Amnesty Hearings — East London — 1999-11-03

MR MALUSI: Changes the whole thing, it is now premeditated murder, to conceal the earlier murder of the two APLA cadres.  It is my submission that on that score, there is no political objective.  To further undermine the applicants' application, the organisation to which they belong, they admitted that it was the policy of that organisation that political opponents were not to be killed, they admit that the armed struggle was suspended at the time.  Even if we were to view their version on its own, it is my submission that it cannot succeed, that is the version that we killed them because we were furthering the aims of the organisation, these APLA cadres were troublesome in Port St Johns.  It is my submission that that cannot succeed.  I would like also to point the Committee to page 48 in support of my application, page 48 of the Bundle wherein there is a statement by Mr Guleni, paragraph 37, that is the relevant paragraph, when he says when they left, there was a general assumption that these people were to be taken to hospital, but Mzwandile said if they did that, they would be arrested.  That is in support of my application.   I also would like to refer the Committee to the statement by Mr Guleni where he says on page 47, 48, there are two paragraphs 34 there, and then there is also paragraph 35.  It is clear from those three paragraphs, the two paragraphs 34 and paragraph 35 that these APLA people were disillusioned members, it is clear that after the interrogation, it is clear that these people were disillusioned, they were trained, they were to an extent abandoned by APLA, the PAC, they were being integrated into the TDF.  They are not happy with the integration into the TDF, they are clashing with their own comrades, with their own APLA comrades.  They are now leaving the base where they are being integrated, to go to Umtata, to go to Qogani.  This is on the version of the applicants.  Why then would people, who are in such a position, be seen to be posing a threat of a counter-attack, of a revenge attack?  It is my submission to the Committee that this purported attack is not reasonable and cannot be accepted.  I am sure even the applicants do not bona fide believe this now or even then, that there was to be a counter-attack.   A second point, my instructions are that the applicants have not made a full disclosure.   The affidavit of Mzwandile is in complete contrast to both the testimony of the applicants.  Mzwandile is saying that Mr Guleni played an active role, he is the person who was giving the orders.  The statement by Mzwandile, it is from page 84 to page 90.  It is  my submission that on reading that statement by Mzwandile Jagu and on reading the statement by Mr Gasmeni, the survivor of the attack, that would be on page 101 to page 109, those statements are similar in material respects, that these people were lined up, an order was issued that they be shot and these people were shot.  Gasmeni is not providing the names, because clearly these people were unknown to him at the time, who gave the order and everything, but Jagu supplies us with the names, that so and so gave the order, so and so did this, so and so did that.   It is my submission that the two applicants did not make a full disclosure with regard to their role in the actual murders.  I am now saying if the Committee on the first submission I make, there is no political objective, does not agree with my submission, dismiss that and says there is a political objective, the second point to be considered by the Committee is, did these people make a full disclosure.  It is my submission that they have not.

CHAIRPERSON: You are saying for the reasons you have given us, they fail in their application, on both counts?

MR MALUSI: They even, the applicants, both Mr Guleni and Mr Poyo, today they are giving us the impression that they were mere spectators.  If one reads their statements in the Bundle, one gets the impression that they actively participated.  Yes, their participation was not a leading role, but their participation was there.  Today their testimony is to the effect that they were passive participants, they did not actively do anything.

CHAIRPERSON: That amounts to not fully disclosing?

MR MALUSI: I submit that it would, Mr Chairperson.

CHAIRPERSON: Yes.

MR MALUSI: In that the Committee or the Act expects of an applicant to fully state his role.  If as these applicants were, if one is involved in a murder, I believe the Act expects that person to state fully what his role was.

CHAIRPERSON: We understand that, you are correct.

MR MALUSI: If a person says I was there in the murder, but I was just standing by, and the Committee later finds out that you were not only standing by, your role was more than standing by, I believe that is a ground for refusal, and it is my submission that they also be refused.  On those two grounds, Mr Chairperson, I submit that both applicants, Mr Guleni and Mr Poyo, with regard to the Port St Johns incident, be refused amnesty, especially with regard to the murder of the four APLA cadres and the attempted murder of Mr Gasmeni.  Of course there are other charges, possession of unlicensed firearm because he says they were carrying Uzzis, pump action guns and the like, I believe they had those for political objectives.  The abduction of the APLA cadres earlier on during the day, I believe based on the Act, that abduction was justified.  All their acts were justified to an extent up to the point when they decided to kill those people to silence them, from there on their acts were definitely not justified in the Act.  Thank you for having me.

CHAIRPERSON: Thank you.  Mr Mgxaji?

MR MGXAJI: Mr Mgxaji, Judge.

CHAIRPERSON: I am sorry.