Amnesty Hearings — East London — 1998-10-13

MR MBANDAZAYO: Yes Mr Chairperson, for instance Mr Chairperson, just to tie it up, the applicant was acquitted of shooting one of the victims who is here, Mr Grootboom and actual fact the reason for his acquittal is because the victim happened to point to another person and yet he is saying I'm the person who did that.  Well it's one of those things Mr Chairperson which shows that sometimes it's difficult when circumstances like this, I don't blame the victim for saying that because the circumstances were such that it was very difficult at that time in Fort Beaufort.

CHAIRPERSON: Do you accept that the medical evidence that was produced to us has not been disputed?

MR MBANDAZAYO: Mr Chairperson it's not disputed, that medical evidence and as such Mr Chairperson, as I indicated that I don't want to belabour this point to the time of the Committee, it is my submission that the applicant on the balance of probabilities has satisfied the requirements of the Act, that what he did on the day in question was not for personal gain and what he did, he believed he did it on behalf of the bona fide belief that he was doing it on behalf of his organisation and as such I request the Committee to grant the applicant the amnesty as applied, thank you Mr Chairperson.

CHAIRPERSON: Can you address us on the issue of proportionality, whether we should consider it and if so how it is applicable to this one?

MR MBANDAZAYO: Thank you Mr Chairperson.  Mr Chairperson my argument is always that on the question of proportionality, on the foot soldiers with the hindsight Mr Chairman that he was not given any specific order with regard to this incident.  Mr Chairperson because the organisation to which he belongs in a way approved what was done by the applicant and as such Mr Chairperson I'm saying that when it comes to the applicant that the proportionality on this matter should not be applied.  It can be applied on the leadership of the organisation which approved the taking of such actions by the applicant.
	Even if Mr Chairperson it can be argued that proportionality should apply in this matter, my contention is that which evidence points out that, it's not disputed that members of the organisation, though not personally to the applicant, the applicant did not suffer himself personally, members of the organisation died in the process, even both sides died in the process.

CHAIRPERSON: Well if that is so and we want to consider or examine the implication of proportionality, Adv Sandi on my left had to go through a prolonged bit of questioning of the applicant to ask him and even quoted examples and whatever, as to what Mr August did exactly to couch him under a category whereby he justifiably should be targeted for treatment at least to the extent to which he was treated and unfortunately we did not get a direct answer for the simple reason that the applicant chose to say: "I wasn't there at any of those incidents but I know he's responsible."  He didn't go so far as to say why he thought so.

MR MBANDAZAYO: Thank you Mr Chairperson, I agree with you Mr Chairperson that those questions were asked.  Mr Chairperson my submission is that as Mr Chairperson would know, he's more experienced than myself in this field, some people tend not to answer questions directly, they come the other way round when answering questions but ...(intervention)

CHAIRPERSON: We've had a bit of it.

MR MBANDAZAYO: But Mr Chairperson what I'm trying to get at is that what I can discern, I can gather from what he was saying is that the only reason that he was targeted is because he was in the leadership of the ANC at the time which of course the youth league, as I indicated that it includes the whole structure, and they believed that the leadership was behind what was happening at the time in Fort Beaufort, hence they have to target the leaders because they believe that they can stop the whole thing.

CHAIRPERSON: Were there members of the PAC that were killed in that area by members of the of the ANC or don't we know?

MR MBANDAZAYO: Mr Chairperson I have an example of one Mr Chairperson which I know, I can vouch on it, the one which is mentioned, Nomangwane who was burned to death, but luckily they were convicted and they are out because they were granted amnesty because of that or rather I know about that one, it is one I can mention Mr Chairperson.  I don't want to, because I don't know the others (...intervention)

CHAIRPERSON: I just wanted to clear something up in my mind and you've done so.

MR MBANDAZAYO: I've lost thread now on what we were talking.  Mr Chairperson unless there is another point you want me to address.

UNKNOWN: Sorry Mr Mbandazayo, why do you think, why do you suggest that proportionality can only be applied in regard to those leaders to whom he was accountable, because as I understand his evidence, the leaders who had come from the regional office told them that they should defend themselves if they are attacked. Surely you can't apply the principle of proportionality to a person who was not there on the spot, he was not part of the decision to attack a particular victim, you can't can you?

MR MBANDAZAYO: Thank you Mr Chairperson.  Mr Chairperson my contention is that if you approve that something should be done, even if we are not involved there, your approval, definitely you are the only person who is responsible for that because others just carry orders.  But the question is, he did not prescribe the way it should be done and the question of defence Mr Chairperson is subject to interpretation whether it means you have to wait for somebody to attack you before you defend yourself.

UNKNOWN: But surely Mr Mbandazayo you ...(indistinct) use a hammer to kill an ant, can you?

MR MBANDAZAYO: That's true Mr Chairperson, that's true.

UNKNOWN: If as you've mentioned, one of your members had been necklaced or burned would it be out of proportion to kill a member or members of the party who has been responsible for the killing?

MR MBANDAZAYO: Mr Chairperson, speaking for myself, I know this is not - I don't think even if, whether there was even five members who were killed it's in order to kill another person for that purpose, but taking into account the context ...(intervention)

UNKNOWN: Ja not legally but in that situation that ...(intervention)

MR MBANDAZAYO: In that situation Mr Chairperson, I would agree with you, it won't be out of character to do such a thing because definitely it's a situation where it was tit for tat.

CHAIRPERSON: It goes further because as I understand the evidence it was an attempt to protect the PAC, not specifically in retaliation to a particular attack but generally the PAC was under siege.

MR MBANDAZAYO: Yes Mr Chairman the PAC - at that time although this was taking place according, I think we got it correctly Mr Chairperson, though this incident happened, this particular one, already there was a feud which was going on, people were displaced, they were no longer in their homes so it was part of what they were doing that they wanted also to operate so they had to respond to that.

CHAIRPERSON: No I can understand that.  If that is so and Mr August was perceived to be a leader, one of whom was responsible for this siege on the PAC and given the evidence that there was a decision by the PAC at some level or forum that we need to get rid of the leadership who are so besieging us, why didn't they shoot him as they planned?  That is the evidence.  I don't mean to put you into a corner, if you can't answer it well ...

MR MBANDAZAYO: Well Mr Chairperson I can't answer that one but I would only say that it was a human factor because at the end of the day all of us are human.

CHAIRPERSON: A fortunate one, the man's still alive.

MR MBANDAZAYO: Fortunately Mr Chairperson he is still alive.