Amnesty Hearings — Pietermaritzburg — 1997-07-30

ADV POTGIETER: Just before you conclude, what is the significance, if any, of the telephone call that the first applicant received from Mr Becker Poswa?

MR WILLS: I submit that that telephone call was an overt threat.  That telephone call must be seen in the context of what had occurred, not only when, not only as a result of the incident that arose where the ANC community left Gengeshe, but also in the light of the fact that certain people who had left Gengeshe and gone to live as far afield as Pinetown and Gleeblands had, in fact, been attacked at those places and killed.  Now, I submit that, in a sense, one could see and one would have to take this threat very seriously.  The individual who made the telephone call was widely regarded as, by the ANC community as being responsible for the attacks and being directly involved in the attacks, that is Becker Poswa, his name has been mentioned frequently today.  I submit there that, again, that unless some form of action was taken, the individuals at Ndaleni may well have been eminently attacked.

ADV POTGIETER: Does that assist at all with your submission or does it submit your, does it support your submission that what we are dealing with is a political, politically inspired incident and not a personal fight?

MR WILLS: Yes, I submit, with respect, that it does support that very much so.  If it was, again, if it was just a family squabble and a revenge attack, then one would have expected the first applicant to have, possibly, grouped together with one or two friends to have taken his revenge on his own.  Possibly, he would have simply done it on his own, but maybe with some very close relatives, but the fact, the evidence is and I think the finding of the Supreme Court in this matter was that there was some 50 people.  Our evidence is to the effect that there were approximately 30 or 31 people involved in the attack, but that is such a broad number of ANC supporters participated in this, seems to me to indicate that it went far beyond the bounds of a personal family revenge.

ADV POTGIETER: Thank you.

SISI KHAMPEPE: Mr Wills, I concede that this attack was definitely not indiscriminate, but what extent should weight be attached with regard to the manner in which some of the victims were killed like Mr Gillie and Mr Becker Poswa?

MR WILLS: I have to concede, Madam Committee Member, that those were, certainly, atrocious murders.  I cannot, in any way, attempt to justify the extent of the brutality of those murders.  I, all I can say is that their, this was a full scale fight that goes on, that went on, that there were a number of people who participated in the actual killings itself and, clearly, in respect of the first applicant, there can be no finding, with respect, against him for that type of activity, in that he is, clearly, was just armed with a firearm.  He simply shot one person on that particular day.
	As regards the second applicant, it is clear, also,  from the evidence of the ...

SISI KHAMPEPE: Mr Mbanjwa.

MR WILLS: ... that there were more than one person.  In fact, she said there were four people who participated in the assaults and killing of Mr Gillie.  Clearly, it would take more to find out exactly what the second accused did, but I do not think, it seems clear that those injuries cannot be attributed to him only.  I also submit that if one looks at the post mortems as a whole, the persons who received the worst fates were Becker Poswa who as, you rightly indicated, was decapitated and received multiple injuries and Gillie, with respect, he seems to have also met a similarly horrific fate and that does also relate to the fact that, well, the evidence that it was these two individuals who were seen by the ANC community as being the most active in the oppression of their members.  So, I must submit that it must be related to the intensity of anger against those.

JUDGE WILSON: Can you not also rely on this, that these injuries are, in fact, almost typical of what is found in cases of, so called, mob violence, which evidence has been given innumerable times as the effect on otherwise decent people when they get involved with a group that is committing, what can be called, a mob attack, that this is typical of what happens, they all go on.

MR WILLS: Yes, thank you, Mr Chairperson.  The whole theory on and accepted theory in the courts of deindividuation, I think, is typical of this type of attack.
ADVOCATE MPSHE ADDRESSES COMMITTEE ON MERITS OF CASE

MOKOTEDI MPSHE: Thank you Mr Chairman, members of the committee.  Mr Chairman and members, I have nothing to gainsay what my learned friend has said and I want to believe, as part of my duties, it is to put before the committee any material or information either for or against the application and, in doing that, I want to refer the committee, once more, to the transcript, the record, page 32, that was referred to by my learned friend, particularly line four to five which I shall quote for convenience where the Judge said,
"In considering ...

JUDGE WILSON: The judgement, not the record.

MOKOTEDI MPSHE: The judgement, the judgement on sentence, thank you.
"In considering a proper sentence I have fully, I have been fully conscious of these political pressures on the accused.".
Quotation closed, but having said that, Mr Chairman, members of the committee, I would like just to request the committee, when considering its decision and what I am going to say has been alluded to by the committee member, Ms Khampepe, that one of the criterias that are laid down in the enabling Act should be taken into consideration, particularly under Section 20, sub-section three, the criteria number F, I need not belabour what is said therein and much has been said about that by both my learned friend and Ms Khampepe.  Thank you.

INTERPRETER: The speaker's mike is off.

JUDGE WILSON: We will now adjourn till nine o' clock tomorrow morning.  We will not be proceeding with this matter tomorrow.  We will take time to consider our decision and then it will be notified or publicised in due course.
COMMITTEE ADJOURNS