Amnesty Hearings — Middelburg — 2000-05-10

MR RICHARD: Yes.  I don't think it's our job to try and destroy the conviction so as to prevent giving him amnesty, because that would be in fact a defeat of the purposes of the Act.  The same way as my argument about mental competence.  If your going to use those strict arguments in law to eliminate competence to bring it, it makes a mockery of the idea of amnesty, and it defeats the objectives of the Act, and that is to put the past behind us by giving amnesty where it can be properly given.
	My interpretation of the Act is on a wide and liberal interpretation, but I don't see how anyone could argue that it should be a strict and narrow interpretation.  One need only reflect on the case of Azapo vs The President of the Republic of South Africa.  There the limitation is not seen from the language of the Act, it's seen only from the language of the protection and interests that the Commission should give to victims.  In this particular instance there is no argument that the Act is disproportionate, as I understand it yet - I haven't gathered it from my learned colleague's cross-examination, or that the force or violence was inappropriate, or that there was no political context as opposed to political motive for 
what was done.  Certainly when it comes to Daniel's situation, there was a political context.  These reports establish it without us going through it.  And for those reasons, my submission Chairperson, is that the widest reasonable interpretation of the Act should be applied, which would favour an applicant such as a person in Daniel's position.
	In conclusion, my argument is that in the case Michael Phasha, the requirements of the Act have been satisfied.  The act was proportional, it was an act which constituted a crime committed during the struggle, for the purposes of the furtherance of the interests of the ANC, and there's not an iota of evidence before us that the ANC does not accept that it was done for the furtherances of its interests.  It may well say it would have preferred not to, but it's not the test.
	The subject of tests, flowing from (l) of Section 20(f), I think, of Section 20(2), I think it's plain that Michael Phasha certainly believed he had the authority to do what he was doing, even though it might not have been a rational logical belief.  The hysteria of a crowd chanting freedom slogans and in high blood so as to eliminate a perceived enemy of its revolution, would endue such a belief.
	In conclusion, in relation to Daniel Phasha I repeat the arguments, it would be absurd to interpret common purpose in such a way as to hold that there is no valid conviction and that while the applicant does not concede that he was guilty by way of common purpose, I believe that despite his objection to being associated, he should be associated with the crime ...(intervention)

CHAIRPERSON: Yes, as I've said, not because another tribunal has made a particular finding, but simply because in considering the application in the light of the requirements of this legislation that we are dealing with, that we are satisfied that there is sufficient to find that he had associated himself with culpable intent with the actions.

MR RICHARD: There is coherent evidence to that effect, I don't need to repeat what has been said.

CHAIRPERSON: Ja, but it would be wholly inappropriate for us to base that entirely upon what another tribunal had done, we have to apply our minds to what is before us, and as part of that exercise we take into account what might have happened elsewhere, in other proceedings, but at the end of the day it is still an exercise of your our minds on this particular application in the light of this legislation, and we have to be satisfied after having gone through that exercise, that what we have before us are acts which could be acceptable to amnesty.

MR RICHARD: Hence, Chairperson, my argument that the test is the application of mind to the requirements of a particular Act.

CHAIRPERSON: Yes.

MR RICHARD: Certainly there's the constitutional backdrop as to how decisions need to be made, but this particular Act certainly is not being argued to be held in conflict with the Constitution, and therefore the conclusion, without labouring the point, is that an open and liberal interpretation should be given to the particular circumstances and facts of the matter, which may produce an apparent inconsistency, which is indeed not ...(indistinct)

CHAIRPERSON: Yes no, no, I follow that argument.  My point is simply aimed at the weight of the criminal finding, the weight of the finding of the criminal court that there was indeed common purpose.  I'm saying that's just one of the factors that we take into account in doing this exercise that's before us.  It's not the only factor.

MR RICHARD: No, I concede it.  The fact that there was a criminal conviction in fact assists me ...

CHAIRPERSON: Yes, it's a factor that can.

MR RICHARD: If it was simply an application without a conviction, my job might be a lot more difficult.

CHAIRPERSON: Yes.  Yes, no, I think we follow your submissions.  Is there anything else that you wanted to say?

MR RICHARD: Nothing further, Chairperson.

CHAIRPERSON: Mr Mokoena.

MR MOKOENA: Chairperson, I don't have any submissions.
NO SUBMISSIONS BY MR MOKOENA

CHAIRPERSON: Thank you.  Ms Mtanga.

MS MTANGA: Chairperson, I do not wish to oppose this application and therefore I will not make any submissions.
NO SUBMISSIONS BY MS MTANGA

CHAIRPERSON: Thank you.  Yes, I assume you don't have anything further.

MR RICHARD: Nothing further.  Thank you, Chairperson.

CHAIRPERSON: Thank you very much.
	Yes, we have concluded the evidence on the formal part of the applications, we will consider the matter, consider the evidence and the argument that was submitted on behalf of the applicants, the other material that is before us, and we will endeavour to prepare a decision in this matter as soon as the circumstances permit.  So the decision would be reserved.  
	We thank you already in anticipation, Mr Richard, we know that you have some other work here as well still.  Thank you thusfar, Mr Mokoena.  Thank you for your assistance, Ms Mtanga.  And for the members of the Correctional Services as well, for your assistance and your patience in waiting for us to at least finalise the matter.  We appreciate that.  We know that you've travelled over some distance to come here, and we are grateful for that.
	We will, in the circumstances, have to adjourn the proceedings.  I think we've at least achieved something.  There is another matter that remains, but I assume we'll have to rearrange and try and deal with that with the rest of the matters that we have to do.

MS MTANGA: Yes, Chairperson, the matter of Mtsweni and four others was set down for today and because of the time it will have to be heard tomorrow morning.

CHAIRPERSON: Very well.

MR RICHARD: Chairperson, I believe the three further matters, there's a reasonable prospect of putting them into one day, and if it doesn't I can roll over to Friday, it depends on the Committee.

CHAIRPERSON: Yes, that's good news, that's a bit of good news.  Yes, we'll do our best, but for now we will adjourn and we will reconvene at 9 o'clock tomorrow morning.  We're adjourned.
COMMITTEE ADJOURNS