Amnesty Hearings — Durban — 1999-06-24

UNKNOWN: I have specific instructions which I need to first deal with prior to the actual issue and my specific instructions given to me in the 15 minutes are as follows
	That my client feels absolute remorse, sadness and total regret for what has happened.  He wants to, and this is one of the reasons why he is here today, in the presence of the country, in the presence of the parents, publicly, not in secrecy, to profusely apologise for the incident, irrespective of what your Committee decides in this matter,  he also accepts that his remorse and regret will not bring back the children, but he is stretching his arms out and he's done that during our recess.  He says it was - this day he would never forget because during the recess he reached out to some of the parents and apologised to them.  He was not able to do it with all of them, but he intends doing it with each one of them.
	The other very touching aspect that he shared with me just now, that he's really moved by, is that for the first time in approximately 6 years he spoke to his father and his father showed compassion to him and he feels that he can build the bridges between himself and his family now that the political scene has settled down.
	So this has been more than just a moment of shedding the burden of this weight that he's carried for the past 6 years.  He has asked me to record that and he is grateful to the Commission for having created a structure of this nature where he could do it because he could never, he had the fear in him of retaliation, the fear of whatever else would have otherwise prevented him from having a day of this kind.  So I thought that was important and I need to record this.
	As far as what I understand Section 21 requires in an application, I submit that my client has complied with the essential three legs of an application of this nature in that he has complied with the formalities and requirements of the Act in applying for amnesty.  I also submit that it is almost common cause, having now heard the evidence of the victims, that there was clear political conflict between the IFP and the ANC and it undoubtedly emerged that it was as a direct result of this political conflict that this most unfortunate incident took place.

CHAIRPERSON: Is that common cause?

INTERPRETER: The speaker's mike is not on.

MR SARDIWALLA: If one looks at the evidence, and I'll deal with that in a short while, I'm just making the broad submissions at this stage.   It is also my submission that client was not compelled to be here, he was not being sought after, he was leading a life otherwise relatively normal, but elected of his own accord to come in public to face the people that have been affected by the incident, the process of the law and make a full disclosure.  So I believe that within his memory and within the knowledge of what transpired, I submit he has in fact made a full disclosure.
	I'd like to now deal with these aspects relative to the evidence that was led.  If one looked at the evidence of the applicant and if one looks by and large at the factual sequence leading up to the incident that was decided on and that was adjudicated by the court in respect of the other two accused, except for the identities of the two people, the accused in that matter, the factual evidence more or less ties in to what was said by my client, the place that the incident took place, for example, the description of the road, the fact, and the Judge made some very strong statements regarding the conflict between the ANC and the IFP at the time and regards it as being common cause that there was this conflict at the time.  He found that, in his Judgment, that there was in fact common cause that there was a conflict during the time of this incident between the IFP and the ANC.
	What also appears to be clear from the evidence of my client, is that he was a member of the ANC.  That was undisputed.  There was some uncertainty about what organisation he belonged to prior to 1990, but I believe that is not as material to this application as his allegiance at the time of the incident.  I believe that evidence has not really been contested.

CHAIRPERSON: It has been confirmed by Mr Mkhize.

INTERPRETER: The speaker's mike.

MR SARDIWALLA: Mr Mkhize also confirmed, after a bit of explanation and persuasion, that there was in fact a volatile situation between the ANC and the IFP after the incident. Irrespective of who attacked who on the 26th or around that time, there was a volatile situation that had arisen between both organisations.  So there was clearly political strife in the area and my client clearly, from the evidence that is before this Commission, was a party to the events.
	If one looks at his demeanour generally as a witness, he was subdued, he was not abrasive, he was not rash and he dealt with the evidence, I believe, in a manner that any person who is asked to give evidence about detail would, almost 9 years, 8 years after, 6 years after the incident.

ADV DE JAGER: Isn't our main problem, if he'd killed Makeke, that was he's instruction or that was what's decided, let's not put it as high as an instruction, then it would be a different matter altogether.  My problem is, if he'd been, not ordered, if he'd been assigned or whatever or he volunteered to kill Mr Makeke, a bakkie is driving up, he doesn't even know who is driving this bakkie, he doesn't even know whether this man is wounded, and the shots should be directed at the driver because that's the target, weren't they totally reckless as to the possible victims that might have been struck by the bullets?  Isn't that the crux of a problem for amnesty here?

MR SARDIWALLA: Can I deal with it?  Thank you.  I think we must accept that there's very little evidence, if not nothing at all, to suggest that he specifically in concert with others, had taken a decision to attack the vehicle to kill children, innocent children or any person other than Makeke.  That was the intention.  It wasn't a discussion that had taken place or an individual decision that was taken by him, it was discussed at a gathering, rightfully or wrongfully and it was generally agreed amongst all that were present that he normally goes in this cream-white vehicle and that one must ambush that vehicle, that was decided.  It wasn't him singly that decided that, the organised group decided that.  We're not talking about a situation where one stands on the top of a building in a sophisticated manner with professional training as a hit man, and knocks an individual down.  You're talking about bush war.  I think one must understand that.  These attacks are not sophisticated in their planning,  sophisticated in their implementation.  He did what he was trained to do and that is to find the target and annihilate that target.  That is the training that they received and he did precisely that.

CHAIRPERSON: But what was the object of the attack?

INTERPRETER: The speaker's mike is not on.

MR SARDIWALLA: The object of the attack clearly was both the IFP member, Makeke and he was in that particular vehicle, that was the other objective.  He was - it seems as though there was a lot of discussion about the vehicle in which he normally travels and that seems to be uncontested evidence, that that was the vehicle that he was supposed to be travelling in and he was seen in transporting other IFP members and that was the ...(intervention)

ADV DE JAGER: It's also uncontested that children were daily transported on that route.