Amnesty Hearings — Durban — 1996-08-14

BERNARD MAKGABO NGOEPE: Mr d'Oliviera to which offences is this statement which seems to be obiter dictum like my brother has indicated to you, to which offences here, which offences was the judge referring as being "possibly motivated"?   Is it the offences committed by the deceased or the offences committed by the applicant?  Because on its first reading the impression I get is he might very well have been referring to the offences committed by the deceased, is that how you also understand it?

MR D'OLIVIERA: No, I did not understand reading that sentence like ...(intervention)

BERNARD MAKGABO NGOEPE: Yes, you seem to understand it to say that the applicant's offences were politically motivated and that's not my first impression when I read this.

MR D'OLIVIERA: Yes, I must concede here that one could perhaps have a different point of view in reading that sentence,
"....he was, however, a known member of the ANC and the crimes could have been seen as politically motivated".
I would read that on a clearer study of what has been said before that it would in actual fact relate to the ANC member and not to the applicant.
	If I may point out here Mr Chairman one can see that the court, the trial court is talking directly to the accused at this stage, and that is one of the things that has indicated me to interpret that to be referring to the ANC member.

ADV DE JAGER: But I really had in mind if you are countering offences that is being committed with a political objective from the side of the deceased, but my point that I originally put before you is, how can you say that the list was - have we got evidence saying that the deceased's defences was committed with a political objective, because then you are sort-of countering what they have done, but according to the list this could have been ordinary criminal offences not related to any politics.  That is what I have tried to establish from you, what are your submissions on that.

MR D'OLIVIERA: Mr Chairman again one must refer to the evidence led at the trial court.  This is the evidence that was led that these are the type of offences that were committed.  We have heard the evidence of the applicant to the effect that most of these actions is because he was an ANC member, I am talking of the deceased now, apparently my learned friend made reference he was going to call Wehbag who could also probably throw light on this.  I note that Wehbag himself was a victim in an attempted murder by the deceased, it's listed here, and I think yes Wehbag could also perhaps assist in saying to us that no, these offences must have been and were politically motivated, offences by the deceased.

CHAIRPERSON: Of course your problem really here is to convince us that it is the applicant who was motivated by political considerations, isn't it?

MR D'OLIVIERA: That is correct Mr Chairman.  But one must, I think, also understand that the deceased in this matter must also have been motivated in crimes politically as well.  It is the background that you are required to know.

JUDGE WILSON: But surely the problem my brother has just brought up is, it doesn't matter what the deceased was motivated, or it might not matter, he was committing numerous acts of violence in the district, he was killing people, they might have all been political, but the applicant may have been motivated, as I think his evidence was, by a desire to save the people in the district, and the way to do that was to kill this evil man who was doing these things.  The motive that the perpetrator of the acts of violence had was immaterial.  The danger was that he was committing 28 murders, 35 attempted murders and understandably perhaps the applicant decided that this must come to an end.  The politics of the perpetrator really don't affect the applicant do they?

MR D'OLIVIERA: I would agree with you Mr Chairman, but nevertheless in the argument which I am trying to put forward is how is it that a policeman becomes politically motivated.  The actions are directed against someone who is on the other side politically.  That must be taken into account, it cannot be ignored.  He is not just an ordinary innocent person, or shall we say an ordinary criminal which brings him into the political struggle in the military side of it.

CHAIRPERSON: Yes carry on.  Mr Brink is there anything you wish to say?

UNKNOWN: Very briefly Mr Chairman and members of the Committee.
	I think, with respect to Judge Wilson, I think my colleagues point about the political motivation of the deceased may well be relevant.  If one goes through this list one sees Item 1, it appears to be some sort of political, judging by the summary, just throwing stones at a bus, if one has a look at Item 4, arson - three houses burnt down; Item 7 - public violence and Sergeant Wehbag was injured; Item 8 there was a necklace murder; Item 11 there was arson; Item 12 attack on the house of one Kart Msango; Item 13 people were shot at while in church; Item 14 three members of the force, presumably the police force, I am not sure, were shot at.  So there appear to be a number of these what could be described as political and it, I am not arguing for my learned friend, but it may well be contended that what the applicant did was to restore political peace in that area.
	The problem, however, I have, is that as was pointed out, I think by you Mr Chairman, or it might have been Judge Wilson, that he knew, that is the applicant, that he knew that what he was doing was wrong. 
	A problem I also have is that these men were already in custody when he shot them.  They could have been guarded day and night in hospital. There was no need to take two injured men, who were already in custody out and kill them.  Those are the problems I have.

ADV DE JAGER: But Mr Brink isn't that the fact that all people applying for amnesty have done something wrong, unlawful, because otherwise they need not apply for amnesty.

MR BRINK: Then they need not apply, yes.  I accept that.  I accept that.  I have nothing further to say.

JUDGE WILSON: Can I raise something, it has nothing to do with the argument, merely as a matter of convenience.  We were given yesterday a number of papers, we have been given two more today, and I think it might make life easier for all of us if counsel could agree between themselves, within the next minute or two, a list of them, A, B, C, D, E, so that when we refer to one we know we are referring to the same one.

MR BRINK: A bundle in other words, make a bundle for you?

JUDGE WILSON: (...indistinct) (not speaking into the microphone)

ADV DE JAGER: If it could be of assistance our Chairman said your evidence would be Exhibit A, the statement, A.   (not speaking into the microphone)

MR D'OLIVIERA: Let us Mr Chairman, then the sentence of the trial court would be Exhibit B.
EXHIBIT A - STATEMENT
EXHIBIT B - SENTENCE OF TRIAL COURT
EXHIBIT C - JUDGMENT OF COURT OF APPEAL
EXHIBIT D - LIST OF DECEASED'S CRIMES
EXHIBIT E - ARGUMENT SUBMITTED BY MR D'OLIVIERA

MR BRINK: Mr Chairman I may say that the list of crimes appears at page 8 of your papers anyway, that is D8.

JUDGE WILSON: ...(microphone not on)

MR D'OLIVIERA: No not from my side Mr Chairman.

CHAIRPERSON: Thanks very much.  Mr d'Oliviera if you would make strenuous efforts to try and let us have that affidavit as soon as possible we shall appreciate it.

MR D'OLIVIERA: Thank you.  I will attend to that Mr Chairman.

CHAIRPERSON: Mr Brink if upon the receipt of that document there might be something in it which was contrary to the information that you may have you will no doubt draw our attention to it?

MR BRINK: I most certainly will.
NO FURTHER RECORDING