Amnesty Hearings — Durban — 1998-10-21

MR LAX: The thrust of my point was, here was somebody from whom a firearm could very easily be obtained.  He was an easy target, he's sitting out in a school at night as a guard.  I'm just saying that, let's not dwell on it.

MR DE KLERK: Yes, no I accept that but the counter argument can be, it can also be extremely dangerous for that person without an automatic firearm walking up to him, that person could have ...[intervention]

MR LAX: You see, what I'd like you to just address me on, if you look at the post-mortem, the entrance wound was basically 3 cm by 2.5 cm.  With a shotgun, that's got to be at very close range and 5 metres would not be sufficient at all, must have been much, much closer than that to have such a small entry wound from a shotgun, it's practically a spread of - it's a little bit bigger than the barrel, literally, of any ordinary shotgun, so that's very close range.  That's what worries me, but anyway.

CHAIRPERSON: Well it does say birdshot - it says:  "Entrance wound in front of right ear, 3 cm long, 2.5 cm wide, no burn mark, with an abrasion and with birdshot pellets recovered from the left cheek.

MR LAX: Gone right through.

CHAIRPERSON: Probably gone right through and birdshot wounds.

MR DE KLERK: Yes.  No I accept that.  Once again I would refer to the fact of the time period that has lapsed, the fact that it was dark, the fact that these two people were running away, so it is quite possible that they were much closer than the applicant tried to explain today.

CHAIRPERSON: Yes and also there's no burn mark.

MR DE KLERK: Yes.  The fact remains it could have been possible, let's accept it was only one metre shorter and you take in consideration the length of the firearm and so forth.  It could clarify that quite easily.  I think the Commission has experienced that quite often, that these distances are so difficult stand and fall by.  If it ...[intervention]

MR LAX: No one accepts, Mr de Klerk, that the fluctuation of time and darkness and we don't expect perfect memory from witnesses, honestly, we accept that.

MR DE KLERK: Any other questions, I would love to ...[inaudible]

MOKOTEDI MPSHE: ...[inaudible]  Mr Chairman, I'll just go to the legal part of it, the question of authority and the question of whether he acted on behalf and in interest of an organisation.  The section quoted by my learned friend, Section 20, cannot remember what sub-section that is.

CHAIRPERSON: Sub-Section 22(e).

MOKOTEDI MPSHE: I'm indebted to the Chair.  Mr Chairman, what follows under Section 20 is preceded by a preamble wherein that Section 20 connects all those (a) up to (g) to the political objective and all what it means is that for a person or for a community to decide that was a political objective, the following have to be satisfied.

CHAIRPERSON: No, not all of them because they all can't be satisfied because some relate to people in the service of the State as opposed to others relating to people being members of liberation movements, but at least one of them being satisfied.

MOKOTEDI MPSHE: That is correct Mr Chairman.  One of them has to be satisfied.  I'm taking particularly the aspect of the order or instruction by the organisation you purport to have been acting on it's behalf.  The applicant has put it very clearly that this was their own initiative and that is also on the papers on page 12 and he put it on record under my questioning that they intended informing the leadership of the IFP of this action but that was never done.

CHAIRPERSON: Well it was only done when they landed in the soup, as it were.

MOKOTEDI MPSHE: Yes Mr Chairman, the Chair reads my mind I want to believe.  I was going to say Mr Chairman, but funnily enough this is done 14 months down the line, when they were in the soup, when actually the quagmire was taking charge of them but if really, the intention was to act on behalf of the IFP and report to the IFP, what would you have expected then after the operation before landing in that quagmire to go to leadership, Mr Umhlongo and say "this is what we have done and this is on behalf of the organisation".  Fact, that was not done.  Then one really questions as to whether this was on behalf of the organisation.
	Mr Chairman, it is true as the Chair also commented or remarked that the people heard from leadership that they had to protect themselves but we cannot go that distance and say the protection meant even the killing.  For that matter actually, the applicant said it clearly it was never the policy of the ANC to kill.

CHAIRPERSON: You're now going on the question of proportionality?

MR LAX: Sorry, you said the ANC.  You said the ANC.

MOKOTEDI MPSHE: Oh, my apologies, the IFP.  The IFP, that's not the question of the proportionality, Mr Chair, I'm indebted to you, that's Section 23, I want to believe, (g).
	The protection has always been there, by all organisations but more in particular to the IFP it was also there but not to the extent of killing and this is what the applicant has testified to.  If this is what he has said then in essence he is saying to us: "I did that which was not sanctioned by the IFP" which would not sanctioned by the IFP that is the killing.  So that takes him out of the realm of authority as expected in terms of Section 20.
	Mr Chairman, the war situation, although I must say, refer to the remarks by the bench, particularly the bench to my right, that there was war in that area, the member said particularly in this area.  I don't want to say there was no war but what I'm saying is, are we saying this was a reaction to a turbulence or a disorder that was taking place in that particular area.  I may jump into Section 23, that is Sub-Section (b) where it says it must be reaction to a disorder to a - to mention those words.  Are we saying because of knowledge that this was a war zone at that time when the applicant and his brother approached and killed the deceased, it was a time when there was war?

MR LAX: Mr Mpshe, I don't think we would and I don't think Mr de Klerk either would rely on that Section because that is a question of an imminent response, an immediate ...[intervention]

CHAIRPERSON: It's a sort of situation that Section 23(b) where somebody is at a rally or something of a political nature and the lid blows off and there's a problem and then he does some act in response to the prevailing situation around him.  I think that's what that section is referring to rather than like an ongoing war that's been going on for a year and the last battle was two months ago but now we hear that somebody is bringing in guns, let's take that person out.

MR LAX: This scenario certainly, the present scenario wouldn't fit within that context because they planned it, they went out and did it.  It was premeditated, it wasn't a matter a matter of simply reacting to a situation.  While you're on the issue of proportionality, could you just consider the implication of what the evidence was to a certain extent in that the applicant may have been under his brother's control and other his brother's orders as the leader?  From the judgement it's fairly clear that the brother played the dominant role, he actually pulled the trigger.  Just bear that in mind, maybe you could just address us on that in particular to Section 20?

MOKOTEDI MPSHE: Yes I would agree that the brother played a prominent role but if we connect this with Section 20, I want to believe it's on the aspect of the authority.

CHAIRPERSON: I think you - were you talking about proportionality or authority?