Amnesty Hearings — Nelspruit — 1999-02-03

MR SITHOLE: I think Madam Chair, there is room for that argument.  The reason being that if you look at the incident as it is, the perpetrators were merely given instructions to go and commit a certain offence which was properly planned.

ADV BOSMAN: Thank you Chairperson.

CHAIRPERSON: Thank you.  Mr Sithole, does it really matter whether, who committed this offence?  Are the people who planned, not as guilty as those who actually threw the bomb?  If we were to accept that indeed Mr Radebe participated in this incident, only to the extent of planning and if we were to accept that he has fully disclosed his participation with regard to the planning, the planning being an important aspect, because it led to the actual attack on the bus, if we were to accept that, would his participation not be similar to those of the operatives who ultimately carried out the plan of Mr Radebe?

MR SITHOLE: Yes Madam Chair, I think the people who planned the whole incident, when it comes to punishment, I would say yes, they deserve the same punishment, but Madam Chair, one has to look at their legal culpability to the offence, I would categorise them into two groups.  That will be the conspirators, it will be the people who actually planned the offence and the people who committed the offence.

CHAIRPERSON: I am fully mindful of the various definitions given by Mr Claassen during his address, but one must take cognisance of the fact that one is dealing with the Act called the Promotion of National Unity and Reconciliation Act of 1995, and pertinently the Committee has to take regard to Section 20(2) that specifically defines and act associated with a political objective.
	If one has regard to the fact that planning, directing, committing an offence is defined as an act associated with a political objective, as long as it meets the requirements of Section 20(3) of the Act, wouldn't you say that the legal culpability really becomes of no significance?

MR SITHOLE: Yes, Madam Chair, for the purposes of the promotion of national unity and reconciliation, I don't think the categorisation of the planners and the perpetrators, would help the Commission at all, because all we are looking at, is whether the person committed the offence or identified himself with the commission of the offence, and whether the offence was politically motivated or not.
	That to me, is what is critical in this hearing.  The point which I have raised previously is that in the view of the victims, the applicant did not disclose to the Committee fully as to what happened.  He has withheld certain information which is critical to the Committee to take that decision.

CHAIRPERSON: But to the extent that he has disclosed his participation in the planning, that resulted in the attack on the bus, I don't think you would have any basis to challenge the fact that he hasn't met the requirements of the full disclosure?  There has been no evidence from the objectors that would suggest that that requirement has not been complied with?

MR SITHOLE: I agree with you on that Madam Chair.

CHAIRPERSON: Ms Thabete?

MS THABETE: Without repeating what has been said Madam Chair, my submission is that there was clearly a political conflict between UWUSA which was perceived to be IFP, and FAWU.
	I think this point has been elaborated and I agree with the parties.  On the ensuing dispute which is whether the Committee should attach much weight to whether it makes a difference whether the applicant actually threw or did not throw the object as seen by Ms Msibi, my submission is that, or my argument is that the applicant disclosed the fact that he planned the whole act. 
	He further discloses the fact that he was present at the scene when the actual act was committed and I think this, how can I put it, it explains the other version of Ms Msibi having identified the applicant at the scene.  Yes, the argument would be that she saw him throwing something at the bus, but considering the fact that Ms Msibi has also admitted to the fact that there was for lack of a better word, enmity between FAWU and UWUSA at that stage, I mean it would explain really why she associated, it explains why she associated seeing the applicant at the scene, with actually the fact that he committed the offence.
	I think that is the explanation I would give, and that is my submission.  Further considering the fact that the bus was in motion, and considering the fact that we heard the applicant saying when the explosion took place, he fell on the ground or something, I mean that as well, you know would explain maybe why Ms Msibi might have seen the applicant bowing down on the ground.

MR LAX: He in fact said that he ran away to another place, away from the scene and he hid behind an office.  He didn't say he fell on the ground at all, but be that as it may.

MS THABETE: Maybe I stand to be corrected, I thought he said that when the explosion happened, he bent down and hid himself on the ground, but I stand to be corrected.
	That is my submission that really in my view, he has disclosed so many critical elements to the Commission, of the crime, it doesn't make sense why he would deny such a small factor, that he actually threw the bomb or not, because it doesn't make any difference, he was there, he was placed at the scene of the crime.
	I would agree with my colleague, Mr Claassen, that in court he would have been convicted of murder in the common purpose.  Thank you.

CHAIRPERSON: Is it not so Ms Thabete, that there is no evidence that contradicted that of Mr Radebe about the leadership  that participated in the planning of the attack in the names of Mr Meyela and himself, that he was the General Secretary of the IFP locally, in Heidelberg?

MS THABETE: Yes, that is so, and according to our investigations, there is nothing to the contrary.
	It is my submission that I would have no objection to amnesty being granted.  Thank you.

CHAIRPERSON: Thank you Ms Thabete.  Mr Claassen, do you want to have any response to the address by Mr Sithole and Ms Thabete?

MR CLAASSEN: I have no response, Madam Chair.

CHAIRPERSON: Well, lady and gentlemen, we are going to reserve our judgement in respect of this application.
	We hope to, however pronounce it in due course, not later than a week from now.  We would appreciate if the record of the proceedings could be expedited in being transcribed to enable this panel to go through it with a view of making a speedy delivery of its judgement.
	We thank you for your assistance in respect of this application.

MR CLAASSEN: Thank you.

MS THABETE: Thank you Madam Chair.

MR SITHOLE: Thank you Madam Chair.

CHAIRPERSON: Mr Sithole, you are excused, we know you are not going to be involved in the next application we are going to hear.

MR SITHOLE: Thank you Madam Chair.

CHAIRPERSON: We will adjourn to afford Mr Claassen an opportunity to consult with Mr Mtambo, who because he is a prisoner, he has not been able to consult with him.  We would like Mr Claassen just to give an indication to the Committee, how long he would like to be afforded an opportunity to so consult with his client?

MR CLAASSEN: Thank you Madam Chair, it will take no longer than 30 minutes at the most.

CHAIRPERSON: Will you, if it should take shorter than 30 minutes, just give Ms Thabete an indication, so that she can call us and then we can proceed with that application.

MR CLAASSEN: Thank you Madam Chair, I will do so.

CHAIRPERSON: We will adjourn for 30 minutes.
COMMITTEE ADJOURNS