Amnesty Hearings — Thohoyandou — 1999-11-16

MR VAN RENSBURG: If we can continue then, perhaps if we are already in the wrong order, if I can continue with the second applicant with your permission, Mr Chairperson?
	Yes it is so that the second applicant has testified that he cannot read English and therefore does not, can confirm the contents of his application form.  We only have his word to test that on but I would suggest that in a normal, if we take into account the normal circumstances that will take place herein which would be that his advocate would go or his legal representative would go through the form with him during the consultation, I cannot accept that it is just a simple fact that the second applicant did not understand or did not know what is contained in this form.  We've had absolutely no indication from his legal representative that there was a problem as we normally could expect in the circumstances because normally if you consult with your client going through the form it would have been put to him, you wrote down here:
"I assaulted the deceased with a stick"
	"Is that all you did?"
And then the whole story would have come out.  This is not what happened in this instance.  I don't think we can just explain the whole evasiveness of the second applicant to take responsibility for the omissions in his statement just on the fact that he cannot read English.  The version that he raised that he did not even mention the fact that he cannot read English to his legal representative is to me farfetched version as I've explain in the normal sequence of events, it would have come under the attention of the legal representative that this man cannot understand what is written in his forms during the consultation and in those circumstances there was an onus on him to have informed the ...(intervention)

ADV DE JAGER: That may be so but is it really a relevant factor as far as the crime, the offence is concerned, whether he could read English or whether he couldn't understand it or whether he told his legal representative?  He should make a full disclosure of the relevant facts as far as the offences are concerned and can we say let's look at his evidence, didn't he tell us what his participation was and can we say he's not speaking the truth as far as that is concerned?

MR VAN RENSBURG: Yes I can certainly not argue on the evidence that is before this hearing that his version regarding his involvement should be totally dismissed, I cannot go that far but I think we are dealing here with the question can his credibility in general be implicated or prejudiced by the fact that there's a difference between his application form and his evidence.  If we argue that in the ...(intervention)

ADV DE JAGER: Suppose we accept that he doesn't tell the truth about his application form can we then reject his evidence on the material issues as far as offence is concerned?

MR VAN RENSBURG: Yes again I can't argue that we can in total reject his evidence, I am merely trying to argue that there must be some factors that seriously ...(intervention)

ADV DE JAGER: Be careful in considering whether he is speaking the truth.

MR VAN RENSBURG: Prejudicing his credibility, that is the only point I'm trying to make regarding that, yes.
	Regarding then the motivation if we stay with the second applicant for the moment, I'm not going to argue or waste this hearings time on that matter, I'd merely like to suggest that at no stage did the second applicant convince or was convincing in his answers when he was asked regarding the motive for these killings.  He certainly did not make a logical connection between the killing of the witches and the area or Venda becoming ungovernable.  He certainly gave no logical answer to make the connection how the real enemy, namely apartheid, could be fought by killing the witches and in that sense I would just argue that he did not persuade this hearing in my view that the killings was in fact politically motivated.  That argument would by and large also holds true for the first applicant who in my view was an even weaker witness than the second applicant.  It is clear from his evidence that he blatantly lied on his form, his application form, at least regarding to his age and who knows what else.  It is clear that he was the leader, the chairman of the meeting and it is therefore unlikely that his actual participation in the killing and the burning was so small.  I would suggest that as I've put to him that we have here again a situation where he is trying to mitigate his own involvement in the whole incident and it is also illustrated by the fact that he totally omitted to take this hearing into his confidence regarding the assault, GBH, that took place on that specific day.  
	The first applicant was also not convincing in his explanation as to how the killing of the witches would fulfil any political aim to say the least and in that sense I would conclude that his motivation for this killing was in fact not political, it was probably witchcraft related and the anti-witchcraft feeling was high at that stage which I also plan to illustrate with evidence in a later case but it is also important to take into consideration at this stage the aspect that the learned Chairperson has raised, namely that the killing of the witches has actually not stopped immediately after the election took place and therefore we've got to deduct that it was not politically motivated that it is some other reasons, cultural reasons or purely fear, jealousy, all these reasons could have played a role and I suggest that the evidence rather a point into that direction mainly because the witnesses one after the other struggled to make the connection between the political aim and the killing of the witches.
	To sum up then, I'm of the opinion that these two persons, the applicants, and that is my instructions to request such a finding from the hearing should not qualify for the amnesty as they have applied for.  That is all, thank you Mr Chairperson.

UNKNOWN: Thank you Honourable Chairperson.
	My submission in respect of the question of the application for arson in respect of the second applicant, my submission in that regard is very different to that of my learned colleague.  I do believe that it sufficiently related to the main act for which the applicant has applied and that it therefore should be considered.  However, in respect of the assault, GBH, my submission is it's an entirely separate incident and cannot fall within the ambit of what he is applying for, for what we are able to consider here today.
	Regarding my learned colleagues submissions in respect of both applicants not having complied with the criteria of either full disclosure or political motivation, I agree with him wholeheartedly in respect of those submissions.  I do not believe that either of the applicants have any political understanding or if there is that it is very limited.  Also that their political understanding did not at all relate to any of the conflicts of the past, it merely related to a dissatisfaction with an administration at the time which they could not link or they had no understanding of the link between that and apartheid and therefore the conflicts of the past and my submission is that on that ground that they do not fall within the political objective within the Act.

CHAIRPERSON: Can I ask you a question because you raised it now?  If what they did was directed only at the Venda government then it's an offence or offences that occurred outside South Africa and then where do we stand?

MS PATEL: With respect, Honourable Chairperson, I do not agree with that technical understanding of the manner in which the apartheid regime chose to divide the country.  Post part of the negotiations - let me rephrase, the question of the TBVC States, at the time of negotiation there was no question of those States not being formally a part of the South African territory.