Amnesty Hearings — Johannesburg — 1999-02-10

MR SHANE: Mr Chairman, learned Committee, Mr Chairman, you asked the question yesterday how did the applicant Jimmy Mkhonto expect to take on these white policemen without something happening to him, as you asked Mr Chairman, without getting shot.
	Mr Chairman, it is extremely significant to consider that the applicant was in fact shot in this incident.  When he took ...

CHAIRPERSON: Mr Shane, I did not ask that question.   I asked the question, how does his activities on both his versions, fall within the scope of the Act which requires that whatever he did, had to have a political motive.

MR SHANE: That is what I am getting to Mr Chairman, that is what I am getting to.  Well, it is important in this context Mr Chairman, the fact that he didn't get killed, is purely luck on his part, and we don't know how many bullets were fired at him, but what you must consider Mr Chairman, is that the question is when did the applicant get shot?  Was it as a result of him shooting at the white policemen or was he shot before he shot at the white policemen?

ADV GCABASHE: Mr Shane, why would you ask that question?  Are you trying to prove self defence?

MR SHANE: No, I want to show that in all probability, if he was shot, if he shot at the policemen first, and he was shot as retaliation, which I submit must have been the situation, in other words, he first shot at the white policemen, and as a result of that, he was shot.

ADV GCABASHE: Mr Shane, I must interrupt you here, we can't assume that that was the situation, we've got evidence, we have his testimony as to what happened.

MR SHANE: That is correct and on his testimony it is not clear that he shot, this is the crucial question, the crucial question is this, as to whether he was acting in self defence or not, I am trying to show that he wasn't acting in self defence, that he was not acting in self defence.  As he says, he shot at - his testimony Mr Chairman, is clear, he says he shot at these white policemen.
	Obviously they were at war, and he wanted to get their weapons.

CHAIRPERSON: That is one of his later suggestions.

MR SHANE: His later suggestion, look his application as such, the way his application form was filled in, clearly shows self defence, in terms of what is written in his application form before you.

CHAIRPERSON: And he confirms it under oath for most of his testimony?

MR SHANE: He was also, he was defending himself, but I am submitting with respect Mr Chairman, that he was shot after or rather, he was shot in retaliation.  He was shot in the leg and that shooting was in retaliation.

CHAIRPERSON: Maybe I can help you Mr Shane.  Who would you say in that scenario, was the first to be aggressive?  We are talking about the firing of the first shot.  Whose activities was the aggressive?

MR SHANE: Well Mr Chairman, I would say that ...

CHAIRPERSON: I am not asking what you are saying, I am asking what your client said.

MR SHANE: He says he was running away from the police.

CHAIRPERSON: So the police were the aggressor?

MR SHANE: The police, according to what he says, he was running away from them.

CHAIRPERSON: Which means that the police were the initial aggressive force?

MR SHANE: Correct.

CHAIRPERSON: He says, he turned around in order to either facilitate his escape or to defend himself, which amounts to almost the same thing, he shot at them.  Isn't that what he says in his application, his written application and for most of his testimony?

MR SHANE: That is what he says in his written application, and he says that in his testimony, but there is nothing in his testimony that suggests that anything is done by the police, to him.
	In other words, he had that fear and he ran away and he turned around and he shot.

CHAIRPERSON: What do you think they were running after him, practising for the olympics or the Commonwealth Games?

MR SHANE: Well Mr Chairman, there is evidence in previous application, that what the police would do for instance, if they didn't shoot members of the SDU, what the police would often do, they would take them to hostels and let them be dealt with by members of the IFP.

CHAIRPERSON: Precisely, he was worried about that.

MR SHANE: Right, he was worried about that, but I submit with the greatest respect, there was no shooting of him, there was no active attack of him, and he shot, and then the shots came afterwards.  And then you have to look at the police actions afterwards.  What did they do after they shot him?  They didn't kill him, they didn't take him to a hostel to be dealt with, they took him to hospital.
	This was, the police didn't do the normal thing that they were doing at the time, with him.  The police didn't do to him, what they had done to many others, and I submit that is also significant Mr Chairman.
	It might have not been clear that he was in fact, that an act of self defence would succeed or he might not even ...

CHAIRPERSON: You know Mr Shane, I just want to point, one of us is lost, it is not me.  I want to point out to you that the activities of the police, is not the issue here.  The issue here is, why did your applicant or you client do what he did.

MR SHANE: Right.  Mr Chairman, he says he did what he did and he says in his words, he wanted to get weapons from the police, who were the enemy, from these white policemen.

CHAIRPERSON: And you are going to rely on that small bit of evidence?

MR SHANE: Mr Chairman, I would also ask you, the fact that in his application form, it is clear in his application form, he is relying on self defence.

CHAIRPERSON: And I must ignore that?  We must ignore that?

MR SHANE: No, I am not telling you to ignore that, but I am asking you to consider the following as far as his application form is concerned.

CHAIRPERSON: Mr Shane, you are not here to plead for your client, you are here in argument, to assist us come to a proper and correct decision.

MR SHANE: Mr Chairman, it seems that - I am trying to do that Mr Chairman, when I refer to his application, I am asking you to take the following into consideration and that you have heard, it has emerged in these hearings about the unsatisfactory manner in which these statements were obtained on the last day.
	We don't know if it was properly translated, we do know that the statements were written by a certain party and that is something that one should also consider.

CHAIRPERSON: Let us assume that we agree with you and we ignore the written application.  Which one of his versions, must we accept?  Both were given under oath.
	Can we believe him on either version?

MR SHANE: Well Mr Chairman, I submit that it is not 100 percent, it is, there are problems and it is ambiguous his testimony, but I submit that ...

CHAIRPERSON: It is not ambiguous Mr Shane, it is contradictory.

MR SHANE: Well, Mr Chairman, I submit there are contradictions, but he says and you can't just disregard it, he wanted to shoot these police to get these weapons.  That was a very foolish thing to do, it was dangerous for him, because he got shot in the process.

CHAIRPERSON: But doesn't that weigh against him, the improbabilities of him succeeding in shooting the police in order to get their weapons?  Aside from the improbabilities of that, you have this other bit of evidence that forms a major portion of his testimony, where he says well, I actually shot to protect myself.  In the face of that, what do you suggest we believe?

MR SHANE: Mr Chairman, it depends on how strong the onus is, where the onus rests.

CHAIRPERSON: For your information then if you don't know about the onus, all that the applicant must do is satisfy us that he has complied with the Act.  It is even in my view, less than the onus, civil onus.

MR SHANE: If that is the case then Mr Chairman, he says he tried to ...

CHAIRPERSON: But we are also not here to do favours.