Amnesty Hearings — Pietermaritzburg — 1997-02-10

MR KUBONI: If you look at the time, if you look at the judgment it was round about 6 am and it is in March.  Maybe by that time it is still dawn so to say and there are some huts and other houses in the yard.  Anything was possible.  The other possibility is that they are still in the other houses.  The other possibility is that they were there, but in their view they were chasing those people who had got into that house.  They believed whom they were chasing were in that house.  It must also be taken into account that the situation was tense in the area.  There was tension in the area.  So there was no time really to think about the fact that maybe there must be children there in this house, there must be innocent women in this house.
	As the judgment stands today there are some references to the evidence of the children.  I submit that maybe it is very important to if the version of the applicant is weighed against he version of the children, it must be taken into account that when the incident took place they were still very young and it a known fact that with young children they have got a tendency to imagine things that they never took place.  For that reason I submit that the version of the applicant, when he says they got out of the house and he was still having his gun, and when he asked the kids about the
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MR KUBONI	236	ADDRESS
people who were shooting they just looked at him.  Then I submit that must be accepted as being probable.

JUDGE WILSON: Why?  These two children, one of them had just been shot.  Their grandmother had been shot in their presence.  The other woman was dead in the house.  You are suggesting it is probable that they would have gone out and spoken to this man who had just done the shooting?

MR KUBONI: The evidence is that after the shooting had stopped, then the children got out of the house.  If they got out of the house, anything is possible there.  They could have got out of the house simply because they thought the assailants had gone out.  Maybe they were going out to ask for some assistance and when they saw these people who were having these guns and when they asked them the questions, surely that is why they did not respond.  Because I think it was still ...

ADV DE JAGER: But wouldn't they ask assistance from the three people in the house, the people who fled into the house, Zulu and Skwayi, rather than go out and ask assistance from the persons standing outside shooting into the house?  If those other people were in the house at all?

JUDGE WILSON: The one you must remember was the boy's elder brother?  Surely they are the logical people to turn to for help.

MR KUBONI: It is very difficult to explain why the kids would ...

JUDGE WILSON: It is difficult isn't it.

CHAIRPERSON: We realise the limitations that you have.  It is quite clear from your client's version that he had intended to get hold of these assailants whom he called IFP people with the view to shooting them because of what, in his
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MR KUBONI	237	ADDRESS
opinion they had done to his comrades.   Now it transpired that he killed two innocent women and children.  And I would like you to address us on whether, whatever political objective he may have had, is proportional in any way to the offence that he has committed.

MR KUBONI: I didn't hear the last part.

CHAIRPERSON: Whether his offence was in any way proportional to the objective which he was seeking to achieve.

MR KUBONI: In my view it is.  In the sense that the area by this time was divided into the IFP supporting members and the ANC supporting members.  In the house, they just shot, and when they shot in fact their objective was to ensure that they eliminate those people whom they regarded as IFP supporters.   (CHANGE OVER TO TAPE 3B)
	Ms Thabethe has raised the question of the causal link between the attack and the political objective.  In my view the applicant, when he shot at these people, he was mostly concerned with eliminating the IFP members who were inside there.   The people who got shot were caught whilst they were going on with their mission of ensuring that the people they were pursuing had been eliminated.
	I submit that the applicant has made a full disclosure of what took place and sometimes it is very difficult to remember each and everything because this incident took place as far back as 1992.  That's all I would like to submit at this stage.

CHAIRPERSON: Ms Thabethe, is there anything you wish to say in response to the argument advanced?

MS THABETHE: Yes, Chairperson, I would like to clarify one thing on the causal connection between the commission of the act and the political objectivity.
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MS THABETHE	238	ADDRESS
We are talking here about the relationship between the shootings on two females and two children.  That is the relationship between that commission of the act and the objectivity pursued.  What I was saying is, there doesn't seem to be proportionality between the act that was committed and the objective that was perused.  I don't see how we can say then the requirements of the Act were met.

CHAIRPERSON: (Inaudible)

MS THABETHE: I would say if the political objective was to kill the IFP members for what they had done at the Luthuli house, but in turn two females and two children were killed, and the applicant ... that there were innocent women and children in the house.  I don't see how it justifies the political objective.

ADV DE JAGER: But couldn't their objective have been there is a war and we kill everybody related to the IFP, whether women, children or adult males?

MS THABETHE: From the applicant's evidence I don't think that's what he said.  He didn't say their aim was to kill everybody.  They wanted to kill these two people and they didn't know that there were women and children in the house.  If he had said that then maybe I would say something else.

CHAIRPERSON: What do you say about the fact that a house belonging to ANC people was burned down, that is the Luthuli's house.  There had been other raids on ANC supporters and so on, and he and his friends decided that they must defend themselves and one of the ways in which they thought they would defend themselves would be to shoot and kill the perpetrators.  Whether they succeeded or not is another matter.  But the decision to shoot and kill those who have been harassing and injuring and killing their kind,
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MS THABETHE	239	ADDRESS
is that a political objective?

MS THABETHE: I would say it is a political objective, giving the setting at that place he is talking about, Bamshela, where there was unrest between ANC and IFP and people took it upon themselves to defend themselves.  I would say in that context there is political objectivity.  But my problem is whether it was pursued as they had planned to and they had aimed to.

CHAIRPERSON: The offence was aimed at people whom they regarded as Inkatha.  Unfortunately the wrong people got killed, but the aim and the objective was to attack Inkatha.

MS THABETHE: I would say the objective is political  but the relationship between the act that was committed and the political objectivity, I am not sure about that one.

JUDGE WILSON: I have a problem which has suddenly come to me.  Perhaps you can assist me.  Is there any evidence, any reference in the judgment to the fact that these three men they said they were chasing came to the house or not?  I can find no such reference.  I don't know if the question was ever raised.  I don't know if it was raised at the trial.

MS THABETHE: In the judgment it says they went via the Zulu kraal - or let me start
"They then set off in pursuit of these men.  We ran went to find them.  They went via the Zulu kraal to the Nqobo kraal".
Sorry, I thought that "they" was referring to the other men.  Seemingly it refers to the applicant and the other people.