Amnesty Hearings — East London — 1999-04-21

MR JANSEN: To the extent that I may be of some help Mr Chairman, I was involved, I appeared in that matter of Coetzee, Tshikilanga and Nofomela for the applicants in that matter, I was involved in the argument there, and apart from that judgement, another judgement that you could with respect have a look at, is unfortunately I don't have the precise detail but I know it is one of the prominent leaders in the Eastern Cape who was denied amnesty, I think it is one of the Sebe brothers, I am not exactly sure, but there was an amnesty judgement for a murder and it was denied on the basis that there was ill-will and there was personal gain involved.  The facts of that matter was very clear that there was an underlying, there was some dispute about a liquor licence or a liquor business and although this person was in the Security Police or the Head of the Security Police, there was this overwhelming element of personal gain, and if I understand the argument correct in the Coetzee and Nofomela and Tshikilanga matters is more or less, or the way the argument went, was along the lines that the reason why people are granted amnesty, relates to motive.  Motive is central in the entire notion of amnesty and that for purposes of a purposive interpretation of the Act, one must never lose sight of that very central idea, because motive even in our own law and political motive, diminishes moral blameworthiness, even for the legal system, but in the eyes of many people in the community, it in fact isn't even, the motive actually reduces something to not being a crime, but in fact makes it perpetrators even heroes.  Because there is this lack or moral, or this diminished or lack of moral blameworthiness, that is why amnesty is granted.
	Obviously when people start acting for gain, it then starts negating that issue of moral blameworthiness and one must look at the facts of each and every instance, because personal gain is such a wide thing, it can mean so many things, it can mean somebody is acting at the time he acts, for - at the back of his head, he has promotion in mind, or a medal or even if there is this practice of remuneration, etc, he could say well, you know, there could even be that, but because it is not the dominant factor, he was not primarily acting for personal gain.  Along those lines, I submit to the extent that it may be of some assistance Mr Chairman, I think those ideas to some extent, underline that judgement.
	That concludes my argument, unless you want to hear me to some extent on the wording of the order, I have no further submissions.

CHAIRPERSON: No thank you, Mr Jansen.  Mr Jansen, this was a refreshing argument, it is the first time, since I have been on the bench, that I have had Counsel presenting argument, trying to convince me that his client is guilty of an offence, rather than innocent.  Mr Muller, are you going to make any submissions?

MR MULLER: Well, in the light of the withdrawal of the application, I have no submissions to make.

CHAIRPERSON: Thank you.  Mr Mapoma?

MR MAPOMA: Chairperson, I have no submissions to make on merits, except to make some proposal regarding the persons who have been notified as "victims".  The proposal that I have Chairperson, is not to refer those persons at this stage to this Committee, for their referral to the R&R, Reparations and Rehabilitations Committee, in the light of the impending amnesty hearing where they are directly affected, that is where the actual perpetration of the acts which resulted in the loss of their loved ones, is actually affected.  It is my view Chairperson, that we better refer them at that particular hearing.

CHAIRPERSON: And the victims that have been given notification in this matter, they will also then I take it, be given notification in respect of the subsequent hearings that will take place, that will deal with the actual events that took place in Umtata in the coup?

MR MAPOMA: Yes Chairperson, that is exactly the situation.  Thank you sir.

CHAIRPERSON: Thank you.  I think then that concludes this hearing.  I would like to thank everybody who made this hearing possible, I would like to thank the church for the use of the venue, it is very convenient.  The legal representatives for their input, Sound Technicians, Translators who work so hard, the difficult job that they do, the security people, who provided security here, the caterers, the Logistics Officer, Molly, everybody, thank you very much indeed.  We will be reserving out decision in this matter and hopefully it will be released as soon as possible.
	Yes, there is one further matter Mr Zuko mentioned to us in chambers earlier, but that has nothing to do with this particular application, it has to do with the application that we heard two weeks ago here.  Mr Mapoma?

MR MAPOMA: Thank you Chairperson, in that particular matter Chairperson ...

CHAIRPERSON: Van der Westhuizen and Griebenauw?

MR MAPOMA: Yes, there is an implicated person by the name of Ron Reid-Daly, who unfortunately before or during the hearings, we from the Investigation Unit, were not able to get hold of and as such, was not notified, and he has since reacted to the testimony which has been given by Mr Van der Westhuizen and submitted an affidavit in response to the testimony that has since been made.  I intend, Chairperson, to make available to the Committee, copies of that affidavit and also to the parties involved at that particular matter.

CHAIRPERSON: Yes, thank you Mr Mapoma, if we could have copies of that and then if copies could be sent to the parties involved, the applicants as well as other implicated persons with a notification that if they wish to make any response thereto, they are free to do so.  Thank you very much.  Thank you, that then concludes the roll, Mr Mapoma, seeing that next week's matters have been withdrawn, so that finishes the roll for this particular hearing at this venue.

MR MAPOMA: Yes Chairperson, that is  it.

CHAIRPERSON: Thank you, we will now adjourn.
COMMITTEE ADJOURNS