Amnesty Hearings — East London — 1999-04-30

MR KINCAID: Sorry Advocate Sandi, the basis of their convictions essentially were on an application of the doctrine of common purpose and they've come before you as individual applicants expanding their personal motive in committing these attacks.  What they've said to the Committee is "this is why I did it, I concede that there were items taken which belies the political motive but I didn't have any control over that, I wasn't party to it, if that did happen it was done by others in the group."  Now if you're looking at - if you're applying the criminal law to such a scenario then there is no difficulty in confirming the properness of their conviction but the question for consideration for this Committee is vastly different from that facing the trial judge in the trial scenario.  Here we have to look at their motive and the lie to the motive would be if it had been established that he personally had taken some of those common household goods and my submission merely is that that wasn't established.  He wasn't found in possession of any of those items, his conviction was on the basis of common purpose.
	The applicant Umsianda Nunu fired two shots, one which struck Joe Senti and one which struck Mr Pretorius.  He has given a reason for the circumstances, he's explained the circumstances, he's given a reason for discharging the firearm.  His conviction was proper in proper in law, my submission is that this Committee will take into account the circumstances in which he fired that shot and the fact, it will focus it's attention at him.  He would have been a young boy of about sixteen given a firearm and I suppose to instil discipline in a man of such an age and to oblige him to stick by the strict rule of a mandate would have been an impossible task so Umsianda Nunu was fallible given that critical moment.  Now it's my submission that he didn't cause the death of Mr Cobus or of Mr Pretorius.  All the applicants envisaged the fact that a firearm may well have to be used.  It's use by Nunu Umsianda was not the manner or the fashion in which the group intended or he intended.  My submission in respect of him is that it is difficult to conceive of how he would qualify for amnesty in respect of count 11 but in respect of the other counts my submission is that he has essentially made a full and true disclosure.
	And final applicant, Mr Chairman, is that of Jimmy Nokawusana.  His case is very much the same as that of the previous applicant.  He was also convicted on the count of robbing Mrs Marulia of firearms and household goods.  That is the only conviction which deprives the political motive of some force.  He was similarly convicted of robbing Mrs Clackers but there is nothing to suggest like Umsianda Ntonga that Jimmy was found in possession of these firearms - no, in possession of items not of a weapon or arm nature and in respect of count 11 I find it difficult to concede the base upon which he can qualify for amnesty but in respect of the other attacks on the farmers there's nothing to suggest that he wasn't heeding the call of the community that the attacks on the farmers were done with the purpose of intimidation and of driving them from the farms and of robbing them of firearms so in my respectful submission with the exception of count 11 this applicant too is entitled to amnesty.
	Mr Chairman, those essentially are my submissions, if there's anything in particular I shall address it.

CHAIRPERSON: Yes, no thank you Mr Kincaid.  I intend to take a brief adjournment at this stage but before doing so, Mr Clarke you've noted the concessions that Mr Kincaid seems to have made?

MR CLARKE: I'll be extremely brief Mr Chairman.

CHAIRPERSON: Ms Patel, what is your position?

MS PATEL: I shouldn't be too long Honourable Chairperson.

CHAIRPERSON: Alright.
COMMITTEE ADJOURNS
ON RESUMPTION

CHAIRPERSON: Well try and conclude.  Mr Clarke have you got submissions?

MR CLARKE: Thank you Mr Chairman, I undertook to be brief, that I'll do.  I appear only for Mrs Clackers, she opposes amnesty in respect of her three attackers.  My submission is very briefly that the applicants have three fences to clear, the compliance with requirements, we've got no difficulty with that, then I'd refer to Section 20 C, full disclosure of the relevant facts and then in the third place that the act was one associated with a political objective.
	It's our submission that the applicants have not made a full disclosure of the relevant facts, far from it and if they fail to clear that fence then they stop there.   Without going into specific detail as to what was said I submit that Mrs Clackers made an extremely - very strong impression as a witness, that compared to the offerings that had in evidence, it is perfectly clear that they've tried to dress their deeds up and grace them with the role of freedom fighter and grace them with the role of comrade when in fact it's little more than acts of thuggery and robbery.  Maybe that the initial purpose or motive was to have gone to warn her off trading, I've got no difficulty with a submission like that, I don't for a moment ask you to accept that this was a plan that was hatched and conceived to go and rob before they left Stutterheim but it seems clear to me that during the course of the series of events it went beyond that, whether there was an apparent attempt to reach or a movement that gave them to think that they meant be moving, reaching for a firearm or not doesn't in my respectful submission alter the fact that they then seized upon a very vicious attack on a defenceless woman and that their account of what happened is patently untruthful hence they've failed to clear the second hurdle that I referred to. 
	In any event, should the Committee find that they indeed did get that I would submit that the further conduct was clearly motivated for personal gain alternatively malice, spite and ill will and it's possible or conceivable that there was a bit of a verbal spat that turned into this very vicious assault.  Accordingly I would respectfully associate myself with the view of reconcessions that were made by Mr Kincaid and submit that they've by no means succeeded in discharging what is required of them to be granted amnesty in respect of the attack on Mrs Clackers.
	Further there are one or two outstanding things, I don't believe that it was in, on their evidence, it was within the community mandate that the traders should be visited and threatened.  My understanding of a consumer boycott is to pressurise the effected community rather than to use strong arm tactics on the shoppers and clearly this was a frolic of their own.  I have nothing further to say, thank you.

CHAIRPERSON: Thank you Mr Clarke.  Ms Patel?