Amnesty Hearings — Phokeng — 1996-05-20

MR CURRIN: We are wanting to say to you that one could
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argue that many crimes are grave, and we are not trying to
say this was not a grave crime, but we are saying to you that when you consider that particular paragraph, in deciding whether or not to grant the application, there are certain factors that you should take into consideration, when looking at gravity.  We would like to mention some of those factors, which don't take away the gravity.  I am not sure that gravity is an absolute term.  We are saying that it is not an absolute term.  We are trying to illustrate to you that there are factors which you should take into consideration when considering the gravity, without saying it wasn't grave.
	The first one is, as I have already indicated, that the murder was not premeditated.  Having said that, we ask ourselves:  why was this murder committed.  We have heard that it was committed in extraordinary circumstances.  It was committed against a particular political background, immediate circumstances and we have heard also about the crazy mad frenzy that was happening at the time.  We have heard about the anger, we have heard about the frustration.  We also know from the record, from the judgment on sentence, that there was evidence dealing with de-individuation.  
	We would submit that that is also a factor that should be taken into consideration as a mitigating factor in the context of gravity.

HASSAN MALL: De-individuation is a factor you are take into account where the accused had gone into the box and given an explanation of how they were affected by joining a mob - you understand - and lost control of their own emotions, were carried by the emotions of the mob.  Now I don't have the record of the proceedings to find out whether the accused
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gave that evidence or not.  But I think in the absence of
any evidence of that kind, de-individuation remains just another term, a political term, which might be valid in the appropriate circumstances.

MR CURRIN: We accept that.  Like you, we had extreme difficulty in fact, we did not succeed in all our attempts to get a copy of the proceedings, and of the judgment on the merits which would have helped.  We accept that there was no evidence, direct evidence led on the de-indivudation.  But having said that, we did hear evidence about how an objective to get the keys, an objective to take hostage, suddenly almost unexplicably on the spur of the moment, developed into a frenzy where people then committed a crime which they had not considered, which they had not planned to commit shortly before. We are saying that that is a factor which should be taken into consideration, and probably that factor, if one leaves out the de-individuation, relates to the point we have already made about there being no premeditation.

ADV DE JAGER: Mr Currin, that is a problem I have got.  If they have applied for amnesty for abduction, it is clear about the political associated motive for abducting the late Mr Glad.  But, they told us, and you said it is not a premeditated murder.  When did they form the political objective or an objective associated with a political motive for murder.  If they acted in a frenzy then they couldn't have formed a political motive at that stage.  I would like you to address me on that because that is causing me personally a problem.

MR CURRIN: I understand that problem, but I do not believe that it should be a problem because there is nothing in this PHOKENG HEARING	AMNESTY/GAUTENG
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Act that says that an applicant must have a political
objective in relation to the offence.  You will find that nowhere in the Act.  What the Act says is that the offence must be associated with the political objective.  And what was the political objective?  With what political objective was the offence associated?  The political objective was to obtain keys of this building and this entire structure.  That was the immediate political objective that was verbalised and motivated by the applicants and others. We, as lawyers, know the significance of keys in the context of law.  We know that there was a time in Roman Law when they spoke about, in common law when they spoke about the transfer of property through the handing over of keys.   That is really what the keys symbolised.  Their political objective, their associated political objective was not only to get keys, and we heard that, it was to take over the - to take back the affairs of the tribe, to take back governance of the tribe.  To take back that power of the tribe of their own people.  That was the political objective.  The question that we need to ask and in respect of which we need to satisfy you, is merely whether the offence which we say was an ordinary common law offence, is associated with that political objective.  And not that the murder had that as its objective.  We have never argued that, we have never tried to lead any evidence that that was the objective of the murder.  We don't believe that that is a requirement of the Act.

JUDGE MGOEPE: But Mr Currin, I must confess that did not make that impact. On the face of it you are right.  You associate with it at a lower - the threshold is a bit lower than with objective to. The threshold is lower but then the
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consequence, the logic of your argument, as I understand it, is that at the time when the person committed that offence,
he need not - for example, he need not have had - he need not have committed it with the intention to achieve a political objective. Even if that kind of intent and purpose was absent at the time when you committed the offence, we can later on look objectively at what he has done, and if in our evaluation what he has done can be associated with a political objective, even though the individual at the time did not entertain any political objective, then you will say that that will be correct.

MR CURRIN: That is precisely what our interpretation is, and we believe that it is the correct interpretation.  In fact, if one has reference and we do have copies of articles which we could hand to you, articles that deal with extradition in political offence - in the instance of political offences, where there is debate and discussion around a political offence and what they refer to as a related political offence, and they refer to an offence which is connected with the political objective.  That crime, where they talk about that offence, which is connected with the political objective, is an ordinary common law crime. It is not a political crime, it is not a crime that was necessarily committed with a political objective, and there are instances where in such cases, extradition has been refused on the basis that in the broader sense it is defined as a political crime.
	So we are saying that this argument is not a new one, but there is such a thing as an offence associated with the political objective.  Take terms for example, like motive.  It strikes one that nowhere in the Act do they refer to 
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political motive.

JUDGE MGOEPE: Thank you, Mr Currin, thank you, I really
thank you very much.  I didn't realise this.

MR CURRIN: Thank you.

ADV DE JAGER: Just complete it on that point.  It is one of the factors that could have been taken into consideration if you look at 3(a).  It is only a factor for interpreting whether there was a - it is not the only factor, it is one of the factors to consider.

MR CURRIN: Yes.

ADV DE JAGER: Thank you.