Amnesty Hearings — Bloemfontein — 1999-05-26

UNKNOWN: Mr Chairman, if I might be allowed just one or two things. Mr Chairman, it is the view of the victims that the applicant has not made a full disclosure. Based on the probabilities, Mr Chairman, it is highly unacceptable or it's difficult to understand why should different witnesses whose got no links to the applicant at all, doesn't even know him, and the victim and the group there, would testify, broadly speaking, supporting each other saying that there was three people assaulting, kicking, handing out fist blows and ultimately overpowering the deceased then killing him. This is what basically, this is basically the facts that was also accepted by the court a quo.
	Today the applicant's testimony, to say the least, Mr Chairman, it is my respectful view, is very insufficient as specifically referring to the factual testimony, his own factual testimony what happened that day. On numerous questions, as I 
understand it, and as I understand my learned friend now as well, one of the answers of the applicant is that he actually operated or acted in self-defence. If that is the position, Mr Chairman, clearly requirement for unlawfulness for murder falls away, which means that the applicant is actually not applying for amnesty. But he is probably applying for killing or something else but not for murder. The unlawful event becomes lawful.
	It's also the view of the victims that the circumstances, if the court a quo made a mistake or error, with all respect with this regard, this is probably the wrong forum then to deal with that problem. Something else must have been done or appeal, or something else.
	But it is my respectful submission, not for the Committee today, to hand out amnesty to the applicant in the circumstances. It's my view, with all respect, Mr Chairman, that in the circumstances, because of the defence put up by the applicant, even today, even in the court, even on his own evidence and as well as the evidence of the witness, who was called on his behalf, that yes, there was self-defence. There's no such a thing, with all respect, Mr Chairman, as an element of self-defence. He acted in self-defence. They acted in self-defence, if that can be accepted on a second degree. It means that basically the whole application of murder would, like I said, then fall away. 
	It's furthermore my view, Mr Chairman, that the whole question of political motivation is very scanty, described by the applicant, he suffered and he had difficulty to answer questions put to him by the Panel about political motivation. It's broadly speaking, Mr Chairman, the view of the victims that in the circumstances, amnesty for the applicant must be, must be denied. As it pleases you, Mr Chairman. Thank you, Mr Chairman.

CHAIRPERSON: Thank you, Adv Steenkamp.

ADV GCABASHE: Adv Steenkamp, what do you suggest we make of the contention or submission by Mr Mohlaba that you had both self-defence and political motive entwined in the actions of the applicant? What he said in submission now was that the primary motive was the getting rid of this political enemy in a sense, and the issue of self-defence really was one that came and went. And applicant went beyond that, to actually dealing with this political opponent?

ADV STEENKAMP: Mr Chairman, I'm not trying to skip the question, but first of all, I would respond for respect to saying that first of all the applicant is carrying the onus here, to meet all those requirements, first of all. Secondly, I would suggest that taking on, taking all the evidence as a whole, I'm personally of the view, it's my own personal view that I don't think there was any intention of the applicants to actually, that specific day, go out and kill the applicant. I think what actually, with all due respect, what happened, there was some sort of scuffle which ensued there and they just decided to kill the applicant, I mean the deceased.
	My question, my personal difficulty with that argument put over by my learned colleague is the fact that the moment you admit self-defence, surely the whole question of unlawful, unlawfulness must fall away. Which means that murder can't be, in this specific circumstances, be the subject for amnesty. 
	As far as I know, Mr Chairman, the test still is the same. On the probability, surely, the applicant in the circumstances, if he don't what's happened there, it seems to me that the applicant has difficulty to explain to us what happened there. But objectively, looking at the facts of this put before the court, whatever happened, whatever the motives may be, other objective witnesses testified, and fortunately enough we have those statements in our possession, testified to the fact that what they saw. They didn't identify the applicant. The applicant identified himself at the scene. And those people testified, broadly speaking, exactly the same what happened. And if you take the applicant's own testimony in this regard, Mr Chairman, with all respect, it's actually supporting the witnesses' statements, actually what happened there. 
	It's my contention, Mr Chairman, with all due respect, in the circumstances, if you take all the factual difficulties I had with, and the victims had, with the testimony of the applicant, he didn't carry the onus, he didn't prove at least, that he complete, that he met all the requirements of the Act, and specifically dealing with self-defence. I understand the question raising specific dealing in that circumstances, but it is my view that they, I mean the applicant and the people who were there with him, went far beyond that. And it's easy to sit back today and say, listen, but there was political motive, basically because they have to meet those requirements. 
	I would like to add, Mr Chairman, that the testimony of the witness, of the applicant, must surely be taken with some circumspect. Clearly, he was one stage an applicant. Clearly his brother of the applicant, clearly was at the scene. Yes, and I think in those circumstances his evidence must be weighed on those specific perspective. 
	Answering the question, I would like just to say that I think it is difficult to say it's intertwined. Yes, it is intertwined. But if there was a question that they were attacked, as it was supported by the witness himself, surely then the question of self-defence stands up and the question of unlawfulness must be addressed. I hope that answers the question. Thank you, Mr Chairman.

CHAIRPERSON: Yes, thank you. Have you got any further submissions, Mr Mohlaba?

MR MOHLABA: No, thank you, Chairperson, I don't have any further submissions.

CHAIRPERSON: Yes, that concludes the matter. The Panel will take some time to consider the matter and will advise the parties once the decision is available in this matter. Now, Adv Steenkamp, I assume that concludes matters that we had on the roll today, does it?

ADV STEENKAMP: I beg your, yes, Mr Chairman. Yes, that is fortunately or unfortunately the roll for today. I can just indicate that the matter for tomorrow morning, if that may be allowed, will be, I hope to make, I've already made specific arrangements for the legal representatives for the three applicants for tomorrow to consult this afternoon. I understand he is already in Bloemfontein. So I will consult with him and see how early we can start. But I will communicate that with you and the panel.

CHAIRPERSON: Would we be able to start at 9 o'clock tomorrow morning?

ADV STEENKAMP: I believe so, yes, Mr Chairman. That will be possible. Yes, thank you.

CHAIRPERSON: Yes, well under those circumstances, we are going to adjourn and we will reconvene to hear the outstanding matter tomorrow morning at 9 o'clock. We're adjourned.
COMMITTEE ADJOURNS