Amnesty Hearings — Durban — 1998-10-22

CHAIRPERSON: I am just checking the application form Mr Mbandazayo, it seems that it is certainly the second one, is just restricted to the murders.  It is just restricted, there is nothing about possession of ammunition or arms.
	Thank you Mr Mbandazayo.  Mr Mpshe?

MOKOTEDI MPSHE: Thank you Mr Chairman.  Mr Chairman, I will start with incident one, that is the killing of Ndlandhla Meheza.
	Mr Chairman, I am ad idem in as far as the facts are concerned with my learned friend, but I have just one little legal problem in as far as interpretation of the Act is concerned.  I think this will entangle the issue that my learned friend raised whether he was a member of PAC then or not.  To me it is very important whether he was or not at that time.
	Particularly if one has a recourse to Section 20(2), particularly paragraph (a) and paragraph (d) thereof.  My problem with this incident in as far as the Act is concerned, is that if one reads paragraph (a) and (b) ...

CHAIRPERSON: It has to be directed against ...

MOKOTEDI MPSHE: Another liberation movement or organisation, in opposition to the one to which the applicant belongs.  The fact whether he was a PAC member or not, is very important because then it will determine whether he is covered by the provisions for the Act.
	The evidence that we have by the applicant himself is that he was a member and ...

CHAIRPERSON: But on that one, and I am just thinking off the top of my head, look, I think it is quite clear that Mr Meheza was a member of the PAC and APLA and he was regarded by his colleagues as being a member, and it is also quite clear that despite the fact that he was a member, he was passing on information to the Police, who were the enemies of his own organisation.
	Now, we know that those Sections, if you read them literally, they say that it is an incident or an act or an omission or offence committed by a member or a supporter against some other - the State or liberation movement or whatever, but surely the intention of the Act was to cover all conflicts, acts, offences, omissions arising out of the conflicts of the past, which have a political, which were committed or omitted, etc, with a political objective in mind?  The overall intention?

MR LAX: Just to add to what the Chair is saying, could the applicant's actions not be covered by subparagraph (e), which is that dealing with supporters who act in support of their movement, within the context of the conflicts of the past?

MOKOTEDI MPSHE: Yes Mr Chairman, in fact I have my notes here, I was going to say, these subparagraphs excluding (e), (f) and (g) and I thought, I anticipated that my learned friend would pick one of them out, but my learned friend was so general, that he tempted me to say what I am saying.
	But if that is raised by a member of the Committee, I cannot gainsay that.

CHAIRPERSON: No, but we take the point that you are raising, I think it is a point that should be specifically dealt with in our decision.

MOKOTEDI MPSHE: Thank you Mr Chairman, then I will pass on that incident, otherwise I am ad idem with what is stated by my learned friend, except the legal part of it.
	Mr Chairman, on incident number two, I am ad idem with my learned friend as far as the presence of the applicant is concerned.  Mr Chairman, the evidence is clear that this man, the deceased, Kanyile was not the target.
	But it should be made clear that the applicant and this is his evidence, did not shoot voluntarily or deliberately.  He said it clearly, that he was not aware that the gun was cocked, it went off by mistake.
	Let's have that scenario in mind, and get another scenario wherein the applicant says we ordered him to stop, he refused to stop and we shot him.  Let's put in that deliberate part of it.  Then, if the deliberate part of it is in and it is accepted, one can simply say and this would be correct, that they did what they did in the furtherance of their mission, it was part of their mission.
	They had to get rid of whatever obstacle and then the political jacket would also be seem to be worn by the killing of Kanyile.  But he doesn't say so, he says I was not even aware that it was cocked, it went off by mistake.  Can we still say in scenario two, the furtherance of what they were going to do, is applicable?  With respect, the answer would be in the negative.

MR LAX: I am not so sure that I agree with you.  Perhaps you could address yourself to this issue.  You say that the act of acquiring the transport was a part of the object of achieving their mission.

MOKOTEDI MPSHE: That is correct.

MR LAX: Let me finish.  It was part of the object of achieving their mission.  What was the applicant busy doing when the gun went off by mistake?  He was intending to threaten the deceased, that is his evidence?  The offence for which he was convicted was one of murder.
	On the facts before us, it would probably be more either murder or culpable homicide, it certainly would still be a delict.

CHAIRPERSON: Yes, if it was murder, I mean on those facts, let's just take the facts as given by the applicant, he's got this gun, it is handed to him, he says it is handed to him in the vehicle and with the instruction to threaten the driver.  He takes the gun, it is an automatic, he knows guns, he is trained.  He doesn't check it, he doesn't know whether it is loaded or not, but in the whole circumstances, it might be a reasonable conclusion to arrive at that he acted so grossly negligently or recklessly, that it could have been a form of dolus eventualis and even murder, as opposed to - it is a possibility.
	So although he says he didn't have the direct intention to kill him, the fact that he was handling this highly dangerous weapon in a situation which was very dynamic, to say the least, because the driver got a fright, he said the car got out of control, yet still he is holding this gun to the man's head, it goes off.  It might even be dolus eventualis as opposed to straight negligence, but in the applicant's own mind, it was a mistake, he didn't intend.  He didn't have the direct intention to kill him.  He might have had a legal intention to kill him.
	But I take the point that you are raising Mr Mpshe.

MOKOTEDI MPSHE: Mr Chairperson, I don't know whether the Chair's last comment ...

CHAIRPERSON: No, I understand the point that you are raising.  I understand what you are saying is if it was a mistake, something unintentional, then how can it be said that that was in furtherance of an intended aim, if it was a mistake and you didn't mean it to happen, how could it be part of the intended mission.

MOKOTEDI MPSHE: Thank you Mr Chair, that is exactly what I wanted to put, to carry forward.
	To respond to the Committee member's question to me, whether it was a question or he wanted to know as to whether I agreed that the taking of the car was in furtherance of their mission.  I do agree it was.  That is precisely the reason why I don't even want to touch the robbery, because his evidence is very clear that they wanted transport.
	I accede that, but my problem was based on this issue of recklessness and Mr Kanyile not having been even in their mind, that he might be killed, but to be threatened.  Perhaps if we push it a little bit further on the threat, and we try to cover or attempt to cover threat as may possibly mean, murder, then I will still have a problem.
	A threat remains a threat, it cannot be taken to the extent of saying a threat means killing, taking the life of a person.  That is why I raised this issue, it impacts itself on the provisions of the Act, I think Section 23, on the question of proportionality.  
	Thank you Mr Chairman, if - I don't say the Committee is agreeing with me, but if I am good enough to persuade the Committee on this incident, then I don't think the applicant qualifies for amnesty.  Thank you.

MR LAX: When you say you don't think he qualifies, do you mean on this incident?