Amnesty Hearings — Durban — 1998-11-25

MR SIPHO: No, there was no suggestion of that, whatsoever.
	I think that romantic link was just there to try to, it was possibly put up by one of the applicants and the Judge didn't believe that, I think.  Throughout, I could of course take the Court through each and every notation that I have made, but that is going to run into a number of pages, but in almost every page, and I can tell you that without exception, each and every one of the accused, was questioned in a manner that was going to reveal a political motive.
	For example, accused 1 at page 237, some question was put to him where he was made to concede that it would be an offence for a township dweller to be at the compound, and of course in terms of the summary of facts, a township person was an ANC person, and the person who lived at the compound, was Inkatha.
	Of course you could see that the Judge made quite a lot out of the fact that he found that almost every accused, or a large number of them, actually were shying away from making any admissions about the fact that they were in any way aligned or associated with the ANC, some of them even went to far as to say that they were not quite aware of the difference I think, between the ANC and Inkatha.
	So basically their whole purpose was to try and keep that out, and of course they can't quite be criticised for not aligning themselves to the ANC, because the ANC as we know, had been banned for a very long time, and it was actually an offence to have anything to do with the ANC.
	In fact, I think we all remember the days when indictments in the High Court for treason always started off by saying that so and so was a member of the ANC, whose purpose it was to violently overthrow the government by making the country ungovernable.
	I mean, if they said that they were members of the ANC, and what they had done, that could well have been construed as an attempt to make the country ungovernable and they might well have been guilty of treason.
	In that court, I think all the accused had to basically go through a kind of balancing act and I know the situation of people who were members of the ANC at that time, because they were all faced with a dilemma, how do you go and give evidence in court, and deny I am a member of the ANC.
	We all wanted to say yes, I am a member of the ANC.  But to say so, would mean a conviction and a sentence of a far worse order.

MR LAX: Sorry Mr Sipho, except to say that this happened in 1991, the ANC was unbanned in February 1990.  I can accept the reasons given by the applicants themselves, but I think perhaps your argument is taking it a bit further than they themselves intended.
	Their submission essentially was to the effect that they perceived the Court as a government structure, and they perceived the danger to themselves in admitting that they were ANC, as possibly bringing retribution on their families and on themselves.
	I think, let's not traverse that, what I would really like you to just check is, when I read the judgement and when I read the passage you referred us to, it specifically states there that accused 6, who is Xolani Pungula, in fact indicated in the trial that he hadn't been drinking at all, and he is referred to as one of the people who, no finding that he was drunk, was made in respect of at the trial.
	To rely on that in respect of him, here at this stage, I find it rather strange.  Maybe you can just address us on that aspect specifically.

MR SIPHO: Sorry, could you just refer me to which judgement I spoke of?

MR LAX: You referred us to page 202, line 20 and then to 290, paragraph 6.  It says the evidence establishes that accused 5, 6 and 8, do not consume liquor.  Accused 6 was the person whose evidence today is that he was pretty drunk, so drunk that he didn't really have an appreciation of what was happening.

MR SIPHO: In response to that, I hadn't been presented to the evidence that was actually led in respect of that.
	I seem to recall that there was talk of being drunk in respect of a few of the accused and I am not sure whether accused 6 was actually included in that lot.
	I do now know that it was accused 6 who said that he had actually been drinking.  I am not sure if that actually destroys the argument that I was trying to suggest that whatever the position was in regard to the alcohol at that stage, it may be that the accused when he is talking about how drunk he was now, could well be overstating the position which existed at that time.
	Because he is now casting his mind back to a period during which he had actually served eight years of imprisonment and then going back and talking about something which happened at that time.

MR LAX: All I am seeking to request you to perhaps address us on is the contradiction between the finding of the Court, in respect of the evidence led at the trial, that he didn't consume liquor at all and his evidence today, that he was quite drunk, and at least in respect of the answers he gave to the Chairperson's questions, didn't really, wasn't aware of what he was doing.  That is how he put it.
	Because if he wasn't aware of what he was doing, the question then becomes how did he form a political objective.  That is really the issue I am trying to canvass.  You quoted us that paragraph as indication of the fact that he had been drinking.
	That was (indistinct) to be.

MR SIPHO: Sorry the point that I was trying to make there, was that although people had been drinking, and that there was evidence that drinking had taken place, it would seem that the Judge didn't find that anybody was so drunk that they would not have been able to form an intention.
	He said that for those people where he found that alcohol had been consumed, they could have been effected to some extent by it, and he found that as a mitigating factor, but obviously if he found it to be a factor where they were not capable of forming an intention, then perhaps they may not have been convicted at that stage.

MR LAX: I think the Judge would have referred to that in the light of the decisions in Kretty & Others which in those days, would have indicated that alcohol was an aggravating factor in some instances.
	Obviously it wasn't so much so that it took away their intention.  So maybe I see your point that you are making.

MR SIPHO: Thank you.  Could I proceed from here onwards?  	There was also evidence before the Court, that it was a high ranking member of the ANC, the Chairman at the time, Mr Msolo, who had given an indication to the applicants that this person should in fact be killed.  Basically it seems as if they were carrying out a political instruction, even though they possibly had the same fate for this person, in mind.
	Now, I don't intend, unless the Court wishes me to do so, but I have references here to just about all parts of the judgement, which basically brings out the link between the killing, Inkatha and the ANC.

CHAIRPERSON: I don't think it will be necessary to refer us to all of them.  We have read the judgement.

MR SIPHO: Sorry, the only other point that I think I wish to make is that as the applicants saw it, they were in a situation where people on their side were being killed, and it would be the only safe way to stop this happening, was basically to kill off that person.
	I submit that the Court a quo did find that there was a political motive, which gave rise to this killing, and I submit that this Committee should not make any different finding in that regard.