Amnesty Hearings — Boksburg — 1999-02-25

MR CLAASSEN: (Cont)
	Just resuming at the question being put about the common purpose of the perpetrators, and having a quick look they were indeed convicted on the basis of a common purpose, but, and one can't get past the fact that the amnesty as such is also linked to their conviction on these mentioned crimes.  
	It would be my submission though that looking at their behaviour on that specific day, and especially Mr Ndlovu's, the fact that he acted with other people, with people other than the applicants, it was decided by the Supreme Court that that still constituted the common purpose in killing this alleged innocent bystander, which complicates matters for some of the other applicants.  
	But Mr Chair it would be my submission that, all taken into account, with the problems as mentioned by the Committee regarding these initial applications, and the fact that there seems to be a bit of a problem surrounding that, it would be my submission that the evidence given before this Commission should be accepted as truthful.  There were obvious inconsistencies, there were, I think on both sides, but I believe that these applicants are bona fide applicants and that the incident as such was a direct consequence of political instability at the time.  
	And just getting to the question of full disclosure, I believe that they were truthful in what they said before this Commission, they were thoroughly tested by Mr Cachalia on their versions, and surely it is to be expected, where an incident of this huge scale occurred, that they will not corroborate each other word for word and sentence for sentence.  
	But I think as Advocate Sigodi mentioned the crux of the issue comes down to who actually attacked who and who retaliated as such, and it's my submission that on the basis of the applicants it was, it was obvious that the fight was unavoidable, there was going to be a fight.  And what resulted was, I think, to blame on both sides.  The evidence is that several attempts were made to try and resolve this issue.  There were tempers, there were a bit of a preceding history between the two parties, and this, all of this led to what eventually occurred.  
	And Mr Chair if I may just, in conclusion, it is my submission that on their applications, to which they testified, the applicants does qualify, or they do qualify, for amnesty as set down should they be found to have fully disclosed all that happened, and as such being my submission that they did, be granted amnesty. 
If there's anything else that the Commission would like to hear now?

CHAIRPERSON: Thank you, thank you Mr Claassen.  Mr Draht.

MR DRAHT: Chairperson, I would like to deal with the applicants' applications under two headings, namely political objective, and B, full disclosure.
	Political objective firstly.  Mr Dastile during his evidence himself conceded to the following.  That a large armed group of ANC members gathered at the ANC offices.  Secondly, the incident where IFP people shouted derogative slogans and sang ANC unfriendly songs.  The main incident then where two armed large groups of opposing political parties, clashed.  
The applicants who I represent gave the following evidence before this Committee in regard to the political objective. 
	Mr Alfred Ndlovu.  It is clear from his evidence that he associated himself with each and every objective of the IFP group.  He believed that there was war between the two groups, and seeing that both groups were armed, and that, on that day, he decided that he will defend his fellow IFP members.  From the judgment on page 103 of the bundle, it also transpires that Skosana's shebeen is one of the places where the ANC members gathered on that day.  Mr Dastile also gave evidence that the shebeen belonged to an ANC member.  The IFP group ...(intervention)

CHAIRPERSON: No it's Skosana's.  He's referring to page, you say it's page 103?

MR DRAHT: That's correct.

CHAIRPERSON: Moloetsi's or Skosana's, which?

MR DRAHT: Chairperson I'm referring to Skosana's ...(intervention)

CHAIRPERSON: Oh that's at the bottom, very last line?

MR DRAHT: That's right.
CHAIRPERSON
"...The ANC group it is alleged gathered near the soccer field in the vicinity of what we came to call Brown's house and Skosana's shebeen."

MR LAX: Sorry Mr Draht, I agree with the Brown's house story.  But we understood from the evidence before us from some of the applicants, that Skosana's shebeen is further away than that.  But, you know, this is what was said in Court.  I'm just saying what's been said before us.  The two weren't linked in the same way as it appears here.  Certainly in my recollection of evidence testified to so far.  I don't think a great deal turns on it personally, but I'm happy for you to carry on, I just thought ...

MR DRAHT: Thank you Mr Chairperson.  A part of the IFP group then returned to the shebeen.  It's clearly that they wanted to look for ANC members, otherwise they wouldn't have returned.  They saw two people.  The one person was then beaten to death.  It's my submission that it is clear that although Mr Ndlovu only followed this group, he also were under the impression that it is an ANC member.  He didn't testify that in his evidence, that he knew it was an ANC members, but in following, still following that IFP group, it must have been.  Well Mr Ndlovu was found guilty on the ground of common purpose, and the IFP group had a common purpose to kill this person.  Mr Ndlovu associated himself with their objectives.

CHAIRPERSON: No, I think he did a little bit more.  He certainly did, because he also participated actually in the assault on the deceased person, so he was really a co-perpetrator there.  No, more than just a person who associated himself with that particular killing.  Because he was part of the group.  Although he might have, if the first person in that group started attacking somebody else, probably the chap with the briefcase wouldn't have been attacked.  So in a sense he followed the group, but he was certainly a co-perpetrator in the death of that deceased.  On his own admission.

MR DRAHT: Yes, Mr Chairperson, he did took part in the actual assaulting of the person, but it's my submission that that was still while associating himself with that group.

CHAIRPERSON: Yes, he did it as being part of the group.

MR DRAHT: That's right.  In respect of Mr Elias Mbatha.  Mr Elias Mbatha also associated himself with the IFP group and the objective, and he was also found guilty on the basis of common purpose.  It's my submission that the same applies to him.
About Mr Mpongosi, save to what I already mentioned in respect of Mr Ndlovu and Mr Mbatha, in Mr Mpongosi's case I can also add that he was clearly not a pacifist when it came to living out his political ideologies.  There was tension that day and every one of them knew that there is going to be a fight.  It can further also be stated that the individuals couldn't clearly have acted in their own interest.

CHAIRPERSON: Yes I don't think there's any suggestion from any side that there's, that the applicants participated in the attack for person gain or interest, etc.  It was part of a group, I mean, that's quite clear.  They all acted as part of the IFP group.

MR DRAHT: Thank you Chairperson.  The heading full disclosure then.  It is clear that the level of education of the applicants are not very high, that they are not sophisticated people.