|News | Sport | TV | Radio | Education | TV Licenses | Contact Us|
Type AMNESTY HEARINGS
"When we arrived in town we went to the restaurant but there was too much movement outside the restaurant. While looking for another target I heard music noise. I went to inspect and found many white dancing inside this disco. I reported that we can attack there. Tanda then gave the order that we attack. Only Tanda and I went to attack and one remained in the car and another was to give us firing cover as it became necessary. When we got there the burglar door was locked. It was not locked on my first inspection. We stood just outside the door and fired inside. The attack lasted about three seconds. We got into the car and sped away"
ADV PRIOR: Mr Shiceka, I don't want to engage you in any debate on this, it just seems to me from reading that paragraph of your statement that you confirm you did say, that there's no mention of any danger to african people being injured if you attacked the restaurant. I just want to know, do you have any reason or can you explain why you simply never said that to your counsel or why doesn't it appear in your statement? There may be a reason why it doesn't appear, maybe you can give us that reason.
MR SHICEKA: Are we talking about what happened at the disco or outside the restaurants? Because where there were many people, it's in front of the restaurant. I'm getting confused when you talk about the disco and also come back to talk about the restaurant at the same time.
ADV PRIOR: Mr Shiceka, I'm referring to the restaurant, I'm referring to what appears in your statement that you've confirmed a short while ago in fact you did say and I'll read it to you again. The first sentence reads
"When we arrived in town we went to the restaurant but there was too much movement outside the restaurant"
and that's where you leave the restaurant alone, you don't say: there were too many african people there, there was a possibility that they might get injured. You simply say there was too much movement. In other words there was too much activity there and that's why you looked for another target.
My question is, can you explain why you did not, in that paragraph when you referred to the restaurant, simply say: "We didn't attack the restaurant because african people might have got injured"? Do you understand what I'm asking for?
MR SHICEKA: I did give a statement to my lawyer. There were questions which were asked. I explained that there were movements in front of the restaurant. He wants me to clarify as to who was moving up and down, it's just that when we mean - in Xhosa, when we say people were moving up and down, we normally refer to black people moving up and down. That is ...[indistinct]
MR SHICEKA: Sir, we arrived in a Cressida Toyota car. Tanda started to get out to do some surveillance. I went out, I looked around the place and I came back. The car was not far from the restaurant. In front of the restaurant there were many black people, there were also white people moving up and down. I went back to the car to report to Tanda that the situation is not good, we are not going to attack this place because we could injure black people therefore we left the place.
I want to refer you to page 64 of the bundle and a statement which was made by Dube who apparently was the driver of your vehicle. With permission of the Committee I want to possibly just put the whole paragraph to the witness.
Unfortunately or - I'll retract that, the statement is in Afrikaans, I understand there may be some difficulty with the - would the Committee allow me to paraphrase or to translate or to put the sense to the witness? Page 64 of the bundle, it's paragraph 8 of Dube's statement. Maybe I'll just put then the essential part Mr Chairman.
ADV PRIOR: I understand that there's - it's indicated that there'd be a problem with the Afrikaans. Maybe I can just read it out. I mean the Committee is au fait and I can then translate it and if that's a fair translation of the words then I can put it to the witness. From the middle of the paragraph Mr Chairman.
"Reg oor die bakkery het die man langs my weer gesÍ: "Stop hier moet ons begin werk". Daar is 'n restaurant/steakhouse langs die bakkery wat vol mense was op daardie stadium. Een van die drie agter het egter gesÍ: "Nee, hier is te feel polisiemanne"
"Hier is te veel polisiemanne". Die mense het die hele tyd in Xhosa gepraat. By die verkeerslig het die man voor aan my gesÍ om links te draai. Net verby die verkeerslig kon ek die geraas van musiek hoor. Net verby die gebou met die musiek het die man voor my - langs my gesÍ ek moet stop"
Now, it would appear from Mr Dube's statement, that when you stopped at the restaurant or steakhouse someone said in the vehicle that there were too many policemen there, whether that was in the restaurant or outside the restaurant.
