Amnesty Hearings — Johannesburg — 1998-09-16

MR MBANDAZAYO: Thank you, Mr Chair.  That's why, Mr Chairman, also my argument is based on that time, that the Committee should take into account various factors when deciding, that it's not in some of the situation which I happen to know in places where this happened, it was not that easy and most of the time you will find that it was tried to be resolved in many ways.  People were attending meetings, people, you know, with some church leaders intervening, but it was continuing and it ended up being full scale and some paying revenge, trying to fight back because it's not paying whatever mechanism are being used to try and resolve this matter.

MR LAX: You see, Mr Mbandazayo, Mr Mapoma put to him, "Why was it necessary to kill him if your order was to stop".  You know what other measures etcetera.  Now, there was no mention at that stage about other measures or meetings or anything, that's why I'm just a bit concerned that this is the direction your argument's going in.  But I just thought I'd raise that with you.

MR MBANDAZAYO: Mr Chairman, if I can go to that question as to why he had to kill him.  Mr Chairman, I think it was clear in the affidavit that he has to seek and identify the culprits and attack them.  How else would you interpret that, to attack somebody?  If you are attacking armed with a weapon.  That's what it means, that you have to kill, that is the perpetrators, those people you perceive are the main actors in the conflict.  That's how I interpreted the attack, Mr Chairman, and that's how I interpreted that what was the reason why he shot him.

MR LAX: You see, just to play devil's advocate for the moment.  There's another interpretation of attack and it's in line with his evidence which was, "If you show them that they can be hit, they'll leave you guys alone".  In other words, go and attack their homes if they're attacking your homes.  Show them that they're vulnerable.  That's another possibility that one can't exclude.

MR MBANDAZAYO: Yes, I agree with you, Mr Chairman, 100%.  That's another possibility.

MR LAX: You see, the issue here is proportionality and his instruction and the proportionality of his instruction and his action, and that's really why I was interested to see if you would deal with that.

MR MBANDAZAYO: Thank you, Mr Chairman.  Now, I do get your point on the question, that of the proportionality.  Mr Chairman, if you look, as I indicated, that one would interpret, as you put it, differently, the attack, it's subject to different interpretations.  One, it may happen that he interpreted that way, that you have to kill when you have to attack.
	And, Mr Chairman, it's my submission that in most of the cases is that if the proportionality has to be in these matters, it's ... (indistinct) of this nature, I always find it difficult, I always argue that proportionality should not be applied to the question of the foot soldiers who are not in the position, who are not decision-makers, who most of the time carry out orders.  I'm talking now in general, Mr Chairman.  I don't want to - I'm talking in general, Mr Chairman.  Because there are people who decide that in terms of our principles, these are the targets and when you identify targets you identify them in terms of these guidelines.  	And then those are within the principles and policies of our organisation, then you can attack.  Now, they have not decided on the guidelines, on the policies as to what is the target.  So, they carry out instructions that in terms of the guidelines and the policies we have, this is the target I have to attack it.  And my view is that, which of course is not said by everybody, that the proportionality should be applied to the people who are giving orders, that those things should be carried out.  
	And if now we look and we accept that his action within the course and scope of his political objectives, that is to defend his members, and we accept his evidence that members of the PAC were being killed, then I would submit that, Mr Chairman, were killed and their houses were burnt, some of them were killed, that in this instance the actions of the applicant were not out of proportion as to what was happening at the time.   And that I'm basing on the assumption that the Committee accepts that there was a conflict and people were being killed, the members of the PAC.

CHAIRPERSON: Yes, no, no, I follow that argument and in fact it is difficult to see how the issue of proportionality really becomes important under these circumstances where, if one assumes people are killed and houses are burnt down and so forth, and there's a killing in response, then it is difficult to appreciate that proportionality could very well be a key issue under these circumstances.  Isn't the point that what is required of your client, the applicant, is to show that, amongst other things and coming to this question of attack, because that's really what your debate was about with Mr Lax, isn't the question that your client has to show that he acted bona fide, in good faith in executing an order?  That's the express terminology of that particular subsection in the Act.  If what he did could be a bona fide interpretation of the instruction to attack, isn't that all that the applicant needs to meet under those circumstances?

MR MBANDAZAYO: Thank you, Mr Chairman.  I want to quote it, to put it as you've correctly put it, subparagraph (f)
"Any person referred to in here who, on reasonable grounds, believed that he was acting in the course and scope of his duties, within the scope of his express or implied authority."
	That's the crux of my argument, that at the time he acted, he believed that, he reasonably believe that he was acting within the course and scope of his duties, and within the scope of his express or implied authority.  That's the crux of our argument.  That at the time he acted, he believed that, what he was doing was in line with the organisation and what he was expected of him.

MR LAX: Sorry, Mr Mbandazayo, and with your permission, Chair.  Section (f) doesn't pertain to your client.  Section (f) deals with people who were referred to in (b), (c) and (d) which are employees of the State.  He falls under (a) really, and just to pick up on the Chair's point, Mr Mbandazayo, I'll just read it for you
"Any member or supporter of a politically known organisation or liberation movement, on behalf of or in support of such organisation or movement, bona fide in furtherance of a political struggle waged by such organisation or movement against the State or any former State or other publicly known political organisation or liberation movement."
So really, it's in that context that the bona fide issue crops up.  I agree with the way the Chair has put it.  This question of scope of duties and reasonable grounds of believing and so on, and implied authority crops up in relation to employees specifically, and he wasn't an employee.