Amnesty Hearings — Phokeng — 1996-05-20

HASSAN MALL: I may say before you start, that you need not take time to address us on the background which is contained in the document which you have handed in.

MR CURRIN: Thank you.

HASSAN MALL: Thank you.
MR CURRIN ADDRESSES COMMITTEE ON MERITS OF APPLICATION
	Mr Chairman and members of the Committee, in order to succeed with this application as we read the Act, we need to do four things.  We need to satisfy you that the application complies with the requirement of the Act.  It is our view that those are formal requirements.  There was an indication from our colleagues representing the Commission, right at the outset, that the application was properly submitted and received and properly before this Commission.   So we will work from the assumption that the application does in fact comply with the requirements of the Act.
	The next ... (intervention).

JUDGE WILSON: One point there, Mr Currin.  It is a highly technical one.  In your application or the application I have, it refers somewhere to an act committed on the 29th of October 1990.

MR CURRIN: Yes, that is correct.

JUDGE WILSON: Could that be December?

MR CURRIN: That is December.

JUDGE WILSON: Are you going to amend your application for it?

MR CURRIN: We would ask to alter the form accordingly.  There is also one other alteration which I wish to draw to
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your attention.  Reference is made to Judge Waddington, that should be Judge Friedman.  We apologise for that error.
	The second requirement is, we need to satisfy you that the offence is associated with a political objective, and that we will deal with shortly.  
	Thirdly, that the offence was committed in the course of the conflicts of the past.  
	Now in dealing with the previous one, namely, that the offence is associated with the political objective, we will simultaneously refer very briefly to conflicts of the past.  There has been an indication that that is accepted.  So we will certainly not belabour on that point.
	Then finally, we need to satisfy the Committee that the applicants have made a full disclosure of all relevant facts.  We believe that the applicants have made a full disclosure and unless we are questioned on that, we will assume that that particular leg or requirement has been met.
	We will now have reference to the requirement that the offence is associated with a political objective.  With reference to section 20 of the Act there are two aspects which we would like to refer to.  
	First of all, an act associated with a political objective is defined as meaning an offence, constitutes an offence or delict which according to the criteria in subsection (3) is associated with a political objective and which was advised, planned, directed, commanded, ordered or committed within or outside the Republic of South Africa during the period of 1 March 1960 to the cut-off date, which we know is December 1993, by any member or supporter of a publicly known political organisation or liberation movement, on behalf of or in support of such organisation or
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movement, bona fide, in furtherance of a political struggle waged by such organisation or movement against the State or any former State or another publicly known political organisation.
	Now before referring to the criteria, I would just like to make a very short submission, and that is that we believe that we have proved through the evidence of the two applicants, that they were members of a publicly known organisation, namely the African National Congress, and that furthermore there is evidence that they associated with the aims and objectives of the African National Congress.

JUDGE WILSON: That is not what they said in their evidence.  Why do you keep coming back to the African National Congress, Mr Currin?  They were associated with a tribal political object.  The evidence is quite clear.  It is publicly know they were part of a publicly known political organisation in this area.  Weren't they?

MR CURRIN: They were.  But what they did say, and I think the evidence is quite unequivocal, as far as this is concerned, was when they first formed the action committee, it did not have a political objective.  Later it took on a political objective and they all became members, most of them became members of the African National Congress.  We think that is important, and why we say it is important, is because there is no evidence, and we will not attempt to even - we will not attempt to argue or persuade you that what they did was done with the approval of either the tribe or of the action committee.  We need to illustrate, and the Act, we believe is quite clear, that what they did, they did at least as part of a political struggle acting in good faith.  That is a requirement of the Act and we have
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attempted to show that.
	So we believe there is evidence before this Committee that they were members of the organisation, that they associated with the objectives and that they associated with the political struggle of that organisation.

JUDGE WILSON: Which organisation?

MR CURRIN: Of the African National Congress.

HASSAN MALL: By virtue of being members of the organisation.

MR CURRIN: By virtue of being members of the organisation.  They identified with the organisation.  There is also ample evidence and we believe that it became - it is quite clear from the evidence that the nature of the struggle within this area changed very subtly at a particular time, when the Bophuthatswana Government refused to take cognisance of any of the representations that they were making, and because their struggle was politicised by the Bophuthatswana Government, they themselves moved towards a more political struggle, which was not their original intention. It became inevitable.

JUDGE WILSON: Mokgatle said he applied for membership of the ANC.  He didn't know if he has been a member. You produced a letter saying I have got a letter showing you were.  He said he then joined the PPC.  Didn't he?

MR CURRIN: Yes, he did say that.

JUDGE WILSON: So he didn't say he was a member. He said in fact he wasn't a member, but had applied for membership.

MR CURRIN: I didn't understand his evidence that he said he was not a member.  He said he applied for membership.

JUDGE WILSON: Yes.

MR CURRIN: But he certainly didn't say he was not a member, with respect.
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JUDGE WILSON: He never said he was a member.

MR CURRIN: I understood that he said he was a member.

JUDGE WILSON: You produced a letter to him and said I have got a letter showing that you are.

MR CURRIN: That is correct, I did, but I certainly understood his evidence that he said he was a member, but certainly Diali said unequivocally that he was a member of the African National Congress.  I think also, and let's assume that they were not members, they were certainly supporters.  They were supporters of the liberation movement, and there can be absolutely no doubt that they were supporters of the objectives.

JUDGE WILSON: They wanted the assistance of that movement to help theirs.  That was their evidence.

MR CURRIN: That was part of their evidence, but didn't the evidence go further than that?  My understanding of their evidence, was that they understood quite clearly, that there was no prospect of getting their chief back in office for as long as the then Bophuthatswana Government was in control, and their struggle went further than just the local conflict.