Amnesty Hearings — Johannesburg — 1998-09-16

MR MBANDAZAYO: Thank you, Mr Chairman.  As Mr Lax put it, definitely he was not an employee of any State, but he was a member of the political organisation and definitely, Mr Chairman, it's still my submission that at the time he acted he bona fide believed that he was acting within the organisation's ambit, and in furtherance of the aims of the organisation.
	And if one widens and interpret further the aims of the organisation, how would you further the aims of the organisation, by attacking another member of the political organisation.  Definitely, Mr Chairman, if we take it in the context, is that if I'm attack and I cannot further the aims of my organisation, it means I'm no longer doing my duty, so I have to remove the stumbling block in furthering the aims of my organisation.  
	And it was in that context that the applicant acted, because he reasonably believed that the political objectives of the PAC were being hampered by the ANC, if I may put it in general, in that area and these people were the main culprits and they have to be removed.  Thank you, Mr Chairman.

CHAIRPERSON: Thank you, Mr Mbandazayo.  Mr Mapoma, it's 1 o'clock, how long do you think you're going to be?

MR MAPOMA: I won't be long, Chairperson.  I can be five minutes.

CHAIRPERSON: (Inaudible)

UNKNOWN: Thank you, sir.  Mr Chairman, I will not be arguing in opposition to the application as such, more so, Chairperson, when I do not even have specific instructions towards that direction.  But, Chairperson, what I would like to do is to raise what I would call some concerns in the application itself.  I will leave it to the Committee, Chairperson, to make his findings.
	Mr Chair, I would just want to raise that, Chairperson, it may well be that the applicant was a member of the PAC, and that being the case, Chairperson, one need to be wary of a situation where a person does an act for personal revenge or personal vendetta behind the cloak of politics.  This is a trite case for that possibility, Chairperson.
	The thrust of the applicant's application seems to be that there was a political conflict between the ANC and the PAC in the area of Bethal, but the court says the opposite, and in fact it transpires that in court the defence witness gave evidence to that effect that there was no political conflict between the ANC and PAC during those days at that particular area.  It's therefore, Chairperson, as it stands, invites the applicant to do what is reasonable by way of putting evidence before this Committee further to show that there was a conflict.  What I'm saying, Chairperson, is what is contained in the court proceedings and the word of the applicant seem to contradict and that should have been some pointing fingers to the applicant that these are going to be areas of contention.  
	So, I submit, Chair, that in that particular area the applicant should have done more to satisfy the Committee, that there was that conflict, because it is claimed that this killing was as a result of that conflict.

CHAIRPERSON: But, Mr Mapoma, on what basis are we to reject his testimony before us in the absence of any other counter evidence, as Mr Mbandazayo had submitted?  The criminal trial, when it came to the question of sentence or mitigation, had obviously been conducted on the basis of revenge.  The State had sort of relied, it's quite clear on the question of revenge, in a situation where the accused was raising an alibi.  He knows nothing about this incident, he was at the school attending a concert.
	So, under those circumstances, there was never really any list, any point of dispute on the underlying motivation for the incident between the defence and the prosecution.  And it's not uncommon to have that sort of all or nothing situation where, if you raise an alibi you waive the right to rely on clear mitigatory factors subsequent to a conviction.  You normally on an alibi, you normally go for all or nothing.  You're convicted and that's the end of the road really in sense for you.  	So, under those circumstances, I mean what sort of real weight can we attach to what happened in the trial, and to what extent can we criticise the applicant for not having raised the question at that stage, because I think in the judgment on sentence, the court says, "The accused still denies that the attack was based on revenge".  So, it's obviously clear that it was one of those cases that was conducted on the basis of all or nothing, if you go down on the trial you might try your luck on an appeal, but your hands are tied on mitigation.  So isn't that the sort of situation that we have and how do we deal with that?

MR MAPOMA: Mr Chairman, I agree that that situation as the Chairperson has correctly put it.  But, Chairperson, what makes me uneasy is, as it is now, the Committee is called upon to take judicial notice that there was a conflict between the PAC and the ANC in Bethal at the time as things are now.  That is the only concern that I've got in that particular point, Chairperson.

CHAIRPERSON: No, I follow your argument.  You say that it may well be that the applicant is in fact a PAC member?

MR MAPOMA: Yes, Chairperson.

CHAIRPERSON: And the deceased, is there any common cause on the political affiliation of the deceased?

MR MAPOMA: Well, there doesn't seem to be a common cause, except for that the applicant has testified that the deceased was the member of the ANC.

MR LAX: Sorry, Mr Mapoma.  In the judgment it seems quite clear from the evidence presented at the trial that he was an ANC person.

MR MAPOMA: Oh yes, I agree.  I agree, sir.  That is also transpiring in the judgment.  One other area of concern, Mr Chair, is the fact that if it is a situation where there was a conflict between these two political organisations, hence a retaliation by the applicant, hence the murder of the deceased, why the deceased only?  Why the deceased only, Chairperson, particularly against the background that the deceased is the person who was to blame for the murder of the applicant's family?  And it may be recalled, if it would be recalled, Chairperson, that the applicant has laid a background to the effect that there was a conflict and there was a plan to retaliate to the extent that a day before a unit went in search of the ANC so-called gangsters, I mean the ring leaders so to speak.  That was on the 15th.  There was a day in between, there seems to be nothing that was happening.
	Now come day number three, the applicant alone meets the two ring leaders with the ANC and kills the deceased only and not the other one.  And it doesn't seem that there's any evidence to the effect that the unit carried out the retaliation further after this incident.  Chairperson, you will remember this particular question was put to the applicant as to whether after the ... (intervention)

CHAIRPERSON: Sorry, Mr Mapoma.  Can I just ask the member of the press, please when we're in session would you just hold on on that please.  It does interrupt us, okay.  I'm quite sure you'll have a lot of opportunities to do that.  Carry on, Mr Mapoma.

MR MAPOMA: Thank you, sir.  I'm just thinking where I were.

CHAIRPERSON: Sorry.  You are dealing with the fact that the applicant was on his own a day or two before they were moving as a unit and on this incident he was on his own.

MR MAPOMA: Thank you.  Thank you, sir.  I was just saying, Chairperson, it was even put a question to the applicant as to whether after this particular incident there were further attacks from their part, and there seems to be none.  And one wonders why, because the conflict should have carried on.  As I say, Chairperson, it's just a point of concern.  Unfortunately there's no evidence to counter that from the part of the victims, but that is that kind of situation that is raising some concerns.