Amnesty Hearings — East London — 1999-11-03

MR MGXAJI: With regard to the application by Mr Guleni, relating to the murder of Mr Mapipa, ,from his testimony proffered, we do ascertain, he so also admits, that at the time Mr Mapipa was murdered, he had never been involved in any endeavours, interfering with the election campaign of the ANC.  He was never involved in any of the alleged political clashes in Port St Johns, specifically the time that he was so shot at and murdered, he was not engaged in any activities attacking the applicant and therefore there could not have been any political reason why the applicant would hold Mr Mapipa a political target.   That at least we are so sure of from the testimony of the applicant.  What could be arguable though itself, I will show it to be baseless, is that the unit alleged by Mzwandile Jagu, to be in Mr Mapipa's motor vehicle was a Third Force Unit or APLA, either way, that also does not ground a reason for the murder of Mr Mapipa and therefore there could not have been any political objectives sought to be achieved in taking the life of Mr Mapipa.   As contended by the victims through me, even those who were with Mr Mapipa, were not APLA members.  That they were not, could not also be refuted by the applicant.  His Lordship seems to argue that at the time the act was committed, the applicant bona fide believed that what he was shooting at, put aside the question of Mr Mapipa, was APLA, but His Lordship would agree with me that determining or ascertaining one's bona fide beliefs, such determination is arrived at objectively.  In other words, objective facts should exist upon which that genuine or bona fide belief is based.   There being no objectively ascertainable facts upon which the applicant could have genuinely believed that the boys who were with Mr Mapipa, were APLA members or Third Force Unit as having been reported to him by Mzwandile.  That not being the case, his state of mind at the time that the offence was committed, cannot be said it shows a genuine belief on his part.  Even if one focuses on the alleged Third Force Unit or APLA men who were attendants or guards to Mr Mapipa, for whatever reason that could possibly have been, but the fact of the matter is that on mere report by Mzwandile that Mapipa' van with a Third Force Unit or APLA Unit, they jumped into the van and attacked.  Unless the applicant did ascertain the identity and the capacities of those who were in the motor vehicle with Mr Mapipa, he have never done so, it just cannot by any stretch of imagination, be argued, from whatever angle, that he had risen to believe that those were APLA members, not particularly a trained member of a military wing of a liberation organisation, and my submission conclusively is that the murder of Mr Mapipa as an individual, there was no political reason, no motive on the part of the applicant.  In the same way as it is an afterthought, just a concocted story that those who were at Mr Mapipa's motor vehicle, were a Third Force Unit.  We do have in the Bundle of documents, a statement by Mzwandile Jagu.  Even though that statement relates to the five fellows that were picked up on the road and murdered, that statement as to who Mzwandile is, tells this Committee that certainly the allegation by the applicant that he was a man from whom commands could emanate, are merely a (indistinct) on the part of the applicant, to portray a situation wherein commands and instructions were given to him.   In the same way as there was no reason for applicant to believe as he seeks this Committee to believe, there was no reason at the time Mzwandile was reporting to him about this Unit, there was no reason for him having a trained mind, in a military action or (indistinct) situation, there was no reason for him not to assess and seek to ascertain the veracity of the statements by Mzwandile and the conclusion one is led to arrive at, is that it is a mere fabrication that Mzwandile make that report.   If one looks at the statement, on page 89, that would be paragraph 2.  I do understand His Lordship, that he has indicated that he did not read through the statement, but if His Lordship would, he would read that what Mzwandile says is that
"...  my bakkie was washed the blood in the garage, and the time by then, was about ten.  I left them in town after a strong warning that if I can ever reveal or if I can reveal all this thing, my property, myself and my wife, would be destroyed.  Even if I can go to hide myself, they will hunt me."
	My Lord, there is no reason why this Committee would doubt that extract or portion of the statement by Mzwandile, and this Mzwandile is the very same Mzwandile whose bakkie was used when Mr Mapipa was murdered, and my submission therefore is indeed, there was no political objective sought to be fulfilled by the applicant.  In so far as the question of the second leg, being that of full disclosure ...

CHAIRPERSON: Well, if we accept that there was no political motive, it would have to be on the basis that Mzwandile was not the leader he is made out to be, and therefore there would not be full disclosure?

MR MGXAJI: That assertion is also applicable My Lord.

CHAIRPERSON: I am saying, that is how I understand your argument?

MR MGXAJI: Certainly this Mzwandile is the very one who has proffered in that statement, who he is, how he is related to the applicant and on the basis of what comes out of that statement, in relation to what the witness has proffered before this Committee, certainly no full disclosure is made.

CHAIRPERSON: And therefore the application in respect ...

MR MGXAJI: Should not succeed.

CHAIRPERSON: Well, it fails on both counts?

MR MGXAJI: That would be my submission that it should fail on both counts.   My Lord, I would - one does know that there could be various interpretations of what is meant by a political objective, but one does know the South African political scenario, the forces of change and the forces against change and therefore one does know a political objective would be the one that seeks to advance the interest of change, and the political parties involved in that scheme of arrangements, are also known.  The political leadership and the organisation, both in the ANC, the PAC and AZAPO, (indistinct) may name them, all in the left, certainly they decry any political acts by anyone of their members directed to a member of another political organisation in the order that you shall find in the left of the centre in the South African political scheme of things and my submission therefore is even if we take Mr Mapipa as having been a Robben Islander, a member of the PAC, taking his life does not fit in in the political objectives any individual involved in the political struggle may seek to achieve.  Eliminating Mapipa would not advance any political interest in effecting change in this country.  It is something that is decried by all these political organisations I have enumerated and my submission  therefore is indeed, there could not have been any political basis, motive, nor reason why Mr Mapipa was murdered cold-bloodedly in the manner in which he was and therefore the application should be turned down.  That is all Mr Chairperson.

CHAIRPERSON: Thank you.

PROSECUTOR: Mr Mgxaji, will you also like Mr Malusi, do us the favour to furnish Mr Mapoma with the full names of the deceased, Mr Mapipa, his address, his next-of-kin and all of the people who were attacked in his vehicle?

MR MGXAJI: Certainly I will do so, My lord.

PROSECUTOR: Thank you, thank you very much.

CHAIRPERSON: Mr Mapoma, have you got any submissions?  I doubt there is any left?