Amnesty Hearings — Pinetown — 2000-02-15

MR WILLS: There are a number of occasions where they indicate that they were of the belief that the deceased and his gangs were being utilised by the police in the struggle or the counter-revolution against the ANC.  There was a specifically - a specific point on page 6 of the record of this matter where Mr Ndaba and I quote, it says at the bottom of the page
"At the time it was common knowledge that the police were collaborating in harassing the ANC.  There had been many instances where people, that is ANC people had been killed, shot at.  At one time a house attack, that is the Midlands Chairperson, Mr Harry Gwala, which had been attacked by these gang members"
and this is the important sentence, it's the last sentence on that page:
"We then felt that these gang members were being used by the police as part of their counter-revolutionary strategy"
Now that's the closest we can get to that length and I submit that there's nothing to gainsay that bona fide belief and to that extent I submit that they satisfy that requirement.
	Turning to the remainder of my argument on political motivation, purely they were trained ANC security persons, clearly complaints were received about the activities of this gang and I think the context is important in that the complaints were contextualised in such a manner that the activities of the gang were adversely affecting the ability of the ANC to organising that community.  Committee members became scared and in fact Committee members were targeted by this gang.  So it's a political problem, it's a problem that the ANC, if they want to organise, have to sort out.  They then were tasked by a senior person, Intelas Skosana, to investigate.  They investigated and they reported back to Intelas Skosana, their superior, the results of their investigations and he said do something about it.  They then took it upon themselves to do something about it and they took the decision to kill the person.  Now clearly the inference is unavoidable that the motivation in killing this person was to prevent the obstacle to the ability of the ANC to organise in that area, that is why this person was killed.
	They then reported back to Skosana who basically tacitly approved of their activities.  Clearly had they done something that was out of ANC policy as my learned colleague, Mr Mapoma, inferred in his questioning, then surely Skosana would have taken the issue up and possibly the two applicants would have been disciplined but instead, the evidence before the Committee is that when they reported back to Skosana, Skosana was perfectly happy with what they had done.
	There was no ill will or personal gain, no malice in the activities and as regards the proportionality aspect, they didn't attack the gang at large, they took a decision, a minimal approach in fact, to target who they perceived as a gang leader and they killed him and nobody else and the objective was achieved and they did nothing further.  I submit that on this basis their political motivation cannot be doubted, it must be accepted, there's nothing to gainsay any of the evidence.  I understand that there was an unfortunate incident, the demise of the deceased's mother but be that as it may there's no evidence, there seems to be no interest to put any counter version before the Committee and I submit on that basis that it must be accepted particularly in view of the fact that it is the applicants who have brought this to the attention of the Committee and the world at large and nobody else.  Thank you Chairperson.

CHAIRPERSON: Mr Wills, one matter?  I don't want to use you as a witness but you told us as I understand, this is page 12, that you had been in touch with certain other members of the local ANC leadership at the time and they had arranged to come and testify on Wednesday, it was the day when we adjourned, they will if necessary be available to testify?

MR WILLS: Yes.

CHAIRPERSON: So this is not one of the cases where one merely has to rely on the applicant who is saying he was a member of the party?

MR WILLS: Yes.

CHAIRPERSON: You could assure us and I think we would happily accept that, that leading members of the ANC of the local leadership have confirmed that the applicants were ANC members?

MR WILLS: Yes indeed and I think Mr Chairperson, you don't necessarily have to rely on me for that, I think you can take judicial notice of the integration process, these two persons have on record indicated that being ANC security persons they have been integrated into the VIP protection unit and it's solely as a result of their position in the ANC security department that they were afforded that opportunity and they operate in that position today.

CHAIRPERSON: No Mr Wills, no.  We have an application before us this week where the applicant applied for two offences, the first was being member of the - killing a member of the ANC wasn't it?  Being a member of the ANC and killing a member of the IFP.  A few years later now being a member of the IFP, he killed a member of the ANC and at that time he was working as a -  in the ministerial protection unit so I don't think one can necessarily place weight on their current positions.

MR WILLS: Yes as you please Mr Chairperson, but I have established that they have been members of the ANC for a considerable amount of time as indicated in the papers.

CHAIRPERSON: Thank you.  Mr Mapoma?

UNKNOWN: Thank you Chairperson.  Chairperson, I am finding myself in an awkward situation so to speak.  The victims initially when I consulted with them before this matter came to be heard, they are saying they are opposing the application on the basis of the fact that, so they say, this act was not an act associated with a political objective as defined in the act because they argued or they were saying that this was a conflict within the ANC structures and did not necessarily that they were gangs.  During the evidence of the applicants I have put it to them individually during cross-examination when they disputed vehemently that the victim was a member of the ANC or an activist within the ANC structures.  It's a situation then as it is which left me with no evidence to take the matter further to put the version of the victims along that direction but the only argument I can at this point, Chairperson, highlight, is that it is - there is no policy of the ANC to act against people who are perceived as criminals as such.
	I have taken note of the argument that is being advanced on behalf of the applicants that they were perceived as people who were used by the police to inhibit the activities of the ANC and the Committees as well.  That argument, I must say Chairperson, sounds plausible in the circumstances.  Therefore, Chairperson, I find myself with nothing but to recommend that the applicants be granted amnesty.  Thank you.

CHAIRPERSON: There was some evidence, wasn't there, that the deceased had been a member of the ANC at an earlier stage but that he was no longer active in the ANC when he was running this gang or was that something you put?

MR MAPOMA: That's what I put to them Chairperson and they disputed that, that he was ever a member of the ANC.

CHAIRPERSON: But they did give evidence and there seems to be nobody conflicting with it or nobody wishing to contradict that they discussed the matter with their seniors in the ANC, they were told to take some action, they did take action and they reported back?

MR MAPOMA: Yes Chairperson.

CHAIRPERSON: That's unchallenged?

MR MAPOMA: Yes, it's also unchallenged.

CHAIRPERSON: Thank you.

MR MAPOMA: Thank you Chairperson.

CHAIRPERSON: Is there anything else?  Thank you.  Well, we have agreed the others can adjourn.  We'll adjourn till 2 o'clock, so we'll stand by that.  Are you in anything further today?

MR WILLS: I don't think so, Mr Chairperson, if I could be excused to return to my office?

CHAIRPERSON: Certainly.