Amnesty Hearings — Durban — 1998-10-22

MR NEL: Don't you find it strange that after the house had been searched by the police, Mr Shandu didn't even have a firearm, not even a legal one, a licensed firearm?  Do you understand the question?

DUMISANI MTHEMBU: Would you please repeat he question?

MR NEL: You have to guard Mr Shandu's life because his life is in danger, yet the police on this night in question after the incident searched the house thoroughly and no other firearm except the one that you had shot with was found in the house, don't you find it strange that not even, or Mr Shandu did not even carry a licensed firearm?  Yet his life was in danger and he does not even carry a gun.

DUMISANI MTHEMBU: Yes, he did not have a firearm.

MR NEL: Thank you, Mr Chairman.

SISI KHAMPEPE: What is so strange about that Sir, he's got a bodyguard who is armed to protect him?

MR NEL: Thank you, Judge, I just thought that a person whose life is in danger would also carry a licensed firearm himself.

CHAIRPERSON: As a member of Cosatu would he have been issued with a licence in 1992?

MR NEL: Mr Chairman, sorry, I would not like to debate on that matter.

MR WILLS: Mr Chairperson, no re-examination.

CHAIRPERSON: Is the witness, Ntuli being recalled for further cross-examination?

MR NEL: Mr Chairperson, may I ask for a short indulgence, two/five minutes.  I would just like to take an instruction and consider that issue, thank you Sir.

MR WILLS: Mr Chairperson, Mr Ntuli is here for the benefit of the Committee and he is available is he is needed to be called.

MR NEL: I have decided on the instructions of my client not to cross-examine the witness, Mr Ntuli and I will also not be leading any evidence.

MR WILLS: Yes, thank you, Mr Chairperson, I had closed my case in the last occasion, is it required of me that I argue the matter at this point in time?  I am prepared to do so.

CHAIRPERSON: ...[inaudible]

MR WILLS: IN ARGUMENT Thank you, Mr Chairperson.  Mr Chairperson, I submit that the applicant has made a case for amnesty.  I submit with respect that the political motivation of the applicant's action has been established, and further that he has to the best of his ability fully disclosed all the relevant facts.
	As regards the ...[intervention]

CHAIRPERSON: It appears to me, and I'm not pre-judging here, that it would perhaps be more correct to say he's disclosed all the facts as he understands them. It appears possible that there may have been a misunderstanding that when he woke he thought he had been woken by something but he'd been woken by some other noise and he reacted to the fact that there was noise and a possible attack.  Does it really matter precisely what woke him?

MR WILLS: No, indeed Mr Chairperson, it doesn't really matter.  The fact, with respect, to mind is that he executed his orders in that he thought that ...[intervention]

CHAIRPERSON: He thought that he was being attacked and he reacted to a possible attack.

MR WILLS: That is yes, indeed so.  I don't know if you want to hear me further on this, Mr Chairperson.

CHAIRPERSON: ...[inaudible] it does appear - I'm not speaking for the whole Panel but we have the affidavits of all the policemen who talk of knocking on the door.  It seems unlikely that they would have all invented this but equally well some man who is fast asleep may not realise when he wakes that is was a knocking that he heard and not some other loud noise.  The question isn't really of great relevance, it's why he behaved as he did that is of importance.  And as you say there it seems that he was convinced they were being attacked and reacted as he thought a bodyguard should.

MR WILLS: Yes, that is indeed so.

CHAIRPERSON: Have you anything to say, Mr Nel?

MR NEL: Mr Chairperson, no thank you.  My client will abide by the decision of the Committee, thank you.

ADV PRIOR: Mr Chairman, yes, to my mind it would seem from the questions that I put to Mr Mthembu, that he had acted almost instinctively, firing randomly through a curtained window at a perceived threat on the outside and as the Chair has correctly pointed out it doesn't really at the end of the day matter whether it was gunshots or possibly a very loud banging on a door ...[intervention]

CHAIRPERSON: Well what is possible is that he didn't really know what woke him up, that he woke up conscious of the fact that some noise, some loud noise had woken him up and that his brother or one of the other people said there are people outside and he leapt to the assumption that this was an attack.  Because improbable as it seems that the police would bother to go and get a search warrant when they intended to go and shoot up a house, equally well it seems improbable that someone guarding a man who had frequent contact with the police as we have heard, would have opened fire as soon as he was told there were police there.  Both versions seem that it's more probable that there was a gross misunderstanding.

ADV PRIOR: I go along with that, Mr Chairman.  Thank you, that is all.

CHAIRPERSON: Mr Prior, you indicated you wanted some time now.

ADV PRIOR: Yes, to confer with victims in another matter.

CHAIRPERSON: Whilst we will take time to confer amongst ourselves on this matter.  We'll adjourn for a short while.

ADV PRIOR: Thank you, Mr Chairman.

<UNKNOWN>: 22.10.1998