Amnesty Hearings — Durban — 1998-12-02

MR LAX: You see, unfortunately it is very important that we identify the right person because if for example we were to grant you amnesty and even if we weren't to grant you amnesty, the family of that person might be entitled to reparation and we would hate the wrong family to get reparation.
	I just want to find out a bit further from you with regard to the information that you got when you were discussing at that rank, as Rank Manager, why you feel quite sure that is a Sithole person.

THULASIZWE RAPHAEL DLAMINI: I will then enquire from the IFP leader, from that area, because these people were actually his comrades, so I will check with him.

MR LAX: Thank you.

CHAIRPERSON: Mr Wills, do you have any questions arising out of questions that have been put by members of the Committee?

MR WILLS: No questions, Mr Chairperson.
NO FURTHER QUESTIONS BY MR WILLS

CHAIRPERSON: Ms Thabete, do you have any questions arising?

MS THABETE: Maybe one Mr Chairman.  Mr Dlamini, would you be able to identify the other people that were with the person that you killed at Ixopo at the taxi rank?

THULASIZWE RAPHAEL DLAMINI: Yes.

MS THABETE: Have you seen them?

THULASIZWE RAPHAEL DLAMINI: I know one of them.

MS THABETE: One person is enough, because maybe we can find out from him.

THULASIZWE RAPHAEL DLAMINI: Yes.

MS THABETE: What is the name of that person?

THULASIZWE RAPHAEL DLAMINI: Thulani Dlamini.

MS THABETE: Do you know where he stays?

THULASIZWE RAPHAEL DLAMINI: He is always at the rank.

MS THABETE: I would suggest then Mr Chairperson, that we find out from him.

CHAIRPERSON: Yes, perhaps Mr Thulani Dlamini might well be in a position to positively identify the deceased as either Mr Mbele, Mr Sithole or whoever it might have been.  Thank you.

THULASIZWE RAPHAEL DLAMINI: Yes, I would also be pleased if it could be ascertained just who exactly he was, because I am not sure whether they are telling me the truth or not.

CHAIRPERSON: Yes, I mean it might not be the fact that they are lying to you, but it might just not be the same incident in which Mr Sithole got killed.
	Mr Dlamini, that concludes your evidence.  Thank you.
WITNESS EXCUSED

CHAIRPERSON: Mr Wills?

MR WILLS: I see it is eleven o'clock now Mr Chairman, I wonder if we could take the tea break at this stage.

CHAIRPERSON: Will you be calling any further evidence in this matter?

MR WILLS: I won't be Mr Chairperson.

CHAIRPERSON: Will you be calling any evidence Ms Thabete?

MS THABETE: No Mr Chairperson.

CHAIRPERSON: Will you be in a position to make submissions after the tea break Mr Wills?

MR WILLS: I think I will, yes, Mr Chairman.

CHAIRPERSON: Thank you.  We will now take the tea adjournment, after which we will receive submissions and then after that, will we be in a position to proceed with Mr Zulu's application?  Is Mr Zulu's legal representative here?

MS THABETE: Yes, Mr Chairman, he is.

CHAIRPERSON: Thank you, then after that, we will proceed with the application of Mr Zulu, thank you.
COMMITTEE ADJOURNS

CHAIRPERSON: Mr Wills, are you in a position to make submissions now?

MR WILLS: Yes, indeed I am Mr Chairperson, thank you.

CHAIRPERSON: Is the Evidence Leader not, oh, she's coming now.  Yes Mr Wills?

MR WILLS: Thank you Mr Chairperson.  Mr Chairperson, I think there is a third element to this application, which is an unusual one, apart from the normal two as to whether the applicant has fully disclosed and whether his acts were associated with a political motive, and that is whether or not he actually committed any crimes.
	Obviously a person cannot get amnesty for crimes not committed.

CHAIRPERSON: That is just in respect of the first two incidents.  The third one, the shooting is quite clear.

MR WILLS: Well, I am pleased about that, I thought that possibly the self defence motive might have ...

CHAIRPERSON: No, on that one, we have had occasion in the past to think very closely on this point, and although self defence might be a successful defence in a trial court, one can really only make a proper determination once you have received full evidence, from both sides, tested evidence, etc, but even if a person was shot in self defence in the context of obviously a political situation, I don't know if it is fatal to an amnesty application.
	I am personally of the view that it is not.  If you had for instance a political riot and somebody was being attacked and he shot in self defence, it is clearly done in a political context, arising out of the course of the conflicts, political conflict of the past.

MR LAX: Just to add this Mr Wills, the fact that you may be acquitted of a criminal charge, doesn't mean that you would not necessarily get judgement against you in a delictual matter, so because the tests are different and the (indistinct) burden is different and so on.  Bear that in mind in relation to the first two as well.

CHAIRPERSON: I think you needn't concentrate so much on the self defence aspect, we don't have too much of a problem there.
	But with regard to the other incidents, whether the actions of the applicant justify the granting of amnesty.

MR WILLS: Yes, thank you Mr Chairperson.  The first question that I think I need to answer, or in regard to the first two incidents is whether the applicant's participation in those incidents, both of those instances amounted to any criminal conduct.
	My submission is that it does.  At the very least, he would be seen as a socius criminis or an accomplice, possibly even depending on an investigation of common purpose, he might even constitute being a murderer.
	What is clear from the applicant's evidence, is that in both instances, he pointed out the deceased persons and he had full knowledge beforehand, as to what the intentions of the, of Pat, the person who delivered the blow, was going to do.

CHAIRPERSON: If we could just take the two incidents separately.  The second one, the first one that he testified to, that is namely the one where he met Pat in the Golf and he told him about the two people and Pat then went off.
	Okay, we know that he put Pat on the tail of those two people, but do we know whether Pat killed anyone, that is the first point?  If he did, whether it was those two people that he told Pat about?

THULASIZWE RAPHAEL DLAMINI: We don't with certainty, I must concede, know exactly what happened, what Pat did, because there was no direct evidence in that regard.  I submit that the fact that the,  that the evidence was to the effect that Pat chased after them quickly, within a relatively short period of time, gunfire was heard, and thereafter Pat spoke to the applicant, and indicated that he caught up with the persons and did so in such a manner, that the applicant realised that the persons had been killed by Pat.
	I would submit that is enough to indicate that the probabilities at least are that the persons were killed in association with that act, ie the pointing out and setting Pat and his comrades off in that direction.

CHAIRPERSON: If he were to be granted amnesty in respect of that incident, what would it be fore?  It wouldn't be for murder, would it because all he did was to say, look there are a couple of chaps who were shooting, they have gone that way.
	He didn't say catch them and kill them, although he might have appreciated that if they were caught, Pat would kill them.
	If he were charged in a criminal trial court, and convicted, what would he be convicted of?  I am sure if you were defending him, you would argue against him being convicted of murder?

MR WILLS: Yes clearly, if I was in another forum, I would take a different approach, this is quite an unusual position to be in for me to try and convince a panel that my client could be guilty of a murder.

CHAIRPERSON: Is he an accessory before the fact?