Amnesty Hearings — Cape Town — 1998-01-14

NORMAN ARENDSE: Thank you.  Mr Chairman, the reference in my heads to the record would be reference to the original bundle which was before the Committee as we were proceeding.  Reference to the transcript will be to the typed record of the evidence given in this matter.
	These are the principal submissions on behalf of the applicants.  On 7 December 1994, the applicants were found guilty in the Cape High Court by Judge Conradie of amongst other things, murdering Bernadette Langford, Lindy-Ann Fourie, Rolanda Palm and Noselino Cerqueira, attempting to murder Benjamin Joseph Brode, attempting to murder Quentin Cornelius, Dave Deglin, Justin Fouche, Michael January and other persons and they were also found guilty of the unlawful possession of arms and ammunition, two ...[indistinct] R4 or R5 rifles and AK47 machine guns and ammunition as well as hand grenades.
	These offences were committed by the applicants on the 30th of December 1993 at the Heidelberg Tavern in Observatory, Cape Town.  The applicants pleaded not guilty and did not give any evidence in their defence.  Judge Conradie sentenced Madasi to 24 years imprisonment, Mabala and Gqomfa to an effective 27 years imprisonment each.  They currently serve their sentences in various prisons throughout the Republic.
	Gqomfa applied for amnesty by completing the prescribed form on the 20th of March 1997, while he was being held at the Grootvlei Maximum Prison, Madasi signed his form on the 3rd of May 1997 and Mabala also signed his form within the prescribed cut-off date.
	Save for Gqomfa, the applicants provided very little or any detail of their participation in the Heidelberg Tavern murders, however on the day the amnesty hearings commenced and before the applicants separately began to give their evidence under oath, written statements containing details of their individual participation were provided to the Committee.  
	In his written application, Gqomfa states that after he and five others including Madasi and Mabala had commandeered a vehicle, they drove to the Heidelberg Tavern in Observatory - this is on the night of the 30th of December 1993.  There they parked in front of the tavern entrance door, Gqomfa jumped out of the vehicle and shot through the tavern windows and double-door.  Madasi had fired a rifle grenade but this did not explode.  
	On their withdrawal, they passed a certain corner shop and a person who fired at them was shot while they were driving by.  He later found out that the person who was shot and killed was Mr Jose Cerqueira.  In his application, Gqomfa states that the Heidelberg Tavern was attacked because according to the APLA Intelligence Sources, it is "frequented by security forces".  
	The attack he says, was carried out on the instructions of the APLA High Command and the names of Bulelani Xuma, alias Sipho Polite, Sikumiso Nonuba who is now deceased and Raymond Leklapa Mpashlela who are also mentioned in their applications.  At the time of the attack on the Heidelberg Tavern and immediately before that when they took the blue Opel Record by force, Gqomfa was armed with an AK47 assault rifle.  
	In his application Gqomfa states that he sincerely regrets the loss of life caused by the attack and he extends his deepest and honest apologies to the families of the victims.  He acknowledges the pain, agony and sorrow he and others caused as a result of the attack on the tavern.
	As stated earlier, the order to attack not only the Heidelberg Tavern but before that the Nyanga East Army base and the Lingelethu West Police Station, was given by members of the APLA High Command and these operations were supported logistically by members of the PAC Regional Executive Committee in the Western Cape.
	In his application, Madasi gives little or not detail of the acts in respect of which amnesty is sought and he says inter alias that the order was given to him by Leklapa Mpashlela.  Also in his application, Mabala gives even less detail.  Both Madasi and Mabala had their application forms completed by either PAC or APLA officials although they signed it.  Only Gqomfa's application was in his own handwriting.
	It is not in dispute that the applicants were all members of the PAC and members of APLA.  It is also not in dispute that prior to the Heidelberg Tavern incident, the applicants were involved - together as a unit, in attacks on the Nyanga East Army Base and the Lingelethu West Police Station.  It is also not in dispute that the applicants have also applied for amnesty in respect of other offences committed by them before the Heidelberg Tavern incident.
	It is submitted that it is also not in issue that the attack on the Heidelberg Tavern which was preceded by attacks on the Nyanga East Army Base and the Lingelethu West Police Station, was ordered by members of the APLA High Command which included Mpashlela, Xuma and Nonuba.
	Indeed the trial court expressed the following view when sentencing the applicants:
"The accused were not those who would have benefited by the broad media coverage which the attack enjoyed, they were clearly not the people who initiated the attack.  I can't believe that they of their own accord - in respect of the weaponry which was found, namely automatic guns etc., they would be able to actually find these weaponry, they were far too young for that, too inexperienced and"
And as the Judge unflatteringly put it:
"They were plain stupid"
	That the murder of innocent, young and unarmed persons constitutes a gross violation of human rights is beyond question.  That the applicants in the ordinary course got what they deserved when they were sentenced to lengthy terms of imprisonment is beyond debate.  That justice prevailed is not in issue.  
	However, as much as the trial court valiantly tried to piece together the pieces of what happened at the Heidelberg Tavern that fateful night, it nonetheless could not succeed in putting together the complete picture of what took place here.  The applicants had refused to testify as they were entitled to do and there was otherwise no direct identification of the applicants by any of the witnesses who were at the tavern that night.
	This submission Mr Chairman, at this point - and members of the Committee, will be that we do now have a complete picture of what happened at the Heidelberg Tavern and to that end the purpose of this process has been served.  The next issue I want to deal with is the amnesty process in it's legal and constitutional context.
	The promotion of National Unity and Reconciliation Act provides for the Amnesty Committee to grant amnesty if it is satisfied after considering an application, that:
(a) the application complies with the requirements of the Act
(b) that the act, omission or offence to which the application relates, is an act associated with a political objective committed in the course of the conflicts of the past in accordance with the provisions of Sub-Sections 2 and 3 of Section 20 and thirdly that the applicant has made a full disclosure of all relevant facts.
	In the matter of AZAPO and others versus the President of the Republic of South Africa which is reported in 1996: 4SA671, the Constitutional Court per Mohammed who was then the Deputy President and who is now the Chief Justice, said on behalf of the Constitutional Court that - and of course, very few of us can set it out more eloquently than he does:
"The effect of an amnesty undoubtedly impacts upon very fundamental rights.  All persons are entitled to the protection of the law against unlawful invasions of their right to life, their right to respect for and protection for dignity and their right not to be subjected to torture of any kind.  When those rights are invaded, those ...[intervention]

CHAIRPERSON: Mr Arendse, subject to what you say, we don't think it necessary for you to read out the whole of your Heads of Argument.

NORMAN ARENDSE: Fine.