ADV PRIOR: And had you and he discussed that at the discotech or at the restaurant, whichever was to be attacked, that the grenades would be used? In other words they would be launched or thrown into the crowd of people at those two venues?
ADV PRIOR: I want to just get clarity in my mind, were the targets selected to be attacked together, sorry, not together but both targets were to be attacked on that same evening or was the discotech an alternative target should the attack on the restaurant not be able to be carried out?
ADV PRIOR: I must put to you the question that was raised by the Chairman yesterday regarding - well, Mr Tanda seemed to suggest and the Chairman put it to him, that the reason for not attacking the restaurant and attacking the disco instead seemed to be a decision which smacked at racism. You weren't prepared to injure anyone other than white people. Could you comment on that? Was that part of your motivation in attacking the discotech?
MR SHICEKA: Mr Chairman, APLA is not a racist organisation. I think you are aware that white were oppressing us, that was the race that was oppressing us. We didn't attack white people because we hated white people, we don't hate white people.
Right from the foundation of the organisation we are not a racist organisation. However, the situation in which we had to live created a conflict between a white person and a black person, it's not that we are racist.
"The political objective that was sought was to liberate AZANIA and that was at paragraph 10(a) and at 11(b) you also indicated to take the war to the white areas and to destroy the state machinery"
ADV PRIOR: I'm referring to your amnesty application where you indicate that the political objective which you sought to achieve was to liberate AZANIA by - the reason or the objective that you gave in attacking the Crazy Beat Disco inter alias was to liberate AZANIA.
ADV PRIOR: Alright. In your amnesty application that was completed on behalf - the one that you looked at earlier, there are two statements that you make there, one you say you did this attack or participated in the attack to liberate AZANIA.
MR SHICEKA: My comrade Tanda did the reconnaissance and I trusted him and believed when said it was frequented by white people or that there were white people in the place, I believed him and that's the reason why we attacked the place.
ADV PRIOR: I ask you this question because the restaurant also seemed to have black people or african people in the vicinity. Maybe I can ask you the question pertinently, did the restaurant also have a multi-racial clientele?
MR SHICEKA: When you say it was dark, I would say there were lights. The lights were on, you will be able to see people inside. It wasn't so dark that you couldn't recognise the people if you know them, people who were inside. I can't say much but it wasn't that dark that you couldn't see people inside.
ADV PRIOR: I don't want to take it any further than that, it was simply a question which I remember Mr Tanda, his evidence had indicated that the lights, it was fairly dark inside the discotech at the time of the shooting. He wasn't able to recognise specifically who he was shooting at.
ADV PRIOR: Alright. I want to ask you this question, do you accept that for all intents and purposes the people that were inside that discotech at the time when you shot into the discotech, are you able to say whether they were connected in anyway to the state, in other words to the police, to the army, to the security forces, to the administration in anyway, of the apartheid government of the time? Are you able to say that with any conviction?
MR SHICEKA: Mr Chairperson, I was instructed to go and attack white people. As to the things that you are mentioning I don't know but what I know is that I will attack white people anywhere I can find them meeting. The question as to whether they were supporting apartheid or not wasn't relevant.
MR SHICEKA: There was another group to which I arrived. When I arrived there were many people already there. I was only given a task to go and train the members. I heard about the reconnaissance group but I wasn't part of that group.
"When we arrived in town we went to the restaurant but there was too much movement outside the restaurant"
Yes, the impression I get here is as if the disco was not on your menu that night. It is as if it was not one of the targeted areas or places for a target. The impression I get is, once you were frustrated at the restaurant you started walking, looking for another target aimlessly around town. Isn't that what you are saying here?
