Amnesty Hearings — Pretoria — UNKNOWN

UNKNOWN: The importance of that omission is that at no stage was there anything in their minds of political objectives, even at the criminal trial. They were defending a pure criminal matter, which was not based on politics at all. What I am trying to paint out here is that this is just a last thought, a last resort, because they failed in the criminal trial on the merits, on the criminal criteria.  Now they want to escape the punishment by making use of political objective. If ... (intervention).

BERNARD MAKGABO NGOEPE: Unless they thought it was not sufficiently relevant at the time.

UNKNOWN: If they thought it was not sufficiently relevant at the time, then perhaps somewhere on record it would have been mentioned.  But no mention is being made whatsoever.

JUDGE WILSON: It would have been relevant, would it not, on the question of sentence?

UNKNOWN: It would have been relevant, certainly.
	Number two.  We must look at the nature of the offence charged.  I need not belabour you, Mr Chairman and honourable Members of the Committee on the nature of the offence charged.  It has been said again and again that this is a serious offence and it has been put on record how it was done, the gruesome part of it. I won't belabour you on that.
	Four.  The finding of the trial court, this is in the criminal court.  This will take me back to the fact that no mention was made of any political objective.  My learned friends for the applicants never referred this Committee to any part of portion of the judgment that refers to any political objective.  It is silent.
	We must again further, it should be established as to, against whom was the act directed.  In this case it was an individual.  Can it be said that the act contain a political element?   Mr Chairman and members of the Committee, the answer will certainly be in the negative.  Can it further perhaps be said that the offence charged with was inextricably linked with a political element to be regarded and entirely political in nature. I still repeat, with respect, that the answer will be in the negative.
	Mr Chairman, I want to state this that the offence which was charged, really goes against the grain, seriously, of ordinary dictates of humanity. The dictates of humanity have been disregarded. There was needless suffering and loss of life. I will refer the Committee to page 97 of the judgment, line 2 thereof.  This is what was said by the Judge when he delivered his judgment.  If the Committee would allow me?

HASSAN MALL: Yes, please do.

UNKNOWN: I will just read that portion.  If the Committee could just bear with me.  Page 97, line 20, not line 20, and I quote
"The Court finds as an aggravating factor the fact that the deceased was cruelly tortured over a long period. As far as accused 2 and 3 are concerned, aggravating circumstances are that for the entire day they left the deceased without food and water, as well as the fact that they showed no sympathy whatsoever towards the deceased and treated him with contempt."
I want to submit that this was an atrocity perpetrated on a very hapless and innocent person.  I am appealing to Mr Chairman and members of the Committee, that you should refuse to be invited into a quagmire of generalities.  A lot has been said by applicants, a lot of documents or exhibits have been tabled, painting the general political climate.  Now I don't want to be pulled into this unnecessary confusion. The point at issue, the point at issue is whether, and this is what is important, whether what they did on the deceased was politically motivated full stop.  We have to confine ourselves to the issues before us, and avoid all generalities that were tabled through the documents.  Whether this was said by PAC openly on paper or said by ANC and calling for the onslaught or not. We have got to confine ourselves to the issues before us.
	I am asking the Committee to refuse to be pulled into that pool of generalities less confusion abide in our minds.

BERNARD MAKGABO NGOEPE: Sorry, if we find that the matter is - the murder was politically motivated, and all other things being matched, we will grant amnesty, won't we?

UNKNOWN: That is so.

BERNARD MAKGABO NGOEPE: Even if they had hung the deceased from the tree for the whole day without giving him water or food, we will grant amnesty.

UNKNOWN: That is so, I agree. I agree.

BERNARD MAKGABO NGOEPE: All murders are immoral.

UNKNOWN: That is so, I agree.  I agree.
	Then I move to paragraph (b) of the same Section 20(3), which states very categorically that the offence committed, it should be established whether it was committed in the course of or as part of a political uprising, disturbance or event or in reaction thereto.  With respect, Mr Chairman and honourable members of the Committee, we do not have such evidence.  There was no political uprising whatsoever. There was no disturbance or event whatsoever.  Neither was there any reaction thereto.  The only attempt made was to pull us to the overall situation, but I am still saying, put aside all those "plakkers" or documents, or even the evidence of the journalist, and confine ourselves to this situation, to the issues before us, and then a finding will be made that definitely there was no such a thing, and then this criteria would not be satisfied.
	(c) thereof. Mr Chairman, the crime or the offence to my mind, was criminal and very grave.  I must admit right-away Mr Chairman and members of the Committee, that some criminal acts can become political acts, but, and this is a warning, but the political element should be found to be dominating.  In casu, we don't have evidence to the effect that the political element in the committing of this crime is dominating. Instead, the evidence before us in totality directs us to a finding that the criminal element is dominating.
	This is a crime against life.  Mr Chairman, members of the Committee, I must admit furthermore that the standards are that crimes against life may also qualify as the honourable member of the Committee has already indicated some few minutes ago, but the qualification has got a rider.  It is said that crime against life may only qualify if it is a last resort - if it is a last resort - in reaching the political objective.  
	Firstly, no political objective has been established.  Therefore, we cannot speak of taking a life as a last resort in reaching a political objective.  	(d) thereof.

ADV DE JAGER: Mr Mpshe, could you kindly explain your last proposition a bit more, that the taking of the life should be a last resort?

UNKNOWN: Yes, member of the Committee.  International standards have been laid that the taking of life can be justified or be accepted in taking of one's life, in pursuance of a political objective.  But the taking of life should be a last resort, only if it was done in order to reach a political objective. Now in this, in casu, what I am saying is, we do not find what I have just said, save that -save that the life of the deceased was taken brutally.  Not to reach a political objective, but to conceal, as is evidenced by Mr Gerber, to conceal the bad deed.

ADV DE JAGER: Yes. No, I have got no problem if you say in this case that wasn't the last resort. I can understand your submission then.  But saying in general, that the taking of a life should be the last resort, then every landmine or whatever it may be, was that the last resort then, if somebody is killed?  Would that be the requirement as to why does he put it?

UNKNOWN: Member of the Committee, the last resort should be coupled with reaching a political objective.  These two should go together.

BERNARD MAKGABO NGOEPE: Once you do that, then are they are any different from the requirement of proportionality?  Surely it will be the same thing.