ON RESUMPTION
CHAIRPERSON: Mr Claassen, we are now ready to listen to your address, you may proceed.
MR CLAASSEN IN ARGUMENT: Thank you Madam Chair, I will try and be as brief as possible. Madam Chair, it is true that the applicant, Mr Mtambo's application, the Committee heard today from the outset, it appeared that there might be, it is true that he did submit several applications, and there is also reference to an application for indemnity as well as a sworn affidavit, in fact two of them, which supported his application.
Madam Chair, I think briefly, by starting if one looks at the requirements of the Act, and if I may just start with the political objective of the act which has to be established, Madam Chair, it is my humble submission and it is some extent also corroborated, although there was certain statements by the defence witness, Mr Phumayo, who opposed the application, Madam Chair, I think it is as the testimony of the applicant said, there was according to him, the time immediately preceding the death of the deceased, Mr Phumayo, there was an intense conflict in kwaDela, between the opposing political parties, the ANC and the IFP.
Madam Chair, I think it has been clearly established that Mr Mtambo was a member of the IFP by his own admission, he was a Youth League leader and the issue which was just now clarified, towards the end of proceedings, what exactly status the deceased had, Madam Chair, it is true that the applicant indicated that he cannot deny that there was indeed another Youth League Chairman, but he was under the subjective impression that the deceased was indeed the leader of the opposition party, the ANC.
CHAIRPERSON: He wasn't under any impression, he knew as a fact.
MR CLAASSEN: That is correct.
CHAIRPERSON: That is so, because he was told by the deceased himself in 1993, in circumstances which we find incredible, having regard to the evidence stated by him, that there was this conflict, that they are still able to sit down in a shibeen, at his, at the applicant's relative's place and the deceased is able to give such information?
MR CLAASSEN: This is true Madam Chair, there is certainly some of the aspects that might raise eyebrows. This is however the testimony of the applicant. Madam Chair, if I might just further continue, in view of the fact that he was told by the deceased himself, according to the applicant, that he was the leader of the ANC as well as in his evidence, he made mention of threats and he was also made aware of these particular threats by Duduza, that he was under the impression that his life was in danger.
He realised that something had to be done. Madam Chair, it is to be expected and it was a question that was also raised by the Committee that if this were committed within party political context, why were some of the senior members, or specifically with reference to Mr Nkonza who was a leader of the local IFP branch, then not informed of his intention to perpetrate this act? Madam Chair, the answer in all fairness was a very strange one, in that he said he might not have been, it might not have been approved, which certainly makes it a bit more difficult to believe or see this in the political context which he alleged it happened.
MR LAX: Mr Claassen, sorry to interpose, is that not borne out by what Mr Phumayo said in his testimony? The Chairperson of the IFP was involved in peace discussions at that time, and he could never in all conscience have allowed that to happen?
MR CLAASSEN: It is true that Mr Phumayo also said when asked the reasons for this, why this hostility ceased, he said that they were engaged in peace negotiations at that stage.
Madam Chair, it is true that these things all do raise questions about the motives for Mr Mtambo's killing of the deceased, and I think he categorically admits that he did kill him.
It is true that there is definitely certain questions surrounding the act itself and whether it occurred in the manner that he said, but I think if the Committee would afford me the liberty, I think the crux of the issue is that he came out and said that he did kill him, but as I said there was this question which went unanswered that if they walked together, how exactly this crime was committed. I think it was not satisfactorily answered.
Madam Chair, I think it all boils down to the question, was there a sufficient political motive for this crime, and again, I think it should also be seen in the context of the applicant as a witness, whether he was a credible witness and his version should be believed.
CHAIRPERSON: Do you think he was a credible witness at all? He himself, described himself as a liar in many respects?
MR CLAASSEN: Madam Chair, I was just getting to that point. It is true that he in his evidence given today, differs substantially from that in his applications, Madam Chair, it is true that he said that the offence was committed in self defence, which was also his line of defence during the criminal trial. Madam Chair, in my opinion, maybe the applicant should be afforded the benefit of the doubt in the circumstances.
Saying, by his own admission, that he wants amnesty and that he is prepared to tell the truth, therefore.
