Amnesty Hearings — Middelburg — 2000-05-10

MR RICHARD: Thank you.
	As the Committee is more than aware, there is a huge distinction between the first and second applicants before it.  On the one hand we need remind ourselves that the test which should be applied to an applicant, is what his honest and bona fide, but subjective intention was when he did what he admits to doing.  
	In Michael Phasha's case, and for the sake of formality I'll call him the first applicant, he gave evidence first, he admits the crime of murder in that he certainly joined in with the crowd by associating himself by the act of throwing the first stone.  However, if we look further in his chain of perception, what he perceived and saw then was that he was stoning a person who had been part and parcel of the chain that had led to the death of his brother, Moses Phasha.  His evidence was straightforward and clear and I believe credible.  The questions that we need ask when we talk about witchcraft, is not whether the belief is reasonable in the logical sense but whether it is reasonable in the cultural sense. 
	The evidence before the Committee is clear, that the applicant comes an area where belief in witchcraft is rife.  We all know, and I don't intend labouring this argument by quoting from the various volumes of Commissions and Reports that we all have copies of, they do establish the prevalence of the belief.  What's further, they also establish that at this time, that is January 1991, there was a very strong politically motivated, anti-witchcraft mood.  Without arguing chapter and verse from the various reports, I believe it may be submitted, and one may in the year 2000 say with good reason, that for political reasons the crime or the practise of witchcraft was seen as reactionary, oppressive and counter to the development and movement towards a democratic State at the time.  And indeed it might well have been perceived so, for good reason.  Without labouring the argument, the coup in Venda had happened, the case can be made clearly that as a result of the political failure of the homeland structures, homeland leaders and the security apparatuses of the old State, did have an ascendancy and they were seen as the enemy.  Evidence in other hearings has been led, to the effect that crowds such as the 500-crowd that we talk about today, did chant freedom slogans and did chant praises such as "Kill the impimpi, kill the moloi".
	Now one then need go no further than to think of a matter that I know Adv Sandi and I are both familiar with, and that's the decision in the Sekela Dlomo matter.  There the decision was that when an ANC MK operative shot his junior, who was found not to be an impimpi, he was entitled to amnesty on the basis that subjectively he bona fide and honestly believed that the non-impimpi posed a threat to his unit.  Here there is much stronger and far more cogent factual reason for it to be argued and held, that Michael Phasha had an honest and bona fide belief that Madibeng Phasha posed a threat to the liberation movement of which he was an associate and with which he had an associated himself.  
	It is also useful when reflecting on other decisions, to think of those where ANC supporters/members has decided to go out and put an end to criminal gangsters.  In those cases the act of murdering a gangster was not held to be one committed with a political motive.  However, they are clearly distinguishable.  The subject of belief held by Michael Phasha, was that whether it was the unknown molois or the named molois, or the fatality, that is Madibeng Phasha, they were seen and believed to be persons operating with a political agenda against the cause he was associated with.  And I don't believe it would be a violation of the expectation of consistency to distinguish between the two situations.

CHAIRPERSON: Yes Mr Richard, I don't think it always helps to try and squeeze these different kinds of decisions into the same old ... what we must really do is, we must look at this particular instance here.  Now isn't this - this is not so much prima facie in my view, it's not so much about the broader concept of witchcraft, witches and so on, this was a specific context where the ANC Youth League regarded people who were also seen as being associated with witchcraft, in the beliefs of that particular society there, but they were seen a part of the political enemy.  And that's where it starts off.  I assume, on the factual situation, if they were not regarded as witches they would still have been political enemies.

MR RICHARD: My argument is, in that particular context of this area that we talk about, the perception of the witch cannot be distinguished of an urban Self-Defence Unit's perception of a policeman.  It's the same ...(intervention)

CHAIRPERSON: Yes, I mean it's not so much the concept of a witch, it is the question of a political opponent.  These individuals were regarded as being on the part a chief who was seen, through his interruption of the activities of the ANC Youth League, as a political opponent.  And that's really where it starts off.  So the question of witchcraft, the way I see the matter, I might be wrong, the way I see it is not so determining of this scenario.

MR RICHARD: The only point that I labour on witchcraft, is in the bona fides of the belief.

CHAIRPERSON: Yes, yes.

MR RICHARD: And after that it becomes almost irrelevant.

CHAIRPERSON: Ja, that is certainly the approach of the Committee, but I mean as I've said, to try and squeeze these matters into the same sort of mould doesn't really help very much, they're always different.  We must look at the particular circumstances of this one, we must decide on these facts.

MR RICHARD: Chairperson, I'm anticipating arguments that I don't need to reply to tonight, so I thought I'll deal with them now.
	However, while - I think, should the Committee want written argument, I'm quite happy to prepare it and have it finished by the end of the week after next, but I think for the moment I can pass to Daniel Phasha's situation.

CHAIRPERSON: So is your submission that the conduct of the first applicant, as you call him, has been associated with a political objective?

MR RICHARD: That is my submission.  The political objective was to eliminate a political opponent, which witches were perceived to be at the time, and that ...(intervention)

CHAIRPERSON: Not witches in general, but those people in Driekoppen, who were regarded as siding with the chief?

MR RICHARD: Correct.

CHAIRPERSON: Or allowing themselves to be used by the chief.

MR RICHARD: Whether it's siding with the chief, or siding with a certain percentage of molois, as they are termed, were against progress.  Again it doesn't really particularly matter, the perception and belief and conviction that the perpetrator of the violation, such as Michael Moloi had, was that he was furthering the cause of the ANC, as much as a person who might have shot a community Constable at the time, had the same belief.  And the fact that it was witch doesn't matter in any material sense, it's the belief and intention and subject of perception.  I really believe that at this stage of the TRC proceedings, to repeat all the arguments in that context takes us very little further, we all know them.
	And then where I would like to go is I don't believe it would be appropriate to simply leave Daniel Phasha's situation commented on by the basis that he admits to no crime and therefore should not be considered.

CHAIRPERSON: Yes, that might have to be the focus of your submissions in regard to his situation.

MR RICHARD: I believe that is a far more difficult situation to argue, because there we have a man who sat before us and gave a straightforward direct and in my opinion, highly credible evidence.  He had no political objective and he didn't commit a crime.