Amnesty Hearings — Durban — 1998-10-23

MR FALCONER: I thank you Mr Chairman.   If I may now address to proceed you briefly in respect of the merits of this application.
	Mr Chairman, I commence by stating that I believe the applicant is faced with severe difficulties in discharging the requirements of the Act and primarily I would submit that his first difficulty is discharging the requirement of identifying a clear political motive for his actions.
	If we look firstly at the allegations relating to Barberton and the alleged plot to assassinate Premier Matthew Phosa.  I know that my colleagues to my right, are going to deal more extensively with this issue, but just to make an observation.
	On the applicant's evidence, during or about the time that he left school in 1976, he claims to have been affiliated to if I understood him correctly, some form of liberation movement, in the country.
	We now have a quantum leap, where at Barberton, he, on his evidence, is coerced into collaborating with members of the AWB, to ultimately carry out this act.
	Unfortunately, coercion does not constitute a political motive.  On that basis alone, I submit that his application falls down.
	Mr Chairman, if one also then has regard to the evidence relating to the alleged activities in Ndwedwe, I submit that that evidence has got to be considered within the context of the other evidence of the applicant which was extracted under cross-examination, namely that and it is a very sad picture, since the tender age of 15, the applicant has been involved extensively in crime, serious crime, crimes relating to armed robbery amongst others, and sadly he has spent most of his adult life in custody.
	It was established that there were eight previous convictions on the record, which we were furnished by the Commission, and in addition to that, besides all of the other activities, there are at least two incidents which would appear to be unrelated to politics, namely the pension robbery which was planned and in addition, the other robbery for which he is presently incarcerated.
	It is also interesting to note Mr Chairman, that his release during March 1993, he finds on his evidence, his way to Ndwedwe, and then during or about December on his evidence if I recall correctly, the 6th of December, he is arrested for further serious crimes.
	It seems that these crimes which took place on his evidence, took place within a very short space of time during or about November, and the crimes which he claims were politically motivated and which he claims, were carried out under the instruction of certain of my clients, were interspersed by crimes which he committed clearly to obtain pecuniary benefit for himself.
	Mr Chairman, if we look briefly at the matter pertaining to the murder of the taxi owner, Mr Gumedi, well the attack on him I should say, not the murder, it is clear that their intention was to make off with one of the taxi owner's motor vehicles.
	It is also, evidence has been put before us by Mr Gumedi's son, that money was stolen during that incident.  I would submit that it seems to be highly improbable that in a so-called political attack, people are going to go there with a motive of stealing to put it more stronger, property.  I would submit that the probabilities point very heavily in the direction that that attack also forms part of the other criminal activities, that the applicant refers to where he was going to obtain pecuniary benefit.
	He also in his evidence stated that it was very difficult to not execute the orders in Ndwedwe, given the fact that if you didn't do so, you would fall foul of Mr Mfayela and essentially you were obliged to obey his command.  There is absolutely no evidence that he was forced to remain in Ndwedwe.  There is absolutely no evidence that he was forced and coerced into conducting these crimes.
	He on his own admission, is now an ANC member and prior to this, he was also an ANC member.  I submit that it is really pushing the probabilities to the extreme to try and suggest that he through a political motive, on his evidence, was involved in these activities, given those particular aspects.
	Getting back to the monetary aspect, it was clear and with respect to my learned colleague for the applicant, it was clearly established Mr Chairman, that the applicant understood the reward for the attack on Mr Matthew Phosa, would be monetary.  He even said in answer to one of my questions, what other form of reward could there possibly be?
	I would say in submission Mr Chairman, that the probabilities point overwhelmingly in the direction of the fact that his actions were motivated for pecuniary gain whereby he would achieve and further himself in that regard.  I would say he falls down in establishing a political motive.
	Mr Chairman, in conclusion also, in passing mention that the applicant's evidence with respect, was far from adequate and given the fact that the papers which he submitted in support of his application, together with his viva voce evidence before us, does not provide a full disclosure as would be required, particularly in respect of establishing his alleged political motivation.
	Thank you Mr Chairman.

CHAIRPERSON: Thank you Mr Falconer.  Mr Nel?

MR NEL: Thank you Mr Chairperson.  Members of the Committee, if I may quote to you from the preamble of the Act, the functions, one of the functions of this Commission is to establish the truth in relation to past events, as well as the motives for the circumstances in which gross violations of human rights, have occurred, and to make the findings known in order to prevent a repetition of such acts in the future.
	Now, I submit with respect that before the amnesty application of Mr Gwamanda could be considered, this Commission must make a decision whether he is to be believed, in what he is saying.
	In order to believe that Mr Gwamanda has told this Commission the truth during his evidence, the Commission must believe certain things like that the AWB and the IFP has worked hand in hand, it must believe that the AWB planned and plotted an assassination on Mr Matthew Phosa and that the AWB in fact, wanted to kill Mr Phosa in 1993.
	It must also believe that prison warders would train a man with an atrocious criminal record in the handling of AK47's, R1 rifles and various assault weapons, it must believe that the AWB will use somebody to assassinate Mr Phosa who has never even seen Mr Phosa, who does not even know from his own evidence, at the time that he went to Nelspruit, what Mr Phosa looked like.
	It must also believe that an assassination of this nature is planned without giving the assassin any concrete instructions.  It must believe that an assassination is going to take place in the middle of broad daylight, where the members of the so-called hit squad or planners, are clad in full AWB uniform, there is a congregation of 4 x 4's planning this assassination in the middle of Nelspruit, in front of the post office.

MR LAX: Sorry Mr Nel, that wasn't the evidence.  The evidence was that they were going to go to another place where Mr Phosa would be addressing some sort of a gathering, and it would happen there, but anyway.

CHAIRPERSON: Yes, I think Lebisi or something.