Amnesty Hearings — Durban — 1996-08-14

MR D'OLIVIERA: No, there has been no direct evidence.  One has to, I think, look at the circumstances of these acts and I will be referring to them just now as being widespread beyond that in actual fact, of criminal activity, and to say specifically we had proof of membership of the ANC, no we do not have the proof.  We have to look at it by way of the association.  Thank you.
	I ask this Tribunal to find the following factual background existed when the applicant committed the two crimes in question, namely murder and attempted murder, bearing in mind a directive of this Tribunal that addresses shall be succinct and to the point.  
	At the time in question the two deceased were members or supporters of the ANC and they and others conducted what the trial judge described as a reign of terror against members of the SAP and civilians who supported the IFP.  If I may here refer the Committee to the sentence on page 401 of the trial court.  This is paragraph, the third paragraph:
"According to Colonel Nel the second deceased had been sought by the police for a series of serious crimes including many murders which had apparently been committed by himself and his gang. Even if only a small number of these allegations were true the second deceased and his gang had indeed conducted a reign of terror in the area.  These facts would have been known to you and you could have with some measure of justification have felt the second deceased should have paid for his crimes with his life, but he was a known member of the ANC and the crimes could perhaps have been seen as politically motivated".
	Among the crimes committed during this reign of terror were 25 murders, of which three were committed that day, 38 attempted murders and 10 armed robberies.  In this regard Mr Chairman, also before the Committee is a list of the offences of which Mswele and his group were held responsible for.  This formed part of the record of the trial court and I have obtained those figures from going through this list.  As I said I have added the further three deaths that occurred on that day.
	On the day in question the applicant, who together with other members of the SAP had been engaged for two years in attempting to arrest the deceased and others came across certain members of the SAP and SADF who were conveying the two deceased in a motor vehicle. The two deceased were seriously wounded in a shoot-out with members of the SAP and SADF in the course of which three members of these forces were killed.  
	I may point out here that reading the sentence in this matter reference is made to two members that were killed, it was in fact three that were killed, and the evidence of the applicant here stated as much.
	The applicant was in a mental state which was certainly not normal and he removed the two deceased from the vehicle in which they were being conveyed, one of whom might have been dead at that stage, and shot them in the presence of other members of the SAP and SADF.
	Before dealing with the requirements of Section 22 regarding "an act associated with a political objective", I draw the Tribunal's attention to the following remarks in the judgment of the court to which the applicant appealed against his sentence.  Mr Chairman I also made available a copy of the judgment of the Court of Appeal and what is reference here is page 3 of that judgment.

CHAIRPERSON: This is the Court of Appeal?