Amnesty Hearings — Johannesburg — 1998-10-05

MR VAN DEN BERG: Yes.  Now whilst the evidence is not before you, Tjitja, the third surviving member of the gang is also serving a period of imprisonment, a life sentence and he also has a previous conviction for armed robbery so I want to suggest that if one has reference to the manner in which these acts were carried out, if one has reference to the background of the - certainly of the first applicant, then these are acts of criminality.
	 If one has a look at what happened at the Jacobs' home, it would appear that Jacobs was shot only when he called out and when he asked for his wife to assist him by procuring a firearm.  It seems that that was when he was shot.  It goes further that, in that after Jacobs has been shot, he is then assaulted by the first applicants.  When Jacobs requests medical assistance, he is assaulted.

CHAIRPERSON: I think you know, when you've got armed robbers in your house pointing guns at you and you ask to phone the ambulance or the police the chances of getting a positive answer are remote to say the least.

MR VAN DEN BERG: It's not so much the lack of a positive answer Mr Chairperson but the fact that further violence was then used, that's the submission.
	In so far as the Stanton's are concerned, six people are tied up, a further person is lured into the house, that's Mr Kirk, he is then also tied up.  There is - assault may be too strong a word, but there is certainly the physical manhandling of a six year old boy who is then tied up and then a great amount of goods are removed from the home.  This apparently on the applicant's version was an operation to procure firearms and no firearms were found.

CHAIRPERSON: I think the Stanton's one they said the main aim, firearms was there as well, but was to get transport because they had to abort their earlier incident.

MR VAN DEN BERG: Yes.  But there are four series of inconsistencies in what is said by the applicants and what is contained by the judgment by the judge who then presided, I think it was Mr Marais, Judge Marais.  There is the fact that they are in possession of items taken from the home.  I would submit that if one has reference to the motive, if one has reference to the context in which the act took place, bearing in mind Advocate Motata's reservations, if one has reference to the legal and factual nature of the act, the use of violence, the assault of a man who is fatally wounded, the assault of a six year old child, that these are not acts which can be clothed with political immunity.
	There's further the criteria which requires that there must have been no personal gain and there is the evidence in respect of the money, the watches, the jewellery.  And then the omission, for what it's worth, of a third applicant before this panel.  I want to suggest Mr Chairperson, that the criteria as set out in Sections 20 sub 2 and sub 3, particularly with reference to ...(intervention)

CHAIRPERSON: ...(inaudible) sub section 3 now?

MR VAN DEN BERG: I simply want to wind up by saying that if one has reference to the criteria in Section 20, sub-section 2 and sub-section 3, particularly with reference to the sub-clause dealing with personal gain that these applicants do not qualify.  This was an act of criminality and that in the circumstances their application should be refused and that they should see out the period of their imprisonment.

ADV MOTATA: I want to return to you and say, ask a few things which would clarify our minds.  You've referred to the previous convictions and you mentioned that there was two of robbery and I say now taking into account the testimony before us that APLA or PAC's policy was repossession, as they referred to the robberies as repossession and quite honestly, because I want you to assist me, if we look at the document before us, it does not tell us who was robbed, it merely tells us of robbery.

MR VAN DEN BERG: Now are you making reference to the previous convictions purely?

ADV MOTATA: Exhibit C.

MR VAN DEN BERG: Exhibit C.  That is indeed so, there is no reference to specific incidents.

CHAIRPERSON: Well though it would seem unlikely that the robbing of R25 in the Soweto with use of a panga would amount to an APLA repossession mission.

MR VAN DEN BERG: Well that case seems to have it's reference in Soweto, I'm precisely sure where in Soweto.

CHAIRPERSON: The Magistrates Court was in Soweto.

MR VAN DEN BERG: Yes but there are both Protea and Orlando and one or two other police stations.

CHAIRPERSON: In that jurisdiction.

MR VAN DEN BERG: So it's in that jurisdiction and then the second seems to be in Springs but again it's difficult to tell, you know precisely where the actual incident took place but we have the theft of a motor vehicle, we have the armed robbery of clothing.  I'm not sure that - well the motor vehicle I suppose there's an argument for but I don't know about the clothing.  I would seem to me that if we're dealing with repossession, it's for purposes of equipping the army for the carrying out of it's activities.  I doesn't seem to me that this is certainly what happened in respect of these two previous convictions but one is arguing from a piece of paper.

ADV MOTATA: And the last one is that the evidence before us is that they were on their way to Lesotho and that the Mercedes at the time ...(intervention).

CHAIRPERSON: Transkei.

ADV MOTATA: Transkei, I beg your pardon, to the Transkei and we look at the Exhibit B2 and we look at Smithfield is far from Johannesburg and all the two applicants, and both the two applicants are living Soweto, that if they wanted to enrich themselves, have personal gain, why go that far?  Wouldn't that be something telling they were on their way somewhere, not suggesting it is Transkei, but were they not in a way going somewhere?

MR VAN DEN BERG: Except Mr Chairperson that they were in a stolen motor vehicle, having committed a murder and probably, I would suggest, wanted to make as much distance between themselves and the scene of the crime as they could.  There was also, if my memory serves me correctly and I'm sure that the Chairperson has a more accurate recollection, there was also this business of whether the Transkei was still an independent State at that time and whether - the back of my memory says to me that ...(intervention)

CHAIRPERSON: It was still at that stage.

MR VAN DEN BERG: It was still at that stage and there was a difficulty with the extradition of known criminals and known APLA cadres, so it may well have been that that was an easy place in which to hide.

ADV MOTATA: Just for information, Lesotho - I mean Transkei is the first country, so-called independent, to unban all political organisations and it was a hive of these liberation movements and in particular APLA, I mean PAC.

MR VAN DEN BERG: Yes, I understand so.  I have no further submissions, Mr Chairperson.

ADV MOTATA: Thank you Chairperson, I've got nothing further.

CHAIRPERSON: Thank you.  Mr Mpshe are you making any submissions?

MOKOTEDI MPSHE: No Mr Chairman thank you.

CHAIRPERSON: Mr Mbandazayo, do you have any reply?

MR MBANDAZAYO: Thank you Mr Chairperson.  I wouldn't like to make any reply of that unless the Committee wants me to assist, well I'll do that, on any specific point I'll do that with pleasure.

CHAIRPERSON: Yes, no nothing in particular.  Thank you.
That concludes the hearing, we'll hand down a written decision in this matter as soon as possible, we'll have to decide it and that also, Mr Mpshe, brings us to the end of our role for hearings at this venue, is that correct?

MOKOTEDI MPSHE: That is correct, Mr Chairman.