Amnesty Hearings — Bloemfontein — 1997-05-14

JUDGE WILSON: That is what they say but surely the question that has to be decided is whether that was in fact their intent or whether their intent was to enrich themselves or that to pay off past debts, and they are merely using this now as an excuse for it, and whether the further complicating factor is whether they were originally carrying out the aims of the PAC in killing a farmer to cause the overthrow of the Apartheid Regime, and they decided to commit some other act in conjunction with it to which, how much weight we should attach to each aspect.

MS THABETHA: Well I'm saying in my opinion, it appears to have been done on behalf of the organisation, because if you remember we called a commander Mr, I think, Khotle in our last hearing who came and gave evidence to the fact that Jan Shoba, who was the commander that the applicants say gave an order, did actually give such an order.

JUDGE WILSON: To kill anonymous farmers?

MS THABETHA: Yes.

JUDGE WILSON: The difficulty as I see it, which I would like to hear argument on from both sides is, they selected a farmer, as my recollection is, with whom at least two of them had close connections and with whom they had a grievance.  Isn't that this case?

MS THABETHA: It is the case but in my opinion I don't know, I think there are two issues. It's the killing of Mr Fourie which appears to have been political and the extent of the items which were stolen, whether that wasn't for their personal gain. I think those are the questions.  I wouldn't like to proceed with my arguments on these factors, I was just outlining as a summary what this matter is about.
	Can I proceed Mr Chair?

ADV DE JAGER: If you're not, are you presenting full argument now or are you outlining something, what your argument would be about? Because if you intend to file written  argument, it's no use of we taking time about outlining now what your argument would be about in the future.

MS THABETHA: Very well then I'll put my argument in writing.

JUDGE WILSON: As I've indicated, I would certainly, speaking for myself, welcome argument from the applicants dealing with this point as to whether even where an act falls within a category of being the type of act that can be done for political purposes, must one consider whether this particular act was done for those or for some other purposes. And the further problem which arises, problem is perhaps the wrong word, is whether this is a matter where they have personally benefited, whether they acted for personal gain, which is very much interlocked with the first point I put that even where it is an act which on the face of it falls within the act for a political purpose, must one not consider the motives of the people who committed the act in question and speaking for myself I think for you, we would welcome argument on that point.  And as I understand it now Counsel wish to reserve the question of argument and I hope that we can perhaps have argument on the factual aspects of the application by the end of this month.  I am acutely aware of the fact that all the major political parties are making further representations to the TRC at the present time and there may well be matters raised in those representations which Counsel would like to have an opportunity to study and they may not be able to do that by the end of this month, so if they wish to file further argument on the legal and political interpretations they are at liberty to do so, but I think if we could get rid of the factual aspects by the end of this month, it would assist all of us while we still have some recollection of them.

ADV MTHEMBU: Thank you Mr Chair, I will do so.
      Mr Chair I don't know it's so important to outline the issue of acting on instructions and the issue of acting beyond the instructions given. Because that might be deal.

JUDGE WILSON: It comes to then the question of whether what they were doing falls within the political or the personal aspect.  You can be given instructions and then you can twist those instructions to suit your own wishes, and you will not then, although you claim to be acting, you will not in fact be acting on instructions, you will be taking advantage of the opportunity given by the instructions.  It all links in with whether if one, how much regard one has to possible personal motives in a matter which otherwise would be political.

ADV DE JAGER: You sent the reminder they've been found guilty on two counts, one of murder and one of robbery with aggravating circumstances, and I would like to thank both counsel for the assistance they have given us during the course of the hearing.

ADV MTHEMBU: Thank you Mr Chair.

MS THABETHA: Mr Chairperson, as far as I know we're proceeding with Menera.

JUDGE WILSON: We have now concluded that matter, we are going to continue the hearing of the application of Nsemeni Jack Menera, applicant No 0015/96 which will be heard by the same committee, Wilson, Ngoepe, de Jager and we will now continue with that hearing.  I should have added before that that we have concluded the evidence in the previous hearing.

MS THABETHA: Excuse me Mr Chair.  There is a letter that I was supposed to read at this hearing in this matter.

JUDGE WILSON: We are reverting to the...(intervention)

MS THABETHA: I'm indebted to the Committee for this...(intervention)

JUDGE WILSON: ...Nkgwedi matter which I said we have just finished for the recording of a letter which has been received by the evidence leader.