Amnesty Hearings — East London — 1998-10-07

MR ZILWA: Section 3(d) which reads as follows
"The object or objective of the act, omission or offence and in particular whether the act, omission or offence was primarily directed at a political opponent or state property or personnel or against private property or individuals, the object or objective of the act."
Now what was the objective for the killing of the Weakleys?  The stated objective by the applicants was that they wanted to send a message to the Government to hurry up with the negotiation process, that's number one.  Number two, they wanted to send a clear message to the Government and/or it's allies who were bent on destabilising the process by killing the prominent Black leaders and as such to derail the negotiation process, that such a state of affairs would be intolerable and it would be retaliated.  Now that is the object or objective of the act that was sought to be obtained by the applicants.  It would be my submission that that objective, as stated by the applicants and which I should hurry has not been gain said, is such that it falls on all fours with a political objective as determined by the use of these pointers, i.e. the objective of the act and in particular to where it was directed.  As I've already stated, according to the applicant ...[intervention]

ADV DE JAGER: This was directed against private individuals.

MR ZILWA: Mr Chairman, we should bear in mind, we should bear in mind that we should be very careful to use the benefit of hindsight to determine or to criticise the actions of the accused at that particular point in time.  What we should be asking ourselves is, what was going on in the minds of the accused at the time they were killing the Weakleys?  Now their evidence is at that time we had heard rumours that Mpande was used as a place where these people would normally go, destabilising people.  Now as to how reasonable that was, maybe that should not be the question.  One should view their actions in the light of the prevailing circumstances at the time.

ADV DE JAGER: Subjectively I can see under 3(a) the motive of the person, but (d) says we should look, objectively now, whether it was directed against the State, a political opponent or a private individual.

MR ZILWA: Yes, as I say, unfortunately we can't divorce the question of race with this enquiry, Chris Hani had been killed by a white man.  Now according to the applicants they wanted to send a message to other similarly minded whites that if they kill black leaders, whites will be killed.

ADV DE JAGER: That I'm quite in agreement with and then I could understand them saying "listen, we've been upset, we would have killed any white we come across" because their anger was directed against whites, not against a particular white.

MR ZILWA: Mr Chairman, again there we have to be careful.  What the applicants are saying was "our action was directed against whites but not on any white because had our action been directed on any white, we met many whites in the area, we whites ...[intervention]

ADV DE JAGER: But the moment you classify that it's not against all whites, then you say to me "listen, now I'm going to select a white and then I've got to judge whether you've done the necessary in order to collect, the reasonable necessary in order to collect the particular white?

MR ZILWA: I'm not very sure I follow you Mr Chairman, could you rephrase that?

ADV DE JAGER: ...[inaudible] matter whether it's De Jager or whoever white it may be, then I can say okay, if that was your objective, fine, you've told us that's your objective, but the moment you come and say no, we're not going to kill all whites, we're going to kill those whites involved in violence against us.  Then shouldn't you satisfy me that you've acted reasonably in selecting particular victim as falling into that category?

MR ZILWA: Well Mr Chairman, I would submit that that should not necessarily be the case.

ADV DE JAGER: ...[inaudible] so the moment you say: "I'm only directing my anger towards violent whites, I could almost kill at random, I need not do something really to see whether that particular white was a person committing violence?

MR ZILWA: As I've stated Mr Chairman, I'm not saying the accused were quite the beacon of reasonableness and they themselves have agreed to that, but one should always bear in mind their motivation at the time, the prevailing circumstances, the anger which almost every black person, not only black persons, almost every progressive person in our country was going through at the time.  So the reasonableness or otherwise of their action should be viewed in that context.  Now what they are saying is "we were hell-bent on killing a white" there's no doubt about that.  It didn't have to be a black man otherwise the message won't be sent across.  It had to be a white person because Chris Hani had been killed by a white person and wanted to send a message to other similarly  minded whites, that this would not be tolerated, they should stop it.  Now they say even though we have that objective in mind but "it was not really our intention" to kill randomly any white.  Now it could very well be that their selection of their target was not as reasonable or as careful as it could otherwise have been, but I'll hurry to submit that even if that that is so, that should be no reason, that cannot be any reason to conclude that in fact their act was not politically motivated or that it did not comply with the requirements.  All that they say is that we wanted at least to be able to reasonably assume that the whites that we are going to retaliate against would at least be the relevant whites i.e. the hateful whites, if you like, but that is all they say, but that is not directly the point in issue, that is not the pivot, that is not the harp around which their whole application revolves.  They wanted to kill a white man but they also wanted that at least that white man be a hateful white man.

ADV SANDI: This stage of the enquiry, do you not revert to the first stage of the enquiry which was what was going on in the mind of the actors, the applicants at the time they took the decision to actually commit these acts?  I thought I heard them saying that they were highly emotional at this stage, I think one even said they were thinking with their blood and not the mind?

MR ZILWA: That is exactly the point, Mr Chairman, that is exactly why I say when we view their selection of a target we should bear that in mind that these were not people who were thinking rationally, these were people who were acting out of - they were thinking with their hearts rather than with their minds or with their blood if one would use that term.

ADV SANDI: What legal test should be applied on this?