Amnesty Hearings — East London — 1999-04-30

MS PATEL: Before I respond directly to your question, I also want to place before you the finding of the court in that.  None of the victims in terms of the finding of the court were in fact told that the purpose of the group coming there was to force those farmers to leave.  So that is the one point and following on that my response would be that perhaps they could have been intimidated in other ways, perhaps their property could have been damaged to a serious extent.  If my understanding of the type of farming in this area is correct, it relates to stock farming.  There's no reason why they couldn't have been deprived of their stock on a continuous basis so that they would then eventually be forced to leave the area and if you accept that it was necessary for some measure of assault to take place in order for them to be intimidated, it is still my respectful submission that the extent of the assault upon these victims was unnecessary to achieve the desired object.

ADV SANDI: I don't know about that, perhaps taking into account that this seems to have been some sort of social political upheaval, commotion of some sort.  Perhaps we have to be careful today not to adopt a kind of wise after the event armchair critic here?  Perhaps we have to be a bit cautious not to be too critical here, taking into account that it seems to have been a complete commotion and upheaval they say.

MS PATEL: If one looks at the manner of the assault then as much as I'm fully aware of us not taking an armchair approach to the tensions prevalent at the time and the levels of anger.  If one looks at the victims that were shot, they were all almost shot in the upper part of the body.  Two of them were shot in the face  If the mandate to the applicants as stated by Mr Bhayi was clear and he said the other members of the group would have known about the ambit of that mandate, then surely despite the levels of anger and the tension, the applicants have still gone beyond their motivation - not beyond their motivation, beyond the level of the authorization in a sense.

CHAIRPERSON: Ms Patel, it would be very difficult.  An organisation would be hard put to come and argue that they send a group of young people into the night armed with firearms and ammunition to come back and say "no, look, you know, are policy was that they shouldn't have used these firearms, they shouldn't have used violence".  What do you expect?  You have this group of people going off in the middle of the night armed, they go to confront farmers who are also armed and who clearly, I mean on all accounts, won't just sit back and allow people to walk into the houses and tell them what to do, I mean you're obviously creating a situation of conflict and as tragic as it is and as difficult as it is to accept that you know, this sort of thing has happened in our country, that is just the reality, you had these people going to confront you know, these old people and what do you expect, I mean an organisation is going to have great difficulty to turn around now and say the sanctimonious at this stage and say no, they exceeded the mandate and we told them no violence, yet we give them the means to kill people.  I mean really, how realistic is that?

MS PATEL: My response to that, Honourable Chairperson, would be that inasmuch as you are dealing with the question of responsibility of the organisation, I would pitch it at the responsibility of the applicants and I will refer you specifically to the testimony of the last applicant who says that they were fully apprised of the ambit of the authorization and that he was at least willing to carry out or fall within the ambit of that authorization and if he as one of the young members of that group was in a position to say that he was there with noble intentions and was in a position to follow the strict rule of that authorization, then why can we not - on what basis are we not then extending that sense of responsibility to rest of the applicants??

CHAIRPERSON: Yes, the question is what happened at the scene of these incidents?  Is that so grossly unreasonable that it could never have formed part of this particular mandate as having been foreseen to an extent?  That is the question.  What else did you expect was going to happen and let me add to what my colleague has said, Adv Sandi, you know to suggest that this was just common crimes, this crowd would go there and throw stones on people's houses or when the owner is locked up in his barricaded room not to empty his own, I mean you know, robbers the way we understand it just don't operate in that way so this clearly seemed to be related to this action against the farmers.  That much seems you know to be quite clear to me at least insofar as the four incidents are concerned.  Clackers of course is a totally different story but it seems clear that and then this was part of that action against the farmers.

MS PATEL: If you are then to accept the bona fides of the applicants in respect of the other four incidents save the Clackers, then my difficulty lies in terms of the thefts that accompanied the two incidents at least inasmuch as they were not convicted of robbery of any other goods except the shotgun in the Hansel incident.  The applicants have testified that they've taken other goods besides the gun and that that was in fact handed over.  With the Marulia incident and the goods that were taken there, my difficulty with accepting their bona fides is that I think that or it is my opinion that it is - what's the words I'm looking for - it's convenient for them to come here to us today and say that we only took firearms and ammunition because that fell within the mandate and they go further than that, they say not only do we deny taking any of the other goods but we didn't even see anybody else take any of the other goods.  How probable is that, Honourable Chairperson, given that they were all present together in the same house.  Does that not effect their bona fides and their motive.  How does one distinguish and it is in fact conceded by their legal representative that the thefts don't relate to a political motive.  How does one distinguish unless the applicants make full disclosure as to what exactly their motives were and it is my respectful submission that the onus lies on the applicants to leave us without any doubt as to what motivated them?

CHAIRPERSON: Yes the question of the non-weaponry items, of course that is a difficulty and I think Mr Kincaid has correctly dealt with that, with that question but even that is understandable you know, that you have this crowd of people invading somebody's house, that's actually a miracle you know, if you have a person who is as disciplined as the last witness or the last applicant seems to be, it's very likely that somebody's going to steal a packet of Knorr soup from the pantry, you know, I mean that is not so inconceivable.  It might create difficulties for them in terms of amnesty but you know it's not totally unthinkable and if you have a large group of people the probabilities can go either way.  It does raise a question mark then, these applicants just don't see or hear when it comes to certain items but I mean if there is a crowd action can one really reject it on the probabilities and say they were lying to us?  They might be very suspicious that convenient from the amnesty perspective that those items that are not susceptible to amnesty doesn't fall within the action that they took but is it higher than a suspicion?