Amnesty Hearings — Bloemfontein — 1996-05-13

N JACK MENERA: The benefit you are asking me about or the benefit of what we were fighting for, I think is the present government which we have now, which we live under, that was the benefit. We wanted to achieve on behalf of the community.  We were fighting for this government which is governing myself and you today, and the reasons for doing all those acts is that those people or that the Phelane family were supporting the previous government which was segregating people.  I think I've answered your question.

MR VAN DER MERWE: No my question is if you had been the suspect, how would then have fitted in to the Brandfort community again.  What advantage would that have had for you? You and your four colleagues?

N JACK MENERA: May you try to put it in a different way because I don't understand your question, I want to answer you correctly.

MR VAN DER MERWE: Chairperson, I don't want to labour this  point, could I just rephrase this question?  Mr Menera, before you committed this act and you had known that these people would have been killed, and as you also testified and the next day everybody in Brandfort knows what had happened  and who committed it. How did you view the advantage for yourself and your colleagues in the context of the future Brandfort after the Phelane householding were killed?

N JACK MENERA: I explained that whatever we did, we were doing it on the benefit for the community.  Mr Advocate you ask me a question, I just wanted to remind myself the question you have asked me you did ask me a question before then I answered that question.

MR VAN DER MERWE: This is the third time that I'm going to put this question and the question is...(intervention)

N JACK MENERA: Well I explained that whatever we did we were not doing it on our own behalf but we were doing it on behalf of the community.

MR VAN DER MERWE: Did the idea cross your mind ever that you would have been an escapee for a very long time.

UNKNOWN: What's the relevance of this question if I may ask?

ADV DE JAGER: We'll decide on that when we give judgement.

UNKNOWN: Essentially Mr Chairperson, I'm making an objection and I would thought that Counsel would be given an opportunity to explain the relevance of his question and the objection would then be determined after he has answered the question.

JUDGE WILSON: I don't think the question is so irrelevant as to be one that counsel must explain, I think it can be covered by what is the gist of the whole questioning and that he be permitted to carry on with the question.

UNKNOWN: As the Chair pleases.

MR VAN DER MERWE: Did you foresee it that for a long time you would be on the run from the law for a very long time?

N JACK MENERA: Do you mean after this act or.....(intervention)

MR VAN DER MERWE: Yes.

N JACK MENERA: Even if I did escape or run away, but we knew only one thing that people would take the government and we would come back to the people.  If people didn't understand why we did that act then the people would be clarified on that issue.  There would be no person that would ask us, why did you do that because they knew exactly what was happening in Brandfort, that they knew his actions against the people.  I think that kind of a question should be asked by the people,

JUDGE WILSON: Did you realise that you might be punished severely for what you had done?

N JACK MENERA: Yes I knew.

JUDGE WILSON: And you were prepared to face that?

N JACK MENERA: I was even prepared to die.  I was prepared to die if it was possible.

JUDGE WILSON: Is it correct Mr Menera that when you were before the court who was trying you and you realised you had been convicted, you still told the judge that. Can I read from the end of the questioning, your evidence after you gave evidence after you'd been convicted.  You were asked
If you are asked to shoot Morgan, to kill him or to burn him, that you would do that .---  If the community says that then I would do it.

N JACK MENERA: That's correct Sir, that was my answer.

JUDGE WILSON: Carry on.

MR VAN DER MERWE: No further questions at this stage.
NO MORE QUESTIONS BY MR VAN DER MERWE

JUDGE WILSON: Any re-examination?

UNKNOWN: No re-examination my Lord.

JUDGE WILSON: Chris?

ADV DE JAGER: No thank you.

N JACK MENERA: I have a request to put to the Commission.  Firstly I'm appearing here before this Commission to ask for forgiveness of the acts which I have committed against Mr Phelane and his family.  According to ...(indistinct) I was not prepared to return back to prison before I hear from him.  Mr Morgan Phelane knows very well that this action which we took against him was a political action.  It is clear even to him.  What I wanted to understand from him was that is he forgiving us?   If I don't have the right to ask this question but I want this Commission to ask on my behalf to Mr Phelane, is he prepared to forgive us.

JUDGE WILSON: Any comment?

MR VAN DER MERWE: I've got no instruction to that effect Mr Chairman.

JUDGE WILSON: That is very much a matter for Mr Phelane to decide himself, it is a matter that the Truth and Reconciliation Commission, not the Amnesty Committee takes in hand.  They have a reconciliation body who seeks to bring about reconciliation between perpetrator and victim that both can face up together to the new South Africa, and I have no doubt at all that body will approach Mr Phelane with a view to ascertaining whether reconciliation can be achieved between you.  I do not think it's a matter that we should investigate at a public hearing of h this nature.  It can only cause further distress.

UNKNOWN: Mr Chair I intended calling Patrick Maluisane, essentially to corroborate Mr Menera on the question whether it is Mr Menera or Mr Patrick Moluisane who stabbed Patrick the child.  If however the Committee is satisfied or accepts the evidence as presented by Mr Menera on that aspect, it may be that this the end of Mr Menera's case.

JUDGE WILSON: Well you realise that on the evidence presented by him he can not ask for amnesty in that aspect.  He cannot ask for amnesty in respect of the stabbing of the child. He denies having committed that act. We only grant amnesty to people who come before us and ask for amnesty in respect of acts they have committed. We are not a court of appeal to set aside convictions where somebody has been wrongly convicted. I asked him and he confirmed that what he has said in his evidence is that there was no common purpose on the attack on this child, that he played no part on the attack on the child and that he thought to prevent it as soon as he saw it happening. Accordingly it does not fall within the provisions of the act.

UNKNOWN: Mr Chairperson I would not agree that view would necessarily be tenable or be within the spirit of the Act. What the Act requires of Mr Menera is to tell truth and the whole truth.

JUDGE WILSON: Yes well that's regrettable.  If he did not, if he has been wrongly convicted we are sorry for him, he can make representation elsewhere, we can not grant amnesty.

UNKNOWN: Mr Chairperson this is not a case where Mr Menera is approaching you to alter a completely wrong conviction.  He says that we set out together with a common purpose to murder certain people and during the course of that conduct a child was stabbed and I am not the person who stabbed the child.  Now Mr Chairperson, if he were to say that he stabbed, take a scenario where he says that in order to get amnesty then he says to you, I stabbed Patrick Maluisane (Phelane?) and I was convicted, I'm sorry give me amnesty, then objective is produced to show that he did not in fact stab Patrick Phelane, but it is Patrick Maluisani who stabbed the child, he will not be able to grant him the amnesty because he has not told you the whole truth about his involvement in the commission of the offence in respect of which he was tried.