Amnesty Hearings — Mmabatho — 1998-09-23

MOKOTEDI MPSHE: Thank you.  Mr Chairman, the paragraphs open up by saying whether a particular act, omission or offence contemplated in Section 2 is an act associated with a political objective, shall be decided with reference to the following criteria.
	The Act specifically says it shall be decided with reference to the following criteria.  The first one is that the motive of the person who committed the act, omission or offence and by motive there, I want to believe we understand nothing else but the reason for him to do what he has done, this is on record as to why he did what he did.  I don't want to belabour this point.
	(b) Mr Chairman, the context in which the act, omission or offence took place and in particular whether the act, omission or offence was committed in the course of or as part of a political uprising, disturbance or event or in relation thereto.  There is overwhelming evidence, we have seen the video, we have listened to evidence, there was an upheaval, there was an uprising at that particular moment.
	(c) the legal and factual nature of the act, omission or offence, including the gravity of the act, omission or offence.  I don't want to belabour that one Mr Chairman, there is enough legal and factual nature to which testimony has been given.
	Mr Chairman, paragraph (d) the object or objective of the act, omission or offence and in particular whether the act, omission or offence was primarily directed at a political opponent or State property or personal or against private property or individuals.
	May I single out the word political opponent?  Mr Chairman, the evidence is to the effect that the applicant killed the three AWB members and the questions as well as the argument by my learned friend was to the effect, why did you kill them.
	May I state that in my view Mr Chairman, with respect, the three AWB members in terms of the evidence taken as a whole, were seen by the applicant as a political opponent in that there was that unrest within the Bophuthatswana government then, unrest which was targeting the change of government to bring about a change, to bring about a democratic government, and the people, the AWB people came in to stop the change.
	Now, one cannot deny the existence of politics there.  Mr Menyatsoe should be seen to have perceived them as political opponents, because they are opposing the political move which the people of the then Bophuthatswana had and that is the change of government.
	Mr Chairman, paragraph (e), I have already touched on this one when I was dealing with the full disclosure and the question of him being an ANC supporter Mr Chairman.  I don't want to belabour that.  May I skip that one.
	Paragraph (f) Mr Chairman, in particular the keyword is proportionality.  Can we say that the act of the applicant is not proportionate to what was taking place then?
	I would be tempted Mr Chairman, to say that if one person, only one person was injured on that particular day, then Mr Menyatsoe would not qualify in terms of this particular paragraph, in that his act would not be seen to be (indistinct) with what was happening at that time.
	But we have evidence Mr Chairman and Members of the Committee, and we heard evidence viva voce from Mr Menyatsoe that shootings were going on, we viewed the video footage that showed people lying sprawled on pavements in the town, blood all over the place and we have heard evidence that close to 40 people were killed on that particular day.  Can we really say proportionality kicks Mr Menyatsoe's application out?  I would say no Mr Chairman.
	Mr Chairman, I think that is all that I want to say.  Your minds have been clouded by quite lengthy arguments from all sides, I want to rest here unless if the Committee wants to hear me on any particular aspect raised, thank you.

CHAIRPERSON: Thank you Mr Mpshe.  Mr Hendrickse, do you have any reply?

MR HENDRICKSE IN REPLY: Mr Chairman, in short.  During my address I in full dealt with all the requirements.  I also outlined Section 20(2)(f) and (g) to the Commission.  I did not refer in particular to it, but I drew the Commission's attention to it.
	I know that this Commission is well conversant with the context of that Section.  I may just add, my learned friend Mr Van der Berg, referred to findings of the Tebbutt Commission.  May I then refer you to a finding of the Tebbutt Commission, Volume 2, page 369, it will be made available, 369, Volume 2 "the evidence is so overwhelming that members of the Afrikaner Weerstandsbeweging entered the Mmabatho, Mafikeng area with the vowed intention of shooting its black citizenry and that they carried out that intention.  The chilling and horrendous prayer of the Afrikaner Weerstandsbeweging 'dominee' never countermanded by anyone that it would be expected of us today to shoot kaffirs', is testimony to this.  It is also borne out by what Mr Terreblanche said in an interview of Agenda, a programme presented by Max du Preez on the former SABC television, when he referred to what he called 'a great victory' of the Afrikaner Weerstandsbeweging in its invasion of Bophuthatswana in that 'the outcome of the attack is exactly that 11 injuries or five deaths on the side of the AWB, but 50 dead, 285 on the side of the Bophuthatswana people', (indistinct) was the many innocent, unarmed citizens who were gunned down by members of the Afrikaner weerstandsbeweging".
	As outlined by Mr Mpshe, if we go to the criteria, the proportionality, it cannot be said that the act that the applicant is applying for amnesty for today, is totally out of proportion for was happening at that stage.
	Mr Chairman and Honourable Members, you have viewed the video, you have seen that shots were fired, not only from other vehicles in which khaki clad white men were, but also from this Mercedes Benz and it is clear that moments thereafter, when the Mercedes Benz came to a halt or to a standstill, the question asked by the Honourable Member, Sigodi, at what stage can we say that the war is over?
	We cannot, we cannot say that the war ended 15 minutes or 10 minutes after the occupants of the very blue Mercedes Benz fired shots.  That concludes my address and I submit that a proper case has been made out by the applicant to be granted amnesty.  All the requirements are met.  I thank you Mr Chairman.

ADV MOTATA: Mr Chairman, just a question Mr Hendrickse.  When it relates to full disclosure, which is a question that cropped up often and I think the larger part of Mr Van der Berg's argument rested on, would we say we have the truth of what obtained there when those people were shot?  Can we accept that the truth has been told?

MR HENDRICKSE: Certainly yes, Mr Honourable Member, Mr Chairman.  There may be discrepancies with regard to the time, whether it is five minutes, 15 minutes that the people lay there.  There may be discrepancies with regard to how many people were at the scene when the actual shooting incident took place, there may be differences in the evidence that is here before you.
	But it is my submission that does not detract from the fact that the applicant made a full disclosure of all relevant facts that occurred, and I stress relevant facts.
	It is neither here nor there, whether it was three minutes or five minutes.  It is neither here nor there, whether he was making a movement towards his side also.
	It is not our case Mr Chairman, that we say that we are acting in self-defence.  It is clear before this Commission that Mr Menyatsoe said when he walked towards the Mercedes he had the intention, he made up his mind, I am going to shoot and kill.
	That is what he said.  In a further question that was asked about the movement of the hand, he said that he decided for himself now is the moment to fight.  It brings us back to his state of mind.
	I hope I have answered the question of the Honourable Member.

ADV MOTATA: Thank you Mr Hendrickse, I think you did.