Amnesty Hearings — Johannesburg — 1999-02-10

MS NHLAYISI: Mr Chairman, what you're saying, yes it's true but from the evidence it's clear that the applicant didn't think about that that far.

CHAIRPERSON: That's what he says.  What are the probabilities?  Any human being would have come to that conclusion that this, "I'm in danger here" as if to say he's going to play Tarzan and take on the world?  It just doesn't happen any more.

MS NHLAYISI: That's why I'm saying Mr Chairman it's true what you're saying that the probabilities of him arresting these people and taking them to his comrades, if we analyse them now and look at it now we can see and reach a conclusion that his chances of succeeding in arresting them and taking them to his comrades, his chances were very narrow but at the time of the happening of this incident the applicant and his friend believed that they were going to do their turn, that's what they wanted to do and they believed because they thought these other people were not armed with firearms, like he said in his evidence that when he shot and they didn't shoot back he realised that they didn't have any firearms and then he took advantage and he pursued them.  He thought because they had a firearm and these people didn't have a firearm and that their chances are greater of capturing them, so probably that's what came to their mind because they were armed with firearms and those other people were not armed with a firearm.  Then to his mind, that made their chances greater.

CHAIRPERSON: Why didn't he attempt to make arrests initially, the first incident?

MS NHLAYISI: When you say Mr Chairman initially, you mean with a larger group?  He couldn't have succeeded, he's saying there was a large group, that's why they had to flee because they realised that being two and these people were in a greater number, they didn't stand a chance.

CHAIRPERSON: Precisely and the probabilities favour that.  Let's assume he had half of that group now to contend with in the school.  What's the chances of him changing his attitude and becoming brave now and trying to make an arrest now?

MS NHLAYISI: Still with half of the group into the school yard his chances were still zero.

CHAIRPERSON: What would make him think now that he can succeed?  Initially he knew he can't succeed because there were too many people.

MS NHLAYISI: Maybe it's because he knows only two people walking and the rest of group was no longer in sight?

CHAIRPERSON: But he knew they were there in that school yard, they were in the vicinity.

ADV GCABASHE: And he pursues these two into a classroom where in fact there's a whole group of people.  This is exactly what point the Chairman makes.  How did he know they were not all these other people from that initial group?

MS NHLAYISI: I would say the fact that he pursued these other two into a school classroom shows exactly that his actions were not thought of because he didn't know who was in the classroom in the first place, then he was surprised by this group of people who were seated in the classroom and he didn't expect them to be there.  Hence I'm saying he didn't think about the probabilities and weighing them at the time he decided to capture those people.

ADV GCABASHE: But you see he should have known because he knew that a number of them had run into the school premises, others had run in whichever direction so he ought to have known that there were more than two people on the premises and that the others were somewhere in the vicinity and the probabilities of a successful arrest were next to nothing?

MS NHLAYISI: It's a question of a badly planned attack I would say.

MR SIBANYONI: Talking about the badly planned attack, when I asked him a question as to what was his first opinion in so far as the identity of these people, I recall him saying that his friend was saying these are not part of the vigilante group, am I correct in that recollection?

MS NHLAYISI: Yes it's what he said that at some stage there was some discussion between himself and the friend thought these were not and he thought he part of the group.  You are correct.

MR SIBANYONI: Wouldn't you say his belief that they were part of the group was unreasonable, there was the friend who was saying no they're not part of the group?

MS NHLAYISI: I wouldn't say it was unreasonable in the circumstances because from his evidence it's clear that even the friend was not too sure as to whether they were the part of the group or they were not.  Hence he said that he decided that by shooting towards them then that's when he was going to ascertain whether they were part of the vigilante group or not.

CHAIRPERSON: ...(inaudible) when it was too late.  He shot at them, he may have killed them and what was the point of establishing it then?

MS NHLAYISI: If I remember his testimony well he said that he didn't shoot directly at them, he said he shot next to them for that reason in a follow up to the question asked by ...(intervention)

CHAIRPERSON: Are you saying he deliberately missed them?

MS NHLAYISI: That's the evidence that he gave.

CHAIRPERSON: Then he's not guilty of attempted murder because he never intended to hit them.

ADV GCABASHE: I think I agree with you on that score but ...(intervention)

CHAIRPERSON: What do we do about the application?

MS NHLAYISI: Is the Committee not going to take it further and look at what he intended doing had he been in a position to ...(intervention)

CHAIRPERSON: His application is directed at obtaining amnesty for attempted murder.  Attempted murder comes just short of an unsuccessful attempt to murder.  If it was successful he would have been guilty of murder.  If he deliberately shot past them or near them which means he had no intention to kill them then how can he make application for attempted murder?

MS NHLAYISI: I concede that from that piece of evidence then it's clear that he did not have any intention to kill, that's what he said on record that he deliberately shot not towards them but not at them but shot on the side because there was this discussion between himself and the friend.  I concede if that's the case there's no attempted murder.

MR SIBANYONI: I notice that he was convicted by the regional court for attempted murder.  We believe your argument to say the regional court has made it a fact that what he did was ...(intervention)

MS NHLAYISI: Could you come again on that one, I didn't get the latter part?

MR SIBANYONI: I am saying the regional court found him guilty of attempted murder.  Now what I want to establish from you is, will it be your argument that now that the regional court has convicted him it has been established as a fact that what he did on that day was an offence namely attempted murder.

MS NHLAYISI: It's unfortunate that personally I didn't have any access to the records but the fact that he was convicted it would say to anybody that the magistrate has satisfied himself that he has committed an offence and he deserved to be convicted.

ADV GCABASHE: But the question is are you then arguing that we should consider the greater offence of attempted murder which is what he has applied for as the issue to consider in his case?

MS NHLAYISI: If I argue it in line with the fact that he has been convicted and therefore the magistrate believed that he has done it, then I would request the Committee to consider his application for what he has applied for, that is for attempted murder.

CHAIRPERSON: You are of course bound by what he told us and not bound by what the magistrate found?

MS NHLAYISI: In that case Mr Chairman then I'll leave it in the hands of the Committee to decide whether they'll still consider his application for the attempted murder in view of the evidence that he has presented before this Committee.

CHAIRPERSON: Thank you.

MS NHLAYISI: Thank you.

CHAIRPERSON: Mr Steenkamp, is there anything you want to draw to our attention?