Amnesty Hearings — Pietermaritzburg — 1997-02-10

MR BRINK: Of course had they not killed the deceased they wouldn't be applying for amnesty today so one knows that happened.  And the question then arises:  under which of the subsections of section 20 may apply.  With respect, I think it is common cause that section 20(2)(b) does not apply.  If you have a look at section 20(2)(f) any person who on reasonable grounds believed that he was acting in the course
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and scope of his authorities or implied authority, if they had the subjective belief that their conduct might well have been approved by their superiors, my problem with that is all very well had the diary been kept, but the diary was thrown away and they concealed all the evidence and never reported the matter.

BERNARD MAKGABO NGOEPE: (Inaudible)

MR BRINK: Under (a)?  The question arises whether there has been the full - sorry 2(a), I beg your pardon, yes.   The political organisation of course is the AWB which they then supported, or the policies of which they then supported.  They certainly weren't supporters of a liberation movement, unless one can say in a strange way the AWB was a liberation movement.

ADV DE JAGER: Could they have been supporters of Inkatha?

MR BRINK: Yes, indeed, I accept that.  I accept they would have tacitly supported Inkatha, even if they weren't members yes, certainly, yes, I accept that.  I don't dispute that.  I don't challenge that at all.   (CHANGE OVER TO TAPE 3B)

BERNARD MAKGABO NGOEPE: ... the applicants are lying with regard to the discovery of the diary, of what significance would be that lie?  It may be that they introduced that aspect as an attempt to bolster their case, to try and show that the murder was politically motivated because here is somebody with a diary in which he mentions having killed IFP people and the like.  You know they might have unwisely introduced that element with the false hope that it would bolster their case.  But if one finds that they were lying, what damage, if any, can it do to their case?

MR BRINK: Mr Chairman, I think one can't really make a finding that there was no diary.  That aspect of the
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evidence given is suspicious.  We know the search took place.  Everyone has confirmed the existence of a diary and it seems to have been accepted by the trial court that there was a diary or pocketbook.

BERNARD MAKGABO NGOEPE: I have my own views about that, that is why I am asking you the question.  That's why I am asking you to consider the question at the hypothetical level at which I am putting it to you.  Because I am not sure one can rule out the possibility of a finding that there was no diary.

MR BRINK: Of course that aspect was canvassed by the trial court.

BERNARD MAKGABO NGOEPE: They have their own views, I have got my view.

CHAIRPERSON: The trial court had to make ...

MR BRINK: If you come to the conclusion that there was in fact no diary or pocketbook, the applicants have then created that fiction in order to ....(intervention).

CHAIRPERSON: ... after all the trial court refers to the fact that there was a diary, not because any State witness has said so but because the accused themselves said so.

MR BRINK: Yes.

BERNARD MAKGABO NGOEPE: ... didn't you read us something that (inaudible - microphone not activated)

MR BRINK: I find that quite extraordinary, Mr Chairman, because the diary was mentioned in the trial court.  But the Appellate Division decision to which I referred you at page 109 halfway down - it is page 248 of the judgment but 109 of your papers, of the bundle - after dealing with the basic background to the appeal, the court merely said the appeal, however is really concerned on the basis of the following findings
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"At Jama's searching nothing was found and nothing further happened as far as justifying his arrest".
... that there was a search but nothing at all was found, which I find a little extraordinary in the light of the trial court's judgment.

BERNARD MAKGABO NGOEPE: But they were told the same thing, that nothing was found.  We were told the same thing that he was searched and nothing was found on him.  Anyway, it is by the way.  I am not getting into a debate about it.

ADV DE JAGER: Mr Brink, I'd like to say that the result was that the court was not able to resolve all the points of dispute satisfactorily, but the appeal was considered on the basis of the following findings.   So all disputes were not resolved satisfactorily.

MR BRINK: No, Mr Chairperson, the Judge had a very difficult time.

CHAIRPERSON: Mrs Jama, is your attorney here?   Mr Jassat, do you still represent Mrs Jama?

MR JASSAT: (Inaudible - microphone not activated)

CHAIRPERSON: You have been asked to make a statement on behalf of Mrs Jama.

MR JASSAT: Mr Chairman, my client has heard the applicants' request that she forgive them.  But she is not able to do so because she doesn't believe a word of what they have said in their application.  She doesn't believe that they have been frank with this Committee, and effectively the question of their political motives is basically an excuse to get out of gaol.
	She has also  instructed me to advise this Committee that this question of the pocket diary is something that the applicants manufactured because they had to have an excuse
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for having detained her son.  
	Her belief is that the only reason why her son was arrested was simply because he put his hand in his pocket and the fact that the had an ANC shirt.  If the applicants were bent on their political objectives, then we fail to understand why the 10 people that were in the group who were members of the ANC, were  not all taken into custody and done away with.  Why Jama was selected.  And it seems that the deceased got killed simply because he put his hand in his pocket. 
	Her belief is, and she is merely speculating, because this inquiry is merely about who is speaking the truth, she believes that her son was so badly assaulted by the police that they couldn't let him live in case he went to the authorities.  Having been found out they now use politics as an excuse for having done him in. 
	She is quite prepared to forgive them if they come clean and speak the truth, but she has faith in your Committee in deciding whether they should be granted amnesty or not.  
	Her one difficulty is the following.  That it appears from the evidence that the deceased was killed because he said something about the KwaShange incident.  She knows as a fact that her son was with her in Richmond at the time of the KwaShange incident and he could not have known about it or taken part in it.  So therefore the explanation tendered by the applicants for killing him, she cannot accept that.  	The other aspect that worries us is the fact that these applicants - some of them testified that Major Terblanche had given them an undertaking that if they got themselves into trouble he will be there to protect them.  But at the
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time when the deceased was murdered, Major Terblanche was no more around, he was already dead.  So who was going to protect them?  I don't know what the role is of the commanding officers who were in charge of their unit after Major Terblanche was murdered, because I wasn't here, but it seems that their story that they did this with a political motive must be rejected.  They are basically rogue policemen who just got out of line and committed a crime and are now using the provisions of the amnesty in order to get out of prison. 
	Thank you, Mr Chairman.