Amnesty Hearings — Johannesburg — 1999-04-14

MR MHOLABA: Clearly that amounts to a departure from the ultimate objective of going to that area.  But I would want to submit, Mr Chairman, that I view that as an issue which is, it's a new intervening event which was not part of the entire transaction and therefore I submit that that should be viewed in isolation from the entire transaction, and in fact that becomes a pure criminal act.  But I submit that it should not be tied into this entire transaction which was planned, that is to go and rob the firearms.

CHAIRPERSON: Carry on.

MR MHOLABA: Thank you, Chair.
	With regard to the aspect of political motive, it is true that it was not the policy of the ANC to commit robberies.  While such conduct is not expressly mentioned and faces a particular sanction from the members of the organisation who do certain things, however the institutions like the Self Defence Units were left to defend the community, defend themselves without any form of, without any arms allocated to them ...(intervention)

CHAIRPERSON: Well Mr Mohlaba, that in itself is a phenomena that we accept occurred, but it does lay open to common criminals to take advantage of the situation, not so?  So as much as we are able to hear argument from any particular applicant, that he was working in the interests of this broad organisation, it could just as well be a case of a common criminal taking advantage of a situation and falling to his convenience under the umbrella of this political organisation, is that not so?

MR MHOLABA: Certainly people would always want to take advantage of the situation and want to persuade this Committee to accept that pure criminal acts were committed with a political objective.  But with the evidence which has been tendered here and the subsequent court records which are before the Committee, it has always been the, it was very clear that always this thing was done politically.
	It's a fact that other than the firearms or for the removal of the television set by this person who was subsequently reprimanded, there was nothing other than the firearms which were removed there, except the binoculars as well.  Which issue of the binoculars, Mr Chairperson, I submit was only mentioned to this Committee by the applicant and which he should be complemented for because it's nowhere in the document that binoculars were stolen.  And that will add up to his disclosure aspect.
	Even in the trial court it was mentioned that these people, the court even referred to them as a group of comrades and there was mention of the ANC Youth League in the court record itself, so that has not always, it's an issue which was not obscure throughout, that this operation was ...(intervention)

CHAIRPERSON: Well that which you chose to take advantage of is a double-edged blade that, because in certain quarters in this country those days, the word "comrades" was used as a synonym to gangsterism, not that I agreed with that, but that's a fact, especially in the judiciary.  So it doesn't follow that even this court or the court that tried the applicant, was of the view that it was of a political nature because he used the word "comrades".

MR MHOLABA: Certainly Chair, I agree with the Chair.  It's not only that word which I, it's just the word which occurred in my mind first, but there also mention of one of the co-perpetrators who was an active or an office-holder of the ANC Youth League, who was part of the applicant here.  And if the Chair bear with me, I can refer to a specific paragraph in the judgment.

MS THABETE: Page 4.

MR MHOLABA: Oh thank you, page 4 of the judgment, that is witness Mshudulu.

CHAIRPERSON: What line is that?

MR MHOLABA: It's line 5.

CHAIRPERSON: Did that court find that the three accused were party to this move to control crime?

MR MHOLABA: No, the court did not specifically find that.  That will conclude my submissions.

CHAIRPERSON: Well there's one issue I want you to deal with.  Our interpretation of the Act on this particular issue, is as follows;  that the act for which amnesty is applied for must have been committed with a political objective.  I'm prepared to be very generous in this case, in the interpretation, to say that look if a particular act was committed and per se was not political, but was committed to facilitate the other act which was politically motivated, I lean towards making the interpretation that the second, or the former act was indeed of a political nature.  In this matter let's assume they went there to fetch or steal guns, ammunition, which we also assume was politically motivated, how was the killing, how did the killing facilitate the robbery?  Was it absolutely necessary to kill the gentleman and how did his killing enhance the political objectives of any political party because those are the requirements of the Act?

UNKNOWN: Thank you Chair.  With regard to that aspect I will concede that the killing of the deceased did not facilitate or enhance a political objective of any political movement because it's not the evidence of the applicant here that the deceased was viewed or seen by the political organisation as a stumbling block and has to be removed ...(intervention)

CHAIRPERSON: Especially in the context of their operation, they went to fetch firearms.

UNKNOWN: Certainly Mr Chairperson, but the death of the deceased could not be viewed separately from the objective of obtaining firearms.

CHAIRPERSON: Well if you concede that his killing did not facilitate the taking of the firearms, how does that become political?

UNKNOWN: The applicant is not very much aware of these circumstances regarding surrounding the death of the deceased and it was only mentioned, he mentioned that he was told by his colleagues ...(intervention)

CHAIRPERSON: Or comrades if you want.

UNKNOWN: Comrades, that the deceased was stabbed because he was making ...(intervention)

CHAIRPERSON: A noise.

UNKNOWN: Was making a noise.

CHAIRPERSON: Isn't that even worse?

UNKNOWN: It is in fact worse but the context within which this expression was said Mr Chairperson, I submit it's not very clear to us and that could also be interpreted in saying that in him making noise it's going to let some passersby or some neighbours to come to his rescue which would subsequently frustrate the operation.

CHAIRPERSON: Well, that doesn't help us, does it, because the Act says that we must be satisfied that that act of killing the gentleman was done with a political motive and that full disclosure has been made in respect of which expressly my view excludes speculation and guessing, is that not so?

UNKNOWN: Certainly that is the case but the state of the mind of the person who has thrown a ...(indistinct) the deceased I'll submit Mr Chairperson that it's not, it cannot be tied up with the participation of the applicant in the entire transaction and I submit that the foreseeability that in going to rob firearms they may meet resistance and in the process somebody may die, that brings an eventual intention on the part of the applicant because he participated himself.

CHAIRPERSON: Is that the reason the gentleman died?

UNKNOWN: The reason the gentleman died I was still saying  Mr Chairperson that the applicant is unable to explain with certainty but he found himself within a group which went to do, to perform an unlawful act and he could have foreseen that a scuffle may ensure, that in the process somebody may die and he associated himself with that so I would say that ...(intervention)

CHAIRPERSON: Well he specifically disassociates himself with that, he was asked.  He said he never intended the killing, he distances himself from the killing and he never associated himself.  He takes responsibility because he was there in the house, that's what he says.

UNKNOWN: And further that but for his participation and his conduct as he conducted himself the deceased would not have died.