Amnesty Hearings — Johannesburg — 1998-12-02

MR SHEIN: ... for murder.  He has stated in his application that he applies for amnesty for initial formation of SDU Thokoza.  That application is withdrawn.  He will also apply for amnesty, he says
"Supply of weapons"
but in fact it means Sir, the possession of an unlicensed weapons and ammunition, as well as the distribution thereof.

CHAIRPERSON: It's two separate counts?

MR SHEIN: Well he calls it supply of weapons, but it also pertains to giving others weapons and his own possession.

CHAIRPERSON: So that's two separate counts?

MR SHEIN: Two separate counts.

CHAIRPERSON: Who did he murder?

MR SHEIN: He murdered two unknown people, Sir.  I don't want to use the word: "murder", Sir, because although he's applying for amnesty for this killing, he did shot two people, it's clear from my instructions, Sir, that if he were to be charged in a Court of law, he would have raised the defence of self-defence, which might well succeed.

CHAIRPERSON: It's just as well I did swear him in, because if he's not going to admit guilt or if he can't admit guilt, the he's not guilty of any crime for which amnesty can be granted.

MR SHEIN: Sir, Mr Chairman, the situation is this, he is seeking amnesty for an act that he did, which only with respect, only a trial would be able to determine whether his defence would succeed but he seeks amnesty in order to ...(intervention)

CHAIRPERSON: Avoid a trial?

MR SHEIN: Avoid a prosecution and also he is ...(intervention)

CHAIRPERSON: But it doesn't work like that Mr Shein.

MR SHEIN: Sir, he is also - it is unlikely in his circumstances, if I might just mention, it is unlikely that a trial would ever follow.  It is not known as to whether this killing was ever investigated, they were people unknown to the, they were people completely unknown to the applicant, although he knew they were hostel dwellers and they were at the time, as he will testify, they were at the time in fact carrying out an attack in Thokoza, the Beirut section.

CHAIRPERSON: Are you quite finished now?  I don't know if you listened to me.  I don't know if you've acquainted yourself with the law.  I'm going to put it as simplistic as I can.  If he's not guilty then he can't get amnesty because it's pointless making an application for amnesty for something that you're not guilty of.  If he's guilty then he can make an application for amnesty, for which amnesty can be granted subject to the conditions as described by the Act.
	We have to accept that he's guilty in the first place.  If he comes to tell us he acted in self-defence or in defence of others, then we can't assume guilt and therefore it follows that he can't be granted amnesty for something he's not guilty of.  Now he's got to make up his mind.
	Lastly, I'm going to point out to you, that this process is not intended to be used as a mechanism to avoid prosecution.  The underlying spirit of this process is to tell the truth and reconcile with the victims and perhaps reconcile with oneself.  
	So he has got to make up his mind whether he wants to make the application or not.  In view of what you've told us it's going to be difficult for him to change his mind or his story.

MR SHEIN: Mr Chairman, if I may just for, very briefly just confer with the applicant on that issue.  I'm not asking for an adjournment.
MR SHEIN CONFERS WITH CLIENT
	Mr Chairman, my instructions are that the applicant wishes to make application for amnesty for the killing of two persons unknown to him.  That is, we won't mention in the circumstances, any possible defence that might be raised if ...(indistinct), that won't be made but ...(intervention)

CHAIRPERSON: Where does that put you, you yourself as his representative?

MR SHEIN: Well Sir, I will lead him as his representative.

CHAIRPERSON: Ja, but he's told you what the true facts are, now you  want to concoct a version to suite the law.

MR SHEIN: No, Sir, that is not at all the situation, Sir.

CHAIRPERSON: Didn't you just tell us, Mr Shein, that the circumstances under which he killed these two people is to your mind very close to a possibility that he may be able to raise the defence of self-defence?

MR SHEIN: Yes.

CHAIRPERSON: Now given that, if he is going to come and tell us; look I shot these two people in defence of myself or other people when they were attacking us, then he's not admitting guilt.

MR SHEIN: Sir, what he is admitting is, he is admitting to the killing of two people unknown to him, for which he seeks amnesty.  Because this is not a Court of law as such and because the purposes of this Commission is to hear the whole truth and to an extent show remorse to known victims or their families, this is what he wants to do, with respect.

CHAIRPERSON: He can do that outside this forum, if he wants to shake hands with the victims.

MR SHEIN: Sir, with respect ...(intervention)

CHAIRPERSON: I'm speaking to you, Mr Shein, not to him, listen to me.  As an officer of the Court, is he entitled to bring this application?  Never mind what his instructions are.

MR SHEIN: In my view, with respect Sir, yes.

CHAIRPERSON: On what basis?

MR SHEIN: Sir on the basis that he knows he killed two people in, and it might - Sir, as this is not a Court of law, I just mentioned it, maybe I shouldn't have, this aspect of a defence of self-defence.  That ...(intervention)

CHAIRPERSON: I'm glad you did, you should have because those are your instructions.

MR SHEIN: Yes, after detailed consultation, those are clearly the facts that he relayed to me.  However Sir, it doesn't mean, it doesn't flow from that, that this defence would definitely succeed if ever a criminal trial were to take place.  So that - it's not cut and dried, with the greatest respect Sir, the accused acknowledges he caused the death of two people.  He will explain the circumstances ...(intervention)

CHAIRPERSON: Mr Shein, I don't know to what extent you are acquainted au fait with criminal law but if you say he's making application for amnesty in respect of killing two people, is he guilty of anything?

MR SHEIN: Well with respect, Mr Chairman, he might well be, that would be ...(intervention)

CHAIRPERSON: Well, is he?

MR SHEIN: This is not ...(intervention)

CHAIRPERSON: Is he guilty of anything, I'm not asking if he might be.

MR SHEIN: Mr Chairman, as a criminal attorney, one obtains instructions, one does not make the decision on the guilt, one has a certain belief, one has to put it to a Court.  This is not a Court as is pointed out, this is not ...(intervention)

CHAIRPERSON: Mr Shein, you come here to come to ask for amnesty in respect of a crime.

MR SHEIN: Correct.

CHAIRPERSON: I'm asking you simply, what crime is he making application for?

MR SHEIN: The crime would be murder.

CHAIRPERSON: Murder?

MR SHEIN: Yes.

CHAIRPERSON: Now, in terms of your instructions, did he commit murder?

MR SHEIN: In terms of my instructions Sir, he has, as I consulted him on all the facts, he has raised certain defences, that is I was dealing with a criminal trial, which I'm not dealing with now Sir, I would then, that would be used as a defence, but this is not a criminal trial Sir.  I mean, I submit with the greatest respect, that ...(intervention)

CHAIRPERSON: Have you got the Act in front of you?

MR SHEIN: I do, Sir.

CHAIRPERSON: Well read it then.  I'm going to give you 10 minutes to read it.  One can only come and make application for amnesty in respect of a crime.

MR SHEIN: Correct Sir, and the crime is murder.

CHAIRPERSON: Well did he ...(intervention)

MR SHEIN: And the firearm, sorry.

CHAIRPERSON: Well did he commit murder, in terms of your instructions?

MR SHEIN: Sir, in terms of my instructions, he certainly killed two people.  In terms of my instructions he killed two people.