Amnesty Hearings — East London — 1999-04-30

MS PATEL: Thank you Honourable Chairperson.
Honourable Chairperson, it is my respectful submission that none of the applicants have met the requirements of the Act, that they were not politically motivated when they embarked on any of these operations, that none of them have made full disclosure.  It is my further submission that none of the grounds that the applicants have tendered here have differed from that tendered at the trial court and I accordingly request, humbly request that you accept the decision made by the Judge at the trial where it was found that none of the - despite the fact that it was accepted, the political scenario was accepted, the decision taken at the meetings in December was accepted, it was found that none of the accused or the applicants at that time were motivated by any high minded political idealism.  I would ask you all to also take into consideration that the applicants had all applied for indemnity that one of the criteria that they had to meet at that indemnity application was in fact that their crimes were politically motivated.  They in fact failed in their indemnity application, I would submit that that is of highly persuasive value to yourselves when you come to a decision as to whether they were in fact politically motivated or not.  In as much as there might have been a decision taken by the community, we have heard clearly from Mr Bhayi what the ambit of that decision was and without going into the specifics of all the applicants, it is my respectful submission that none of them abided by the specifics of the decision and the manner in which these operations were meant to carry out.
	As an example one looks at Mr Hansel, if one looks at the motivation for the decision that was taken by the community, it was conceded by the applicant, Jimmy Nokawusana, that Mr Hansel was in fact a good person and would never have fallen within the ambit of that decision.  
	One looks further at the housebreaking of Mr Senti, the fact that he was shot, the entire scenario fell clearly outside the ambit of that decision.  It is my respectful submission, Honourable Chairperson, that when one looks at political motivation, even if, and this not conceded, even if it is accepted that the applicants were carrying out the decision of the community, if one looks at the question of proportionality which you are required to do in terms of Section 20, sub-section 3 of the Act, we look at all the victims, they were all old, they were all alone.  To a large extent they were not in a position to protect themselves save for Mr Cobus who managed to stave off the attackers for quite some time.

ADV SANDI: Ms Patel, if I can come in there?  With the exception of Mr Hansel, is there any evidence here that the ages of these victims were known to the applicants?  Did they know whose these people are with the exception of Mr Hansel?

MS PATEL: There is no evidence that - I'm not sure whether that specific evidence was tendered at the trial court, I'm certainly not in a position to say whether the ages were in fact known.  However, the ages of the victims was in fact testified to at the trial and if one considers that the applicants were present at the farms they would have realised that these were old people that they were dealing with and so if one looks at the way in which they went about trying to achieve their alleged objective and the seriousness of the assaults and the time period for which these victims were in fact assaulted, surely there can be no basis upon which it was necessary for them to assault these old people in the manner in which they did in order to achieve their alleged political objective.

ADV SANDI: If they wanted to kill these people, wouldn't they have killed some of them, wasn't there an opportunity to do that?

CHAIRPERSON: And isn't that the most ideal target if you want to obtain firearms, you want to dispossess the farmers of firearms, isn't that the most logical target or least resistance?  You're not going to go to a farm that is barricaded by a young colonel in the army with an automatic rifle?

MS PATEL: That might be so, Honourable Chairperson, I will however still submit that one of the other objectives was also to drive the farmers away and my submission is simply that it wasn't necessary to assault them in the manner in which they were assaulted in order to achieve that desired objective.  Also to get the firearms, it wasn't necessary for those victims to be assaulted in that way, they could very easily have perhaps tied them up.

CHAIRPERSON: You mean verbally persuade them to hand over the firearms?

MS PATEL: No not verbally persuade them but they ...[intervention]

CHAIRPERSON: How else are you going to intimidate them without using violence, you're going to talk to them and try and persuade them to accept the viewpoint of the ANC that they should leave their farms and go live in the town?

MS PATEL: That may be so Honourable Chairperson but there was no need to assault them to the extent that they were in fact assaulted.

ADV SANDI: Is it your contention that they had gone there to commit robbery on these people and if you say so, one would like to know why should they go in such huge groups, if I may say so, you don't as far as I know you don't usually find robbers going in such big groups of 15, 17, 30 to 40 in some cases?

MS PATEL: It has been the evidence of the applicants here today that they went in huge groups Honourable Chairperson but that was not the evidence that was tendered at the trial.  I am faced with the difficulty that none of the victims were prepared to come to the hearing so I'm not in a position to give you, to tender further evidence in terms of the number of people that were in fact part of the group.  It was, however, contended - not contended, it was in fact stated by one of applicants at the trial that there were in fact a lot less in number than they would have us believe.  In fact, one of the applicants I can't recall, it's one of the Bhayi applicants would in fact conceded initially that they were half the number that he said - that the other applicants said that there were at the time.

ADV SANDI: But we heard one of them today, one of the applicants today telling us that he lied in court because he did not want to be sent to the gallows, he was scared of death sentence?  What do you make of that?

CHAIRPERSON: And in fact added to that, he didn't want to really disclose how many there were because he was apprehensive that he was going to be questioned about what these fellows were doing, those people that were with him so he was cutting down on this sort of thing and it's perfectly understandable, I mean you know, we're not sitting in an ivory tower, we from our experience here in this Committee has seen the extent at which justice has been frustrated through court cases on all sides, on the prosecution side on the side of defence, I mean really, one is just amazed every time to look at this sort of thing that was going on.

MS PATEL: I will not take that point any further, Honourable Chairperson.

ADV BOSMAN: Tell me, this on the issue on intimidation, do you have any submissions as to whether the physical assaults could have been avoided and yet these old people could have been intimidated?  What form of intimidation would you submit was possible?