Madam Chair, one can however not get passed some of the very substantial questions surrounding key issues which have not been answered satisfactorily.
I think there is just one which I think one cannot over look this, even though it might be very detrimental, when asked by Madam Chair, in his application it is stated that the deed was committed with a political objective of furthering the causes of the IFP, and in cross-examination he said that he did not want the community to find out about this killing, because it would damage the image of the party in the township, Madam Chair. I think that speaks for itself, it is a contradiction which he was unable to clear up.
Madam Chair, all taken into consideration, I think ...
CHAIRPERSON: That even takes the political motive completely away from the deed, doesn't it?
MR CLAASSEN: Madam Chair, that is true, seeing his own answer for it, I think and not trying to be speculative here, the question remains why was the deceased killed at all.
I don't know if there was any real reason established in the end. There is no evidence to suggest that there was any hidden motive. Madam Chair, the flipside of the coin is that is not enough, the question to be answered is was the political motive strong enough and I think that might be the problem. Even in the absence of anything to the contrary, the evidence of the applicant himself might not have been enough to convince the Committee.
Madam Chair, just in conclusion, I think should the Committee find him to be a credible witness, maybe thought could be given to amnesty, but I would leave the decision in the capable hands of the Committee.
CHAIRPERSON: I understand and share the difficulty you have expressed in your argument.
MR CLAASSEN: Thank you Madam Chair.
CHAIRPERSON: I won't press you for anything on which I would have wanted you to specifically address us on.
You have said it all, the political motive, it is there, it is not strong enough. If it is there, it has not surfaced sufficiently for any of the people who listened to the applicant giving his evidence, to see.
Ms Thabete?
MS THABETE IN ARGUMENT: My submission today in this matter is that the applicant has been unable to make full disclosure and I would agree with my learned friend, that the political objective is not clear at all, or the political motive.
I base this firstly on the fact that on the question of why he actually committed the offence, there are quite a number of reasons that are given, contrasting reasons, really. When you look at page 3 of the bundle, he talks about the fact that there were elections, so he wanted to eliminate members of the opposing party.
He also gives the same reason in his application for indemnity. On page 10 he talks about the fact that the deceased had to be eliminated because he was a stumbling block towards achieving their political gains. At page 11 he speaks about the fact that he was eliminated because there were several attempts to kill him.
At page 28, he says because the deceased attempted to shoot him, it is quite a number of reasons, but it is true that it is not clear really what the motive is.
Which leads me to speculate, I don't know whether I am allowed to speculate, but from the instructions that I got, it appears that the applicant feared the deceased, hence he didn't even have the, he wasn't brave enough to face him, hence he shot him at the back.
I don't want to elaborate on that very much. The applicant also admitted having been scared or fearful of the deceased, himself, which maybe might explain why he shot him in the back. I don't know, but I also leave it to the hands of the Committee to make a decision. Thank you.
CHAIRPERSON: Thank you very much, to Ms Thabete and Mr Claassen for the assistance that you have rendered to this Committee in trying to reach a fair, just and equitable decision in respect of the application before us.
As we have done in the past, and continue to do, during these proceedings here in Nelspruit, our decision in respect of this application, will be pronounced tomorrow morning. We shall now adjourn until tomorrow morning at nine o'clock. Mr Claassen, it would appear that you will no longer be sitting in any of the matters that we will be proceeding to hear this week?
MR CLAASSEN: That is so Ms Chair.
CHAIRPERSON: May we wish you a safe journey back home to Pretoria.
We again thank you for the assistance that you have rendered to us. Ms Thabete, can we start at nine o'clock on the understanding that Correctional Services would have brought the applicants by half past eight tomorrow morning?
Can you attend to that?
MS THABETE: I will do so Madam Chair.
CHAIRPERSON: Can we please also advise the legal representatives who will be conducting the application on behalf of the objectors and the applicants, that we will be starting at nine o'clock. I see they have already left.
MS THABETE: I had indicated the said fact to them.
CHAIRPERSON: Thank you very much. Thank you very much for attending, we shall now adjourn and reconvene tomorrow at nine o'clock.
COMMITTEE ADJOURNS
