Amnesty Hearings — Johannesburg — 1999-02-10

MR SIBEKO: Mr Chairman, I've just been advised by my colleague that this occurred after that, but Mr Chairman ...(intervention)

CHAIRPERSON: Well that's the end of the matter, isn't it?

MR SIBEKO: As part of my submission Mr Chairman, with your permission of course?

CHAIRPERSON: Well it's pointless making the submission, I can't give him amnesty even if I felt like giving him.

MR SIBEKO: Thank you Mr Chairman.

CHAIRPERSON: Can I accept that you are withdrawing that part of the application?  It doesn't fall within the Act.

MR SIBEKO: That's correct so, Mr Chairman.

CHAIRPERSON: Okay, good.  Thank you Sir.

CHAIRPERSON: Yes Ms Nhlayisi?

MS NHLAYISI: Thank you Mr Chairman.  Mr Chairman, the applicant's applied for amnesty for attempted murder on one Mr Kerso, but I would wish to start by saying there were two incidents of shooting on this particular day.  The first one occured when the applicant and his friend met with the vigilantes and they were threatened with spears and then he ran away and then he shot and your - Mr Chairman, on that incident, the applicant has not brought any application for the reason that it was a clear act of self defence on that score.
	Then after he has shot when he was threatened with spears by the vigilantes, these people who were threatening them then scattered and started to run into different directions.  That's when the applicant and his friend decided to pursue some of the group that's run into the school and Mr Chairperson, it is my submission that at that stage it was no longer an act of self defence because these people were now running away from him because they've realised that he had a firearm.  He pursued them, according to his evidence, with an intention to capture them because he regarded them as enemy because in his mind he believed that they belonged to the IFP and that's when the second shooting occurred inside the school premises when he met with two people whom he believed were part of the group that he was chasing but he later discovered that ...(intervention)

CHAIRPERSON: Could he have believed that?  He couldn't see, he couldn't identify them?

MS NHLAYISI: Yes he couldn't identify them but his evidence is that at the time when this incident happened there was nobody at the school. According to him the school was in recess if I remember well, therefore he didn't expect that there was somebody in the school premises.  He had earlier seen these people he was chasing, running into the school, therefore he believed that these people walking in the school grounds were part of the group that's running to the school ground.  I wish to concede that he might have been negligent at that stage without identifying these people, to assume that these were part of the group but in this mind, as this thing was happening, he really believed that these were the people that he was chasing and that's when the second shot was fired.

CHAIRPERSON: In our considerations must we adopt the attitude that we must look at the applicant's morality in his actions or must we look at the factual situation?  Because if we look at his morals and the morality of his actions then maybe you are correct, that he thought that these were IFP members in the circumstances and then he wanted to do certain things.  The factual situation is that they were not, he concedes that.  What is our duty?

MS NHLAYISI: Mr Chairman, my submission here would be that the test here should be subjective in that what the applicant believed at that stage.  He only discovered at a later stage that he has mistook these people to be those that ran into the school.  We look at the situation and the circumstances that prevailed at that time.  Firstly like I have said that he knew the school was in recess at that time when this thing happened, he didn't expect that anybody was in the school premises and here he was chasing people who ran into the school yard.  Taking those circumstances into account he was ...(intervention)

CHAIRPERSON: I understand that.  If we must adopt a moral approach then I think you are correct when you say we must look at it subjectively.  I'm asking would we be correct in doing so?

MS NHLAYISI: I submit Mr Chairman you'd be correct in doing so because he believed that was the position.

CHAIRPERSON: On that score can I picture the following circumstances to you?  If the then Security Police wanted to kill somebody, they arrested the wrong person, that what they wanted to do and kill that person, believing it to be the person they wanted initially and they came to ask for amnesty on the basis that they thought they killed the wrong person but concede then - on the basis that they thought they could kill the correct person and they concede that they made a mistake, would they be entitled to amnesty?

MS NHLAYISI: I believe so, Mr Chairman.  I believe the test would - what was going on in their mind at the time of the happening of the situation that you're illustrating, the bona fide of their actions at that stage, they believed that they had the correct person or else it was not the case.

CHAIRPERSON: You see, I asked the question as a guide, Section 20, sub-section 3.  I'll read it to you, sub-paragraph E
"One of the guiding points is whether the act, ommission or offence was committed in the execution of an order of or on behalf of or with the approval of the organisation, institution, liberation movement or body of which the person who committed the act was a member or agent or supporter."
Now assuming that the battles occurred between the ANC and it's allies on the one hand and the IFP and it's associates on the other.  The applicant here was at least an ally of the African National Congress and let's assume further that the African National Congress approved of these battles as against IFP elements.  Would such a person have had the approval or tacit approval to kill a person that was not a member of the opposition or associated with the opposition?	
	Similarly, would my example of the Security Police, that such orders to policemen would be directed against opposition parties or opposition people to apartheid.  If they did in fact kill the person on the mistaken belief that he was such a person but such a person was not an opponent of apartheid, can we infer approval?

MS NHLAYISI: Mr Chairman, I would stick to my earlier submission that yes, we can.  With exception on this particular incident that we're talking about, the one where Mr Nswene was involved, I would say definitely yes.  With exception of course, depending on what were the circumstances prevailing.  With Mr Nswene's incident, this incident was not preplanned, it was something that just occurred and he had to react to it and then it was followed by him pursuing these people without having a chance maybe to investigate further whether this particular person was or was not a member of the IFP.  The order, I would say, it can be inferred that it covers even this particular incident because it was generally known that there were fights between IFP and ANC and in meetings it was adopted that if you meet an IFP member then you've got to deal with him in a certain way.  It is my submission that an order in this instance was inferred though at a later stage it was discovered that this particular person that he shot at was not an IFP member.

CHAIRPERSON: Does his negligence in not establishing the identity of that person not taint his position?

MS NHLAYISI: Again Mr Chairman I would like the Committee to look at the circumstances prevailing at that stage.  Did he have an opportunity to, can establish the identity of that person because it was in a fight situation.  I would request the Committee to take that as a guideline that ...(intervention)

CHAIRPERSON: Shouldn't he have refrained from shooting if he did not know?