Amnesty Hearings — Durban — 1998-12-02

MR WILLS: My view would be that it could be an accessory before the fact, socius criminis or even a murderer, if the doctrine of common purpose was stretched.
	It would take a full investigation on the evidence, to establish the extent of his participative acts in so far as he pointed those persons out, and obviously in a criminal trail, there would be other persons who would testify against him, and we might have further details.
	My submission is had he pointed out those individuals to a person whom he knew was an SDU member, whom he knew had the intent of taking out the enemy, and he set those persons off, he set that person off on the fast track of persons, whom he knew to be part of the enemy, it would seem to me that at the very least, he would be guilty of dolus eventualis in respect to murder because he should have foreseen the possibility that those persons would be killed, and he was reckless as to whether or not that possibility ensued.

MR LAX: Well not that he should have, he did foresee it.  That is what you have to argue.  Should have would be you know, culpable homicide or whatever.

MR WILLS: Yes, clearly that he did foresee.  So that would be my submission,  but to my mind, with respect, whether or not he is granted amnesty for being an accessory before the fact, or just been an accomplice or a murderer, really doesn't with respect, make a difference in so far as the decision of the Committee is concerned.
	What the purpose of the Act is, is to grant amnesty to persons who come before the Committee and make a full disclosure of events that were linked with a political motive.
	My submission is it would be with respect proper for the Amnesty Committee to give him amnesty, had he satisfied the criteria in the Act, ie the political motive and the full disclosure in respect of the worst case scenario.

CHAIRPERSON: So are you saying that maybe a solution would be if he is granted amnesty in respect of that, would be that he is granted amnesty for the role that he played in the killing of three unknown persons at or near such and such an area during or about approximately, in the early part of 1993?

MR WILLS: Unfortunately that is probably the most precise way one could define the applicant's role.  I would agree entirely with that, yes.

MR LAX: How do we get around the question that the Act talks about you get amnesty for an offence, for a delict and you are required in essence, to specify what that is?  Are you saying that is covered by the wording that we have just used, which is his role in the killing of those people?

MR WILLS: Yes, indeed, I am.  Unfortunately because of the lack of details in this matter, and I am sure, I know that the Chairperson and I are involved in another matter where there are very few details about the victim, unfortunately we are not in a position to provide such details.  Unfortunately that is the only way out in this instance.

CHAIRPERSON: The second incident, the Batong incident, in that one, it came out particularly when the applicant was being questioned by Mr Lax, he said Pat came and asked them from whence these attacks were being launched by the Inkatha people, where did they come from, where did they stay, point out the place, and he pointed out the place across the river, over there, they come across the river.
	That is their houses up on the hill there.  Pat then says okay, I want you to get people to assist us, we are going to go and attack them.  He then attempts to get people, they say no, our policy is we fight on our own ground, we fight in self defence, we are not pro-active.
	Then when being questioned by Mr Lax, he said look, why did you not say to Pat it is not our policy, we fight on our own ground.  He said no, he couldn't tell Pat that, because Pat came from another SDU, from another area and they've got their own policies.  He didn't know that they were going there and indiscriminately kill people.  He didn't know what they would do.  All I did was to respond to his question, and I pointed it out.
	Now, taking that into account, is he guilty of any offence at all other than not going to the police to say, look one of his comrades is going to launch an attack, which is taking it a bit over the top?

MR WILLS: No, again Mr Chairperson, initially when I was preparing for the matter, I thought there was a distinction between the two in that the first and the second incidents, in a similar way, but it is my submission that the two incidents can be viewed in a very similar light.
	If one looks at the context within which that information was given, Pat comes to the applicant, he says, he comes in the context of wanting to neutralise a struggle or an attack coming from across the river.  Pat doesn't ask the question innocently and the accused, the applicant doesn't interpret the question neutrally.
	He knows exactly what Pat is going to do, so he points those persons out in the full knowledge, or he points that area out in the full knowledge that he knows Pat is going to be involved in the attack.  He then goes further and tries to enlist the support of the other SDU Commander, this Mnini individual, and then Mnini does give him that information.
	Clearly he knew exactly what was going to happen and then later on, within a relatively short period of time, that exact area is attacked.  He sees Pat's car going in that direction, and he knows that that is the direction which he pointed to Pat and he knew before there was any shooting, that Pat was in fact going to attack, and it transpired that Pat did in fact attack.
	I would submit that exactly the same argument ensues.  The one thing which concerned me initially about the question of Mr Lax to the applicant was the issue of whether or not he didn't obeyed an order, but I don't know if you want me to address you, or he went outside the bounds of what was SDU policy.  My view is, which I would be prepared to argue on, is that that isn't a necessary exclusion in regard to him being granted amnesty.

CHAIRPERSON: Because he ultimately answered Mr Lax by saying that look, I couldn't stop this guy, Pat, because he is from another SDU and they've got their own policy, he is not going to interfere with that, and in any event, if he told him not to do it, he would be viewed by his own local people, as siding with the enemy in trying to prevent them from being attacked.

MR LAX: Except to say this, that Mnini Dlamini wasn't viewed in that light, he was a fellow SDU Commander from a different area, he made it clear, and there were no consequences in that, although he didn't address us on that issue.
	Simply put, if he knew that there was nothing that he could do to stop Pat from going on this attack, then his pointing out doesn't amount to anything.  Pat was determined to go on it, that was his evidence.  He said there was nothing I could have done to stop him, plus I was afraid of being pointed out and to use the colloquial term, in essence he would have been regarded as a traitor if he hadn't supplied the information, to put it as bluntly as that.
	The second aspect is the question of the policy.  He is seeking amnesty for his role in an attack which was against policy.  We heard that yesterday.
	Attacks were only permissible where you could pinpoint the precise individuals, but random hitting of areas, and it is patently clear that it was a random hit, it wasn't a hit on specific individuals, that much is clear from his evidence, that is not within the bounds of the ANC's broad policy.
	It is not even in the bounds of a preemptive hit, because you don't know who you are going to hit.  How do we then get around what political object is there, and is it proportional and proximate, and all that sort of thing?  If we get into that debate?