Amnesty Hearings — White River — 2000-05-04

CHAIRPERSON: No, no, that is true, that is true, you're quite correct when you say that we have to judge the actions in that particular context at that time, not now from a sort of a convenient armchair position, and we certainly don't intend doing that either.  But I think what concerns us a bit is, we have to assess this in terms of the criteria that are laid down in the Act.  My brother has referred you to some of that, some of those provisions.  So we've got to weigh this up and see whether this particular action, over and above what your client might have thought subjectively of this, we have to test it against all these yardsticks, of proportionality, of a cause or connection between the incident and the objective that they were pursuing, the nature of the act, who the victims were, whether it was political opponents.
	So we've got to take a global view of the situation and then assess it and see whether we are satisfied that it is an act associated with a political objective, as it's defined in that Section 20(3).  So I think that's really what we're talking about.  Leaving aside the subjective state of mind of your client, when we test this action against all these other criteria, does it fall within the definition of an act associated with a political objective?  Where you throw in the handgrenade, not strictly speaking in line with your instruction from the primary source of authority, but on the scene when you busy actually executing that.  And I think that's the difficulty that we are trying to deal with.

MR LUBBE: Mr Chairperson, I would suggest in this instance that the position of Hlongwane, and he already received amnesty for this, but his position would have been vastly different, in the sense that his action or his decision to instruct my client to throw the handgrenade, would precisely have been met with that kind of argument put forward by yourself.  But my client being the one that was ordered ...(intervention)

CHAIRPERSON: I think they refer to them sometimes as footsoldiers.

MR LUBBE: Yes.  ... I would suggest that if amnesty was not to be granted for the throwing of the handgrenade or the injury, it would rather not have been granted to Mr Hlongwane, because he must have considered whether the proportionality etcetera, that you referred to, the cause and the objective to be achieved, was in proportion to each other.  And I would suggest that my client would much easier meet that kind of requirement than he should have met.

CHAIRPERSON: Yes no, I think I follow what you're saying.  We must obviously throw into the scales when we assess this incident, we must throw into the scales the fact that your client was what is often referred to as a footsoldier.  It's not to say that under those circumstances, if we're dealing with an applicant in that position, that the criteria in Section 20(3) don't matter anymore, we can ignore the criteria, we must only ask "Is this a footsoldier?"  If it is, did he get an order.  No matter how unreasonable the order was, no matter how senseless the incident was, no matter whether the incident furthered a political struggle and all of the other requirements of the Act, he's entitled to amnesty.  It appears to me on the face of it, that what we have to do is, we must take into account the position of your client, but that we must still do the exercise that we do with every other application, and that is to judge it against those criteria and decide at the end of all that exercise whether we are satisfied that the application complies with the requirements of the Act.
	And I think that is why we raise this thing about, is it relevant, to what extent is it relevant, what is the weight of the fact that those were unknown people just sitting drinking in a shebeen, having absolutely nothing to do with the Shongwe's, except that they came to drink at their shebeen.  Whether that is a relevant fact and if so, what weight should we be attaching to that.  And that's the sort of exercise that we were thinking of really.  But we do have your submissions in that regard.  Very well.

CHAIRPERSON: Mr van der Heyde, have you got any submissions?

MR VAN DER HEYDE: I have no submissions, thank you.
NO SUBMISSIONS BY MR VAN DER HEYDE

CHAIRPERSON: Thank you.  Ms Mohammed.

MS MOHAMMED: No submissions, Mr Chairman.
NO SUBMISSIONS BY MS MOHAMMED

CHAIRPERSON: Ms Mtanga.

MS MTANGA: I have no submissions, Chairperson.
NO SUBMISSIONS BY MS MTANGA

CHAIRPERSON: I assume under those circumstances you wouldn't have anything further that you wanted to add, Mr Lubbe.

MR LUBBE: Pardon, Sir?

CHAIRPERSON: I say I assume under those circumstances, given the position of your colleagues, you wouldn't have anything further that you wish to add either.  There would be no reply?

MR LUBBE: No reply, thank you Chairperson.
NO REPLY BY MR LUBBE

CHAIRPERSON: Thank you.  Yes, well that concludes the formal proceedings in this application.  The matter concerns quite a large number of incidents.  There is a fair deal of evidence and other material that has a bearing on the matter that we have to decide.  There is an application by a co-perpetrator, which is served before another Panel of the Amnesty Committee.  There are Court proceedings and various other issues that we have to look at.  Under those circumstances we will reserve the decision in the matter.  We will endeavour to come to a decision as quickly as the circumstances permit, bearing in mind that the Committee and its Members are operating under various constraints, but given that situation, we will endeavour to produce the decision in this matter as quickly as we can.  But for the moment  the decision in the matter would be reserved.
	We take the opportunity of just expressing our thanks to Mr Lubbe and Mr van der Heyde, Ms Mohammed and Ms Mtanga, for your assistance in this matter.  We appreciate it.
	And to the people who have attended the proceedings, we regard it always as important that the process should occur in public and we attach particular importance to the presence of as many of the interested parties, particularly the victims of these incidents, at these hearings.  We appreciate that as well.
	So under those circumstances the decision will be reserved and we will notify you once there is a decision available.
	There is another matter that is on the roll, Ms Mtanga, but it's probably easier if we were just to stand down briefly.

MR SWART: Yes, Chairperson.

CHAIRPERSON: To allow you just to rearrange the ...

MS MTANGA: Yes, Chairperson, we'll require about five minutes to reorganise ourselves.

CHAIRPERSON: Very well.  We will then adjourn until you've indicated that you're ready.
COMMITTEE ADJOURNS