Amnesty Hearings — Nelspruit — 1999-02-03

CHAIRPERSON: Good morning.  Mr Claassen, are you ready to proceed?

MR CLAASSEN: We are indeed ready to proceed, Madam Chair.

CHAIRPERSON: You may proceed Mr Claassen.

MR CLAASSEN: Thank you Madam Chair.  Madam Chair, this Honourable Commission yesterday heard the amnesty applications of the two applicants, Mr Leonard Radebe and Mr R.S. Sithomo.
	Madam Chair, if I might just start by referring to the application of Mr Sithomo.  I think there is nothing said surrounding the merits of this application, and I will commence with the application of Mr Radebe and the evidence led surrounding the application.
	Madam Chair, Mr Radebe applied for amnesty in his application, concerning an incident which occurred on the 28th of September 1992, near the Ratanda Hostel and for which he was convicted on the 2nd of November 1995, on a charge of murder and several charges of attempted murder.
	The applicant then applied for amnesty and submitted his Form 1 application with supporting affidavits, and in this respect, submitted two affidavits.
	If I may, Madam Chair, the first affidavit states applicant's involvement in the crime for which amnesty is sought, and also shows his involvement or his alleged involvement in this crime.  Madam Chair, as far as the second affidavit is concerned, it makes mention of several other incidents, but which were not specifically, for which amnesty was not specifically applied, but an amendment of the application was then asked for in respect of these crimes mentioned or participation in certain incidents, mentioned in this second application.
	Madam Chair, I would like to start by saying that as far as the applicant's viva voce evidence yesterday before this Commission is concerned, it should be and one would be naive not to agree that there was certain shortcomings in his evidence, it is indeed so that he gave certain very elaborate answers concerning some questions which was repeated to him.
	Whether this was a question of not clearly understanding of deliberating evading the answers, I presume is open for debate.  Madam Chair, getting back to the specific application, it is then so and the point was also specifically raised by the Commission yesterday that amnesty is applied in connection with an offence for which Mr Radebe the applicant, was convicted, and that was one specifically of murder, in which it was found that he was the perpetrator of the said crime.
	It is then again also true that yesterday, following from his application and his affidavit annexed to the application, that Mr Radebe has indicated that his involvement is only limited to the planning of this particular crime.
	He gives broad evidence surrounding the planning and his involvement which is according to him, limited to the planning and he also says that he saw the act committed, but he was not a person who actually committed these particular deeds.
	Madam Chair, it is true that this creates a problem in as far as that is the specific crime for which amnesty is sought.  Madam Chair, I would like and this is my humble submission to this Commission today, that even though the applicant had been convicted or murder and in the capacity as the person who actually committed this crime, if I may be given the opportunity Madam Chair, it is my line of reasoning that I followed up on the issue, and it is true that the Committee yesterday asked me that they would like to hear me on some specific points.
	Madam Chair, it is my submission that surrounding the specific crime, it is well known in the criminal law that there are the perpetrators, the accomplices and if I may just, the definition of a perpetrator is somebody who by his conduct, state of mind and personal quality falls within the definition of the crime.
	Madam Chair, it is my submission that it was indeed in this capacity which the accused was found guilty by the court, for which he is currently serving a jail term.  If I may also just refer to the ...

CHAIRPERSON: Before you proceed, wasn't he convicted on the basis of evidence given by amongst others, Johanna Msibi?

MR CLAASSEN: That is correct Madam Chair.

CHAIRPERSON: Which identified him as being at the scene and which suggested that he actually threw the bomb that caused the explosion, that led to one person being killed and several other people suffering injuries?

MR CLAASSEN: That is one hundred percent correct Madam Chair.  My line of reasoning is this that it is indeed true that this evidence was heard and it was in a criminal court, he was found guilty of these offences.
	Madam Chair, if I might address that issue later, surrounding the merits of his testimony.  If I may just - I looked at the definition of murder, and it is stated that it is unlawful, intentional causing of another's death, and any person who, in whatever way, unlawfully, intentionally causes another person's death, is therefore a perpetrator of this murder, or the murderer, which is indeed the capacity in which he was convicted.
	Madam Chair, I would however like to take it a bit further and also look at the definition of an accomplice to such a murder.  It is also said that an accomplice is somebody who does not in terms of his conduct, state of mind and personal qualities, comply with the definition of the crime, but nevertheless unlawfully and intentionally furthers its commission by somebody else.
	I think this follows clearly that the perpetrator and the accomplice promote the commission of the crime, before it is completed.
	Madam Chair, if I might just also look at the different degrees of perpetrators.  There is a definite difference made in the criminal law between a principal perpetrator, a co-perpetrator and an indirect perpetrator.
	It is my submission that once again, as stated and as it was conducted, he was in the context of the conviction, as stated by the witnesses, the perpetrator of this particular crime.  Madam Chair, it is my line of reasoning, if one looks at the well known principle of doctrine of common purpose, known in our criminal law, and if I may, it is stated in this doctrine although not impossible, it is improbable that somebody would participate in a murder merely as an accomplice and not as a perpetrator.  It is improbable that the furthering of death, would be regarded as anything other than causing it.
	If two or more persons decide to murder someone, for all of them to be liable as co-perpetrators, it is not necessary that each of them should stab or fire a shot at the deceased.  It is not even necessary for them to touch the deceased, or be present at the scene of the crime.  This is especially relative, say a relatively large number of persons decide to murder a single victim, which was not the exact facts, but just - there was a meeting held according to the evidence, and it was decided at this particular meeting that a person or that the bus should be attacked.

ADV BOSMAN: Excuse me Mr Claassen, are you quoting from a particular decision or a text book?

MR CLAASSEN: This is a text book.

ADV BOSMAN: Would you mind just giving us the reference?

MR CLAASSEN: I would Madam, it is Snyman Strafreg, and this is on page 210 and 211.

ADV BOSMAN: And the edition, the latest?

MR CLAASSEN: Madam Chair, I am not sure, I think it is the latest edition.

ADV BOSMAN: Thank you, I am sorry for having interrupted you, but I just wanted to know the authority, whether it - thank you.