Amnesty Hearings — East London — 1999-04-30

MR KINCAID: Page 41, sorry Mr Chairman.  He is also seeking amnesty for the attempted murder of Mr Pretorius and housebreaking with intent to or to commit a crime unknown to the State of Mr Senti's home, damage to Mr Senti's window and damage to Mr Pretorius' property.  On those counts none of these convictions suggest that the motive was to rob the victims or in any way act in a way to their economic prejudice.  All these convictions are consistent with a prior plan to intimidate a farmer, to forcefully oblige him to vacate his farm.  Mr Cobus and Mr Pretorius, neither of them surrendered any firearms, none were obtained, but there's nothing to gainsay the motive.  The cutting of the telephone wires were necessary, a part of the attack on Mr Cobus as was the housebreaking, all those convictions are consistent with the motive to intimidate and to rob.  In respect of count 11 however, which is the attack on Mrs Clackers I have made a concession already and I won't be addressing that conviction but in my respectful submission this applicant made a full disclosure, true disclosure of his involvement and the attack on Mr Cobus and on Mr Pretorius.  He wasn't charged with assaulting Mr Pretorius, but on his own evidence he set about striking Mr Pretorius after he had fallen to the ground, that evidence wasn't led at trial, he didn't face the jeopardy of that charge.  So that's indicative in my respectful submission of his bona fides.

CHAIRPERSON: I'm sorry to interrupt you, Mr Kincaid, were all of these applicants charged or is there one who hasn't been charged?

MR KINCAID: All these applicants were charged and convicted in the supreme court Mr Chairman, in respect of when you say charged?

CHAIRPERSON: Yes and tried and convicted.  They were all tried?

MR KINCAID: They were all tried, yes.  So in my respectful submission Mr Chairman, Melvin Nokawusana meets the criteria set out in the Act.  If you disregard his evidence in respect of the Clacker's incident and you found that he was party to robbery, common robbery there then he doesn't qualify for amnesty in respect of that count but just because he is found to be untruthful in respect of that count, in my respectful submission doesn't compellingly determine that he has to be found to be untruthful in respect of the other disclosures.  	Bonakele Bhayi is the next applicant and he was the last applicant who testified.  He was found guilty of the attack on Mr Hansel, on the attack on Mr Cobus and of Mr Pretorius.  He wasn't involved in any crime which contained elements of the robbery of common household goods and he wasn't involved with the Clackers' incident, there's nothing to suggest that his motive in attacking Mr Hansel, his motive in attacking Mr Cobus and Mr Pretorius, was a motive other than of violently intimidating these farmers and attempting to rob them of firearms.  In my respectful submission he has made a full disclosure and is entitled to amnesty.
	His brother, Rhandile Bhayi, was convicted of exactly the same offences as his brother, Bonakele, and my submissions in respect of him are similar.  Rhandile Bhayi in his evidence told of another incident for which amnesty was not sought namely the burning of a garage of Mr Madameni or a farmer known as Madameni and in my respectful submission he was quite candid and open in his disclosure.  He testified to striking Mr Hansel three blows on the back with a hammer.  He wasn't charged with that, it was a disclosure he made. 
	With respect to Nunu Umsianda, he was party to all of the incidents.  He was also the gunman by the appearance of things and was found guilty of possession of firearms and ammunition without licences.  The incident at Mrs Maria's home as we have conceded involved the additional element of common robbery as opposed to shall we call it political robbery.  Nunu Umsianda testified that he was arrested shortly after the incident in the forest by the police.  Nothing was found in his possession.  The firearm that he had he had dumped.  His conviction of the common robbery element would have been on the basis of common purpose.  All the applicants testified that the group which attacked these farmers was a large one, that it at any rate was comprised of more people than just seven of them who stood trial.  There was no evidence to link Umsianda Nunu with the robbery of any common household article.

CHAIRPERSON: Is that conduct susceptible to amnesty?  The common law robbery?

MR KINCAID: No, Mr Chairman, I acknowledge the difficulty in establishing a political objective to a crime which nothing more than common law robbery and that is the difficulty I have with the Clacker's incident but the applicant's case is that they went along but they weren't alone, they weren't the - the group didn't just comprise them, the group was always larger and people did go over and above the terms of their mandate and those who took household articles certainly were doing just that.  The applicant's case is that they themselves didn't do that.  Now that will be a question of credibility whether you believe him or not but what corroborates his evidence in my respectful submission is the fact that he was arrested shortly after this event on his return home after the commission of Mrs Marulia's crime and nothing was recovered in his possession.

ADV SANDI: Sorry Mr Kincaid, just to clarify?  The common purpose, can you separate that from what may appear to be a clearly politically motivated conduct on his part, can you separate the two in that particular context you're dealing with in respect of this applicant?  You say nothing was found in his possession?