Amnesty Hearings — Durban — 1998-10-23

MR NEL: Be that as it may, thank you Mr Chairperson, it must also believe that Lieutenant Venter who is today the Head of the Barberton prison, would way back in 1991 if my memory serves me correct, way back in 1992, February 20th, already fabricate an official document where the applicant was charged for possession for dagga.  That is what this Commission must believe before his amnesty application can be considered.
	Now, turning to the Act, the applicant must satisfy this Commission that his offences relates to acts associated with a political objective.  Now, from the applicant's own evidence, with respect, I submit he did not have any political objective in taking part in planning the assassination of Mr Phosa.
	Even if it is to believe that there was such a plot, even if the AWB and these members implicated here, were involved in an act which they have strenuously denied, then the applicant himself says that he did this for a reward and he did not have any political motive in taking part in such a plot to assassinate Mr Phosa.
	It is mainly on that basis, that I must object to Mr Gwamanda getting amnesty for what he has applied for.  That is my submissions.

CHAIRPERSON: Thank you Mr Nel.  Mr Mukadam?

MR MUKADAM: Thank you Mr Chairman and members of the Committee.  Mr Chairman, my instructions are not to oppose the application of amnesty by Mr Gwamanda.  I submit that we are satisfied in so far as his association with a plot to assassinate Mr Phosa, the surrounding facts, he has disclosed to this Committee.
	We submit further that there was no reason for him to make the application, he was not standing trial for it.  There was no obligation, known to anybody that he would be indicted of a crime of conspiracy to murder.  He has come to this Committee we believe because he wanted to speak the truth.
	The role Mr Chairman, of the Truth and Reconciliation Commission, is a difficult one in that truth in itself, is never an easy commodity to handle.  In speaking the truth, allegations that may appear to be far fetched, are made.  Consideration Mr Chairman, must be given to the time that we have come through in this country.
	Hopefully the truth and sometimes it may appear far fetched, would be the catalyst to ensure that those acts are not repeated again.
	Our submission Mr Chairman and members of the Committee, is that at the time of the conspiracy to assassinate Mr Phosa, Mr Gwamanda had associated himself with the objective of that conspiracy, and that was a political objective.
	He was recruited by a person with political affiliations, Mr Elijah Mahlaba, who says that he was part of an organisation in the Mpumalanga province where Mr Enoch Mabusa was a member.  He also was recruited and told that if he showed that he has IFP leanings, that that would be considered almost as a kosher political ideology and that would be recognised by members of a right-wing grouping.
	It is under that guise that he became part of this conspiracy.  I agree with the representative for the applicant that the applicant's application falls squarely in terms of Section 20(3)(e) that he had in fact committed the offence in execution either of an order or on behalf of a political organisation, although he may not have been a member thereof, but as an agent thereof.
	He could not have acted on his own, but purely in concert with the members of the AWB and in that regard, my submission is that the objective was a political one and falls squarely within the requirements of the Act.
	My further submission Mr Chairman and members of the Committee is that as my learned friend to my left has indicated, this Committee has to believe various issues.
	One of the issues that one would have, that the Committee would have to look at Mr Chairman, is that the manner in which the evidence of Mr Gwamanda was given, he was forthright, there was no hesitation to answering any questions, he demeanour in answering the question showed that he indeed wanted to speak the truth, and I submit that he did so.
	I submit in so far as his application is concerned, he has made full disclosure with regard to the relevant facts.  At this stage Mr Chairman, and members of the Committee, I wish to state that my instructions are that when Mr Phosa had looked at the television set last night, he had indicated that the applicant was not the person that had come to see him at his home.
	The person purporting to be Boy Gwamanda, was somebody else.  The questions put to him in that regard, I must submit Mr Chairperson, that the answers to those questions were therefore truthful.   My instructions are further Mr Chairperson, that Mr Phosa forgives Mr Gwamanda for his part in the conspiracy and my instructions are, to submit that Mr Gwamanda has satisfied the requirements of the Act and that he should be granted amnesty.  Those are my submissions Mr Chairman and members of the Committee.  I thank you.

CHAIRPERSON: Thank you Mr Mukadam.  Mr Mchunu, do you have any reply?  Sorry, sorry, I forgot about Mr Mpshe.

MOKOTEDI MPSHE: Mr Chair, I was going to say I am now assuming my position of neutrality, I have nothing to say.

CHAIRPERSON: Thank you Mr Mpshe.  Mr Mchunu?

MR MCHUNU: Mr Chairman, I believe that it will do justice to respond to a few comments made by my learned friends on my right.
	My learned friend Mr Falconer challenged the evidence of the applicant in as far as it related to an attempt on Mr Phosa.  He further stated that the applicant was or did state in his evidence that he was coerced to do what he did, but with respect, I differ to a large extent in that regard.
	The applicant did state that after a long discussion with a colleague of his in prison, Mr Elijah Mahlaba, he was finally agreed or he was finally convinced that he should follow what Mr Mahlaba was suggesting, and therefore I do not believe that there was coercion at all.
	On the attack of Mr Gumedi, the taxi owner, I think that one, I have pre-empted because I had expected an argument on that, whether or not there was pecuniary interest.  I have addressed I believe, that is already on record.  The Committee has it.
	On whether or not the applicant was coerced to stay at Ndwedwe, with fate being what it is, this Committee must understand the following that the applicant had just been released from prison, he had nothing on him, he had nothing left, he only had his family in Greytown.  On his release from prison, he went straight to his home in Greytown, only to be advised that his family members had fled Greytown to Ndwedwe because of fear that they could be eliminated.

CHAIRPERSON: The surviving members of his family had fled?

MR MCHUNU: That is correct, the surviving members of his family.  When he reached Ndwedwe, when he was following his other family, surviving family members, particularly his sister, who was the only one according to his evidence, who was left at that time, he found that his sister was living at this area Ndwedwe, despite the fact that the IFP was in a dominating position at Ndwedwe, but his sister was able to make a living within that area.
	His brother-in-law too, also did try to convince the applicant and finally the applicant was convinced that he had to live in the area of Ndwedwe.  The applicant had nothing on him, he had no hope.  In other words he was just hopeless at that time, he had to make a living, he had to make a living, he had to stay somewhere, and the only place he could stay closer to his family members which was the only thing he had on earth, was his ... (tape ends) ...
	I believe that my learned friend, Adv Mukadam, has also explained quite thoroughly or quite correctly and I agree entirely with the argument, with the submissions which he has made.

CHAIRPERSON: I didn't think you would be disagreeing with Mr Mukadam's submissions.