Amnesty Hearings — East London — 1999-04-30

MR KINCAID: I do thank you Mr Chairman, Members of the Committee.
	Firstly, it's my submission that when you consider the strategy requirements set out in Section 20 of Act 34 of 1995, that you give effect to those sections by interpreting them purposely, by interpreting them in the light of the preamble to the Act and not just the Promotion of National Unity and Reconciliation Act but also the preamble and long title of the Indemnity Act of 1990 and if you'll just grant me the indulgence of - I made notes just concerning that preamble.  The application the preamble to the focus of this Committee is that it provides for the establishment for as complete a picture as possible of the nature, causes and extent of gross violations of human rights emanating from the conflicts of the past.  The granting of amnesty to persons who made full disclosure of all the relevant facts relating to acts associated with a political objective committed in the course of the conflicts of the past.  The preamble goes on to state:
"that the constitution requires that the pursuit of national unity, the war being of all South African citizens and peace demands reconciliation between the people of South Africa and reconstruction of society.  In order to advance such reconciliation and reconstruction, amnesty shall be granted in respect of acts, omissions and offences associated with political objectives committed in the course of the conflicts of the past."
The phrase "conflicts of the past" seems to enjoy pertinent prominence in the preamble and it's my submission that the purpose of this legislation really is to - it recognises the troubled history of our country and it's violent genesis into what is now a new democratic South Africa.  It's with that in mind, Mr Chairman and Members of the Committee, that you will interpret the statutory requirements set out in Section 20.  	Now it is without doubt that the applicants were very much part of a conflict, a tension, a strife in their community of Stutterheim.  That doesn't seem to be disputed at all and in my respectful submission they were young men at the time of this conflict, very susceptible to influence, to suggestion, very capable of being aroused by inflammatory oratory.  Those are the kind of applicants you're dealing with, they were youngsters, very sensitive to the incursions and disruptions of their community life.
	Now I suppose I'm obliged to stand still for a moment at the statutory requirement in Section 20 that they make a full disclosure of all relevant facts.  Now they may well be taken to task for not admitting, for not coming entirely clean.  Now some applicants did suggest that they didn't actually climb the telephone wire and cut the wires or that they didn't go into a hut or that they didn't pull a trigger but sight must not be lost of the fact that these convictions were in the vast majority based on the doctrine of common purpose and the evidence was clear that at all times it was a group activity, there was prior planning and so the judge had no difficulty
when applying the principles set out in States versus Safoster, in convicting them of a common purpose.  So the cross-examination of some of them might have listed evidence which suggested that although they had no direct involvement in the commission of the crime that doesn't necessarily mean that they were not admitting their participation.  I think all of them admitted that they did participate, they were part of a group, so to quiz them with fancy notions of a doctrine of common purpose or of factual causation and legal intent as opposed to factual intent and all those legal niceties just wouldn't have brought about a proper response.  It's not how they saw it, it's not how they understand the mechanisms of the law.
	I think the evidence is quite clearly established that there was a community decision to target the farmers.  Now I'm not sure whether the Committee will invite me to address them as to whether that qualifies them in terms of Section 22 because the community decision doesn't necessarily imply that it was the community decision of a political movement or of a political organisation.  Section 20.2 seems to categorise the types of amnesty applicants into either members or supporters of publicly known political organisations or liberation movements or employees of State or members of the security forces.  It doesn't specifically make provision for a community decision but Mr Chairman, I'm informed that there have been applications before this Committee where a community decision has been sanctioned and the crimes which have arisen in consequence thereof have been sanctioned.

CHAIRPERSON: Yes Mr Kincaid, yes this reference to the community and organisations and so on in most instances some of these organisations in fact are the community so that I understand these applicants to say that they were either supporters, I'm not sure about membership but at least supporters of some or other ANC structure, would it be the Youth League or whatever so it appears to me as if there is not very much in dispute on that score, on whose behalf they were acting and that it clearly had even is evidence by your agreement with the other parties that it's clearly in a political sort of milieu that all this happened.

MR KINCAID: Thank you Mr Chairman, then there's an aspect of my address which I can leave by the wayside but Mr Chairman, the sub-section 3 is the base upon which one determines whether an act is associated with a political objective or not and I think it's quite clear from the applicants' testimony that their motive when they committed the act was to acquire weapons, was to intimidate the farmers.  That was in consequence of this resolution that was taken.  Now I think most of them were candid enough to have mentioned that they didn't really foresee that a cordial invitation would be effective, that by going to the farmers and saying "look please leave your farms now and before you go, hand over your weaponry".  They didn't foresee that that was actually going to materialise.  So intimidation was very much part of the strategy to get the farmers off the land and that is why obviously they would have gone armed to achieve that particular objective.  If one looks at the four incidents involving the farmers, Mr Hansel and Mr Cobus, Mr Pretorius and Mrs Marulia, then there is nothing to dispute, nothing to suggest that obtaining ammunitions was not a purpose.  From Mr Hansel they did retrieve and did secure a firearm and ammunition.  From Mrs Marulia likewise they got arms and ammunition.  Mr Cobus and Mr Pretorius frustrated their efforts and nothing was taken from those properties but when you look at what was taken, firearms certainly enjoyed prominence.  The applicants have all distanced themselves from other items which were removed, items of a normal household nature and there's only one count which really supports the fact that there were other items taken, items of a household nature and that is the count involving the attack on Mrs Marulia.  Mr Hansel, all that they were convicted of was the robbery of the twelve bore shotgun.  The annexure to the charge sheet alleged other items but there was no evidence placed before court that those items were taken so their conviction was solely of a firearm.  The Marulia incident, they were convicted of robbery and it also involved items unrelated to firearms.
	Now  it is my submission that there's nothing to dispute that their motive was to carry out the order, the community decision.  The only incident which might give the lie to that submission would be the Marulia incident.  Now the context in which the act or omission or offence took place ...[intervention]