Amnesty Hearings — Nelspruit — 1999-02-03

MR CLAASSEN: No, no, I realised I should have put it on record, thank you madam.  If I might just continue, there is a further reference made and it clearly states and it is said that if a number of persons conspire to murder now just for reference sake, Y, and one of them does not fire the mortal shot, is not even on the scene of the crime, and does not in any way, aid its commission after its conspiracy, it is a factual question whether in the circumstances, his mere participation in the conspiracy can be described as together with the participation of other, causing the person's death.
	In view of the test of causation, the mere participation in a conspiracy, Madam Chair, and if I may here, I also went further and specifically had a look at the requirements for a conspiracy and if I may, once again, out of Snyman, page 244, the requirements for conspiracy is inter alia stated that the scope of a conspiracy is particularly wide.  Conspiracy in the South African law can be committed only if what the parties agree to do, is a crime.
	There can be conspiracy only if there is a definite agreement between at least two persons to commit a crime.  The mere fact that X and Y both have the same intention, does not mean that therefore there is a conspiracy between them, they must subjectively agree with each other, there must be a meeting of minds.
	If I may continue, it is also further stated that as soon as they have reached agreement, the crime of conspiracy is complete and it is unnecessary to prove the commission of any further acts in execution of the conspiracy.
	I think this is all taken together in saying that the conspirator need not be in direct communication with each other, if two or more persons unite in organisation with the agreed purpose of committing a crime or crimes, there is a conspiracy.
	It then also follows that the conspirator is liable to the same punishment as a person convicted of committing the offence.
	Madam Chair, this said, I would like to get back to the doctrine of common purpose, where I left off.  In the view of the test of causation, his mere participation in conspiracy, either on its own or coupled with his further conduct, may account to at least psychological engagement of or assistance to his fellow conspirator, who actually kills a person and therefore, to causing together with the others, the death of such a person.
	Madam Chair, my line of reasoning would be if I may address the merits of Mr Radebe's evidence before this Commission, evidence was indeed led and also tested by amongst others, Mr Sithole for the families of the deceased, and it was very clearly stated that the incidents preceding the actual commission of this crime, I think it was clearly established that according to the applicant's evidence, there was a meeting held on this particular Sunday Madam Chair, following the death of an induna.
	The applicant clearly states that this was a party meeting, which contained the ranks of IFP party members.  If I may, I think his evidence was specifically, he also gave the names of these members.  He said it was a party of eight, he could only remember the names of four, which included himself - this was after the death of Mr Mkababa, and Mr Meyela which was the Chairman of this particular party that was, this meeting that was held.
	Madam Chair, it is my line of reasoning that following the evidence given by the applicant concerning this particular meeting, it clearly states that the members who were present, were all IFP members.  It was done because of their distress over the death of a fellow IFP member.
	Madam Chair, he goes further to also say that there was a general meeting and later, Committee meeting followed this general meeting, in which it was expressly Committee members which attended and it was already on this ill-fated Sunday evening that the decision was taken, and it was also his evidence that the decision was already taken on the Sunday evening, that a bus should be attacked.
	Under cross-examination by Mr Sithole, I believe he said that the decision was taken, but the operatives were not chosen the Sunday night, they would be chosen later by the indunas, even though the objective was clearly stated.
	Madam Chair, this said in context with my reference to the doctrine of common cause, it is my submission that and further if I may also, under examination the applicant also clearly stated that he fully reconciled himself with this decision.
	He said that he did not commit it, but should he have been asked to do so, he would have.  He said it was not his place to choose to commit this act, but it was a choice that was to be left to the indunas.
	Madam Chair, he then decided that or it was then decided that this decision should be taken.  Madam Chair, if I might just continue on the evidence that was led, the accused said that when he went to work the following day, and it should also be admitted, there are certain points concerning his presence at work the next day which were not entirely cleared up, specifically surrounding when he went home from his place of employment.
	Madam Chair, it is stated by the accused that he was extremely distraught and upset because he was being pointed out by FAWU members who were also perceived to be ANC member, that he was going to be killed, and his honest belief was that his life was in danger.
	It is his evidence that it was because of this, that he decided to leave the factory.  I think this is to some extent his, the fact that he indicated that he was very upset, corroborated by the witness, Mrs Msibi who said she saw the applicant crying that particular day.
	Madam Chair, I think it is fairly clear and it is not denied by any party, that he was indeed very upset when he went home.  Madam Chair, it is true that he says that he got back to the hostel to find this planning of the act or the operatives were appointed at that stage and the act was committed.
	He further also states that he then went with them or was outside the gate of the hostel when this throwing of the hand grenades actually occurred.  It is also true that there are certain aspects which I believe, might not have been answered satisfactorily concerning what he actually saw and it differed slightly from his original version and the time when he was cross-examined.

CHAIRPERSON: What weight should be attached to that?