Amnesty Hearings — Durban — 1998-12-02

MR WILLS: If I could go to the first question, if I was a Prosecutor in a criminal trial, and I was, the accused said that there was nothing he could do to stop the attack, my question would be well, why did you point the attack out?  Why did you point the place out?  That is the first instance.
	Now, I know he says that he didn't want to be pointed out as a sell-out, or he didn't want to lose the credibility within his community basically, but I submit that in the light of the whole of his evidence, it must be seen that he also indicated quite clearly that he wanted those people to be taken out.
	Those were the attackers that attacked him on a regular basis.  He certainly was quite happy for Pat, at no stage did he say in his application, in his papers, or in his papers, if my memory serves me correctly, that he didn't want Pat to go ahead.

CHAIRPERSON: He said he actually supported it, but you see, I think it is quite clear, the applicant himself subjectively feels guilty about it, because this is the first time it has ever come to light.  He hasn't been charged, or he hasn't even been suspected, etc, and it seems that raising these two incidents, where he played a very small sort of almost distinct role, distant role in the whole thing.

MR WILLS: That is my submission exactly, he had no reason to come to the Committee unless he felt that he had been involved in a crime.  The difficulty with these things is that if he were charged, there may well be more substantial evidence, where certain people would give evidence, and we might find that there was more to it.
	My submission is that his role does amount to a crime, and it might with the law in relation to common purpose, might in fact even although it will be unlikely, it may well be regarded, he may be regarded as having murdered those people, or charged with murdering those people at the least.
	As regard to the second point that Committee member, Mr Lax, raised about the political motivation, I submit that it is clear from the evidence of the higher profile applicants yesterday, that there was (indistinct) of proper political training, and political education and instruction.
	Clearly it appeared from what the applicants said yesterday, that one of their purposes was to use an MK person, who was trained properly and correctly, to go into the areas and to perform that role of discipline and political education and political education is obviously up to policy.
	To that extent, that didn't happen here, there was no mention of MK.  He even indicated that MK persons only came into the area after he had left, so there wasn't that direct education which would have enabled him to fully appreciate the policies in the first instance.
	He did however, he was however told by his, the Commander of the other Unit, Mnini that Mnini thought that he didn't want to participate in that attack, but that was clearly Mnini's own position.
	Be that as it may, it is not only whether an act is committed in accordance with policy of a particular organisation, that pulls it within the context of a politically motivated act.  There is a whole umbrella of other circumstances, and I submit that in this instance, it falls within the ambit of Section 20(a) and in fact 20(b), and it was, the attacks were directed against political opponents.
	One can go into more detail in that regard, but clearly the pro-active report, and I think with respect, the Committee could possibly take judicial notice of the fact that there was serious violence in these rural areas, particularly in the townships.

CHAIRPERSON: We know that, and in fact the applicant himself has told us that it was, the situation had reached an intolerable point.  They were just being attacked, in broad daylight they were having their stock taken, they had no guns, they were sitting ducks.

MR WILLS: Yes, indeed.  To that extent, the attack was directed against members of an opposing political party.  I have looked at a couple of judgements.
	Mr Lax raised the point of innocence.  The PAC matter, the amnesty decision AM5939/97, and 5784/97 and 0293/96, those were PAC people who granted, had more of a cover by policy, but essentially they were just told to go and attack whites.
	They went into a night club and just shot randomly into a nightclub and injured and killed certain persons, and they were granted amnesty because it was in a political context.  I submit that there is a difference in this instance, in the sense that their authority was more direct, however, the indiscriminate nature and the proportionality of the attacks, is far  - sorry the proportionality in this instance, isn't as extreme as it is in the attacks, those attacks on clearly persons who they don't even know in Newcastle.
	At least in this instance the attack was directed at a known area where political opponents came from.  It also, I think the other point to bear in mind is, whilst we don't know what happened, we clearly know that the attack didn't go discriminately against houses.  There is no report of that.

CHAIRPERSON: We know that, yes.  All we know is that three bodies were found near the river, which was the border line between the two areas.

MR WILLS: Yes, indeed.  My submission is that in that regard, the proportionality isn't adverse against the applicant in this instance.

MR LAX: Do we even know whether those three bodies were the result of Pat's work or his comrades' work, other than that they were more or less contemporaneous?  We don't know who those people are?

MR WILLS: No clearly, we don't know who those people are, and neither do we know who the persons are in the first instance, so in that sense, there is no reason to discriminate between the first and the second instance.
	But again, the contemporaneity of the events, leads me to submit that there is a probability that those bodies were related to Pat's attack.  In his application for example, he talks and he also mentioned it in his evidence, the applicant mentions this person coming up from the direction of the river, with his arm bleeding, and hearing gunfire.  It is clear, and then he goes down to the river and he sees those bodies.
	One must assume and they reported that they had a battle on the river, so one must assume that clearly those - and then he goes and he sees, obviously he was told where the battle was.  He goes down and he sees where those bodies are, so I submit that those bodies were bodies that were, persons who died in that battle.
	I would submit in brief that the same type of decision worded as the Chairperson did, in respect of the first incident, would be appropriate in the second incident.
	Unless there is anything else to address on the issue of full disclosure, I submit he has satisfied that fully.

CHAIRPERSON: Yes, I don't think we've got any reason to believe that he has purposefully held back any relevant information.  I think if he was telling an untruth, he would have not even bothered to have applied, especially in respect of the first two incidents.

MR WILLS: Yes, indeed thank you.  Unless there is anything further, that is my address.

CHAIRPERSON: Thank you Mr Wills.  Ms Thabete, do you have any submissions?

MS THABETE: No submissions, I will abide by the decision of the Committee.

CHAIRPERSON: Thank you.  We will reserve our decision in this matter.  We will hand down a written decision.  Thank you very much.  That then brings these proceedings, this application to an end.  Thank you Ms Thabete for your assistance in the matter, thank you Mr Wills, for your assistance, not only today, but also yesterday.
	We've got one more matter left, the Zulu matter?

MS THABETE: Yes, Mr Chairman.

CHAIRPERSON: You have indicated that you would like us just to adjourn and then reconvene, you will tell us when you are ready to start?

MS THABETE: I will do so Mr Chairman.