Amnesty Hearings — Pietermaritzburg — 1997-07-30

MR WILLS: Yes, indeed, Mr Chairperson.  The legal and factual situation referring to 23(C).  There is no doubt that we all know and concede that this was a very serious act and one does not want to underestimate the seriousness of the act.  Nine people were killed and there was an attempt made on the lives of an additional two people.  However, I respectfully submit that the members of the community who took this action were left with little alternative.  There has been evidence, which I submit, should be accepted that they did make attempts to try and resolve this peacefully.  Attempts were made by going to the police, attempts were made by going to the chief of the area, attempts were made by going to the magistrate of the area and it seemed that these were all fruitless.
	Now, the, if I refer the committee in this regard to the Investigators Report, which basically corroborates the version that the individuals did go, in fact, to the police and complain about these incidents and, particularly, if one refers to page 45 of the bundle, there are the CR's.  The, firstly, the Richmond CR118 of 9 of 92, murder, two counts and arson.  The further docket, Richmond CR984 of 92 and the third one being the Richmond CR49 of 4 of 1992, which also indicates that something was done and a particular Keswa Poswa was arrested, but, indeed, he was eventually acquitted.  
	The evidence which was particularly alarming and, I submit, is an important facet of the evidence which underlies the drastic position that the ANC community were in in Gengeshe, was the evidence given by the first applicant later on in his evidence in answer to questions by my, by the evidence leader and that was that when people in the IFP camp were, in fact, arrested, he was referring to the incident where the family member at the forestry area was attacked, he said he attended at the police station and there were weapons which he, himself, saw in the police station and his evidence was to the effect that these people were more or less immediately released and that the same weapons, that he personally saw in the police station, were found or seen by him on the date of the incident on the 26th of September 1992.  In circumstances like that it clearly, with respect, must be seen that they were in an enormously difficult position.  They were living in, what must be described as enormous inconvenience, having been rooted out of their homes and they had little else that they could do. 
	In addition, referring specifically to the criteria in 20, Section 23(D).  The objective here.  It was clearly directed against political opponents and, I submit, it was no, it was discriminatory in the sense that it was only political opponents that were actually attacked.  In this regard I think the evidence of the witness in the criminal trial and that is Yesim Mbanjwa is extremely relevant and I refer the court to page three and page four, the bottom of page three, the last paragraph of her evidence and, incidentally, she was found to be an extremely good witness by his Lordship Levinson in the matter, and I would just like to quote that bit of evidence in the record.  It is the bottom of page three.
"Yesim Mbanjwa, an elderly morning, said on the morning of the 26th she was asleep in her home.  She said that gunshots went off.  She then woke up and she looked through the door.  When she saw four people appearing there, a person by the name of Tutu told her to go into another hut.  She said to Tutu, she said that Tutu was one of the four people and there was another person whom she identified as Mantutu who, it is common cause, is accused number six.".
Now, in those circumstances, it seems blatantly apparent that had there been an intention on the part of the second applicant or any of the applicants on that day to take the life of this person, it would have been quite easily possible.  The proximity of this witness to the attackers at that stage was extremely close.  People were close to the door, close enough to talk to her and yet no harm came to her and the evidence is to the effect that no harm came to any of the women or children of the Gengeshe area on that day.  
	On the other hand, the attack, it is my submission, was directed at what must be, with respect, be accepted as political opponents.  I, it is my submission that one can take the, one can accept that all of the deceased in this matter were, in fact, members of an opposing political organisation and I submit that the evidence given by the accused in this regard, sorry, the first applicant in this regard, was relevant.  He, in going through the list of the persons indicated that most of the people were IFP members, but his honesty was such that when he got to the victims in count eight and count nine, he said, he openly admitted to his, possibly to his disadvantage, that he did not know those people in count eight and count nine.  We have now, through the integrity of the victim, Mr Mthembu, been able to establish that, yes, count nine, the victim in count nine was, in fact, an IFP member at the time.  
	I think it is not, one does not need to rely simply on the evidence of the first applicant in this regard.  If one refers to the bundle again, page 125, the witness Konduwe Dlamini says that her deceased husband, Filapie Dlamini, proceeded to Poswa's kraal where there was a camp.  The witness, Ivy Nele, on pages 133 and 134 of the bundle, says that Mbovane Nele and his son, Tutu, went to the camp at the Poswa's residence.  On page 142, Tula Bhonwa Poswa, who was one of the victims of the attempted murder, indicated, and I quote,
"We were sleeping outside the house of the grandmother with other Black males.".
And at 146 he indicates that the local males had gone to a camp.  Now, it, I think it can be clearly established that all of these males who attended this camp were there for a specific purpose and, clearly, there had to be members of a particular organisation if they were present at that camp.  	As regards the political objective, I would like to refer the court, the committee to the judgement by Levinson J on sentence and, specifically, to page, I think it is 31 and the, from page 31 of the record that we have received and I think that the finding of his Lordship Levinson J has been proved to be correct in the evidence that is before the commission today and I would like to read from the last paragraph,
"It is also relevant to quote Levinson J to take into account the political situation that prevailed at Gengeshe from about April of that year.  It appears that the Induna at Gengeshe ...",
and it is my submission that we must be referring to the Induna Ndabawakwe Poswa, sorry Indaba Boeswa Poswa,
"It appears that the Induna at Gengeshe was the line to the Inkatha Freedom Party and, according to the evidence, he objected strenuously to the recruitment of people in his area by members of the ANC.  According to the evidence, this appears to have been at the root of the violence that occurred from about April.".
Finally, as regards the political motive, I submit that the findings of the investigator at page 45 of the bundle corroborates and supports my submission that a political motive exists and I quote from the last paragraph on page 45 where the TRC investigator finds
"The murder and arson committed by applicants was, in my opinion, a revenge attack which and, I emphasise, was indeed political, because of the fighting between the IFP and the ANC.".
My final submission is that the applicants together with the families of the deceased persons, in my respectful submission, are all victims and they are victims to a political situation that is untenable or was certainly untenable.  They were forced into a position where, it is my submission, that they acted and did things that in normal circumstances, had the political situation not been as it was, that they would not have, that they would not have done and had the society not been so politically divided I am confident that the two applicants would not be here today and neither would they have been tried.  Those are my submissions.  Thank you.