Amnesty Hearings — Cape Town — 1997-07-07

ADV LOURENS: Mr Chairman, my submission in this regard is that the doctrine of common purpose is what must have, that the court must have found that there was a common purpose in so far as the robbery was ...

JUDGE WILSON: No, I am talking about the murders.

ADV LOURENS: Well, not having the benefit of actually what was ...

ADV LOURENS: But you are appearing for applicants two and three which I understand have given evidence on the basis they did not commit murder.

ADV LOURENS: That is so.

JUDGE WILSON: So they cannot ask for amnesty for it.

ADV LOURENS: They were found, however, they were found guilty of the murders.

JUDGE WILSON: Yes, but they are asking for amnesty, the procedure is they ask for amnesty for an offence they have committed.  They say they did not commit this offence.  We do not sit here as a Court of Appeal.

ADV LOURENS: Well, ...

JUDGE WILSON: What is the position?

ADV LOURENS: Well, Mr Chairman ...

JUDGE WILSON: Did they appeal against their convictions?

ADV LOURENS: I have no knowledge as to whether or not they appealed against their convictions.

JUDGE WILSON: Before us their attitude has been they did not go there knowing that anyone was going to be shot.  They took no part in the shooting.  They did not anticipate it which is no common purpose.

ADV LOURENS: That is so Mr Chairman.

JUDGE WILSON: Well, can you ask for amnesty for them?  Have you applied your mind to the question?

ADV LOURENS: Mr Chairman, in that regard all I can submit is that my instructions were to deal with this matter on the basis that these two applicants wish to apply for amnesty.  If the Committee feels that there is not, no reason for them to apply for amnesty then that is a question for the Committee.  Their, I cannot, their evidence was what it was before this Committee yesterday.  I am asking the Committee to accept their version of the events that occurred there.

CHAIRPERSON: You are saying that despite the fact that they pleaded, they say that they had no common purpose in the killing of these two unfortunate people, they were nevertheless convicted and it is because they were convicted and sentenced they are applying for amnesty in respect of that?

ADV LOURENS: That is my understanding, Mr Chair.

CHAIRPERSON: Is that what you are trying to say?

ADV LOURENS: Yes Mr Chairman.

CHAIRPERSON: Yes, carry on.

ADV LOURENS: I would ask the Committee to have regard to the fact that there was no, from the evidence it appears that there was no well determined plan.  The plan seems, appears to have been made on the day in which the events took place.  Almost as a reaction to the events that had, the violent events that had preceded or had occurred in Mbekweni at the time.

CHAIRPERSON: Well, there was a plan, but it was amateurish, was it not?

ADV LOURENS: That is so.  That is the point I will come to, but Mr Chairman, you have raised it.  I would ask that the Committee have regard to the fact that these applicants would have been in their late teenage years or early 20 years in the case of number one at the relevant time and they had not acted as a well trained group who had done this kind of thing before.  It was almost a spontaneous reactions of youths in reaction to what was occurring there and the thought of what might occur if you have a firearm with you might not have actually entered their minds and I think that is something that came out in the evidence, that the shootings occurred in that particular situation.  There had not been much thought beforehand, there had not been much planning, what would happen if this happened or that happened and, yes, Mr Chairman, I would ask the Committee to bear that in mind as well.  That it was not a well thought out plan of experience or trained persons.
	The evidence, I would ask the Committee to accept the evidence that the motive for the robbery was to obtain firearms.  In this regard it is clear that the, and I think the Committee may accept this, that all three were political activists at the time.  All three were involved in PAYCO and were very politically aware and their evidence was that they did need firearms to deal with the situation that they found themselves in.  As to the aspect of the jewellery and the money that was stolen, I would ask the Committee to accept the explanation of the applicants number two and three who had knowledge of the theft of those items and what was done with the items and that was that the jewellery was exchanged for firearms and, if I might summarise, the money was used for transport and living expenses at the time for the activists.  Number one's explanation ...

SISI KHAMPEPE: On that score ...

ADV LOURENS: ... in that ...

SISI KHAMPEPE: May I interrupt Mr Lourens?  Their evidence seems to have been that they actually interpreted or at least understood the Tambo text to authorise them to steal not only weapons, but cash or items of value that could be exchanged for weapons.  Is there any reasonable basis for them to have understood the text in that fashion?

ADV LOURENS: Well, having, if the quotation is what they refer to as the Tambo text, which I presume from the article, if it was well distributed, it must be although it is not referred to in those terms.  I would submit that it is a reasonable, there is a reasonable basis for such a belief.  If people in this position must, their, obviously their primary intention was to obtain firearms, but in the absence of firearms I would say that you would take something to convert into firearms and I think it would be unrealistic to expect that once a robbery for firearms has been perpetrated and a house has been broken into and there is money or items of value that could be used in this regard to purchase firearms, it is an indirect way of achieving the same goal, would be my submission and I would submit that it is not a far-fetched or belief that has got no basis in reality and their evidence is that that it what it was used for.  Even to the extent of people unemployed, I am specifically thinking of the money now, people who are unemployed, who are involved in a struggle, this is what actually takes up their time, they need money to live and there it was, but if the Committee accepts that their primary motive was, in fact, not to steal for personal gain in the sense of we have now got a video recorder and my girlfriend is wearing lovely jewellery, which, that evidence, there is no such evidence before this Committee, then I would say that it is a reasonable assumption to make.

JUDGE WILSON: Is it not a little surprising, in the light of the specific finding of the Appeal Court as to what was stolen, that there is no evidence before us about anything except the jewellery?  Large quantities of clothing were stolen yet none of these three people saw any of that.

ADV LOURENS: The, Mr Chairman, if I might just comment on that.  I would, there were more than these three people involved.

JUDGE WILSON: There were four more at the most.

ADV LOURENS: Yes.

JUDGE WILSON: They went into the house together, they went through the rooms together, they ran out together when someone gave the alarm and yet these three did not notice any of what was referred to as a large amount of clothing.

ADV LOURENS: Yes, well the evidence of number one was that he took the ammunition and he disappeared, he did not see any of them again after that which was corroborated by the other two.  Number three, Tisana, says he, what he took was the briefcase ...

JUDGE WILSON: Was the briefcase and the jewellery.

ADV LOURENS: ... and the jewellery which he apparently dropped or abandoned, the money and the jewellery.  There is no evidence from them as to the other items that were taken, but I do not think that the Committee can in the absence of any such evidence make any conclusions about the other things that were taken.