Amnesty Hearings — Cape Town — 1997-05-20

ADV MATHANA: Yes, I have already conceded that under those circumstances a reasonable person would not believe that you were dealing with an informer, but I am also maintaining that if one were in their shoes and one was dealing with a person who has broken away from the Organisation ...

JUDGE WILSON: They are the only people who say that, he was still a member of the Organisation, he still held office in the Organisation.

CHAIRPERSON: The ANC hadn't disowned him?

ADV MATHANA: But then they are talking about SANCO, that is the organisation from which he broke away, not the ANC.

CHAIRPERSON: Is the real reason for what they did the question of him being found in their view to be an informer, is that the reason or is the real reason the other one, that he and a group a whole lot of others,  who had been entrusting with collecting money for the purchasing of weapons, had despite a Commission of Enquiry failed to disclose to them what had happened to the money?
	Is that the reason why he was killed?  I understand you to lead that they looked upon him as an instrument of the government, as an informer.  Now there is some evidence that their gripe against this man was not because he was an informer, but because he had used certain money or not accounted for the money.  Which is the case?

ADV MATHANA: They could have come to this conclusion by unreasonable deductions, through unreasonable deductions.  But if they believed truly that this person having broken away and knowing that there were some funds missing and for which he was still required to account, funds that were supposed to be used in furtherance of their objects, it could have been easy for them even if unreasonably, it could have been easy for them to believe that this person will surely seek protection from the other side, from the enemy and therefor allow himself to be used by the enemy in order to be protected against them, because he must know that they are still wanting something from him.
	So under those circumstances even if a reasonable person cannot accept that, they should believe that he must have been collaborating.  If in their situation under these circumstances I have just mentioned they did believe so, then I request the Committee ...

CHAIRPERSON: In other words even if their belief was irrational?

ADV MATHANA: In their minds, they were dealing with that particular situation of an informer, they might have come as I have already mentioned, to that conclusion by irrational means but that is what they may have been believing.  Their (indistinct) therefor under those circumstances would be influenced by what they envisaged to the truth or the correct situation.
	Although it should have been unreasonable in the eyes of somebody else.

CHAIRPERSON: And we have not heard any evidence about anything which Mr Mpisane did to indicate what information he had been passing on to the ISU.  What was he informing them on, there is no evidence about what he is supposed to have informed on.

ADV MATHANA: That is unfortunate Mr Chairman, that is also something that I thought that I was going to be able to come up with before we came to the hearing, but unfortunately I was not able to get information in that regard, because there was no - I was not able since they are inside, I was not able to investigate those aspects.

SISI KHAMPEPE: But no evidence was led today in that regard.  They had an opportunity to do so.

ADV MATHANA: I am saying they did not have hard core evidence of this.

CHAIRPERSON: Not even soft core evidence, let us put it that way, no evidence at all, about what he was supposed to have informed them on which the police did not already know in that area.

ADV MATHANA: That is correct Mr Chairman, and that is why I am saying that is what I also picked up in my consultation with them and that is why I am mentioning the fact that unfortunately I was not able to investigate it further so as to come with such evidence and present it today.

SISI KHAMPEPE: But where would you have started to investigate that?  That information must reside in the persons of the two applicants who acted as they did at the time when they acted against Mr Mpisane.

ADV MATHANA: The applicants or the other members of the SDU, would or could have provided me with information which I would have investigated, but as I mentioned this is not an excuse on my part, but I had very short time between seeing the applicants and today which is the date of the hearing, and I did mention this to them and I did ask them if anybody could help, somebody who is outside could help me find this information regarding Mpisane being an informer and I think it was Mr Mkhulutha who said that he was going to send out a message so that before we came or at least even this morning, that I could have such evidence, but unfortunately I could not be given such evidence, that is why I could not present it.

CHAIRPERSON: Mr Brink, is there anything that you wish to say?

MR BRINK: It seems Mr Chairman, that Mr Mpisane was shot for one or more reasons.  Either that he was an informer and I have problems in that regard which the Committee have raised with my colleague, for those reasons especially a very trenchant point that Committee member Mrs Khampepe drew to my colleague's attention regarding the position of this man in the ANC and the whole notion of holding public meetings with the ISU, or he was shot because he stole the money.
	If he was shot because he stole money which is untested and unproved, that doesn't qualify in my submission in terms of the Act or the shooting was in some for self defence, but certainly at the very least there was an affray and that is based upon the paragraph 9 (a)(4) of the first applicant's application which he now says in incorrect.
	But I do have difficulties with this application and I cannot support it.

CHAIRPERSON: So you have difficulties, what you really are trying to convey is that the applicants have difficulties.

MR BRINK: I have difficulties in endeavouring to give any measure of support to the application.

CHAIRPERSON: Let me just ask you, it is quite clear isn't it, that if they killed this man, if they shot him because he stole money, that can hardly be justified as a political offence for which amnesty can be granted, isn't it?

ADV MATHANA: I agree fully Mr Chairman.

JUDGE WILSON: Similarly if it was a belated vengeance killing that wouldn't entitle them to amnesty either, would it?

ADV MATHANA: I agree sir.

CHAIRPERSON: If the applicant's mother was killed and there was a belief that Mpisane was involved in it, that is what it means isn't it?

ADV MATHANA: Yes, if they believed that Mpisane was involved and obviously if they as a result of that decided to take revenge, then they would not qualify, that is correct.

CHAIRPERSON: Thank you very much.  Tell you clients that the Committee will consider this application and give its decision in due course.
	Mr Brink, is the position that as far as the proceedings are concerned tomorrow, we are not likely to proceed in the morning, counsel are not available tomorrow?

MR BRINK: Yes, I understand that to be the position, that they will be here at two o'clock.  Whether the matter will conclude during the course of the afternoon, that is impossible for me to say because I understand the application is being opposed by Mr Swart, who represents one of the next of kin of one of the victims.

CHAIRPERSON: Is he here?

MR BRINK: He was here this morning.

CHAIRPERSON: Is he aware of the fact that this matter was not going to be heard in the morning?

MR BRINK: Yes, I think it was discussed in your chambers Mr Chairman.

CHAIRPERSON: Oh, so he was present?

MR BRINK: Yes.

CHAIRPERSON: Very well, we will now adjourn and resume at two o'clock tomorrow afternoon.