Amnesty Hearings — East London — 1999-04-30

MR KINCAID: Yes Mr Chairman.  Mr Chairman, with regard to the full disclosure, it may well be argued that given the mandate, the applicants exceeded the terms of that mandate.  The applicants are all clear in their testimony that they went there to intimidate and Jimmy's affidavit which was confirmed by the rest of the applicants, they said that although the instruction was not to kill, they foresaw that violence might have to be used to remove firearms from the farmers and to intimidate them.  At paragraph 4.5 page 6 he says
"Some of us would be tasked with going to attack the farmers and by so doing instil fear in them and frighten them from the land.  Now attacks on the farmers we were not specifically ordered to kill anything of them but we were ordered to take firearms from them even if this involved violently doing so."
 So robbery certainly was envisaged right from the start or when the farmers were attacked.  There's little room for an interpretation here of the pacifist approach and though it was the evidence that the farmers were warned to leave their farms the applicants all seemed to acknowledge that the only way they were going to get them to leave the farms would be by intimidating them with violence and that would fit in with the general background of the events in Stutterheim at the time and of the nature and character and the personality of the applicants themselves, all young men, all easily fired up, in the cold face of the conflict of the security forces.  So it would be very hollow to come now before this Committee and say that violence wasn't on our agenda, that's not what their case is, that's not what their affidavits say.  
	When we have regard to whether they made a true and full disclosure or not, we must distinguish, the Committee must distinguish between what the original intention was and what the legal intent may have been when ...(indistinct) Ntonga had a firearm on his arm and how he held it and what he did, in what circumstances he discharged the firearm.  So motive and intention mustn't be confused and during the cross-examination of the applicants in my respectful submission, that sometimes wasn't made clear.  Their motive and purpose was always consistent.  A firearm was discharged on two occasions, it injured Mr Cobus and it injured Mr Pretorius, on three occasions, and Mr Senti and the circumstances in which the firearm was discharged have been placed before the Committee, essentially it was a discharge in what the applicants say, in the heat of the moment.  There's nothing to suggest that from the circumstances of the discharge that their motive in going to the farms was anything other than to rob the farmers of firearms and to violently intimidate them.  The legal and factual nature of the act including the gravity of the act, they were serious crimes, it's conceded, all the applicants acknowledged that.  There was no direct loss of life.
	Paragraph (d) requires a consideration of whether the objective of the act was directed at a political opponent or a State property or against private property individuals.  This was against innocent targets, innocent victims, but it was done for what was perceived to be properly motivated reasons.  The applicants were all of the perception that the farmers were in the camp of the security forces, that's where their loyalties lay and understandably one doesn't easily find fault with that reasoning, understandably too, that the farmers should have been in the camp of the security forces.  The purpose of acquiring weaponry would have been to not only defend the community but to make policing and make the enforcement of security measures more difficult in Stutterheim, it would have obliged the State to spend more resources in containing that conflict and it would have brought a focus of international eyes on the problems besetting this country.  So in my respectful submission, that in respect of the criteria set out in sub-section 3, what the applicants did there qualifies them and qualifies their acts as meeting the criteria of acts associated with a political objective.
	There is one incident which is problematic for the applicants, for three of the applicants, and that is the Clackers incident.  In my submission it is severable, as the Judge found out, it was different from the other attacks on the farmers as he determined.  It wasn't an attack on a farmer to acquire arms or weaponry, it was an attack on a trader to prevent trade.  What happened there and Mrs Clackers wasn't challenged, she wasn't challenged in the court, in the criminal court and she wasn't challenged before this Committee, exceeds any possible political objective if the Committee finds as she testified that she was robbed of various items in the shop.

CHAIRPERSON: Yes I mean it is hard to conceive of a basis to reject that evidence.  You see the question in regard to the Clackers matter really comes into the goings on inside the shop, exactly what happened it could very well be that the circumstances under which the three applicants landed up at the shop are as they testified acting on an instruction to go tell her to close down because she seems to concede that there was a consumer boycott and it's common cause if she was trading and that she was a White shop but the real issue concerns what actually happened inside the shop.  You clients seem to deny that they robbed her, they were convicted of robbery so it appears as if there's some difficulty in conceding of a basis of an amnesty application in respect of that incident because they were convicted of robbery, they don't admit that, the two versions seem to diverge completely as to what happened inside the shop and of course to be able to reject the evidence of Mrs Clackers which isn't being challenged in cross-examination, there has to be compelling reason.

MR KINCAID: I concede those difficulties Mr Chairman.
	Mr Chairman, it is my submission that that instances severable and that if the Committee were to refuse amnesty in regard thereto, it ought not to reflect negatively or read down to the prejudice when the Committee considers the applications in respect of the other incidents.  If I may just deal with the individual applicants?  If I may deal with Melvin Nokawusana, Mr Chairman, that's application AM2009/96.  He seeks amnesty for the attempted murder of Mr Cobus, housebreaking with intent to rob Mr Cobus and for malicious damage to Mr Cobus' property in that the telephone wires were cut.

CHAIRPERSON: Contained in one of the summaries of convictions and sentence that we have in these papers?

MR KINCAID: Yes.

CHAIRPERSON: Which page is that?