Amnesty Hearings — Phokeng — 1996-05-20

JUDGE MGOEPE: Mr Currin, I am just speaking for myself. I am not so sure that they needed to be members of the ANC after all, you know.  Because they were members of an action committee, which was involved in politics, and to me politics does not necessarily mean national politics. It is Baphokeng politics, the politics of the tribe.  That is a political issue.  I would have thought that they don't need to prove that they are members of an ANC for them to get amnesty. Assuming that all other requirements are met, surely even if they are not members of the ANC, they don't
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need to be members of the ANC.  If that assists you.

MR CURRIN: That would assist me if the Committee is saying that the action committee is a publicly known organisation.

JUDGE MGOEPE: It is.

MR CURRIN: Then I accept that we need not then take the point of the liberation movement any further.

HASSAN MALL: Your link ... (intervention).

SISI KHAMPEPE: Mr Currin, that is the evidence of the second applicant.

HASSAN MALL: Their link with an organisation such as the ANC, is a tenuous link, thousands of people can come and say I am a member of the ANC.  The fact that they claim to be members of the ANC does not automatically mean that whatever they are doing has been sanctioned by the ANC or is part of the ANC's decisions and so on.  They may be members of the ANC and may belong to all kinds of other organisations we well, and do things in pursuance of the requirements of those other organisations.

MR CURRIN: I accept that.
	We can then move off that particular point and refer to section 23 which is the section and I would just like to read the paragraph:
"Whether a particular act, omission or offence contemplated in subsection (2) is an act associated with a political objective, shall be decided with reference to the following criteria."
Now before referring to those criteria, I would just like to make the point that quite clearly, the Act is worded in a way that those criteria are not pre-emptory and that all that needs to occur, is that when one is considering whether PHOKENG HEARING	AMNESTY/GAUTENG
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or not an offence is associated with a political objective,
one needs to have reference to those particular criteria.  If the applicants happen to fail, if they happen to fail in your minds, in respect of - with reference to one of those criteria, we do not understand that the application will be fatal.  With that in mind, we would like to go through the various sections within 23 and argue our case as far as the offence is concerned, being an offence associated with a political objective.
	In the first instance, we are dealing with a common law offence, which was associated with a political objective.  In other words, in our view we need to satisfy you that the murder was associated with a political objective and not that the murder was in itself a political crime.
	If we have reference to motive.  We considered the evidence of the two applicants in trying to establish motive.  What we have gleaned and teased out of that evidence, is that they both had as their motive - at least part of their motive, a fear of being arrested, tortured and possibly being detained.  
	Boy Diali added to that and said that he felt it was necessary to get rid of Glad Mokgatle in order to show the Bophuthatswana Government, and in particular, the President, that they were serious.
	While talking about motive, dealing with motive, I think it is also necessary to emphasise that in the context of motive we believe there is the provision in the Act that specifically says that one would be excluded if a murder was committed or an offence was committed for personal gain.  We do not believe that there can be any question of personal gain being achieved by the two applicants in regard to the 
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offence which they committed.
	There is another very specific exclusion and that is out of personal malice, ill-will or spite directed against the victim.   We do not believe that this crime was motivated by personal malice, ill-will or spite.  
	We do not believe that it is necessary, as we understand the Act, to persuade you that the murder was committed with a political motive.  The Act does not place that requirement on the shoulders of the applicants.  We need to show that the offence was associated with a political objective.  
	Had that been the requirement, the Act would have said quite unequivocally that the offence would have - should be an offence with a political motive.
	With regard to context.  The offence was committed without any doubt, in the context of political uprisings, in the context of certainly a political uprising or disturbance.  If one looks at the very broad context of political uprising, we think one can go beyond just the uprising right here, and say that it was also part of - there was a greater uprising, namely within Bophuthatswana, in the context of reincorporation in South Africa.   But then of course, there was the particular uprising in Phokeng.  So certainly, Sir, and members of the Committee, there can be no doubt at all that the context in which the murder was committed, was in itself a political context.  And we think that is important, in fact, critical.
	Subsection (3) talks about the legal and the factual nature of the Act, including the gravity of the Act.  Now we know the legal nature of the Act.  We know that it was murder.  We know the factual nature of the Act. We have 
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heard detailed evidence about how the murder was committed.
We are not going to go through that evidence, but we realise that we need to address you on the question of gravity. 
	There can be no doubt whatsoever, that this murder was a grave crime, and that it was a brutal crime.  We won't try and persuade you otherwise.  Having said that, when one refers to gravity in our view, one does it in the context of the particular crime.  In other words, one can't necessarily say that because it was a murder it was more grave than it would have been had it have been a serious assault.  Gravity must be considered in the context of the crime.  So we look at gravity in the context of murder.  We would argue that in certain circumstances a murder could be so grave that it would play a very, very significant role in your minds in possibly concluding that an application should not be granted.
	In this particular case, however, we believe that there are a number of factors and we would like to call them for the sake of convenience, we would like to refer them to mitigating factors.  Factors that mitigate against the gravity which we concede and factors which we believe you should take into consideration when deciding on the applicants' fate.
	First of all, it is quite clear that the murder was not premeditated.

JUDGE MGOEPE: Sorry, Mr Currin, do you want to convince us that this matter was not grave?

MR CURRIN: No. No, Sir, I have already made the concession that the murder was grave.

JUDGE MGOEPE: So what are you wanting to do now?