Amnesty Hearings — Johannesburg — 1999-04-13

ANDRIES MOLAOA: The first one is Johannes Molaoa and he was born in 1982.  The second one is Tahaki Molaoa, born in 1986.  The third one is Refilwe Molaoa.

CHAIRPERSON: Yes?

ANDRIES MOLAOA: I cannot recall when exactly was she born.

UNKNOWN: ...(inaudible)

ANDRIES MOLAOA: Refilwe was born in 1991, and Rethabile, the last born, was born in 1992.

CHAIRPERSON: Is she also a female, that child?

ANDRIES MOLAOA: Yes, Sir.

CHAIRPERSON: And Tahaki?

ANDRIES MOLAOA: He's a male.

CHAIRPERSON: Tahaki is a male.

ANDRIES MOLAOA: Yes.

CHAIRPERSON: Yes, thank you, you are excused.
WITNESS EXCUSED

CHAIRPERSON: Any other witnesses, Ms Thabete?

UNKNOWN: No other witnesses, Mr Chairman.

CHAIRPERSON: Mr Miller, have you got any submissions to make?

UNKNOWN: Yes, Chairperson, I would ask that the Committee grant amnesty to the applicant in this case.
	Chairperson, it's my submission that the offence committed was committed with a political motive.  The political motive was protection of the inhabitants of the squatter camp ...(intervention)

CHAIRPERSON: How do you deal with your client's own evidence that it was an accident?

MR MILLER: His evidence, Chairperson, is that that day he intended to rob, that he went to this car because he saw it was a police car and he wanted to rob the policeman of his firearm.  He did not intend to kill him.  He admits that that is what happened.  And if the question is whether he is guilty of murder or not, certainly he is ...(intervention)

CHAIRPERSON: Murder?

MR MILLER: On his own evidence - what he is saying, perhaps no, he didn't mean accident in the sense of negligence, what he meant was that it was something which was unplanned.  It's like a bank robbery, where the robber may go into the bank and want to steal the money, they don't plan to shoot anyone, but it happens.  It's exactly the same position.

CHAIRPERSON: Carry on.

MR MILLER: And Chairperson, that the - I said the political motive was to protect the inhabitants of the squatter camp against the rival political attacks by another organisation, namely the IFP.  The police were regarded as legitimate targets, and there is no disputing the fact that the deceased was a policeman and that the vehicle was in fact ...(intervention)

CHAIRPERSON: But surely you're not submitting that he killed the policeman because he was a policeman?

MR MILLER: Well ...(intervention)

CHAIRPERSON: He killed him because he thought the policeman was going to shoot him.

MR MILLER: Yes, that ...(intervention)

CHAIRPERSON: And that brings me to the other issue, why did he kill him?

MR MILLER: He killed him, on the applicant's evidence, because he believed he was going to, he believed the deceased was going to kill him.

CHAIRPERSON: Ja, so, if you look at the Act, of what political enhancement was that, with what intention, political intention, was the policeman then shot?

MR MILLER: The political intention was to gain possession of a firearm in order to protect the inhabitants of the squatter camp.

CHAIRPERSON: But didn't he say that he shot him because he thought he was in danger?  That's what he's got in the affidavit.

MR MILLER: Yes, but that would not be a defence in a murder trial.  I mean it's the same as - let's take another example, let's say that a high-jacker approached someone while they stopped at a robot and he pulls out a firearm and he says: "Give me your car", and the driver of the car then says: "No, I'm not" and the driver then pulls out a firearm himself, and the hijacker because he thinks the driver is going to shoot him, shoots the driver.  Now that can't be construed as any form of self-defence.  And that's exactly the same as what happened here.

CHAIRPERSON: No, you missed a point.  The Act says that any offence for which amnesty is applied for, must have been committed for the purposes of enhancing the political position of an organisation or a movement of some sort.

MR MILLER: Well the movement or organisation ...(intervention)

CHAIRPERSON: Now here we have the following facts, that the applicant didn't go out to shoot a policeman.  He says
"I shot the policeman because I thought he was going to produce a firearm and shoot at me."
Surely that can't be construed as shooting with the intention of enhancing a political position?

MR MILLER: Well the shooting occurred in a course of an attempted robbery of a firearm and that act, the robbery of the firearm, would have enhanced the political position of the inhabitants of the squatter camp, who were ANC members, and the Self Defence Units, and it was done at least with the blessing of the Self Defence Units in that particular camp.

CHAIRPERSON: That's pushing it, isn't it?

MR MILLER: Not at ...(intervention)

CHAIRPERSON: That's really extending the interpretation of the Act, that a fortuitous murder can fall under the umbrella of a political crime.  What was his intention?

MR MILLER: His intention was to get a firearm.

CHAIRPERSON: His intention was to save himself, isn't it, from what he thought was a danger?

MR MILLER: Yes, but after he tried to get the firearm and things started to go wrong, he realised that, well then he decided to shoot the deceased.

CHAIRPERSON: Well why didn't he look for the firearm then?  If the shooting was to facilitate this politically motivated crime of robbing in order to obtain a firearm.

MR MILLER: Well he said that people arrived at the scene, including some security guards who were armed.

CHAIRPERSON: Well he saw the security guards before, he knew they were there, he just didn't go there.  They had two of them.

MR MILLER: No, I think what he's saying, Chairperson, is that he realised that the security guards, it was only at that stage that he realised that the security guards were paying any attention to what was going on, before that they'd just been, apparently, idly standing by, doing nothing.

CHAIRPERSON: Proceed.

MR MILLER: And as I say, it was committed in the, the murder was committed in the course of a robbery, that it would have, that the robbery, had it succeeded, would have enhanced the position of a political organisation, namely the ANC and the Self Defence Unit within that squatter camp, and that that would have been his political motive.
	It's my submission therefore, that there is a political motive and that the Committee should therefore grant him amnesty.

CHAIRPERSON: Well deal with this one too, Mr Miller.  He says in his affidavit that he's applying for amnesty in respect of counts 1, 2, 4 and 5 of the indictment.

MR MILLER: Yes.

CHAIRPERSON: And it seems that those are the offences for which he was convicted.  The one is the murder that we've just discussed.

MR MILLER: Yes.

CHAIRPERSON: The robbery is in respect of car keys.  He himself says that that is not what he's applying for.

MR MILLER: Yes

CHAIRPERSON: And of course the other two is  ...(intervention)

MR MILLER: Possession and ...(intervention)

CHAIRPERSON: Possession under the Firearms Act.

MR MILLER: Yes.

CHAIRPERSON: I've got no problem with that yet.

MR MILLER: Yes.

CHAIRPERSON: But what about the robbery?

MR MILLER: Well I didn't address you, Chairperson, on the robbery, for the reason that you've just mentioned that my client himself said ...(intervention)

CHAIRPERSON: Okay, I understand your position then.  Let's leave that then.  Should we find that the murder or that whole escapade was an activity not associated with any political motive, would the counts in respect of the offences related to the firearms, would the applicant then succeed on that application?