Amnesty Hearings — East London — 1999-03-25

ADV PRIOR: ...(indistinct) he shot Mr Smit out a feeling of hatred towards him.  That was the evidence.  He may have said Letklapa said "shoot him", but that wasn't the compelling reason.  And then if I may just start my argument in an ordered fashion.
	This Committee must also decide properly, in terms of Section 20.3, whether Mr Gqomfa has satisfied those requirements.  Now he's told us about his motive, which was the liberation of Azania and that entailed the killing of white people across the board, because we know what he did in Heidelberg.  I submit that that can be distinguished in this particular case again.  And Mr Lax has already identified the difficulty in this case, and I will emphasise it as the question of gravity and proportionality.
	Now it can't be argued, and the Chairman has correctly pointed out they had no idea whether these occupants of this vehicle were military trained or not until they alighted and were running for their lives.  But how does one accept the veracity of the entire basis of the motivation of Mr Gqomfa when one of the occupants is a black person and must have clearly have been visible.  When the car was coming slowly across the Mayaphuti Bridge - we're seen the photographs, it's a narrow bridge, in fact there's a stop street on either side of the bridge, there could have been no doubt in Mr Gqomfa's mind that here in the car was a black person who the orders were not to kill.  But nevertheless they shoot at this vehicle in order to bring it to a standstill and they succeed, reckless or not, whether the black person who was not their target would be killed or not, and I think it was only a miracle that this person was not in fact seriously injured or killed. 	Then we deal with the situation that Mr Smit who was badly injured, was shot through the legs, the upper legs, was unable to get away, he crawls a distance away from the vehicle and he is in a sitting or crouched position next to the road when his attackers come up to him.  
	The Committee will recall that Mr Gqomfa, after some probing in cross-examination, conceded that the man may well have been pleading for his life before he shot him in the chest with a high-calibre and high-powered rifle.  Whether the shot of Mr Letklapa was necessary in the circumstances we don't know, possibly that was the coup de grace.  But in any event, my submission is that cannot be associated with any political objective or any known political objective as stated by Mr Gqomfa.
	Another aspect which this Commission cannot ignore, or this Committee cannot ignore, was whether the act, omission or offence was committed as part of any political uprising, disturbance or event or in reaction thereto.  This occurred during 1992 at a stage when all political parties were unbanned, they were all participating in the democratic process.  In fact it was not via the efforts of APLA that liberated this country, we all know as a fact that it was through negotiation and through parties sitting down and putting aside their prejudices and differences, that the democracy was born.
	The other feature that this Committee cannot ignore ...(intervention)

ADV SANDI: Sorry, Mr Prior, are you saying that in 1992 the PAC of which APLA was a military was part of the negotiations?

ADV PRIOR: What I'm saying is, Mr Sandi, is that after the release of Mr Mandela in 1991, or 1990, soon thereafter there was an unbanning of all political parties that were previously unbanned, which included the PAC and which included, well obviously the organs, but whether APLA continued with whatever operation, I'm not alluding to that, I'm simply saying there was a vitality in the political life of this country which hadn't been witnessed before.  So what I'm saying is  that what we hear in this application is simple political rhetoric, that they had to liberate this country through the barrel of a gun.  The country was liberated, as we know for a fact, through negotiated settlement.  So the killing of Mr Smit, and I urge this Committee to consider this, served no political objective.

MR LAX: Well, Mr Prior with the greatest of respect, APLA continued its armed struggle until a year later in fact.  The date exactly at which that armed struggle stopped is a matter for debate, some people will say it was December '92, others will say it was January '93, but be that as it may it continued.  It's not to say that PAC weren't part of the negotiations, they were in fact part of the negotiations but they were continuing both the struggle and involved in the negotiations.  If we were to accept what you're arguing at present then every APLA operation cannot be politically justified, and in fact that's not been the finding of the Commission as a whole and that's not been the finding of the Amnesty Committee in general terms in respect of many, many such operations.  I think if we confine ourselves to this matter in isolation, we might run the risk of blurring the issue somewhat, which I think is what is happening here.

ADV PRIOR: I'm alive to what you are saying to me and I'm not trying to conflate or to confuse, what I'm saying is that the death of Mr Smit and these particular circumstances.  I'm not saying, I'm not arguing that the broad operation of APLA didn't serve a political purpose, I'm talking about the specific manner in which Mr Smit was killed, that that event, that act, served no political purpose, and it's for the applicant as an individual to show to this Committee that it did serve such an objective.  That is what the provision of the Act, of the Section enjoins this Committee to find.

MR LAX: Well Mr Prior, what about the argument then that he was just following orders?

ADV PRIOR: Well was he following orders, with respect, on the evidence?  When one reads his evidence, he doesn't, he was asked specifically whether he acted out of hatred as he had indicated or was he following simply the order of Letklapa Mpahlele.  He never ...(indistinct) strictly following the order of Mpahlele, he went on to explain that we shouldn't confuse hatred for the white man, it wasn't racism, it was hatred for the oppressor.  So he was given an opportunity to clarify that and he never took that opportunity.

ADV SANDI: Ja but at the end of the day the fact remains that he was a member of a military formation which had as its policy the policy of attacking whites.  This was their policy, whether I like it or not there's nothing I can do about it, but this was their policy.

ADV PRIOR: May I, with respect, attempt to draw a comparison.  How does it really differ from the Donne Meyers matter, where as a white person and as a symbol of oppression she was an enemy of APLA?  She was taken away from the spot where her father was killed and she was later despatched.  We know that she may well have been injured to some extent in the initial shooting, but she was executed in a certain manner away from that spot.
	Mr Smit had been injured in the initial attack in that operation, but because he couldn't get away he was executed in a cold-blooded manner which was totally disproportionate to what the attack was about.

CHAIRPERSON: Mr Prior, the attack was to kill the people, wasn't it?

ADV PRIOR: But the attack, with respect ...(intervention)

CHAIRPERSON: So you wound the man first and then you get a chance to kill him.

ADV PRIOR: I'm arguing, with respect, that there is no proportionality when one looks at the manner and the gravity involved here.  One can distinguish it from the other type of attacks where for example, the operation was carried out and people died or were injured and they withdrew.
	My submission is that the operation ended at a certain stage.  What they did to Mr Smit went beyond that, he was injured, he was executed, it served no political objective in those circumstances as far as the applicants were concerned.