Amnesty Hearings — Durban — 1999-11-18

MR PANDAY: Sorry, Mr Chairperson, the witnesses coming before the Panel are going to testify what the documents in the bundle insofar as the incident is concerned, that is not in dispute.  Even the sequence of events in terms of the political motivation, if there was political motivation, I will submit cannot seem them taking the matter much further unless they have some specific knowledge and that's not disclosed in this bundle and so the purpose of expediting this matter, Mr Chairperson, I'll submit that even if one has to accept the evidence in the bundle materially does not effect or cause any prejudice to the applicant.

CHAIRPERSON: Yes there doesn't seem to be a real dispute on the incident but given the sequence of what happened that night seems to be common cause?

MR SIBEKO: Yes Mr Chairperson, I think I do concede, I don't think it will take the issue further.

CHAIRPERSON: Yes you can argue on the papers too if you want to, there are the affidavits but they don't really add much.
Will that be the case on behalf of the victims?

MR PANDAY: Yes, yes.

CHAIRPERSON: Mr Mapoma, have you got any evidence you're tendering?

MR MAPOMA: I have no further evidence Chairperson.

CHAIRPERSON: Mr Panday, have you got any submissions on the merits?

MR PANDAY: No Mr Chair, I think it's pretty self-explanatory except for the evidence tendered by the witness, Mr Chairperson, that itself one can gauge that the witness was not in a position to judge the political situation in the area and as such that his evidence does not indicate a substantial ground for opposing the application brought by the applicant for the amnesty in relation to the incidents that took place on the 25th March I think it's 1983 and the applicant's version is quite simply that there were attacks being launched against the ANC by the traditionalists who obviously at that stage seemed to be supporting the IFP and on the day in question it was perceived that the attack was that of the IFP and the retaliation was on that basis as a result creating the political basis.  Nothing further.

CHAIRPERSON: Yes thank you Mr Panday.  Mr Sibeko, any submissions?

MR SIBEKO: Mr Chairperson, well of course it is my humble submission that the offence which occurred on the 23rd 1993, it cannot be said to be committed under the political objective.  It's further my submission that although it has been said by my learned friend the witness who has just testified is not in a position to gainsay as to the political perception in the area.  Mr Chairperson, well it is my submission that we are not dealing with a situation a stage where in the '80s the ANC was already banned and there was a free political activity and as a person who is anchored in that particular community, being a police officer, he has been here for the past eight years, he knows the political barometer and as to the political perception of the people of the area, he's in a better position to know actually as to what was happening.
	Now the only reasonable conclusion, the context in which the act was committed, again Chairperson it's further my submission that it cannot be said there was a political objective in the sense that it was clear that the applicant in this instance, he had absconded with the criminal case which was pending which the affidavit stated that people were approaching, members of the police force, then he opened a gunfire that some of the police members were affected.  Therefore Chairperson, it is my submission that as for the aspect whether then Sibo or Sepo Mkhize, we are talking about two different areas.  Sibo Mkhize as of course the witness has testified, Sibo Mkhize and Sepo Mkhize, they were staying in a totally different area which happened to be at Umbumbulo which is a distance away from mid Illovo and I further submit, Mr Chairperson, that given the conflict what was happening at KwaZulu at that time, there was this general perception that the IFP it was given that the IFP be the ZP, that is the KwaZulu Police were in line with the IFP but in this instance which as of course the evidence has been led before this, the victims then, which was quite considered by the applicant in this instance that the police officers at mid Illovo, they were under the area of jurisdiction of South Africa which necessitated they were under SAPS vis-a-vis not under KwaZulu Government which can indicate a little level of political bias in executing their duties.  Mr Chairperson, on the strength of that what I've highlighted, it is my submission Mr Chairperson, that this offence when that was committed there was no political objective.  That is all.

CHAIRPERSON: Thank you Mr Sibeko.  Mr Mapoma, any submissions?

MR MAPOMA: Thank you Chairperson, if I can just contribute.  Chairperson, it is not disputed that there were differences between two groups in that area and as a result of which the applicant had to shoot at somebody hence the victims were shot at, that is the actual reason which apparently caused the shooting in the mind of the applicant at the time on the evidence before us.   Then it therefore shifts the focus on what were the causes of this difference between these two groups which is described by the police as a faction fighting and nothing else.  Then I would therefore say, Chairperson, that the Committee has to be careful now not to just dismiss it as a mere faction fighting which was happening there, especially given the fact that one of these groups was dominated by the Mkhizes and it has since transpired in this evidence that the Mkhizes have got a history of being ANC members and they have got a history of a ...(indistinct) with the police for that matter.  So it would be highly improbable to just say that this was just a mere faction fighting and for that matter we don't have an explanation as to exactly what were the causes of this fighting expect for the version of the applicant who was, he himself, involved in the conflict personally.
	So that being the case, Chairperson, I would say that in the circumstances the probability is that there was in fact really a fight between the ANC and whatever, if it was not IFP.  Thank you Chairperson.

CHAIRPERSON: Thank you Mr Mapoma.  Mr Panday, have you got anything else you want to add?

MR PANDAY: No Mr Chair.