Amnesty Hearings — Pietermaritzburg — 1997-02-10

MR BANADE: Mr Chairman, it has to be the facts of what happened when this offence took place.  Relevant facts in this case are that Mr Jama was apprehended, he was seen as an ANC supporter.  How each and everyone realised that he was an ANC supporter differs from instance to instance and the person was murdered.  Hence the fact that he was an ANC member and on the one hand they were affiliated to the right-wing and the others were Inkatha supporters.  These are the main points, these are the relevant facts.  Finer detail may differ, not always to mislead the Committee, but because these acts took place six years ago and I am just asking that it be considered reasonably.
	To answer your question, we are talking about relevant facts, what happened that day and what went on in their minds and what was the political motive.  And with all due respect, Mr Chairperson, I think that has been fully disclosed to this Committee.

BERNARD MAKGABO NGOEPE: It does not help us for them to come and say
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well, we killed this man and then you regard it as a disclosure of a material aspect.  The fact that they killed that person is not of earth shattering importance, because we know they did that.  Of importance is for them to tell us how they went about doing that.  For example, an applicant would say that I took out a knife, I stabbed him three times, and he stood up to try and run away, I tripped him and then I stabbed him twice in the back and all that sort of thing.  Those are the important details that we need to know.  That is what full disclosure is all about.  It is not enough for an applicant just to say well, I killed that person.  And perhaps you may have to address us with regard to whether or not, with reference to what I have said as important, how your clients acquitted themselves around that issue.

MR BANADE: Mr Chairman, yes, I agree with you that the detail of how this happened has to be disclosed, but is that not what happened?  There were eight people;  this Committee is faced with three of them.  Each one is his own individual and as these events unfolded, the one sat at the back and the one sat in front and they see different pictures.  They see things differently, being different individuals and obviously they would differ in certain details because the one saw certain things which the other didn't see.  The way I see it they did quite well in saying what each one remembers.  Each one informed the Committee as to what their role was.
	Erasmus, and I think it is the first time he has disclosed it, has said that I am the one who came up with the suggestion that we should kill him and Harrington also said that. 
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BERNARD MAKGABO NGOEPE: /...
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BERNARD MAKGABO NGOEPE: The first applicant, Mr Harrington, repeatedly banged the deceased's head against the rock, repeatedly, there is that kind of evidence.  It came out from Madlala.  What did Mr Harrington say about that himself?  Did he tell us about that?  Did he give us those details?

MR BANADE: As far as I can remember, he did not make mention of it, about the head banging, but in essence the rest was there.  If I remember correctly, he was dragged out and he fell and he was dragged out with a belt around his neck, he tried to escape, somebody wanted to shoot him and was stopped, told not to shoot.  And thereafter they caught the man and if I remember these details were given and thereafter the man was shot.

JUDGE WILSON: He made no mention of this.  How can you just brush it aside and say and thereafter these details were given.  Mr Harrington did not mention it once, did he?

MR BANADE: To the best of my knowledge, Mr Chairman, he did not.  Does it really make such a big different that small little detail where they differ from each other?

SISI KHAMPEPE: ... supposed to attach any material weight to that kind of an omission?  Is it not a significant omission as it relates to how the death in respect of which amnesty has to granted was committed?

MR BANADE: Mr Chairman, the fact of the matter is, at the criminal trial it was determined that death was caused by the shot from a shotgun in the man's face.
	Now the law as we all know works on the basis of a common purpose and according to that Mr Harrington is also guilty, the same as Mr Erasmus, the same as Mr Madlala.   Although this Committee would know that the person who was
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the direct cause of the shot is Mr Madlala.  Mr Harrington gave enough facts before this Committee, as far as making it an associated deed, by saying that he dragged the man out of the vehicle and chased him when he tried to escape and so forth and then he placed Mr Madlala and the shot went off.

CHAIRPERSON: I think the question that is being directed at you is, can it be said that Mr Harrington has made a full disclosure when he did not breathe a word about banging the head of the deceased, Jama, on the rock?  I think that is the level at which the question is put.  Do you think that he has made a full disclosure, in the absence of any admission by him that he had done so?

MR BANADE: Mr Chairman, if I remember correctly, Mr Madlala's evidence was, as far as that aspect of the detail is concerned, was given after Mr Harrington gave evidence so there was not a chance to put this version of Mr Madlala to Mr Harrington.  And if it bothers the Committee so much then I could ask him about it.

JUDGE WILSON: I take it you have read the judgment where Thirion J says, dealing with accused No 3 and fetching the gun
"However, the deceased might have been dead or fatally injured by then.  Since he joined the common purpose after the deceased might already have been killed, he cannot be found guilty of murder.  However, if the accused No 3 believed the deceased was still alive, then he would by his act become guilty of an attempted murder".
So it would appear that the court a quo found that the deceased may have been dead when the shot was fired.  That is, that the banging of the head may have already killed
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him.  That was the finding of the court a quo at page 823.  So I do not understand your submission that you said the trial court found the cause of death to be the shooting.  The trial court could not find what the cause of death was.  It was either the injuries inflicted by Harrington or the shooting, as appears at page 823 of the judgment, if you would like to look at it.

MR BANADE: Mr Chairman, I accept what you have just read to me.  I don't know which part of the judgment that is, but the fact remains - that is a technical aspect as to whether the man was dead before the time or thereafter, but the  intention remained among the people present in the bush that day, that if this man was not dead, shoot him in the head to ensure that he is really dead.

JUDGE WILSON: You are avoiding the question again.  The intention is, if he banged his head so hard against rocks to kill him he should have told us, all he?  If the trial court found he may, as a result of Harrington's throttling and banging his head have already killed him.  But we were not told by Harrington, were we?  And that is the point my Brother has raised with you.