Amnesty Hearings — Durban — 1999-11-15

CHAIRPERSON: Yes, but assume all that.  Just keep your finger on that, yes, sorry, otherwise it's going to switch off again.  Assume it was an ANC meeting where a discussion took place in respect of these people and a decision is taken to kill them, the applicant is part of that, would that make him party to a conspiracy?  I'm going to put the other scenario to you now, that my colleague Adv Bosman has spoken about.

MS JELAL: Okay, I would agree that that would make him a co-conspirator.

CHAIRPERSON: Alright and assume he's only heard that there was some plan to kill these people, would that make him a party to a conspiracy?

MS JELAL: No, I would not agree with that.

CHAIRPERSON: Alright.  Okay, I just wanted your clear position on those two scenarios.

MS JELAL: Taken into consideration and I would continue on the second scenario which I believe would be the context that this would fit into, I would then submit that the applicant knew nothing of what was going to go on, therefore he's not guilty of the act and therefore at that particular point in time he did not have the intention which would be the requirement for the acts that were committed.  He did not have the intention to kill the people, because he knew nothing about what was going on and therefore this would be the wrong forum for him to make this application.  He's not applying for amnesty for something that was politically motivated or politically created, what he is saying is that he was not there, he's not guilty of the offence and his rightful recourse would have been to appeal the decision that was handed down by the High Court.

CHAIRPERSON: Yes.

MS JELAL: And that this forum would be the wrong forum and in the circumstances, I respectfully submit that there are no grounds for seeking political amnesty and for approaching this forum.

CHAIRPERSON: Well, well, his application, as I understand it from his application form, is in respect of the murder of Mthembu and the attempted murder of Sibiya.

MS JELAL: That's correct.

CHAIRPERSON: He's got to make out a case in respect of those incidents.  If he doesn't make out a case in respect of being a co-perpetrator of those offences and of course he hasn't made out a case in respect of that, but that doesn't exclude liability on the basis of a conspiracy and if he's made out a case before us that in respect of those two incidents he had been a co-conspirator in respect of those killings then of course that's an offence and if he qualifies with the other requirements of our Act, apart from the one that there should be an offence or a delict, which would now be a conspiracy, if it complies with the other, he's made a full disclosure and it's associated with a political objective, then of course there is no reason why he can't get amnesty in respect of that offence that he has made out a case on before us, even if it's not as a co-perpetrator.

MS JELAL: Mr Chairperson, like initially stated, I used the second scenario that we were talking about and obviously should the second scenario become a reality after listening to the evidence, then obviously I am saying that this would be the wrong forum.

CHAIRPERSON: Yes, you're right, I mean obviously if it is the second scenario, he hasn't made out a case at all, there's nothing before us.  He says that he was never near when these people got killed, he didn't participate in the killings, in the attempted killing and he heard only that this might happen.  He hasn't made out a case.

MS JELAL: Yes.

CHAIRPERSON: That's quite clear, I'm with you on that one.

MS JELAL: Okay.  Those are my submission regarding applicant number 1.  As regard applicant number 2, it is submitted that there were discrepancies between the written statement and the verbal submissions, however, the applicant did endeavour to fill in the loopholes which seem to be reasonable explanations.  However, Mr Chairperson, I've been asked by the family to put forward to the applicant the trauma that they have suffered.  We have four women left without a husband, that being Mr Mthembu, he had four wives, of which were born 26 children.

CHAIRPERSON: Are all four alive still?

MS JELAL: Yes, they are alive.  There are 26 children.  We find that with the fourth wife, she was pregnant at the time of Mr Mthembu's murder.  As a result of his murder and being pregnant, she suffered changes in her blood level which resulted in her becoming blind during the pregnancy.  She was a teacher and she cannot ...(intervention)

CHAIRPERSON: Her blood pressure?  What is it?

MS JELAL: Her BP went too high, Mr Chairperson and my instructions are that that affected the pregnancy and somehow it all had a round-about effect, it affected one thing after the other and it led to her ultimate blindness in her right eye.

CHAIRPERSON: Is that a complication of pregnancy?

MS JELAL: Well it was related to the changes in the blood level.

CHAIRPERSON: Trauma and the stress of this incident?

MS JELAL: Of this particular incident.

CHAIRPERSON: And the fact that she was pregnant, that aggravated and created this condition.  Is that a permanent condition?

MS JELAL: It is permanent.

CHAIRPERSON: In the one eye?

MS JELAL: In the right eye.

CHAIRPERSON: That's the youngest of the wives?

MS JELAL: Yes, that is the fourth wife and the youngest wife.

ADV SANDI: Can you give us names?

ADV BOSMAN: Is this Olive who had been shot, or not?

MS JELAL: This is the deceased, Mr Mthembu.

ADV BOSMAN: But the fourth wife, is this the lady who was referred to as Olive?

MS JELAL: No, no, no she isn't.

ADV SANDI: Give us the name please of the wife in question.

MS JELAL: It is Monica Mthembu.  She's further asked me to advise the applicant that as a result of the complications and the loss of sight in her right eye, she cannot work and that the children are at this moment without a breadwinner.  They live off their grandparents who get a grant and that they are really suffering.  Okay.

CHAIRPERSON: What has happened to the business interest of the deceased?

MS JELAL: According to the black customary law with regard to the Natal Code, it's more the eldest son that becomes the heir to all of the assets and obviously they also make provision for the other wives.  If you look at it, there are 26 children, she had the youngest of the children, so they go according to the ages and the kraals and there are specific guidelines for inheritances in the black law which left the fourth wife with nothing save for the fact that R12 000 was given to each child and obviously we're looking at years back, and the sum of R25 000 obviously can't last the children throughout.

CHAIRPERSON: If I remember correctly, there were a number of business, there was a taxi and a butchery and I don't know whatever else, but there were a number of things.  Have all those businesses gone to the eldest sone of the deceased?

MS JELAL: According to my understanding most of it has gone to the eldest wife and obviously to the eldest son.  Some of it has been distributed amongst the wives but obviously they fall in a hierarchy as 1st, 2nd, 3rd and 4th.

CHAIRPERSON: Yes, I appreciate that.

MS JELAL: So it's not equal distribution.

CHAIRPERSON: Yes, but I mean, is this not income generating assets, or has somebody approved these things?  Is it in the hands of one person who's now sitting with the income that comes from this or is it, or have they been, are these things going concerns which generate income which is then distributed amongst the beneficiaries although according to these hierarchial arrangement where the one lowest in the rank gets the least, or is it a once off thing where they got paid an amount and that's the end of it?

MS JELAL: Although there are businesses that are going concerns, the heirs have taken over those assets and are running them as going concerns for themselves.

CHAIRPERSON: Oh.