Amnesty Hearings — Durban — 1999-11-15

MS JELAL: Initially there was just a distribution, obviously each party retained what they have so even if there are going concerns, the person who inherited that particular asset is benefiting or deriving benefit from that particular asset.

CHAIRPERSON: So that's become his or her property?

MS JELAL: Exactly.  That is the situation.

CHAIRPERSON: And this is the fourth wife?

MS JELAL: This is the fourth wife.

CHAIRPERSON: Is that the last wife in the line?

MS JELAL: That is correct.

CHAIRPERSON: It's hit her and her issue the worst.

MS JELAL: Yes, that is correct.

CHAIRPERSON: How many children has she got?

MS JELAL: There are two children, one's 9 years old and one's 5 years old.

CHAIRPERSON: Yes, 9 and 5.  Yes.

MS JELAL: It is further my instructions to inform the Committee that the deceased, Mr Mthembu, did not indulge his wife and according to the black custom as well, it's not normal for the men to tell the women what is going on in their lives, so therefore they had no idea of his political affiliations, therefore they cannot comment on the same and they are not going to reject the fact that he may have been politically motivated or politically inclined, or that he was apolitical.  They cannot make a finding on that.  In so far as the Senior Mr Mthembu is concerned, he made a statement to the effect that it is possible.

CHAIRPERSON: Is that the father of the deceased?

MS JELAL: The father of the deceased, Elijah Sipho Mthembu.  On page 31 of the bundle, page 6, he makes a statement to the effect that
"I would say the killings were linked to politics because Sibiya had approached him", referring to the deceased, "on three occasions, asking for money to give to the ANC gang from Nkwanyane, so they could not kill him.  My son refused."
So there is the possibility of a political link.

CHAIRPERSON: There should be something political going on somewhere there.

MS JELAL: Yes.  So in the circumstances Mr Chairperson, I leave the decision to the Honourable Committee.

CHAIRPERSON: Thank you, Ms Jelal.  Mr Mapoma, have you got any submissions?

MR MAPOMA: I think it's just one point Chairperson, on the application of Nkwanyana, in particular, Chairperson, on the issue which seems to be the crux of the matter.

MR MAPOMA: Chairperson, I agree that on the application itself, the applicant may not have made a case for murder and attempted murder of the two persons who attacked on that day, but on the issue of conspiracy, it is my submission, Chairperson, that the applicant was party to conspiracy to murder those people.  I am saying this, Chairperson, because he was party to the meetings where these names featured and assertions were made that they had to be dealt with in the sense of being eliminated and Chairperson on the face of it, it may well be that it is out of those assertions that were made in those meetings that the operatives now went to implement the feelings of the meeting there.
	I am saying this, Chairperson, because we don't have evidence which says that there was a particular forum in which a decision was made that so-and-so must be killed today.  All we have here is evidence to the effect that meetings were there and assertions were made that these people must be killed, but the question of when and how, we don't have evidence as to when was it happening.

CHAIRPERSON: As to the execution, that was, the decision was a general one, to kill these people and on the face of it, it was left to some trained group to put into operation.

MR MAPOMA: That is my submission, Chairperson.

CHAIRPERSON: Yes, and by the way, whilst you are making those submissions, it now reminds me that the part of the evidence that I'm thinking about is not the evidence in chief, but the evidence under cross-examination which, according to my recollection, clarifies the applicant's presence and participation at the meeting where the decision was taken.

MR MAPOMA: Yes, Chairperson.

CHAIRPERSON: I think it might have been under questioning by yourself that that was elicited.

MR MAPOMA: Yes, that's the issue that I canvassed with him because I wanted clarity on that.

CHAIRPERSON: Yes, I had earlier indicated that this was under chief, but it wasn't.

MR MAPOMA: No it was under chief.

CHAIRPERSON: It was not done there.

MR MAPOMA: Yes.

CHAIRPERSON: But we will clarify the record on that score.  We'll ask the technicians just to play it back for us just to be 100% sure what the factual position is and that is why I said the two scenarios to the other lawyers.

MR MAPOMA: Yes.

CHAIRPERSON: Thank you, I've interrupted you.

MR MAPOMA: It is, as I say Chairperson then my submission that he was responsible for conspiracy and now given the fact that conspiracy was there to kill these people who were killed ultimately as a result of that conspiracy, now it invites a question, Chairperson, as to whether, can the Committee be so strict to say there was no causal link between the conspiracy to kill and the actual killing that took place, given the facts that are present before the Committee.  It will be remembered Chairperson, the applicant says that he was party to the meeting where these people were decided to be killed, but he's firmly saying he was not present in the actual killing and he was not aware as to when the actual killing was to take place, but he is quick to say that:  "Had I known, I would be prepared to participate in it."  That is an association, he associates himself fully with what done to those persons.

CHAIRPERSON: In other words, assume he had given that sort of evidence in a criminal trial where he says all these things, would the court be competent to convict him of the actual murder under those circumstances?  That's the question.  You're submitting that under these facts here, he's close enough to the actual murders not to avoid liability.

MR MAPOMA: Yes, Chairperson, that's my submission that a doctrine of common purpose cannot be escaped by him if this particular evidence that I've just applied could be established in a criminal case, ...(indistinct), therefore I would say that in the circumstances he can be convicted for murder as well as attempted murder, but I may say that somewhat faintly, but I would once again not leave it there.  The part of association by him with the actual murder, I submit Chairperson goes a long way.  I mean now given the interpretation of the Act now, the TRC Act, without necessarily being so strict as to criminal liabilities and the principles of that and Crimina Law are concerned, I would argue Chairperson that in the circumstances, the association itself makes him qualify for amnesty for those actions, even though perhaps criminally he may not necessarily be liable, strictly speaking.  I'm saying Chairperson, it may now be a question of interpreting the Act, given the facts and putting the interpretation into perspective.

ADV SANDI: Yes, but Mr Mapoma, is it not perhaps the correct approach to say:  "Let's start by looking at the entire political context in which all the events and crimes have been committed?"  You have here the background of a conflict between two organisations, the ANC and the IFP.  Their members and supporters are busy attacking each other here, whether rightly or wrongly, that is not the issue here, but that is the reality you had at the time in question on the ground.  Shouldn't that be the starting point?

CHAIRPERSON: And then you take into account his evidence that he had participated in earlier, although it was not successfully from his point of view because the intended victims had been tipped off, but he had participated in I think about two of these attempted attacks, so he's very much part of this political conflict.  It was an on-going thing, so this seems to have been, as my colleague says, it seems to have been a continuous situation of conflict between these contending groups.