Amnesty Hearings — Johannesburg — 1998-10-12

UNKNOWN: Thank you, Mr Chairperson.
	The applicant seeks amnesty for a number of incidents which are detailed in his affidavit which was deposed to on the 21st of September '98, and those are:
1)	The murder of Alfred Myante during September 1991.
2)	The attempted murder of Robert Mabaso during September 1991.
3)	The murder of Busumgani Shandu on the 12th of June 1992.
4)	The attempted murder of Solomon Ngcobo on the 12th of June 1992.
5)	Then for the unlawful possession of an AK47 during that period and the unlawful possession of a 9mm pistol during the same period.
	The Act requires that for an applicant to be granted amnesty he must comply with the requirements of the Act, those are the he submit an application form on the prescribed form within the period so allowed.  The application form is before you and was submitted on the 10th of May which at that stage was the final date for submission.  It was the 10th of May 1997 that that was submitted to yourselves.
	It then requires that the act or omission for which the application relates must be an act associated with a political objective.  This is more clearly stipulated in Section 20(2) and (3) of the Act.  I would respectfully submit that insofar as Section 20(2) is concerned, the applicant complies either with Section 20(2)(a) or (2)(g).  (2)(a) is that he was a member or a supporter of a publicly known political organisation or liberation movement.  Alternately that he was a person who associated with any act or omission committed by any of the person set out in (2)(a) to (2)(f).  
	You will recall the testimony of Graham Simpson who testified that the lines between members of the ANC and members of the Food and Allied Workers Union or unions affiliated to COSATU, that the lines of command between those two organisations were blurred and that one was dealing not so much with industrial conflict as with political conflict.  In fact Mr Kondile's evidence, in his evidence he spoke interchangeably about his membership of the ANC and membership and his rank as a shop steward at FAWU.  He spoke about those things interchangeably.
	If one has reference then to Section 20(3) one needs to look firstly at the motive involved and there has been evidence both from the applicant and Mr Simpson, confirmed by Mr Mabaso, as to the political conflict at the time.  There is contained in an affidavit by Mr Barry a list of some 10 or 11 killings of FAWU members at the time.  
	Mr Kondile testified that whatever - his involvement at that time was to protect the ANC, was to protect and was to protect his fellow employees at Langeberg Foods.  
	The context I've already alluded to and that's been testified to both by Mr Kondile and Mr Simpson and that is the context of spiralling political violence on a factory floor in the East Rand as a precursor and a run-up to the 1994 elections.
	The legal and factual nature of the act.  Insofar as Myante is concerned, it was a killing with an AK47.  Unfortunately I understand that the docket of that criminal investigation are no longer available.  But Mr Kondile has testified as to how the act was carried out and with whom he was accompanied at the time.  
	The details of Shandu and Ngcobo, he has again testified to.  There is additional information contained in the transcript of his criminal trial and you have before you the judgment when he was convicted as well as the judgment in respect of his sentence.
	In this particular application the provisions of (3)(a) and (3)(d) are, I would submit, fairly similar, that these were acts essentially of self-protection.  They were acts to protect the ANC and to protect FAWU in a battle with the IFP for political supremacy in the area at the time.
	Insofar as Section 20(3)(e) is concerned, which deals with the execution of an order or the approval of an organisation, Mr Kondile has testified to a joint decision taken by the shop stewards.  Now that evidence is not confirmed by the only shop steward who testified here and that is Mr Mabaso.  Mr Mabaso is in an invidious position I would submit.  He has been implicated in a murder, it's the first time that evidence of this murder has emerged in the public domain.  He has not submitted an application for amnesty.  He says that he's not submitted such an application because he was not involved but nonetheless the only reason he can give for his implication is the alleged bitterness of Mr Kondile, that he did not receive a visit.  So I would submit that the evidence of Kondile in this regard must be accepted and must be preferred.
	And then finally you're called upon to look at the relationship between the act, omission, offence and the political objective pursued, with particular regard to proportionality.  The facts of the matter are that we have some 10 or 11 deaths of FAWU members.  Against that we have the death of Mr Myante, the attempted murder of Mr Mabaso such at it was, he wasn't even present at the time.  You have the incident which gave rise to an ongoing fight using fists and steel pipes and suchlike objects on the morning on which Mr Shandu and Mr Ngcobo were attacked.  I would submit to that the acts are not out of proportion to the circumstances at the time.
	There is no evidence before this Committee that Kondile gained personally by his participation in these acts, in fact he's serving a 12 year term of imprisonment.  
	Insofar as personal malice is concerned, personal malice, ill-will or spite, he was asked by Mr Steenkamp to comment on the finding of the learned Judge who convicted and sentenced him and he said all of this happened in a context, there was nothing personal about this.  So I would submit that there is no evidence insofar as that is concerned.
	The final criterion is that he must make full disclosure.  He had come here as a sentenced prisoner in respect of two of the acts for which he seeks amnesty.  He has been open with this Committee and has said effectively: 
"I lied at my criminal trial, I pleaded self-defence.  These now today, I tell you the true facts."
	Insofar as the other acts are concerned, there was no reason, no compulsion whatsoever for Mr Kondile to disclose those.  As far as we have been able to ascertain the facts of the murder, the attempted murder, the unlawful possession, those facts are not in the public domain.  It is not as if he awaits a criminal trial if he is not granted amnesty here.  There is no reason whatsoever for him to have disclosed those.  I would submit he has disclosed them because the Act requires him to make full disclosure and that is precisely what he has done.
	Those, Mr Chairperson, are my submissions.  If there are any other aspects on which you would like me to address, then I'm willing and happy to do so.

CHAIRPERSON: Thank you.  Mr van den Berg, just one issue.  The attempted murder of Robert Mabaso, what are
the circumstances of that particular one, was there in fact an attempted murder on Robert Mabaso or what is your submission in that regard?

MR VAN DEN BERG: Mr Chairperson, my submission would be that whilst an act of murder was planned and whilst they set off to execute it, Mabaso was not found, a warning was left by the firing of shots in the proximity of his home.  I would submit, Mr Chairperson, that at worst to the, or at best to the applicant we are dealing with conspiracy.  I don't believe that insofar as they took the ...(indistinct) that it fulfils the definitional requirements of murder or an attempt.  They certainly conspired to murder him.  I don't know that they took it any further than that.

CHAIRPERSON: So what is the offence for which you are seeking or the applicant is seeking amnesty for in respect of this incident where Mr Robert Mabaso is concerned?