Amnesty Hearings — Durban — 1998-11-30

MR WILLS: Yes, that is basically my position, and as regards the proportionality, all I can do is refer the Committee to decisions taken by other Committee members, in circumstances which with respect are far worse than the circumstances and to that extent I have a couple of reported judgements of amnesty application 4019/96 and 4058/96.
	This is the incident where, it was quite a well recorded incident where there was an attack on certain IFP members in the Table Mountain area and these two applicants were IFP members, who decided against orders of their superiors to take action in response to this attack and they attacked a minibus and the evidence was to the effect that they shot at the driver of the minibus, the minibus then went off the road.
	They had expected the persons in the minibus to be members of ANC.  When they approached the minibus, they saw and it was admitted in evidence, they saw that the people inside the minibus were women and children and they then proceeded to shoot those persons, without knowing, after having seen the person, that these were in fact ANC members.
	My understanding of that judgement is that the, and I have a copy which I can hand up, was that the offences were committed in the course of the struggles, and I am quoting from the judgement, were committed in the course of the struggles of the past and were associated with a political objective.
	To my mind, that makes the actual ambit of both proportionality and political objectives, extremely wide, and I submit in comparison with this case, it certainly is a lot wider than one would need to stretch those definitions in regard to this case.
	The persons, the applicants in that incident were Mbangu Absolom Dladla and Nkaniso Wilfred Ndlovo and the matter was heard in Durban on the 23rd of March.

CHAIRPERSON: Sorry, the numbers 4051 and 4058?

MR LAX: 4019.

MR WILLS: 4091/96 and 4058/96.

CHAIRPERSON: As long as we've got those numbers we can track them down.

MR LAX: Just on that point, are we bound by that decision?  What is your argument on that?

MR WILLS: I would submit that whilst ...

CHAIRPERSON: Sorry, just on that, we don't need, all these decisions are basically based on fact.
	It will vary depending on the facts, it is like in criminal law, we are bound by the law, but not by the facts of the case.  You can always distinguish, I think it goes to that.
	If you've got one with exactly the same facts, then perhaps we are, but ...

MR WILLS: No, I am not suggesting that the facts are exactly the same, but what I am saying is that the rational of that judgement was that this occurred in the context of a political struggle and it was on that basis, if my interpretation of the judgement is correct, that the applicants were granted amnesty.
	On that same basis, it is clear that this person was an SDU member.  It is clear, or it is probable that the first deceased was an informer, an operative of the former State, and it was clear that he was killed as a result of an attack in a political struggle and that there was one additional person killed, and I submit in those circumstances he is deserving of amnesty for both incidents.
	Also, I just want to make the point that there is a difficulty in accepting the judgement without having the evidence before us in respect of that judgement, and I make that comment very briefly, particularly in regard to the post mortem examination.

CHAIRPERSON: And also, in this particular judgement there is very little summation of the facts.  Often in judgements, we get a long, the facts set out by the Judge in quite a lot of detail, but here it doesn't very much at all.  We can't really look to the judgement for facts as to what may or may not have happened inside the room.

MR WILLS: Yes, that is indeed so and the point that I want to make is in relation to one of the questions by the learned Committee member, Mr Lax, and that was that the judgement inferred or indicated that the deceased's death, the first deceased's death was brought about by a 9 mm bullet, whereas the applicant is saying that he used a G3 and not a 9 mm on the night in question.
	My only comment would be that it would serve him no purpose whatsoever to come here and maintain that he used a G3, when in fact he did use a 9 mm, the opposite would be the case.

MR LAX: Mr Wills, in relation to the first death, we have very little difficulty dealing with that matter, it is the second death as you will have gathered, that we really have the difficulties with and that is why we have asked you to address us on those issues.
	Yes, we will take the judgement obviously with the necessary probative value.

MR WILLS: Unless there is anything further, I can't take the matter any further.

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

MS THABETE: Briefly Mr Chairman.  Without repeating what my learned colleague has said, regarding the killing of Nhlamvu Mkhize, I also wouldn't have any objections if amnesty is granted in that incident.
	I also would like to put it on record that after consultation with the victim's next of kin in this incident, they also forgive, they told me to pass it through or pass it on to the applicant, that they understand and forgive him for what he did, and also they have no objection towards amnesty being granted.
	Regarding the killing of Mr Sbusiso Mlaba, I submit that I question the political motive in this incident because first of all there was no plan and also there was no intention to kill the deceased and also we don't see how political the offence was, or the act was, and also it is not clearly explained what the political objective was for killing Mr Mlaba, Sbusiso Mlaba.
	Coming to the issue of proportionality, I also would like to say the act committed by the applicant, was not proportional to the objective which was to be achieved.
	More specifically, taking into consideration the fact that the deceased, Mr Sbusiso Mlaba, was 17 years old at that time.  In my view other steps could have been taken.  There were options that could have been taken.
	For one, the 30 year old applicant and his co-perpetrator, Mr Fila Mandla Mthetwa who was 22 years old, they could have come into the room, told the deceased Mr Mlaba, to get out of the room as he was so young, and inexperienced as well.
	Further, I don't see how it is proportional because this was, the area of kwaXemba was an ANC dominated area.  If the applicant and his co-perpetrator could have spoken to the deceased and explained to him why they were killing Mr Mkhize, I don't see why he could not have understood, more especially because he was also an ANC supporter.
	I feel that the action of deciding to kill him, was very much disproportional.  
	Regarding the disclosure, I won't comment on that except to say that I don't see why the Committee members should not rely on the judgement.  After all, there were investigations made, there were witnesses that were called and if the accused himself, gave evidence or testified.  I don't see really why we cannot rely on the judgement, or on the facts of the judgement.
	I also think it gives good guidance to the Committee members as to what actually took place.  That is all I have to say Mr Chairman.

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

MR WILLS IN FURTHER ARGUMENT: Just, not really a reply, but just in emphasising the point on the Committee's question as regards the second accused.

CHAIRPERSON: Second deceased?