Amnesty Hearings — Cape Town — 1997-05-20

CHAIRPERSON: Yes, thank you.  Any re-examination you have of these witnesses?

ADV MATHANA: No, Mr Chairman.  Mr Chairman, I shall deal with them together because their circumstances are the same.
	First of all regarding the submission of their form on the prescribed form, I will ask the Committee to take into consideration the we are dealing with illiterate applicants here and persons who from the moment that they had to submit their applications, did not have the advantage of expert legal assistance.
	Because of that, it should be expected that they will not know what material to put in their application, that will be relevant in making their applications successful.  They will know a lot of things, they will be in possession of many facts, but they will not be able to select those that are going to be helpful to them in substantiation of this application.

CHAIRPERSON: But that is the purpose of leading evidence.

ADV MATHANA: That is correct Mr Chairman.  Now the impression unfortunately has been created now, when or after the consultations have taken place between themselves and myself in preparation for the hearing, the impression now is going to be created that they are deviating from the contents of the application to a certain extent, but the truth of the matter is that the nature of their evidence should have been the nature of their applications in the first place - nothing has changed.
	Their evidence which is being presented today is what they consider to be the truth.  When they submitted their applications and out of ignorance of the requirements of the law, they obviously were still under the impression that they were going to go to a court of law, to the same circumstances to a court of law, where they would be in a position of being accused and obviously they were still labouring under that impression that they were still being prosecuted and they had to be defensive in the setting out of their circumstances of this particular offences.
	But had they had this advantage of legal representation at that stage, they would have known that all that is required of them at this present moment and that is going to save them at the present moment, is nothing but the truth.
	Had they had that opportunity, I submit Mr Chairman, we would not now be dealing with applicants who seem to be untruthful because apparently their credibility is supposed to be suspect at this particular moment.
	As far as the requirements of the Act is concerned Mr Chairman, I submit that the applications have been submitted in the proper or prescribed manner, complying with the Act.  I submit Mr Chairman, that the acts they have been able, I submit that they have been able to show that the acts for which they had been convicted and for which they are now seeking amnesty, can be associated with a political objective.
	Their background, the background to the commission of the acts Mr Chairman, shows that they were in a situation at the time prevailing in the townships, a situation that was causing them to act in the manner in which they did and the situation had been caused by an agency of the State.
	Indirectly, some persons had become victims in the sense that although their object is the State, the object of their act is the State, they have to focus their attention on the instruments of the agency of the State in the form of the - the person that they regarded as the informer, Mpisane.
	Therefor I submit that their action which was directed at Mpisane was in the final analysis an action which was directed at the State.
	As far as the death of a person who was totally unconnected with this incident, I submit to the Commission that under the circumstances in which that occurred, they have been found guilty of something they had no direct intention aimed at that particular victim.

CHAIRPERSON: It doesn't have to be aimed at that particular victim, I mean when you open fire with an automatic pistol, as an ordinary man you must know that people are likely to be injured.

ADV MATHANA: I understand that Mr Chairman, the point is for purposes of this application for amnesty, I am bringing the argument that they could not have intention to achieve anything by killing that victim.
	The battle is not with that person, it is not associated or connected with that person.  Although legally they cannot escape conviction if they fired under those circumstances, legally, but now we are dealing with a political situation where it is necessary for them when they targeted a particular victim, they were supposed to be have been having a specific objective in targeting that particular victim.

JUDGE WILSON: But there was no reason, no urgent reason to shoot at this man at that time, while he was riding down a crowded lane where children were playing in the street, was there?

ADV MATHANA: If they feared, if they anticipated that the victim was going to join the members of the ISU together with the rest of the informers and warn them of their imminent attack, if they didn't want that to happen, then possibly ...

CHAIRPERSON: Where was the imminent attack?

JUDGE WILSON: What imminent attack?

CHAIRPERSON: ... where they were, he turned around and they just opened fire on him.  Now they knew who he was, they were colleagues together, they worked politically together, they could have come to him at any time and talked to him.
	They knew that he was alone and they opened fire totally disregarding whether - of the consequences.  They are just fortunate that the man didn't die.

ADV MATHANA: May I response Mr Chairman?  If they at that time, since they were expecting that there was going to be a meeting to take place and it was their intention to attack those persons who would come together at that meeting, obviously they cannot allow anybody to tip those persons off. ...(tape ends)

JUDGE WILSON: ...afterwards, why didn't they let him run and follow him to the meeting so they could attack?  They made no attempt to attack a meeting, did they?  So they weren't preventing anybody tipping off the impending attack, there was no such impending attack, was there?

CHAIRPERSON: No, they shot him and turned around and went home.

ADV MATHANA: According to their evidence they gave up because when they lost sight of this person, because they considered it at that stage that their plan had fallen through when they lost sight of the person, of the victim.
	And since in their - as far as they were aware, they could not establish at that stage where the venue was going to be, it was not going - that is why they would consider it that their plan had fallen through.

JUDGE WILSON: Yes, so shooting him would not help them establish the venue and they could not launch at attack?  Could they?
	He was their sole source of information, shooting him would not give them any information to enable them to launch the attack, that is the problem with this argument.
	There is no suggestion from either of the applicants that they thought that they would be able to continue with the attack if they got rid of him.

ADV MATHANA: That is correct sir.

SISI KHAMPEPE: Mr Mathana, isn't your problem the fact that the evidence of your client is to the effect that the cardinal reason for going there, was to launch an attack at the ISU members and they thought they would either find them at Mr Mpisane's place or gather information about where they were going to meet in order to launch such an attack?

ADV MATHANA: Yes, that is their evidence.

CHAIRPERSON: Do you expect anybody to believe that three men armed would go to Mr Mpisane and say, now tell us where is the meeting going to be and Mr Mpisane sees these three men heavily armed.
	Were they really expecting him to give them the answer?  If he had an answer to give?

ADV MATHANA: Obviously he was not going to give them that answer.

CHAIRPERSON: If he - he never had the answer.