers to:
"A need for understanding, not for vengeance ..."
And we have heard, we have witnessed understanding -
"... and need for reparation, but not for retaliation, a need for ubuntu, but not for the victimisation."
PHOKENG HEARING	AMNESTY/GAUTENG
MR MPSHE	161	ADDRESS
It is that context, and that is what we believe what should inform you when you apply your minds to the criteria set out in the Act.
	We thank you.

HASSAN MALL: Mr Mpshe, do you wish to address the Committee?
MR MPSHE ADDRESSES COMMITTEE ON MERITS OF APPLICATION
	As it pleases the Chairman, Mr Chair.  
	First for record purposes, Mr Chairman, I want to state this pertaining to the record of the proceedings in the criminal trial; that attempts were made by myself with the assistance of the Johannesburg Regional Office to obtain a copy thereof, as well as assistance of other people, from Mafikeng, but this did not materialise.  I just wanted this to be on record.
	Mr Chairman, I do not intend to belabour this Committee with all the provisions of Section 20.  Particularly, section 20(1) and section 20(2), unless if the Committee would like to hear me on any part or portion of the sections I have just mentioned.  However, I would address the Committee with particular reference to section 20(3) thereof.  Because in my mind I feel the criteria laid down herein are of utmost importance when considering the submissions made for the applications.
	I will move straight, Mr Chairman, to subsection (b) thereof, which reads that:
"The offence was committed in the course of or as part of a political uprising, disturbance or event or in reaction thereto."
My colleague has indeed attempted to paint a picture of a political uprising nationally.  But I am of the opinion that PHOKENG HEARING	AMNESTY/GAUTENG
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in as far as Phokeng, in particular, is concerned, no evidence has been tendered that there was a political uprising in Phokeng.  Because it is important that this be
established as the action committee was operating within the Phokeng area.

ADV DE JAGER: Wasn't there at least a political event?  Should it be an uprising, can't it be an uprising or a disturbance or an event?

MOKOTEDI MPSHE: I would accede to the point that there was a political event, but I am commenting on what my colleague tried to expose, by going particularly to the political uprising.  But I do concede that there was a political event.
	As pertaining to subsection (3)(c), particularly -
"... including the gravity of the act, omission or offence."
Much has been said about circumstances that led to the commission of this brutal act.  The Committee is requested to consider the gravity of this brutal act in relation to the circumstances prevailing then. 
	Mr Chairman, I am not satisfied or convinced that the circumstances that prevailed then should be used as justifying measures for the type of the brutal act.  In that there were other alternative means at the disposal of the applicants, which means they could have made use of and avoid embarking on such a grave brutal act.

JUDGE WILSON: Do you agree, Mr Mpshe that this was entirely unforeseen?  On the evidence before us, the only weapon that this group of ten men had, was one knobkierie, and that appears to have been the evidence led at the trial.

MOKOTEDI MPSHE: Judge,  I agree that it was unforeseen at the PHOKENG HEARING	AMNESTY/GAUTENG
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time when the applicants proceeded to the deceased's place.  But one should not lose sight of the actual - although there is no evidence that the blow that was delivered by
Christopher Mokgatle is the blow that caused the death of the deceased, but all the same, I want to say this, that one should not forget that in his own testimony, he stated that when they were about to leave in the mini-bus, then he realised that this man was still alive, and there and then decided to kill him.

JUDGE WILSON: (Indistinct - microphone not switched on).

MOKOTEDI MPSHE: Yes, Judge, I agree, that is the evidence, but that does not in itself water down the gravity of the offence at all.

HASSAN MALL: In fact, it might be said that that was the gravity of the offence, isn't it? Isn't it so?  That they actually killed the man simply because he was afraid that he would be identified.  That is the gravity of the offence, isn't it?

MOKOTEDI MPSHE: Yes, Judge, I agree, that is so, that is so.
	In respect of 3(e), I now referred to it.  Reference has been made to the approval of the organisation, institution or liberation.   My colleague has made it clear to this Committee that the applicants' case is not that the brutal act was approved or even sanctioned by the tribe, nor the action committee, but their case is that this was - this had the approval of the African National Congress.  Then I find a problem in that submission, because the approval, if there was any approval by the ANC, came after the fact, then one finds it difficult to can link the sanctioning or approval of this act with the ANC.  
	It was further stated that what they did was on behalf PHOKENG HEARING	AMNESTY/GAUTENG
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of the action committee.  Still, I have a profound problem with that, in the sense that evidence is very clear that at the meeting held at the Roman Catholic Church, the intention
was to demand or ask for the keys, and to further perhaps hold the deceased hostage. 
	Now in as far as that is concerned, one has no problem in finding an approval, a prior approval of sanction of demanding the keys and perhaps even holding of hostage.  The question of the killing or perhaps to use the most apposite word, the question of the murdering cannot be said to have been with approval of either the ANC - which is out of the question, it was after the fact - or the action committee, because the action committee never sanctioned the brutal murder.