Amnesty Hearings — Durban — 1999-11-15

CHAIRPERSON: Is that your parents' kraal?

MR KHUZWAYO: Yes, it is closer, from my home you can see Sibiya's kraal.

CHAIRPERSON: Is your grandmother's name Mashandu?  Is Mashandu your grandmother?

MR KHUZWAYO: Yes, it is my granny.

CHAIRPERSON: Yes.  You appear to be right, Ms Loonat.  So he'd be accused number 8?  One of those who was convicted of the theft of the money.

MR KHUZWAYO: Yes, I do agree.

CHAIRPERSON: What sentence did he get for the theft?  Do you know Ms Loonat?

UNKNOWN: It's on page 3, Mr Chairman.

CHAIRPERSON: Is that count 2?  Was the theft count 2?  That's one year.

UNKNOWN: Count 2, one year's imprisonment.  That's correct.

CHAIRPERSON: Is that the theft?

UNKNOWN: Yes, Mr Chairperson, that's my understanding.

CHAIRPERSON: Yes.  Where's this page where my colleague just referred to where the convictions are?  Which page is that?  82, is it?  Yes, you're right, the theft is count 2.  He got a year's imprisonment for the theft and he got 15 years for the murder and 6 years for the attempted murder.  Yes, very well.  I think that gives us a clearer picture.  Yes, have you got any other questions?

UNKNOWN: No, Mr Chairperson, thank you.
NO QUESTIONS BY MS LOONAT

CHAIRPERSON: Yes, Mr Khuzwayo, you're excused.  Thank you very much.
WITNESS EXCUSED

CHAIRPERSON: Ms Loonat are you tendering any further evidence.

UNKNOWN: No, Mr Chairman.

CHAIRPERSON: Is that the case for the applicant?

UNKNOWN: Yes, thank you.

CHAIRPERSON: Ms Jelal, are you tendering any evidence?

MS JELAL: No, Mr Chairperson.

CHAIRPERSON: Thank you.  Mr Mapoma, any evidence?

MR MAPOMA: No further evidence Chairperson.

CHAIRPERSON: Thank you.  Yes, Ms Loonat do you want to address us on the merits of your client's application?

UNKNOWN: Mr Chairperson, may I address you first on the first client, Mr Nkwanyana?

CHAIRPERSON: Which one?

UNKNOWN: Mr Nkwanyana.

CHAIRPERSON: ...(indistinct - mike not on)

UNKNOWN: Yes, please.  Thank you.

UNKNOWN: Mr Chairperson, Honourable Members of the Committee, my learned colleagues, ladies and gentlemen, the learned judge conceded on page 83 of his judgment, line 15, that my client Mr Nkwanyana did in fact flee his area because of the volatile situation revolving around politics and that he did in fact take instructions when committing any politically motivated attacks on the IFP.  Mr Nkwanyana admits
to being an active member of the ANC since the 80's.  He attended rallies, meetings and participated when instructed, in actually attacks with fellow ANC members.  He admits to having no training in firearms and he does not even own one, not even a home made one.  He used, by his own admission, a knife when anticipating an attack.  
	He has fathered a child who is, according to my instructions two years old, whom he has not yet seen as he has been incarcerated since.

CHAIRPERSON: ...(indistinct)

UNKNOWN: I don't think so, thank you.  He would like to see ...(mike turned off).
	He claims that on the 3rd of May 1994 he was in the area of the alleged incident for which his co-perpetrator is today applying for amnesty.  However, on that day he was visiting his sister and her injured child and he hopefully wanted to see what was left of his home, which he had fled.
	He was at the shebeen having a drink with friends when he heard gunshots.  He was scared and he fled again, he did not even bother to visit his home or the injured sister, he was so afraid of his political opponents.  He admits to meeting with Mr Khuzwayo, coincidentally just prior to the attack that took place on the 3rd of May 1994, but he denies having any knowledge of their plans on that day.  Mr Khuzwayo during his evidence in chief, admitted to the above and also his reasons were that they deliberately excluded Mr Khuzwayo from that particular attack namely because of his lack of firearm training and the special skills which the others possessed and which was vital on that day for the attack.
	My client was always party to the knowledge that the common enemy on the hit list included Sibiya and Mthembu, inter alia.  It was discussed at their meetings.  There was common purpose and by his own admission and in line with full disclosure he would, he admits that he would have assisted, using only a knife if necessary, if he were asked to join in that particular attack.  However, he was not included and in his opinion it was because of, he thinks it was because of his relationship to Mr Sibiya.
	Mr Chairperson, I leave it in the hands of the Members of the Committee to decide if my client, in view of the above, falls within the ambit of the Act to be granted political amnesty without having ...(intervention)

CHAIRPERSON: Which crime is it?  Which offence has he committed?  ...(indistinct - mike not on)

UNKNOWN: For being party to any other, for common purpose activities throughout, from the 80's onwards, when he did take part in any attacks and things.

CHAIRPERSON: In respect of these attacks that are here, the subject matter of this application?

UNKNOWN: He claims not to have been present.  Sorry Mr Chairperson, he claims ...(intervention)

CHAIRPERSON: He was not a perpetrator.  He's not a perpetrator?

UNKNOWN: On that particular day he wasn't.

CHAIRPERSON: What is the crime?  He says he participated in this discussion where it was decided to kill these people and he knew that they were going to get killed some time or the other.

UNKNOWN: That's correct.

CHAIRPERSON: It's just that they didn't tell him when and if they did tell him when, he would have been part of this thing.

UNKNOWN: That is so.

CHAIRPERSON: And he says that ex post facto, he agrees that what they had done was to execute what the ANC required under the circumstances.  So what is the offence in that set of facts?  That he conspired to kill these people?  What did he do?  Is that the offence?0

UNKNOWN: To all intents and purposes, he was part of the conspiracy, but to the actual attack on them on that particular day, he was not, but yes, conspiracy.

CHAIRPERSON: He was not a perpetrator of the deed.

UNKNOWN: Sorry?

CHAIRPERSON: He wasn't a perpetrator in respect of the actual ...

UNKNOWN: On that particular day only, but he could have been if he was asked.

CHAIRPERSON: Yes.

ADV SANDI: Yes, but the difficulty you have here is, how does he associate himself with the actual event of the day in question when the discussions or conspiracy if you like is actually put into effect, it's being executed, how does he associate himself with all that?  He hears two shots whilst sitting in a shebeen, he gets a fright, he runs away like everyone.  Would a criminal court correctly find him guilty of the crime, applying this principle of common purpose?

UNKNOWN: The criminal court did not, from what I read in the judgment and the sentencing, but in applying for amnesty as being a co-perpetrator and being a political objective, the common purpose, and it's just that on that day he was in the area but he was not included in that particular act.  I have the difficulty in that he cannot ask, I understand, for amnesty when he was not party to that particular incident, but to all other related incidents, as far as IFP, ANC fighting occurred, he would want to apply for amnesty for that.

CHAIRPERSON: Is there any basis for a common purpose liability in respect of the actual deeds, or doesn't he come close enough to the actual execution of their joint venture that they decided on?

UNKNOWN: The latter, he comes close to the execution of the join venture, as I understand it.

CHAIRPERSON: Has he done anything on that day of the incident that somehow associated himself with the conduct of these others?   Did he have any knowledge that they are actually attacking those people at that stage when this happened?