Amnesty Hearings — Pietermaritzburg — 1997-02-10

MR BANADE: Mr Chairman, just to answer the first part.  In my opinion there is overwhelming evidence that there was a pocketbook, albeit purely based on Judge Thirion's judgment and there ware three persons who make mention of it.
The fact that he was searched and nothing was found on 
3A - 11.2	him/...
128	MR BANADE
him, I do not think on the basis of that bit of evidence one can say that there was no evidence.  It is possible that nothing was found at that stage.  
	But to go to your question as to why it was thrown away.  Certainly it is strange, but one has to bear in mind that these persons are affiliated to a riot squad, working in a riot squad, they are not investigators, they are not your typical charge office policemen, they are riot squad policemen.  They are in a completely different category.  They are used to have a physical presence at certain places and they do not take matters to court.  So for a typical young man under those circumstances who found the pocketbook, and at that time his thoughts were to assault this man, decided to throw the pocketbook away.  Why he did it may seem irrational today, but I do not think it should be regarded as so irrational that one could assume on the basis of that bit of evidence that there was no pocketbook.

BERNARD MAKGABO NGOEPE: ... allegedly contained not only the name of a prominent IFP person, but a number of houses which were targeted.  If they throw it away how would they be able to go and warn those people who are potential victims, who were listed in the pocket diary and say we found your addresses listed in the pocketbook of a possible hit man, he might have conspired  with other people, be careful.  How would they go and warn them?

MR BANADE: Mr Chairman, I myself am not aware of addresses being in there.

BERNARD MAKGABO NGOEPE: The addresses.  That is what Mr Madlala said.  In fact, at some stage he referred to it as a hit list.

MR BANADE: I cannot answer you there.  You have already cross-examined that evidence and I cannot answer that
3A - 11.2	question/...
129	MR BANADE
question.

SISI KHAMPEPE: There is overwhelming evidence that a pocketbook was found, and probably no one can say anything against that.  There is, however, a serious dispute on how this pocketbook was found.  According to the evidence of Harrington he states that it was himself and Mr Madlala who found the pocketbook in a pocket T-shirt which was worn by Mr Jama who is deceased.  So there is a dispute on how this pocketbook was found and who found it.  What is your response to that?

MR BANADE: Mr Chairman, my response to that would be, as I said earlier today, there is a six year gap between the happenings on that day and today.  If one should be questioned today about details of an incident that took place six years ago, they would be a bit  vague, and obviously different people see things differently.  The Judges in the Supreme Court and magistrates are aware of that and I would have to attribute the differences to these two factors, the gap between when the incident took place and now and also the different individuals' way of seeing things.

CHAIRPERSON: You may proceed.

JUDGE WILSON: As a matter of interest, in his statement which was submitted to the Truth and Reconciliation Commission, he refers to the pocketbook having been
"a pocketbook was found in his shirt pocket".  You said earlier you weren't if there was any reference to it.  He in fact did say so.

SISI KHAMPEPE: He says the same thing in his statement which is before us on page 6, that is the third paragraph.

CHAIRPERSON: Anyway, it is quite clear that you cannot take
3A - 11.2	 the/...
130	MR BANADE
the matter very much further than that.

MR BANADE: Indeed, Mr Chairperson.  These are the submissions I would like to make and I would just like to add lastly that the two important loopholes about relevant facts and full disclosure in conjunction with a political objective, I think Mr Chairman, have been shown to this Committee and I do not think the Committee should have any problems in finding that all three the applicants meet the requirements for amnesty and should be granted amnesty in terms of the Act.

JUDGE WILSON: I take it you agree he does not fall within the provisions of section 20(2)(b), or that they don't fall within.  That is
"Any employee of the State or any former State, or any member of the Security Forces, in the course and scope of his or her duties and within the scope of his or her express or implied authority, directed against a publicly known political organisation engaged in a political struggle against the State"
This was not bona fide within the course and scope of his duties.  You agree?

MR BANADE: Mr Chairman, yes.  I have to say that in preparation for this Committee meeting I did look at paragraph 20(2)(b).  I read it over and over again and asked myself this question as to whether people were to work within their narrow scope you know, to get amnesty, or whether somebody went beyond their call of duty, should it really  make such a big difference.  I think strictly speaking, apparently they were - when they decided to kill this person it was on a frolic of their own.
3A - 11.2

ADV DE JAGER: /...
ADV DE JAGER	131	MR BANADE

ADV DE JAGER: Mr Banade, if they act within the police line of duty does it say that they could not have committed a murder, if they were within the provisions of the Criminal Procedure Act?   The Police Act does not authorise any policeman to commit a murder.

MR BANADE: That is correct.

ADV DE JAGER: It may authorise a police officer to shoot a person during an arrest, but not to murder a person.

MR BANADE: Exactly, I agree with you.  It cannot.

CHAIRPERSON: ... as far as you are concerned, these three people were on a frolic of their own.  Is that how you put it?

MR BANADE: According to a strict interpretation of section 20(2)(b) where they speak about, and as Judge Wilson read it, in the course and within the ambit.  It is not just within the course.  It says "and within the scope of his or her duties and within the scope of his or her authority" to have committed it.  That puts them in a very tight corridor.  That is what I was trying to say to Judge Wilson.  I cannot imagine what the person drawing up the Act meant.   But they still qualify in terms of paragraph (a), where it says
"Any member or supporter of a well-known political organisation".

ADV DE JAGER: If Mr Madlala gives evidence that he was trained to do it and that it was the objective of trained constables?

MR BANADE: Mr Chairman, then the person that drew up the Act did not provide for that.  Because I think the intention of the Act was to make provision for such acts in applications for amnesty as well, but it hasn't been done.

CHAIRPERSON: It is quite clear that you are not (inaudible).
3A - 11.2

MR BANADE: /...
132	MR BANADE

MR BANADE: They are going to have to qualify what section 20(2) says as far as "any supporter of any political organisation" is concerned.  There is no evidence before this Committee that it was the instruction of the Conservative Party or the AWB or the Democratic Party, but that they were rightwingers, and under those circumstances, Mr Chairman, within the context of that time, there was a very broad spectrum of political affiliations which were anti-ANC, and in that regard certainly they were supporters of that broad political spectrum.