Amnesty Hearings — Middelburg — 2000-05-10

ADV SANDI: ...(inaudible) the context in which the incident took place, shouldn't that perhaps be a major consideration when one has to look at his application?

MR RICHARD: Chairperson, my next point would be that the context was that at the time the deceased was certainly in a broader context, murdered with the political motives that we've argued, and I believe convincingly so for his brother, Michael, and I believe it would be absurd to have a situation where quite rightly, Michael Phasha would qualify for amnesty for being part of what was a murder and the person who because he saw hit rationally and clearly, should be sanctioned.
	There my argument is that since the incident of the killing of Madibeng Phasha, clearly constituted a crime, since Daniel Phasha was convicted on the basis of common purpose for it, the wording of the Act does stretch to the argument that since the crime was committed with a political motive and objective, he who might have been associated with it by virtue of the common purpose and therefore convicted on that basis, should enjoy the benefits that his co-perpetrators or common purpose partners, who fall within the strict language of the Act, do enjoy.

CHAIRPERSON: But the question is, I mean he says - he gives a certain sort of indication of his desires on the scene, but he's part of a murderous crowd, he says himself that he realises that this crowd is going to kill the deceased, and then he proceeds and he elicits a confession, in the presence of the crowd he elicits a confession from the deceased.  Is that conduct without any legal consequences?  Under those circumstances.

MR RICHARD: Listening to the applicant's evidence and also in preparation, my question was, on that level of participation, was he in the first instance correctly convicted?  We don't have a transcript of the evidence, so I can't take that point further, but let's assume that the trial court's evidence did correctly convict him.  It's difficult to see how, but if it is correct, that by the facts that we have before us today, there was a sufficient association and his ...(intervention)

CHAIRPERSON: At least with dolus eventualis.

MR RICHARD: I beg your pardon?

CHAIRPERSON: At least with dolus eventualis, where you elicit the confession under circumstances where you realise that that can only but contribute towards the killing.  Wouldn't that amount to dolus eventualis, under those circumstances?

MR RICHARD: I believe the Chairperson is correct.

CHAIRPERSON: Because there you don't so much look at subjective beliefs and the subjective state of mind of the accused, you look at the objective circumstances.

MR RICHARD: In support of that argument I would use my first argument that since the context of the commission of this particular crime is such that it satisfies the requirements of the Act, if there be an objective dolus eventualis, as the Chairperson has argued, clearly the fact that it's not subjective, cannot be held against the applicant.

CHAIRPERSON: Yes, because that's a legal question, it's not a factual question, the question of dolus eventualis.

MR RICHARD: And where an applicant might be entitled to the benefit of a subjective test, that benefit should certainly not be used to exclude the benefit of an honestly political crime, which is objectively so on a dolus eventualis, and I believe the Chairperson is correct, the analysis is quite correct.  By questioning his uncle, Madibeng, he provides the crowd with exactly what they're looking for, and that is the nexus that they've been trying to find, somebody's connection with the disappearance.

ADV SANDI: Isn't the question here, Mr Richard, really that a quasi judicial tribunal like the one we are as this Amnesty Committee, how far it should go?  I mean should it test strictly, apply those principles of the doctrine of common purpose in the same way that a criminal court would do, where you deal with an accused person before ...?

MR RICHARD: My argument is that an Amnesty Committee is sui generis.  I've decided that to analogise it to quasi judicial or quasi administerial, in fact takes us very little further.

ADV SANDI: Yes, we're not a criminal court.

MR RICHARD: And certainly there is a factual enquiry, but the purpose has to be seen in the postscript to the Interim Constitution and the Act constituting the Commission, and the object is, where on proper enquiry the Committee, therefore the Commission is satisfied that the elements of amnesty are satisfied, certainly it requires an applicant to come forward and make an application, but I have argued before that even a person who might not be mentally competent can qualify for amnesty, because the situation is there, the fact that there may not be full competence at the time of the application, it certainly doesn't exclude the operation of the act, it's not a juristic transaction where you have to have a contractual capacity, and in the same as sense the Committee now raises.  The strict tests of common purpose, while they may be used to constitute a crime for the purposes of whether there's an act which constitutes a crime or delict, I don't believe we should apply them so strictly so as to make sure that we eliminate a crime or delict for which an applicant is serving a prison sentence.  That would have been an ...(intervention)

ADV SANDI: He's been convicted already.