Amnesty Hearings — Umtata — 2000-03-28

MR MAPOMA: Yes I appreciate it, thank you Chairperson.  Chairperson, I will not be addressing the Honourable Committee on the acts of torture, unlawful detention
and arrest of those persons who were political activists in Transkei then but Chairperson, I would like to draw the attention of the Honourable Committee to the events that took place in the Jafta family's homestead, in particular, Chairperson, the act of destruction of the house and the shop of the Jaftas.
	It is my submission, Chairperson, that the applicant does not qualify for amnesty in respect of those acts if at all he applies for amnesty in respect therefore.  I have not heard submissions being made in respect of that particular activity.  I am saying this, Chairperson, because the political objective which was intended to be achieved by going to the Jafta's homestead was to apprehend persons who were perceived or who were referred to as terrorists and upon arrival there the incident took place.  The applicant was asked more than one time as to who exactly was responsible for the burning down of the house and the shop.  He said that it was TDF and anti-riot unit and the security branch from East London.  He did not refer to the security branch from Transkei at all and then he boldly says that "I was part of that operation."  	
	Chairperson, it is my submission that that is not sufficient for him to be claiming responsibility for that or to be found liable for that and under cross-examination, Chairperson, he was even asked why was the house burned down and the shop.  He said in response that he does not know because the terrorists whom they were looking for were in the forest at that time.  He went on, Chairperson, to say that the house was burned down after Boy Jafta was already apprehended.  That is his evidence.  Given those circumstances, Chairperson, it is my respectful submission that no explanation could be given at this point as to why exactly that property was destroyed and I submit, Chairperson, with respect that the act of destruction of those properties was completely disproportionate to the intended objective.

CHAIRPERSON: Well, what was the objective because we've heard that there was looting?

MR MAPOMA: Oh yes, Chairperson.  Looting itself as well, it forms in the same category as the destruction.  There was no political objective intended by looting itself, it is a situation which was out of hand, it is a situation which no political account could be given at this point and in the circumstances, Chairperson, in short I submit that even if applicant may be found to qualify for amnesty, but with respect, should the act of destruction of those properties and looting itself, he does not qualify for amnesty.  Thank you Chairperson.

CHAIRPERSON: Mr Dukada, your reply?

MR DUKADA IN REPLY: Thank you Chairperson.
	Firstly, I just want to deal with the very point that the last speaker raised.  The whole incident about the bombing of the Jafta family has been narrated before this Committee by Capt Siqhola and nobody else.  At the time he was occupying the rank of a constable.  Now what the submission which I've just heard now, ignores the fact that at the time one Captain Siqhola was a constable and with no discretion to exercise or power to stop anybody who was doing that.

CHAIRPERSON: I think what Mr Mapoma was getting at and he can correct me if I'm wrong, is that even if we had before us here an applicant who said that I hurled a fire bomb or shot the grenade or whatever it was and took place in destruction of that property, such a person wouldn't qualify for amnesty because at that stage there was absolutely - this is a submission and you can respond to it - there was absolutely no need to destroy the property, certainly no political objective could be obtained by destroying it, that it was just a malicious - it was in a sense an act of hooliganism.  It was accompanied by looting and that therefore - and he just relates it to the actual destruction of the property, these submissions, he doesn't relate it to the going to Willowvale and the apprehension of Mr Jafta or the questioning of him but just to the actual destruction.  He says that it's disproportionate to - well, I think his argument has got two problems.  It's disproportionate to any political objective there may have been but it's also you're saying that there couldn't have been any political objective, it was just wanton destruction.  So then could anybody be granted amnesty in respect of that burning of the house let alone, I mean, even he'd been a constable sitting on the other side of the forest not knowing why it was burnt.

MR DUKADA: Yes.

CHAIRPERSON: You know, maybe if amnesty were to be granted it would be for the role played by the applicant during the incident that took place at Willowvale on such and such a date, the role played by him sort of thing but not in regard to the actual burning.  I don't know what your views are?

MR DUKADA: Yes, thank you Mr Chairperson.  Mr Chairperson, I must state from the beginning that the applicant himself has conceded that there was no need to destroy the house of the Jafta family and that is also my statement.  But now the problem - sorry Chairperson, with a case of this nature is that an applicant must disclose the full facts surrounding his activities as a security policeman.   He went there as a quasi-security policeman and nothing else and property was damaged rightly or wrongly in his presence and he came to the Committee to disclose the whole facts.
	It is for the Committee to decide whether in these circumstances - I'm sorry, let me just withdraw my submission.  My point is that in considering this application, the Committee at the end of the day will have to decide whether he has made a full disclosure of his role as a security policeman and that was an endeavour to avoid hiding some pieces of evidence because if he were to be asked by any of legal representatives of the victims of the policemen here about his role as a security policeman at the premises of Mr Jafta, he would have been exposed as somebody who was not honest to the Commission. 
	But be that as it may, I must reiterate, Mr Chairperson, I'm in no way pursuing, I mean arguing that it was correct for the police to destroy the house of Jafta family, I'm not at 
all.

CHAIRPERSON: Mr Mapoma, he restricted his argument on that aspect clearly to political objective criteria rather than the full disclosure criteria.

MR DUKADA: Yes but now ...(intervention)

MR LAX: If I could just intervene for one second?  You see the problem as I see it as Mr Mapoma is putting it is that your client is a constable and as such he is applying for amnesty pursuant to section 22(b) as an employee of the State or any former State or a member of that State's security forces.  Now for there to be a political objective it's got to be against a known political organisation, liberation movement engaged in the political struggle.  Now if there is no political objective then the act, no matter how he might have thought it was, can never be something that amnesty can be granted?

MR DUKADA: Sorry, I don't know whether the Honourable Member understands the point.  I'm in no way trying to say that it was a political objective.  The point I'm saying is that the applicant here had a duty to disclose fully all the facts surrounding to him, that's all the submission I'm making as far as this aspect.

MR LAX: Yes but is he actually applying for amnesty for the acts - just hear me out - for the acts of burning down of the home and the shop and the looting of the shop?

MR DUKADA: Yes, in his evidence he says that he is applying for amnesty because he was part of the operation and nothing else and I don't want to belabour this point because in his own evidence he has indicated that there was no need for the police to burn down the house of the Jaftas.