Amnesty Hearings — White River — 2000-05-04

MR LUBBE: Advocate Sandi - through you, Mr Chairperson, if I understand you correctly you say we should not judge, or we've got no evidence as to what went through his mind on that occasion, what we've got, and I agree, is the fact that we deal here with a soldier under the instruction of a Commander, who simply instructs him "Put an F1 grenade in that room", and that's it.  It's not for the soldier to judge whether this instruction would hold good in future or not, the mere fact that he was instructed, I would suggest, would suffice the requirements of the Act.

ADV SANDI: Ja, but if you look at the Act, I think that is under Section - I don't have a copy of the Act in front of me, that is Section 20(3), I think that would be (e) or something, and if you look at that, is it not clear that it is envisaged that the action taken must have been taken against a perceived political opponent or enemy of the organisation of the perpetrator?  And now these people are just sitting in a shebeen and drinking, their political affiliation is not even know, there's not even a suspicion to that effect.

MR LUBBE: Advocate Sandi - again through you, Mr Chairperson, if one has regard to (3)(e), it says that whether the act or the omission or the offence was committed in the execution of an order of, or on behalf of, or with the approval of the organisation.  It doesn't go beyond that I would respectfully submit, to say that the person that executes the order must truly believe that such an order or the execution of such an order would enhance his own political, or the organisation for which he acts.  It simply says if he executes an order, that would suffice.

ADV SANDI: Ja, but you see your argument would amount to suggesting that any action taken by a so-called political activist or soldier against any person, regardless of the political affiliation of that person, that is an act necessarily falling within the purview of this legislation.  Which point I would not agree with.  Not every act carried out against any person necessarily falls within the parameters of this legislation.  The political affiliation of those people sitting in a shebeen and drinking is not even known, and the - not by Hlongwane either.  I hope you follow me.

MR LUBBE: Yes.  Mr Chairman, may I put the following perspective of this.  If this was a once-off incident, in other words, if my client would have only applied for one simple incident, namely this thing, I would agree with that point of view, but the fact is that he was at this point already involved in other incidents, his mind-set already was "I'm involved against the ANC, on behalf of".  Now if that is the case and he receives an order, I would simply suggest that he need not go and judge whether this order now given will in fact enhance the political struggle of his own organisation.  But if it was a once-off situation, yes, I would surely doubt whether he shouldn't have dug deeper into the instructions.
	It's not a question of a soldier - the classical instance is where you as a soldier is sent to execute a certain lead, it's a once-off situation.  Your Commander tells you "Go and shoot X and come back", you don't question that, you do it otherwise you will be court marshalled.  This is different.

ADV SANDI: Let us talk about another incident, the incident where school children are attacked at night.

MR LUBBE: Yes, Mr Chairperson, I believe the evidence there is the following, that the instruction came from Noah Mxobogazi, who indicated that because the Black Cats were not received as co-children, colleagues, in the school, the youth of the ANC was then pointed out as also being the enemy.  I believe, and I think you can appreciate my situation, I don't know much about the political movements of the ANC and the IFP, but I believe that you don't get the distinction in the black community where you say the political movement only consists of the registered members of the ANC or the IFP, like you would get in the opposing parties.
	So if a person with the authority of Noah Mxobogazi would say the youth of the ANC, whether they are card-carrying members of the youth organisation or not, the youth are in fact the enemy, kill them.  This is the evidence.  And my client would then proceed, and this is his sole participation, he would then proceed and pinpoint to the assassin, the person or person to be assassinated.  I would suggest that this fully complies with - falls within the ambit of what the Act also requires.

ADV SANDI: I thought the evidence there was that these so-called ANC scholars were preventing those people who were affiliated to the Black Cats, they were preventing them from attending school.  They didn't kill them, there was no evidence that they were assaulting them, they were simply preventing them from attending that particular school.  Now the reaction we were told by the applicant, was to kill them.  Now where does that put us in terms of proportionality?

MR LUBBE: The wrongdoing, Mr Chairman with respect, in this instance would seem to me the mere fact that you belong to a party which opposes your own political view.  Because of the war that raged between the political parties, a war that has no boundaries, because of the mere existence of a war simply means that "Sir, if you belong to a party which I don't belong to, I regard you as my enemy and I feel free to eliminate you".  This was, as i understand it, this was the case where children who don't allow the Black Cats to be part of the community, were simply being viewed as the enemy of the IFP.
	And with due respect, I think that the Act also makes provision for that.  The furtherance of the political object of the IFP, would obviously have been to eliminate what is in the - maybe my learned friend here would tell us more about that, I don't know precisely what that is, but would also be to eliminate people from the ANC.  As simple as that.

ADV SANDI: Thank you, Chair, I won't pursue this any further.

CHAIRPERSON: Can I just come back to the shebeen patrons.  It appears that Mr Noah Mxobogazi has been the primary source of these orders that your client was executing.  Now in respect of that incident, I understand that Mr Mxobogazi's position was that "Well if you don't find Shongwe, kill his mother, then he must come to the funeral, then you kill him".  I understood that to have been the sum total of Mr Mxobogazi's order under those circumstances.  Now do I misunderstand that, or what is the position ...(intervention)

MR LUBBE: That is how I understand it.  She was to be used as bait, as you yourself put it, Mr Chairperson.

CHAIRPERSON: And was this thing of throwing the handgrenade, was that Hlongwane's plan on the scene there whilst they were busy executing Mxobogazi's order?

MR LUBBE: Mr Chairperson, it's not clear from the evidence where this whole plan of throwing the handgrenade emanated from, whether the decision was taken impulsively by Hlongwane in the kitchen, because the evidence is, the six people were ordered to stay in one room, he took the mother to the kitchen, he told my client that he's going to kill her and then he said to him "You throw the handgrenade".

CHAIRPERSON: Yes.

MR LUBBE: So I would not think that this was planned prior to going there, certainly.

CHAIRPERSON: That is the sort of impression that I gained too.

MR LUBBE: Yes.

CHAIRPERSON: It was Hlongwane's way of executing the order, throw the handgrenade in there.

MR LUBBE: Yes.  But what we suggest on behalf of the applicant, with respect Mr Chairperson, is that if that was an order that was received on the spot by my client, it was not premeditated by him.  Looking back today I think he would say "What an absolutely wrong thing to do".