Amnesty Hearings — Middelburg — 2000-05-12

MR RICHARD: Yes Chairperson.   In this matter we have the uncontroverted evidence of the applicant that he comes from a tribal village where customs and practises are still adhered to and that in this village as a result of deaths by bus accidents, lightening, illness, suspicions were raised that the work of a witch or witches was afoot.  I don't believe there's anything that can be said to cast doubt upon the applicant's evidence in this regard.
	Then as a result of these suspicions an association is formed between the youth league and what are described as the parents, elders, chief of the village that an sangoma be consulted which exercise is then carried through as a result of which the deceased is pointed out as a witch.  We also have the applicant's evidence as supported by the evidence in other matters and in the various reports that we are all familiar with that at this point the deceased in deadly peril of being executed as a witch and in great danger.  It is there that the story changes and differs from the others that instead of a crowd action that we are all familiar, is small group of four are said to have been chosen to do what has become familiar as a public event, that is the execution of the witch. 
	Now where this case also differs from others is that the decisions made by the community and the youth league follow the more traditional policy of deciding that those pointed out should be made to leave the community instead of suddenly and immediately being the object of - and I don't intend to be frivolous by saying it, a witch hunt by the community and group.  The traditional, as is born out by the papers before us, decision was that the elders and the chief would pronounce a sentence of banishment.  
	Now it appears that this was in fact done and I don't believe that it is a reason to doubt that it was done because indeed consistent with the area these actions took place, that would have been in the past what we are told would have happened.  However, the next step in the chain which we are asked to believe, is that the group of four were instructed by the joint meetings of the ANC Youth League and the traditional structures to go and do the execution.  There I argue as follows. 
	Firstly, the applicant's evidence is uncontradicted, no one has come forward to oppose his amnesty and his is the version that we have.
	Secondly, he was part of the youth league and at that stage it was the youth leagues intervention as we've heard in other matters that resulted in the crowd hysteria action and public burnings and necklacing.  So that's the - or traditional community had not yet decided what to do doesn't preclude that the youth league section had decided and did in fact decide that since they were not getting their way in this particular village to go ahead and do what had been done in other situations and that is execute the witch.  
	The applicant then continues to bolster his story by saying the police and soldiers were everywhere.  I don't find it inherently incredible that a smaller group of people were delegated the task of carrying out what was decided to be done with the witch, that is execute her.
	Now in all events, this applicant's evidence is consistent with the evidence that is contained in the various reports and tendered in other cases that witches were perceived as obstacles to progress, enemies of the ANC, those responsible for the prevention of a new leadership generation coming up and I don't believe I have to reargue the point that a person pointed out by a sangoma, ngaka, was from then on seen in the same light as an impimpi, a policeman or any other class of legitimate target for the youth as at 1991 in the history of the struggle.   
	I submit that the applicant has complied with the Act, has presented a version which reveals that his subject of perception which was bona fide on an objective basis, was that the person he killed was a person who posed a threat to him and his youth league, comrades and the liberation struggle and to be eliminated and for those reasons as it was an act committed with a political objective associated with the objectives of the African National Congress at the time and also with the concurrence and at least passive support of the local leadership of the ANC in that particular area, one would satisfy a sub-section 22(a). 
	The question continues, was the act proportionate?  It is true that other methods of persuading the deceased to leave the village could have been adopted.  Proportionality, however, must be seen in relation to what the bona fide perception and belief was at the time.  We need not underrate the belief in witchcraft and the perceived power that witches had to have, were supposed to have.  In the mind of a rural individual it is understood from numerous other cases that dramatic burnings, necklacings, stonings were in fact seen by the perpetrators of the gross human rights violation of murdering the witch as appropriate in the situation and circumstances.  My argument then is that as there is a proportional act from the point of view of the applicant, the applicant should be given the benefit provided for in the Act and be granted amnesty, as the Committee pleases and I leave it in the hands of the Committee.

CHAIRPERSON: Ms Mtanga?

MS MTANGA: Chairperson, I wish to leave this matter in your hands.

CHAIRPERSON: Yes, thank you very much, that concludes the formalities around this application.  It remains for the Panel to come to a decision on the application.  We are not in a position to do so immediately as much as we'd like to do that in all cases.  The realities are that we can only do it in a very small percentage of matter that serve before us.  So like in most other matters we will reserve the decision and we will notify the parties as soon as the decision is available.
	That also concludes our hearing roll in this particular session.  It then remains for us finally just to thank you Mr Richard for your invaluable assistance in all these matter that serve before us.  It's appreciated, your willingness to assist in this regard.  And Ms Mtanga for your usual assistance, helpful assistance in the matters before us.  We express our gratitude.  And then just in general, we express a word of thanks to everybody else who have assisted us in enabling us to have this hearing and to have it run it smoothly as it did under sometimes very difficult circumstances and sometimes very circumstances. 	In this regard we must extend a particular word of thanks to the members of the correctional services department for their assistance in bringing the applicants from many corners of this immediate part of the country to Middelburg to enable us to continue with our hearing and to in fact be in a position to conclude all of the matters that were set down on the roll.  It is of critical importance for us to be able to actually dispose of the matters that are set down for a particular session.  Often there are delays and some unavoidable matters have to be postponed so that normally plays havoc with our process and we do appreciate the efforts and the assistance of correctional services in this regard.
	Also to our staff and everybody else attached to the Commission for their assistance, the interpreters in particular who fill a critical role in having hearings of this nature, we're always grateful for their help and for the proprietors of this venue where we are sitting, for making their facilities available to us and looking after all of us as they have for the past week.  We appreciate that.  And to the police as well for their usual assistance in regard to matters of security and the like.  We appreciate that.
	And in conclusion, to my colleagues on the Panel with me for their assistance in dealing with the matters that were on our roll in this session.  Thank you very much, we're adjourned.
HEARING ADJOURNS