Amnesty Hearings — Durban — 1999-09-21

MR MALAN: Mr Panday, if I may read my note to you, because this is also a major problem, the difficulty that I have?  It says:  "After the assaulting, what did you do then?  We released him, told him to go.  After a short distance Lucky asked the difficult question.  We decided to call this person back.  He asked us if we thought very well.  Afraid other IFP and attack as usual."  I'm just reading my cryptic notes and then, the crucial paragraph:  "What did you do in response to the question?  Some went to fetch him, we brought him back.  Ngwenye said, he said the best option is to kill this person."  Not an order, he was sort of discussing, it was part of an ongoing "botla" or something there.

MR PANDAY: Mr Chairman, I must submit that whilst we accept that Mr Ntshetha holds the position of a Commander we must not ...(intervention).

MR MALAN: You see that's really at stake, the position of the Commander.  We cannot argue on the one side that because the person was killed, he's the Commander, he took the decision and the other, it's an order because he's the Commander.  We can't blow on both sides.

CHAIRPERSON: Yes see, he is an active participant in all respects.  I mean from the time when he is interrogated and to the time when a decision is taken to meet a particular kind of punishment.  He is an active participant and a decision maker as well as to why that kind of punishment should be meted out.  He continues to be actively involved in revoking a decision taken earlier on collectively, by the group.  Are you not dealing with a person who really is taking orders, stricto senso, do you understand our problem?

MR PANDAY: Madam Chair, it is my submission that whilst we see Mr Ntshetha as a Commander, we must not look at him being in a position of that as an autocratic Commander in that he just merely dictates.  It may appear to be, one would not want to create the impression that there was never a decision that would have been taken, as much as we have people in position nowadays, be it the President, be it the Minister of Defence, or Safety and Security, whatever decision that that Minister finally takes, will be a decision that has been reached by, or reached after consideration.  Now the decisions that were taken when Mr Lucky Ntshetha ordered them to bring back the victim, as much as there was collective decision making taking place in so far as the releasing, he, after consideration, either ratified or disagreed with that decision, so as much as one has to follow orders, we must not look at the position of Mr Moses Dlamini, that he was part of a collective active decision making, at the end of the day when a decision was reached, be it collectively with the Commander, or by the Commander independently, at the end of the day he followed that decision to protect the group they were setting out to protect.

MR MALAN: Mr Panday, frankly I don't understand this track of argument.  The applicant did not kill, physically kill the victim, the deceased.  The only order that you ever led evidence about was the order to shoot with a gun that failed to shoot, for the rest it was participation and a process, at best a common purpose doctrine thing, as the court indeed did find.  The court never found any orders and there was no order ever in evidence, other than relating to the failed shooting.  Is the argument not, if there's an argument, should it not simply be based on the applicant being a supporter of the ANC, really believing that he was promoting the causes and leave it at that?  I don't understand why you argue the order stuff.

MR PANDAY: Well Mr Chairman, I was going to get to that.  In considering what he was doing with the Commander, ...(intervention)

MR MALAN: No, but just make it clear to me.  Was there any other order to the applicant that we have evidence of, except an order to shoot and that that effort failed.

MR PANDAY: No there is no other.

MR MALAN: So why do you rely on any order?  So can we continue then with the rest of the argument, please?

MR PANDAY: Madam Chair, after considering the position of the order to shoot which failed the applicant, while still in the belief that he was promoting the cause of the ANC being a supporter obviously remained and continued with whatever had to be completed on the day in question.

CHAIRPERSON: And obviously you can't be arguing in a vacuum.  We have an application form in front of us, and I'm sure you've actually had cause to peruse such an application form, completed by the applicant himself where he really does not refer to Mr Ntshetha as a Commander that night, he refers to him as a member of his organisation and I draw your attention to paragraph 11(a) where he says he committed the acts for which he seeks amnesty on behalf of his organisation, that being the ANC and paragraph 11(b) where, in response to your question which specifically requires him to indicate whether he committed the act in the execution of an order or on behalf of, or with the approval of the organisation, he states quite categorically, unequivocally that he committed the act as a member of his organisation, requested for an assistance when requested by another member, when he was being attacked by the deceased, so we must really never argue without relating to what really is the basis of what we are here for.

MR MALAN: Mr Panday, if I may just ask you to address us exactly on that point because that to me is the crucial.  The evidence before us, also I think was it page 8 that Ms Mtanga quoted, yes page 7, the typed version of page 8.  The evidence as it stands before me by the applicant really is that he had a call of the witness Ntshetha saying to him that early morning:  "There is someone who's suspicious, I think he's come to kill me", he did not say anything else and he requested his help and then they rounded up the people.  That is in line also with the application where he said:  "I went to the assistance of a member of our group which thought or believed that he was being attacked".  That's where everything started and then I questioned him and what flowed from the questioning and that we have to judge on the evidence before us, can you comment on that?

CHAIRPERSON: You have your Act in front of you Mr Panday, may we restrict you to particular sections of the Act.  Can you confine yourself to Section 20 sub-section (2)?  I think it's (a) which deals with supporters and members.  you may if you wish to address us with regard to the criteria without referring to sub-section (2), sub-section (3) (e) because he does not qualify, in our opinion, in terms of that particular sub sub-section.

MR PANDAY: Madam Chair, in so far as the evidence that has been led by the applicant in this matter for the application for amnesty and for the murder of the victim, Madam Chair, Section 20 (2) (a) reads as follows.

CHAIRPERSON: We are too well familiar with the section, just relate it to the evidence that is before us.

MR PANDAY: Madam Chair, the applicant was of the opinion firstly, he was assisting a member of the organisation that being the ANC.  Secondly, that he would have been protecting this organisation of his as it was being attacked, a member was being attacked by the opposite organisation, that being the IFP.
	Madam Chair, it is therefore our submission that in so far as the political objective that needs to be addressed, is that the actions of the applicant by attempting to protect and assist the member of the organisation was to inevitably promote that organisation by protecting the persons within that organisation.  Madam Chair ...(intervention).