Amnesty Hearings — Phokeng — 1996-05-20

JUDGE MGOEPE: Sorry, Mr Mpshe, I think we must decide whether we are talking about approval or on behalf of, because these two are different concepts.  You see, if approval of means would mean there was - well, there was a go-ahead beforehand, but you see if you do something on behalf of somebody, you can do it without the knowledge of that person, without the approval of that person.  Indeed, you can do it as I say, without that person knowing.  You can just decide yourself that you are doing this thing on behalf of such and such a person.  Now if this group of people, although initially they might have had the approval of the action committee to kidnap, if subsequently the ten of them wisely or unwisely - and we know in this case, unwisely - decided to act on behalf of, what is the problem about?  You see, if they act on behalf of, they don't necessarily need the prior authorisation, because then you fall back to the concept of approval.
PHOKENG HEARING	AMNESTY/GAUTENG
MR MPSHE	166	ADDRESS

MOKOTEDI MPSHE: Thank you, Judge, but in reply to that, I want us not to be forgetful of the fact that this action committee was or can be regarded as a body for political purposes, as
that is evident, and a meeting was being held, and that in such instances, where such bodies come together and somebody is authorised to do something, on behalf of that organisation or body, what is known as a mandate is given to the people.  And it is not for the people, particularly where political inclinations are involved.  It is not for them to decide for the masses outside the mandate given.  
	The point I am trying to make, is that the mandate was very clear, when a resolution was taken at the Roman Catholic Church, that we mandate you, we authorise you to go and collect the keys, and that was the mandate.  So they went outside the mandate given.

JUDGE MGOEPE: There have been many people who were involved in the political struggle, on my behalf, without my authorisation.  Some of them got involved in the struggle on my behalf even before I was born.  On behalf of the masses, on behalf of the people, without prior mandate by the people. They waged the struggle on behalf of the masses, without first having had a meeting at the Roman Catholic Church, to get the mandate. This is what I am trying to explain; that when you act on behalf of, you don't need a mandate.  At least in the concept that is being used here.

MOKOTEDI MPSHE: Well, Judge, on the basis of the explanation given now, I will rest my case there.  I cannot take it any further.
	Then I move to 20(f), 23(f), sorry, and directly to the aspect of proportionality.  It cannot be disputed that the brutal murder is definitely not proportional to the intended PHOKENG HEARING	AMNESTY/GAUTENG
MR MPSHE	167	ADDRESS
taking of the keys, as it is the evidence.  
	Much has been said about regaining governance of the Baphokeng people. Now one really finds it difficult to say
killing or murdering another to obtain a set of keys or a bunch of keys, can be regarded as being proportional.  If governance was the issue, regaining was the governance of the issue, then one would simply pose a question and say the deceased was the chairperson of a tribal council.  There was somebody who was in governance of the Baphokeng tribe then, who was then installed as the acting chief, one George Laboni.  If then it was a question of governance, why was recourse not had to the chief then and not somebody under the chief, like it was done with Glad Mokgatle. 
	I want to make this submission then that the question of proportionality has not been satisfied by the applicants.
	Thank you, Mr Chairman, that is all.

HASSAN MALL: Is there any reply from you, Mr Currin?
MR CURRIN ADDRESSES COMMISSION IN REPLICATION
	Just two comments I would like to make.  With regard to political uprising, I understood the evidence that there were a thousand people who had participated in a gathering on a particular day, that there was shooting of rubber bullets and tear-gas and so on. I would have thought that there was quite clearly a political uprising.
	Secondly, also, just to reiterate and to put on record, that at no stage did we try to justify the act when we refer to gravity.  My learned friend said that - suggested that we were trying to justify the act.  But certainly, I think we made it quite clear, that we just believe there were certain factors that one could take into consideration as mitigating against the gravity, accepting that it was a grave and 
PHOKENG HEARING	AMNESTY/GAUTENG
MR MPSHE	168	ADDRESS
brutal crime.
	In conclusion I am not sure that in my opening address that I formally requested you in the context of the facts
and the evidence and the argument, formally requested you to release on - and to grant the amnesty application on behalf of our two clients.  And I just put that on record, that we would urge you to grant the application.  We believe that we have provided sufficient evidence and motivation for the amnesty.  Thank you.