Amnesty Hearings — Pinetown — 1999-03-08

MR STEWART: Indeed, thank you, that is the case.
So that then deals, save for what might be raised by my learned friends present, or indeed raised in question or discussion by Members of the Committee, that then deals with the question of acts associated with a political objective, and I then move on to the question of personal gain.  Now of course it is provided in the act that an act associated with  a political objective does not include any act, omission or offence by any person who acted for personal gain, and then it goes on to say provided that, and it speaks of receiving money as an informer.
	Now of course it is true that all three applicants whom I represent did get personal gain inasmuch as they were employed to perpetrate these kinds of activities.  It's not the only thing in respect of which they were employed, they also had other responsibilities.  Mr Luthuli in particular speaks about  ...(intervention)

CHAIRPERSON: Generally speaking, there'll obviously be exceptions, but personal gain really means being rewarded for performing a particular act, either by being paid by somebody to do it, normally by prior arrangement that there will be a payment, or of course in the event of a robbery by that being the prime motivation, is to go there to benefit oneself by stealing goods.  Personally I mean a soldier receives a salary, it's not covered by the Act I'm sure, so it's looting maybe, and being rewarded for a particular act.

MR STEWART: Thank you Mr Chairperson, thank you.  Then, with that in mind then, really that's all that's left insofar as personal gain is concerned, is the couple of incidents which were referred to earlier where the applicants were rewarded by Mr Jamile in Claremont for performing particular hits, and in particular that was in relation to the murder of Zazi Khuzwayo and the shooting of the pedestrians following the Clewer remark.  And there's, some ground was covered in cross-examination in an attempt to show that the applicants were acting out of this motive, and in my submission the evidence doesn't bear that out at the end of the day, in fact it doesn't even come close.  That these were, if you like, ex gratia payments or gifts in thanks after the event.  There's nothing to indicate that the applicants were motivated in the expectation that this was what they were going to get, whether because it had been promised or because there was some pattern of it they therefore expected that it would happen, and that's why they did it. ...(intervention)

ADV MOTATA: So there was no prior arrangement as to compensation or reward, and neither was there expectation of receipt of such reward, was there?

MR STEWART: Indeed, thank you Mr Committee Member, that is so, that is my submission on the evidence, and really that then deals with that aspect.  It's not, it's not a critical element in this application.

CHAIRPERSON: We've heard much evidence over a long period of time and I'm sure there's some evidence, some mention of it somewhere, that now and then there was a bit of looting that took place.  Like a TV would go, or something, if they went into a house, or cattle, or that sort of thing.  We haven't got much on it, and it's never been the focus of any particular incident, but I'm sure that there was an instance in the evidence, we can find it, where there has been some admission that sometimes some goods might have been taken.

MR STEWART: Mr Chairperson thank you.  According to my recollection that, really one's talking about two instances, or two scenarios, the one is the seizing of cattle where there's a Zulu name for that, amakambanyana or ...  I'm sure there're others in the room who'd be better at pronouncing it than I am, but there's no evidence of the applicants actually being involved in that themselves, so that one doesn't need to deal with that further.  And then the other one is in the area of clearances, situation of burning down houses and so on, there is a mention, Mr Chairperson you're certainly right in that respect, of that, if one can say it, minor level of looting, but there's no evidence of the applicants being involved in that.  That, if you like, was not the soldiers but the crowds who may have involved themselves in that from time to time.  In fact the evidence on that is extremely, there may be between Mr Magadi and myself, we can recall one mention of it.  It is something we can look for. ...(intervention)

CHAIRPERSON: It's also my recollection.  I've just remembered something being mentioned about goods being taken, but as I said it certainly wasn't central to the concern, it was just a mention.  But what you're saying is that there's insufficient evidence, there's no evidence to suggest that any of the applicants participated in these various incidents for personal gain.

MR STEWART: That is so Mr Chairperson, the causal element is just not there.

SISI KHAMPEPE: Hasn't Mr Dlamini, I can't recall it properly, hasn't he alluded to some kind of looting having taken place in an incident where he was personally involved? You could probably assist us.  I thought you were still going to go back to it, because you have referred to it in your heads, when houses would be burned and cattle would be taken, and some movable property, you know, in some of the houses that were attacked.

MR STEWART: Thank you Ms Committee Member.  I am not able to lay my finger on it immediately, and rather than delaying proceedings what I'd like to suggest is we will look at that, I've asked Mr Magadi to make a note of that, and we will find that specific incident and come back to it, if that's acceptable.

SISI KHAMPEPE: Are you in a position to, without having to refer to that particular incident specifically, relate to that in, as you did with personal gain, how that would not be part of personal gain?  That would fall outside the political objective as defined in the Act.

MR STEWART: For, let's assume that there's a scenario like that, and as I say we're looking for it precisely, but where there is a scenario of house burnings or area clearances which incorporate some level of looting, the difficulty that I would face in seeking amnesty in respect of that incident would be if there was evidence to show that the attack was motivated, at least in part, or at least not in significant part, by the anticipation of personal gain.  Or if I was seeking amnesty for the act of, or offences of theft, in those circumstances, because clearly that would be, the theft or looting of televisions and so on, that specific offence, would be for personal gain.  But the broader offence of arson and maybe of murder and attempted murder and so on, which is associated with the act as a whole, would not be, in my submission, for personal gain.  It would lack that causal link, and therefore it wouldn't apply, and ...(intervention)

CHAIRPERSON: So what you're saying is if there is a clearance, let's just for purposes of argument assume that there was an incident where a house was invaded, the inhabitants were killed, in part of a clearance operation, and on the way out a TV set was taken, or a video recorder, or something like that.  Are you saying then that the actual motivation behind the killings is completely separate from the taking of the video recorder?  So when they went into the house it was there for the clearance purposes, to attack them because it was an ANC or UDF area, and coming out the taking of the video recorder, although it is looting and theft and there is an element of personal gain, it's not linked to the reason why the inhabitants of the house were killed?  It's separate?