Amnesty Hearings — Durban — 1999-06-22

MR MOLOHLANYE: Thank you, Chairperson.  Yes, that's where my difficulty lies.  Mostly on the basis that the acts which were committed by the applicant, taking into account that this applicant was not alone at the time of the commitment of this act, there was a group of about 600 people there whom I think even most of them thought that they were acting under a political objective, a political objective which was to maintain peace and tranquillity and maintain - and reduce crime in the area.  Therefore, if an act, a person is reducing crime in the area under a political organisation, fighting a criminal for example, that person is acting under a political objective.  Because at the time of the offence what is on his mind is only that this person is fighting or is disturbing what my political organisation wanted to achieve at this time.
	I therefore submit that on those basis', taking into account the period at which these acts occurred, that people - although we'll understand that the people took the law into their own hands, but the political scenario at that time made people to take the law into their own hands, hoping that what they're doing, they're doing under political, or under the political umbrella ...(intervention)

CHAIRPERSON: Yes, you can't submit to us in terms of hoping, you've got to confine your submission to the evidence led before us.  Now what evidence is there that the applicant directed his action against a person that he reasonably believed to have belonged to a person that was perceived by the members of his community, who you claim to have been ANC, against Dudu?  I mean, to which political party did they think Dudu belonged to?  You've conceded already that the evidence before us that it was not known to which political organisation Dudu belonged.  	Now in terms of the Act, you've got to as a member of a political organisation, direct your action against a person that you reasonable believe to be a political opponent of your organisation.

MR MOLOHLANYE: I therefore proceed on those grounds in terms of Section 20(3), which - the criteria which is used after it has been, after Section 2 has been applied, the motive of the person who committed the offence, clearly in this matter the motive was not only to kill Dudu for no apparent reason.  The evidence was led that Dudu came into the area with other members from Umlazi.  They came into the area demanding a hand that was missing from her brother.
	And secondly, (b), the context in which this act, or omission was committed, it was part of a political uprising, disturbance or event, in reaction thereto.

CHAIRPERSON: You will recall - without really interfering your submissions, the evidence that is before us is crystal that there was no disturbance at Manyasene.  That is the evidence that we are sitting with.

MR MOLOHLANYE: I understand, Your Worship.  Thank you.

CHAIRPERSON: So how can you seek reliance on that particular section, when the evidence, your evidence, the evidence that you led before us, is against you on that part?

MR MOLOHLANYE: It's not only an uprising or a disturbance, an event ...(intervention)

CHAIRPERSON: Which event had taken place at Manyasene? The evidence that we have is that everything was quiet, it was the only area which had not been afflicted by any political turmoil.  This is the evidence of all the parties, both the applicants and the objectors have led that kind of evidence.  Now where would you seek reliance with regard to that aspect of your submission, that there was an event?

MR MOLOHLANYE: Thank you, Chairperson.  The event that I'm referring to, according to the evidence that was given by the applicants - because here I'm talking about Thulani Cele, was that the people came from Umlazi and the community of Manyasene thought that was a political, that will maybe lead to a political instability in the area.  So as a structure, as a political organisation, the ANC, they took that very seriously, to the extent that these people were sentenced and sjamboked.

CHAIRPERSON: You must always have in mind that no evidence at all was led about the ANC.  This is a structure, an informal structure which was formed of Manyasene, in reaction to the criminal activity which was prevalent in the area and not in reaction to any political opposition that the community was experiencing.  This is in reaction to a criminal activity by a gang of criminals, which gang, there is no evidence to effect that that gang was associated or perceived to have been in collaboration with any political organisation.  So you must bear that in mind as you present your argument.

MR MOLOHLANYE: Thank you, Chairperson.
	I'll go to paragraph (d) of the same (3).  It ...(indistinct) the object and the objective of the act.  The objective of this act, as I said earlier, by the applicant, was to maintain the peace and tranquillity in the area.  I think that this was the most thing that they wanted, because his objective was not only to assault Dudu for no, or any other person from Amos Cele's house, but a decision by the community of about 600 people sat down and discussed the matter and they saw it fit and proper to punish these people, as a community let by a structure under the ANC.

CHAIRPERSON: Yes.

MR MALAN: Mr Molohlanye, is it not correct that the evidence before us is that the community did not decide, the structure decided?  The community could ask questions, but afterwards the structure went aside, they made the decision, they even decided the number of lashes.

MR MOLOHLANYE: That's correct, Chairperson.

CHAIRPERSON: And you must bear in mind how that structure came into being and the reason why it came into being.  It wasn't for purposes of achieving any political objective, it was to curb the crime which was becoming prevalent in the area.  The purpose for which the structure was established was not so politically motivated as you would like us to believe.  The evidence is against you on that part.  In fact you have referred us to (d).  You actually fall short of saying that that subsection requires you to have directed your action at a political opponent, which political opponent, by your concession, you did not have because Dudu Ngcobo was not a known political opponent.

MR MOLOHLANYE: It continues
"... a State property or person and/or against private property."

CHAIRPERSON: Precisely, precisely, but it must be directed against - now in the case of a member of a political organisation, it must be directed at a political opponent of that member of that particular organisation.  In the case of the State, it must be directed against not a private person, but a public person as you see, or against private property or individuals, but obviously it's in context all the time, bearing in mind (2) 2 from (a) to (f).  This is merely a criteria.

MR MOLOHLANYE: Thank you, Chairperson.
	To round up my submission, Chairperson, I believe that Mr Thulani Cele, when it comes to the first public violence, that the acts which were committed were committed not only by himself or on any personal grounds or any personal hatred against those people who were lashed, but it was a decision taken at a public hearing of the Manyasene people.  Therefore, the act of public violence was not only an act ...(indistinct) Cele, taken on his own or on a personal revenge against those people. 
	When it comes to the assault ...(intervention)

MR MALAN: Sorry, may I just take you back to this.  You again refer to a public hearing.  The evidence is that people were allowed to ask questions, but there was no hearing or decision by the community.  I mean am I mistaken or am I forgetting some of the evidence?