Amnesty Hearings — Durban — 1999-06-22

MR MOLOHLANYE: As the Committee pleases.
COMMITTEE ADJOURNS
ON RESUMPTION

CHAIRPERSON: Are we in a position to commence?  Ms Thabethe, Mr Molohlanye, are you in a position to make your submissions?

MR MOLOHLANYE: Yes, Chairperson.

CHAIRPERSON: Who is going to start?  You start, Mr Molohlanye, these are your applications.  We are ready to listen to your submissions.

MR MOLOHLANYE: Thank you, Chairperson. 	My submission will be divided into two parts.  The first part will concern Thulani Cele and the second one will concern Roy Cele.
	Starting with the first on, that is of Thulani Cele.  Thulani Cele was a member of a publicly known political organisation called the ANC.  He was a leader of a structure which was formed by the community, mostly ANC, in the area of Manyasene.  The purpose of this structure was to maintain the existing peace, the peace that was existing in Manyasene, because around the area there were clashes between IFP and ANC, but not ...(intervention)

CHAIRPERSON: The purpose of the structure was to fight against the criminal activities which was taking place in the area.  I just wanted to correct you.

MR MOLOHLANYE: Thank you, Chairperson.
	This structure, which was not formally elected I would admit, but it had the motive of fighting crime - as the Honourable Chair has already stated, in the area.  Coming to the issue of the actual offences, or the actual acts by Thulani Cele.  Thulani Cele is applying for amnesty for the public violence and in terms of the Act, the Promotion of National Unity Act, and Reconciliation Act, Mr Thulani Cele has made a full disclosure of his participation in the acts of public violence of Manyasene.
	He admitted that he administered strokes on the victims, as it is mentioned in the bundle, and Mr Thulani Cele further admitted, or made full disclosure to the killing of Dudu Ngcobo.  He even mentioned that he used - according to the indictment and judgment, it was said that a big stone was thrown on Dudu, and this disclosure was made by the applicant.
	Therefore, in terms of Section 20 of the Act, the act, or the acts which were committed by Thulani Cele, was having a political objective.  The political objective of this act emanates from the fact that a structure under the ANC, which is a publicly political organisation, was fighting crime in the area of Manyasene, and it was decided by the community of Manyasene, which was mostly ANC, that any person found in the area committing crime or disturbing the peace which was already in existence in the area, that person will be punished.  Those were the grounds on which the applicant, Mr Thulani Cele, performed the acts of public violence.
	In terms of Section 2(a), this Thulani Cele, a member of a publicly known organisation, was performing the acts not towards a person whom he knew - for instance in the case of Dudu he admitted that he didn't know Dudu as a member of any political opposition party, but I believe that the Act is not only limited to a fact where a person has to be a member of an opposition political party.
	An act which has been committed under, or with a political motive, with a political objective, as Mr Thulani Cele's structure, believed that whatever they were doing, they were doing it under political objectives.  
	Therefore, I will submit that Mr Thulani Cele be granted amnesty on these grounds because all the acts that he performed were for the political organisation to which he belonged and ...(intervention)

CHAIRPERSON: Are you purporting, are you suggesting that he was given instructions or issued with orders to perform the act for which he is asking for amnesty?  And are you also suggesting that whether an act is directed at a person who is not a political opponent of a particular organisation, that doesn't matter?

MR MOLOHLANYE: Yes, that's what I suggest, Madam Chairperson.

CHAIRPERSON: Where do you get that?  I mean, are you reading the Act correctly?

MR MOLOHLANYE: I'm having Section 20, Madam Chair.

CHAIRPERSON: Yes, just give us a reference to what you are saying, where it says that person of a particular organisation need not wage a struggle against his opponent.  Where does that, where is that reflected in the ACT?

MR MOLOHLANYE: It's nowhere reflected, Your Worship, but I believe that this Act is not limited to an extent where there has to be a political opponent, taking into consideration the preamble of the ACT.

CHAIRPERSON: Mr Molohlanye, we are making a determination in terms of Section 20(1)(2) and (3) of the Act.  We are very aware of the preamble of the Act. But you will remember that this Amnesty Committee has as its guideline that particular section, in terms of which it has to be satisfied whether an applicant must be given amnesty or not.
	Now we are interested in you giving us argument and referring us to specific portions of Section 20, and only Section 20, and not the preamble of the Act.

MR MOLOHLANYE: Thank you, Chairperson.  I will go ahead.
"In terms of (f) of - in terms of Section 20(2)(f), any person referred to in paragraph (b), (c) or (d) of the same section, on reasonable grounds believes that he or she was acting in the course or scope of his or her duties within the scope his or her express or implied authority."

CHAIRPERSON: Yes.  Are these people employees of a particular organisation?

MR MOLOHLANYE: No, they are not, but they are members of the political organisation.

CHAIRPERSON: Now are you not reading the wrong section?

MR MOLOHLANYE: No, they're saying in terms of (b), (c) and (d).  And (d) reads thus
"An employee or a member of a publicly known organisation or liberation ..."

ADV DE JAGER: Yes, but it continues to say
"... directed against"
You could be a member, but then there's a further qualification.  Being a member only is not enough, it should be committed by a person directing his act against somebody.  (d):
"... directed against the State or any former State or any publicly known political organisation or liberation movement."

MR MOLOHLANYE: Thank you, Chairperson and Honourable Members.  I say this as a publicly politically known organisation.

ADV DE JAGER: We agree with you there.

MR MOLOHLANYE: Yes.  I'm not too sure whether this Committee will allow me, but I don't think that it's already been stated that nothing only but the sections in Section 20, I should only ...(intervention)

CHAIRPERSON: I'm not saying that.  I mean you have to tell us in terms of Section 20(2), where do you see your applicant fitting within the provision of Section 2(a) up to (f)?  Now you've referred us to Section 20(2)(d), which obviously presents us with a little difficulty in that you have conceded that Dudu was not, to the applicant's knowledge, a member of a particular organisation.  So if the applicant acted against her, he was directing his action against which member of which organisation?  Because that section requires you to direct your action against a person who is known to be your opponent or to belong to an organisation that is publicly known to be an opponent of the ANC.  That is where your difficulty lies, isn't it?