Amnesty Hearings — East London — 1999-11-03

CHAIRPERSON: Mr Mapoma, the Sotho Interpreter has been interpreting, is he necessary to the public?  Is there anybody that wants to listen in Sotho?

MR MAPOMA: If I may Mr Chairperson, yes.

CHAIRPERSON: Okay.  We will then break for two minutes then.
COMMITTEE ADJOURNS

CHAIRPERSON: Mr Guleni in the killing of Mr Mapipa, would be guilty of murder, unlawful possession of a firearm?

MR MGIDLANA: (continued)  (No audible reply)

CHAIRPERSON: I didn't hear.

MR MGIDLANA: Malicious damage to property, Judge, because Mr Mapipa's vehicle was certainly damaged.

CHAIRPERSON: Yes.  And were there other people injured in that incident?

MR MGIDLANA: From what I gathered from my learned friend, that somebody else was injured.

CHAIRPERSON: You don't know who that person was?

MR MGIDLANA: Who that person is, yes.  It could be attempted murder in respect of that person.

CHAIRPERSON: Yes.

MR MGIDLANA: As well as, I don't know whether it will follow therefore that assault GPH will be involved in the event that the attempted murder could not have been proved.  But whatever competent verdicts ...

CHAIRPERSON: Shooting somebody blindly cannot be other than attempted murder?

MR MGIDLANA: Yes.

CHAIRPERSON: And the killing of the APLA operatives?

MR MGIDLANA: In the killing of the APLA 5, it is murder.

CHAIRPERSON: Well, who is involved there?

MR MGIDLANA: It is Guleni as well as Poyo.

CHAIRPERSON: Yes, it is five counts of murder or how many counts?

MR MGIDLANA: It is five counts of murder, because as I understand it, five people died.

CHAIRPERSON: One attempt?

MR MGIDLANA: One attempted murder, yes.

CHAIRPERSON: Yes.

MR MGIDLANA: I don't know whether it is relevant, the question of conspiracy because the actual murder was indeed carried out.

CHAIRPERSON: Yes, then it is not conspiracy.

MR MGIDLANA: Yes.  As to the - I am not so certain what offence will have amounted to the concealment of their bodies, but whatever offence relating to the concealment of their bodies, and also the possession of firearms and ammunition, if any during that incident.

CHAIRPERSON: Did Guleni have a firearm that day?

LUSINDISO POYO: From the testimony of Poyo, he says Guleni was also having a firearm.

CHAIRPERSON: And Poyo himself?

MR MGIDLANA: And Poyo himself, he had this firearm that he got from Mzwandile Jagu, which was the pumpgun.  It seems in so far as the offences for which they apply amnesty it would be those.

CHAIRPERSON: Is there anything else you wish to add to that?

MR MGIDLANA: Judge, unless the Judge wants to and the Panel in general, wants to hear me on the question of the applications, the merit of the applications ...

CHAIRPERSON: Let's see what difficulties the other Attorneys pose to us.

MR MGIDLANA: As it pleases you, Judge.

CHAIRPERSON: We may come back to you.

MR MGIDLANA: As it pleases you.

CHAIRPERSON: Mr Malusi?

MR MALUSI: Thank you Mr Chairperson.    With respect to the murder ...

CHAIRPERSON: You are dealing with the APLA 5?

MR MALUSI: The APLA 5, the murder of the five APLA members and the attempted murder of Mr Gasmeni.  It is my submission to the Committee that both applicants do not qualify to be granted amnesty for those offences.  The principle reason being that it is my submission to the Committee that the killing of the five, in fact, I am not certain, the killing of four of the operatives, is definite that it is not politically motivated, that is those that were taken after the initial shooting by Mqiza, to be killed somewhere else.  It is my submission to the Committee that that killing is not politically motivated.  It is my submission to the Committee that that killing was done solely for the reason of trying to silence them so that there could be no criminal prosecution.   On their statements in the Bundle, it comes our clearly that they said they had no intention of killing these people.  There is no mention at all in their statements about a fear of retaliation.   Their versions, that is Guleni and Poyo, on their statements in their application, is that the first two were shot accidentally by Mqiza.  After the shooting by Mqiza a collective decision was taken that ...

CHAIRPERSON: Well, was it accidental?  He thought, he honestly thought that he got the instruction, it may turn out that he didn't get an instruction, but when he shot, he intended to shoot them, because he honestly believed that he had an order.

MR MALUSI: From his superior?

CHAIRPERSON: So it is not a question of a mistake when he actually did it.  It turned out after that, that it may have been a wrong interpretation, and in that fashion, maybe a mistake.  Would you agree with that?

MR MALUSI: I agree fully with that, Judge.  That is why I am saying with regard to the initial shooting of the two, that is why I am saying not murder on five counts.  They are possibly entitled to amnesty with regard to murder on one count.  Unfortunately we do not know who was killed initially by Mqiza, because he genuinely believed, bona fide believed, that he had received an order from his Commander to kill these people, which it turned out was a mistake.  But with regard to the actual murder later on of the three others, and the attempted murder on Mr Gasmeni, they are not entitled to amnesty.  It is clear from their applications that they are saying they murdered them to silence them.  This testimony today that these people were murdered so that they could avert a retaliation by APLA, is an afterthought.

CHAIRPERSON: Do you have the names of the victims?

MR MALUSI: Yes, I do Judge.  If the Panel would bear with me.

CHAIRPERSON: Maybe you can give it to Mr Mapoma when you do find it.  I can get it from him, don't worry.

MR MALUSI: Okay.

CHAIRPERSON: Carry on with your submission.

MR MALUSI: My submission is that with regard to the killing of the other four is that a chain was broken.  If these people were all killed at the same time when Mqiza misinterpreted that instruction, possibly they would qualify for amnesty, but that break in time, that break in activity, when they went around to say "we must take them to the hospital" and they said "no, we cannot take them to the hospital, they will report this" ...

CHAIRPERSON: Changes the whole scene?