Amnesty Hearings — Cape Town — 1997-07-07

JUDGE WILSON: No, one can make conclusions about their credibility as to whether they have made a full disclosure.

ADV LOURENS: Mr Chairman, I would submit that it is reasonably possible that these people did not know what other people took and were running in all different directions.  Having regard to the fact that none of the other people were, in fact, tried in this matter.  Only number two and three were tried.  I do not know what their evidence was in the actual trial of this, in this matter, but I would submit that if they were open about what they did take, the money, quite a large quantity, and the jewellery then the fact if they had taken a video recorder or clothing, I am sure the same explanation could have been given by them for those things as well if they had knowledge of it or had taken it.  One does not really know what was, what the evidence in regard to that was.

JUDGE WILSON: One does not know and they are applying, they are the applicants, they are presenting their case.  One does not know at all.  You see you have already said it would be different if they had the video shop, if they had the video set and was using it and they were wearing the jewellery or wearing the clothing.  Perhaps that is why we have not heard about it.

ADV LOURENS: I would ask the Committee not to read or interpret my analogy to that extent.  If, I used the analogy to merely to illustrate what their explanation as to what they did do with the stuff that they say that they took.  I have alluded to this and I would stress that the Committee is dealing here with youths, one could say, with a cause.  They were on a mission inspired by Mr Tambo in exile, that that message is a violent message, that they themselves were subjected to violence.  They came from a community endemic with violence at that stage perpetrated against, a basically, defenceless community.  With regard to applicant number one, Maxam, he gives his explanation.  It is his subjective belief that I would ask the Committee to have regard to.
	Who would understand, possibly, the fear and panic of later incarceration, of the possibility of being forced to, to betray ones Comrades.  It is clear that he, at that stage and on his evidence, did not or feared being caught.

CHAIRPERSON: That is understandable, feared being caught is understandable, but I do not think that assists one way or the other.

ADV LOURENS: I would, Mr Chairman, I would urge the Committee to consider the reason why there was the fear of being caught.  Not for being caught out, for perpetrating a robbery for personal gain, but the fear of being removed from where you are needed to engage in a struggle against the Government in a destabilising of the Government, the fear of being detained, of being tortured, of being made to betray your Comrades.  I would say that that is the fear.  Not a selfish ...

CHAIRPERSON: Isn't the real fear the fact that he is the only one that perpetrated the murders.  He killed two people and the fear of being detected and dealt with for that offence or those offenses ...

ADV LOURENS: Mr Chairman, I would say ...

CHAIRPERSON: ... was the cause of the fear?

ADV LOURENS: ... that the fear preceded the, preceded the shooting.

JUDGE WILSON: A problem here that he behaved, on the basis of the other two applicants, completely irrationally.  To quote from your document what Tambo says is,
"our mothers work in their kitchens, we work in their gardens",
and what he chose to do was kill the mother who worked in the kitchen and kill the person who worked in the garden.  It was irrational behaviour and if you look at the next page, page ten of your papers, the second paragraph.  It says,
"Being a Comrade had a number of significant meanings.  Firstly, Comrades were the people who strove to uphold all that is good against all that is evil.  Consequently being a Comrade required being discriminating in ones behaviour at all times thus setting an example to other members of the community.  As a result the Comrades came to see themselves as the moral defenders of the community who were disciplined and whose role it was to try to ensure that fellow residents behaved in an exemplary manner".
Well, the first applicant did none of that.  He behaved in an entirely ruthless manner killing people whom he was there to support for no reason other than to cover up for himself and isn't the most apparent explanation for that that contained in the Appellate Division judgement as to his mental condition as a result of the stresses he had gone through the evidence that was led there about it.

ADV LOURENS: Mr Chairman ...

JUDGE WILSON: "Because he was a person of innately anxious
make-up which this position had been so aggravated by serious ongoing political upheaval in Mbekweni that when he committed the offenses he was suffering from what is known as a general anxiety disorder".

ADV LOURENS: Yes, that is an aspect and I would agree with you on that.  I was, it is a point that I would raise in argument, but he ...

JUDGE WILSON: But he behaved irrationally.  The other two could not have expected such behaviour.

ADV LOURENS: If the Committee's finding is that it is irrational or that there, or that the anxiety disorder, which the Appeal Court found to have existed, then my submission in that regard would be that it would negate the, any question of a ruthlessness on his part merely just to be put in a ...

JUDGE WILSON: It would negate any political purpose on his part.

ADV LOURENS: I would ...

JUDGE WILSON: Would it not?

JUDGE WILSON: If he was suffering ...

ADV LOURENS: With respect ...

JUDGE WILSON: ... from this disorder.

ADV LOURENS: With respect, I do not think the Appeal Court found that the anxiety disorder was the motivation or the cause or why he ...

JUDGE WILSON: It was a factor ...

ADV LOURENS: ... acted ...

JUDGE WILSON: which influenced ...

ADV LOURENS: It was, it was ...

JUDGE WILSON: ... why he behaved like that and which amounted to extenuating circumstances.

ADV LOURENS: Circumstances.  I would submit that it is a factor, one of the factors to be taken into consideration.

JUDGE WILSON: Because there is no, as far as I can see, political reason, no political profit to be gained from murdering the maid and the gardener.  It could only have caused great distress.

ADV LOURENS: My, I would like to make one further submission in regard to, and I would say it is quite ironic that the text speaks about our mothers working in the kitchens and a gardener in, and we work in the gardens, but it is so that during this period innocent people were victims, were found to be victims whether in a situation such as the present one or in the townships.  Victims of township residents, one against the other, of the police against the township residents, of residents against the police.  There were victims ...

CHAIRPERSON: You can understand that.

ADV LOURENS: ... and there were innocent victims.

CHAIRPERSON: You can understand people being caught up in what is known as a shoot-out between the police, on one hand, and their opponents on the other and innocent people being injured or killed in such an incident, but the facts of this case are very, very different from that kind of situation, is it not?  You had two people that were killed, intentionally killed, not accidentally killed.

JUDGE WILSON: And two people who were doing nothing at the time.  The woman was, out of the kindness of her heart, handing out a drink of water when he shot her at almost point blank range.  Then when she is lying on the kitchen floor when he walks out of the house he shoots her again.  The gardener has been left out in the garden, he is doing nothing, he shoots him.  These are not people who were accidentally shot, who happened to get in the way, these are people he deliberately chose to murder, are they not?