Amnesty Hearings — Phokeng — 1996-05-20

JUDGE MGOEPE: No, I think the difficulty with proportionality is this; we know that possibly there was a political objective sought to be achieved, and as a way of achieving whatever they wanted to achieve, they wanted to get the keys.  But the question of proportionality arises in this context:  do you, in order to get the keys, do you have to kill a person.  You see, it arises in this context.  Couldn't you just get a sjambok, for example, and just hit him and hit him until he tells you where the keys are, rather than kill him?

MR CURRIN: We accept that, and we accept that it wasn't necessary to kill him to get the keys.  But what we need to do is, we need to decide as we understand the Act, whether -we have to look at the proportionality of the Act, to the objective that was pursued.  The objective that was pursued  - your argument will be correct, with respect, Judge, if the objective that was sought to be achieved, was to get some keys.  But that was not the objective.  It was much wider than that. You yourself, I think, asked a critical question at one stage, when you enquired as to the symbolism of the keys, and control of this building and the entire administration.  Certainly, if it was their objective to get the keys, to get keys, to get any keys, and that is it, it would have been disproportionate and we could never even try to address you on that.  Precisely, precisely.  But it goes PHOKENG HEARING	AMNESTY/GAUTENG
MR CURRIN	156	ADDRESS
so far beyond that, and we are saying that the objective, the associated political objective was enormous.  It was great in the context of the minds of the people. In that
context we say that it was proportionate.

SISI KHAMPEPE: Mr Currin, I am still not with you.  What then was the objective, the broader objective that you are referring to, which was in the minds of the two applicants?

MR CURRIN: The broader objective was to regain control of a building and of an administration which belonged to the tribe, to retain governance of their own people.   We have heard that the group that governed, that had control of this building, did not have the support of the people.
	We have also, I think, heard from the responses during the course of these proceedings, that there were certain sentiments, and they become quite obvious, and I think that those sentiments certainly support the concept that that administration was by no means a popular administration.

JUDGE WILSON: Haven't we got the very moving evidence of one of the sons of the deceased, about how the family was treated by other members of his tribe?

MR CURRIN: Precisely, and that of course makes the point extremely strong here.

SISI KHAMPEPE: But was it necessary to decide to hold the person hostage in order to gain control?

MR CURRIN: If all they had done was taken the person hostage, in order to get the keys and to gain control, I don't think we would be debating the issue at all.  The only reason why I think we are debating it, with respect, is because they went further than that and they killed him.  We concede that that was not necessary, and that was not the only way to get the keys, but seen in the context of what PHOKENG HEARING	AMNESTY/GAUTENG
MR CURRIN	157	ADDRESS
they were really trying to achieve, we say it wasn't disproportionate.
	We would also like to just briefly refer you to
subsection (4) of section 20, which says that
	 in complying the criteria contemplated in subsection (3), the Committee shall take into account the criteria applied in the Acts repealed by section 48.
Now we know that you have been given a document by Mr Kleynhans of the Department of Justice that enlightens you in some respects about the way in which these Acts were repealed.  We have prepared a document which we would - we are not submitting as evidence.  We are merely submitting it to you as information regarding how those Acts were applied in the past.  We have taken the liberty of doing that, because from 1990 up until last year, I was involved in that process and on the off-chance that the document may be of some assistance to you, we are handing it up.
	(Indistinct - microphone not switched on).

MR CURRIN: I was afraid ... (intervention).

ADV DE JAGER: And Mr Currin, I am not in posession of a document by Mr Kleynhans. I believe he had been subpoenaed or asked to appear here.  There was no such document handed in at this hearing.

MR CURRIN: Did you not get the document?  We gave the legal representative of the Commission - I know that he got a copy  of the document.  What happened after that I certainly have absolutely no knowledge of at all.

ADV DE JAGER: It is not evidence in this hearing.

MR CURRIN: It was not submitted as evidence, it was also just submitted as general guidelines, because I don't think it is intended in the Act that it should be evidence. It is PHOKENG HEARING	AMNESTY/GAUTENG
MR CURRIN	158	ADDRESS
merely that as Committee members you should have reference to the way in which those Acts were applied, and he did submit a document.  When you receive that document, I would
just like to mention two points which I think are necessary.  That is, he refers to many murders that were committed in respect of which people were "granted amnesty".  Most of those that he referred to, were not granted amnesty in terms of those Acts repealed.  They were either granted amnesty in accordance with the record of understanding or in accordance with special reprieves granted by the State President, but not through the Amnesty Committee. And I just draw your attention to that, because I think when you get the document you should have that in mind.

HASSAN MALL: What is the name of this document?  What is it entitled?

MR CURRIN: I have a copy somewhere. I was given a copy.  It is called the South African Amnesty Process.  There it is, and I am sure that my colleague has a copy.  He has a copy, Sir.

HASSAN MALL: You say that this document will be of assistance to us?

MR CURRIN: I believe that the document which we would hand in, called History of the Indemnity and Amnesty Process, 1990 - 1995 may be of assistance to you.

HASSAN MALL: Thank you very much.  We haven't got it, but we shall ...

MR CURRIN: There is another one.  This is the one - that is Mr Kleynhans' document, and this is the one that we would like to hand to you. As I say, on the off-chance that it may be of assistance to you.

HASSAN MALL: Thank you.
PHOKENG HEARING	AMNESTY/GAUTENG
MR CURRIN	160	ADDRESS