Amnesty Hearings — Johannesburg — 1998-11-02

MR MBANDAZAYO: Yes.  But because, Mr Chairperson, the organisation to which they belonged at the time, which was leading APLA, was part of the PAC, was going to participate in the election.  So definitely it was at the time alleged that it has already suspended the armed struggle, but they were keeping on carrying the armed struggle.
	Mr Chairperson, it is my submission that if one takes the evidence of Mr Maseko, it is clear that as commanders they were not yet formally informed that the armed struggle has been suspended.
	Now if you go with his quote in his affidavit that the PAC President has gone on record saying: "We will abandon the bullet until the ballot is secured."  Not everybody will be in a position to interpret that, Mr Chairperson.  I didn't manage to make ...(intervention)

CHAIRPERSON: I think this is all linked up with this whole - you know if one takes a look at the events that occurred, initially the cutoff date was even before the 16th of April and the cutoff date for incidents was extended I think, on various occasions as a result of political pressure being applied, probably for exactly the same reasons why you are arguing now, until it was ultimately extended to the 10th of May.

MR MBANDAZAYO: Yes, Mr Chairperson, because it was alleged that some of the cadres were in the battlefield, they could not be contacted and be informed properly and be advised properly that the armed struggle has been suspended.  It was on that basis that negotiations were carried to cater for some incidents which occurred, because definitely if you go according to their operation is that they have to listen to their commanders before they can stop.  They had been given a mandate to carry on.  As I ...(intervention)

CHAIRPERSON: Because most regrettably also at that time, immediately before the elections, it wasn't the question of there being peace reigning.  We know from our own bitter experiences that there were many incidents that took place around that period of time, even later.

MR MBANDAZAYO: Yes, Mr Chairperson.
	Mr Chairperson, I don't want to belabour this point.  I know that some of the Members of the Committee may not have, Advocate Motata, I've never supplied him with some of the documents but I made copies of the submission of the PAC with regard even to targets, so-called, one would argue that is a soft target and civilians.  Document PAC where it put its submission to the TRC at a later stage when they were required to spell out their policy with regard to attack to so-called civilians, they put it clearly that they did not differentiate in their submission.  That's one point I wanted to cover.  I know that maybe Advocate Motata does not have it.  I know the two Members, yourself and Advocate Bosman, I made photostats of some of the documents relating to that and also one of ...(indistinct) of APLA where President Makweto - it is quoted here:
"PAC can only consider abandoning the bullet in overthrowing the regime when the ballot is secure."
Well no-one knows when the ballot will secured, whether after the elections or what but it so happened that it was done before the elections.
	Having said that, Mr Chairperson, my argument is that the applicant himself attacked within the ambit and scope and orders of his party, and what he did was on behalf of his organisation and he reasonably believed at that particular point in time that what he was carrying out was carrying out the objective of his organisation.  And therefore, Mr Chairperson, it is my submission and my application that the applicant should be granted amnesty, thank you.

CHAIRPERSON: Thank you, Mr Mbandazayo.  Mr Mpshe?

MOKOTEDI MPSHE: Thank you, Mr Chairman.  Mr Chairman, I have no submission to make, save to say that the proportionality criteria should be looked into.  That is all.

CHAIRPERSON: Thank you, Mr Mpshe.  Are you responding to that, Mr Mbandazayo?

MR MBANDAZAYO: Mr Chairperson, I know this is one point - the question of proportionality always comes up but my argument will always be that, and it's my submission, Mr Chairperson, that proportionality should be applied to the decision makers.  The foot soldiers should not bear the brunt of question of proportionality because they are not police makers, they are not decision makers, who are the people, who are the targets.  They have been given a framework to operate, that here are the legitimate targets, so you have to carry out, foot soldiers.
	And as such, Mr Chairperson, it's my submission that the proportionality should be carried, should be applied only to the decision makers.  That is the people who give orders that these things should happen.

CHAIRPERSON: Unless of course the foot soldier exceeds the bounds of the order.

MR MBANDAZAYO: Exactly, Mr Chairperson.  Mr Chairperson, my ...(intervention)

CHAIRPERSON: If the order is to go and steal a car and they go and shoot 45 people instead.

MR MBANDAZAYO: Definitely, Mr Chairperson ...[end of tape] ... they wanted money.  It's a ...(indistinct) Mr Chairperson, if they were met with resistance there is no doubt that they were going to use, they were not going to.  So it was one of those few things ...(indistinct) where it is known that it will be part of the whole thing if it did happen as it happened in this case.  Thank you, Mr Chairperson.

CHAIRPERSON: Thank you, Mr Mbandazayo.  We will deliver judgment in this as soon as possible, hopefully even this week but we'll have to discuss it.  I always prefer to hand down a written decision.

MOKOTEDI MPSHE: Mr Chairperson, if I may once more with your indulgence inasfar as the victims are concerned, Mr Chairman.
	Mr Chairman, the wife to the deceased has since left, she has gone abroad but we have in our midst the brother to the deceased who is sitting in the hall right now, Mr Jose Gil and the surname is that of the deceased: J-A-R-D-I-M.  His address, Mr Chairman, is:
109 Hans Strijdom Street, Pongola.   That is all, Mr Chairman.  He is present.  I consulted with him, he knows about everything.

CHAIRPERSON: Thank you, and his name will be referred to the Reparations Committee as a victim?

MOKOTEDI MPSHE: That is so, thank you.  And that sums up the roll for the day, Mr Chairman.

CHAIRPERSON: Yes, thank you.  That brings us to the end of today's proceedings.  We will be continuing these hearings in this hall tomorrow where we'll start with a fresh application.  Would half past nine be convenient?

MOKOTEDI MPSHE: Mr Chairman, seeing that it's only one matter, even  10 o'clock would be convenient.  It's only one matter, that is incident number 3, Malefane, the one that was to be heard on the 4th of November.  That is the only one for tomorrow.

CHAIRPERSON: And you expect that that one will be handled in ...(intervention)

MOKOTEDI MPSHE: In less than ...(indistinct)

CHAIRPERSON: Would 10 o'clock be convenient?

MR MBANDAZAYO: Yes, Mr Chairperson, it will be suitable.

CHAIRPERSON: We'll therefore adjourn now until 10 o'clock to-morrow morning, that is the 3rd of November 1998, at the same venue for the hearing, thank you.
COMMITTEE ADJOURNS