MR SHICEKA: It's not. I would like to be given an opportunity to explain myself. Mr Chairperson, I'm trying to state that after we have seen the people moving up and down near the restaurant I went back to report to my commander who was Tanda in the car. Tanda realised that we cannot attack the restaurant.
CHAIRPERSON: ...[inaudible] you are moving for the gist of my question. You have just said, from there you went straight to the Crazy Beat, but that's the point, the sentence doesn't say you went straight to the disco. The sentence you were looking for another target, you went looking for another target. It doesn't say, from the restaurant you went straight to the disco.
CHAIRPERSON: I don't know if it was stated by yourself but I'm just reading from your statement. Is that what you told your legal representatives, that from the restaurant you went looking for another target or you didn't say that?
MR SHICEKA: Mr Chairperson, I clearly explained to my lawyer that we had selected two targets, one was a restaurant and the second one was a disco. And after discovering that we could not attack the restaurant we went straight to attack the disco. We didn't go around looking for other targets, we went straight to the disco.
ADV POTGIETER: Can I just ask you, sorry Mr Shiceka, have you seen this document that we've been presented with? It purports to be a statement by you but it's not signed, it's in English, a typed document. Have you ever seen this thing?
Mr Shiceka, the statement you've just correctly told Advocate Potgieter, that you didn't see this statement. You also were not asked by me or my colleague, Advocate Ngulwana to sign this statement, is that correct?
MR ARENDSE: And the reason was that the statement did not correctly reflect your instruction nor did it correctly reflect the other statements, I'm referring to the statements by your co-applicants. Is that correct?
CHAIRPERSON: Sorry Mr Arendse, can I just, if you don't mind, assist you because the witness will never understand and this is what is confusing, how you can during his evidence correct a typed statement, it's impossible. In his version it's impossible.
Is it also so Mr Shiceka, - I just want you to confirm it, that the first time we as legal representatives had an opportunity of consulting with the three of you together in one room was yesterday morning?
MR ARENDSE: Do you also recall my colleague Ngalwana saying to you and to the other applicants that we have been required to furnish the Secretariat of this Committee with certain details before this hearing takes place?
MR ARENDSE: Because we haven't had the opportunity to consult together fully and properly, that we would provide these details on what is legally referred to as honour without prejudice basis. In other words we would try and provide as much detail as we can but that mustn't be held - that those details that we provide won't bind you?
MR ARENDSE: Now, what you told the Committee today, particularly in regard to what is contained in paragraph 17, i.e. that you went to the restaurant and the reason why you did not attack the restaurant is that you saw african people, black people milling around in front of the restaurant and that is why you never attacked the restaurant? Is that the correct version?
learned friend Advocate Prior that you would have exercised the discretion by not attacking the restaurant. In other words you weren't just a soldier blindly following an order. You in fact - as the Chairman correctly put it, you matriculated and you are able to use your discretion and change your mind.
ADV PRIOR: Mr Chairman, I'm a bit concerned and I need to voice my concern on behalf of amnesty and the Evidence Leaders. I understand and I have empathy with my learned friend's position, particularly in communicating with the client.
But the situation becomes untenable when we are supplied with statements on whatever basis, that we are precluded from properly ventilating those matters because of uncertainty as to the instructions.
I don't want to put my learned friend in an embarrassing situation but paragraph 17 contains factual information, and I believe in the interest of justice and the interests of this process that some explanation would be offered to the Committee where that information was obtained from. It simply could not have been dragged out of the air.
I think Mr Chairman also had the same concerns as myself when I asked that question because the impression certainly was created in the statement that the discotech was a random target, they looked around.
And I think in all fairness to the process and to the victims I think it's necessary for my learned friend, obviously if never personally consulted with the applicant Mr Shiceka in obtaining this information, that some explanation be advanced which obviously will be acceptable in the circumstances. But at the moment it is left in the air.
And secondly, for purposes of certainty the onus is on the applicants to make a full disclosure. If we look at Mr Shiceka's amnesty application, it is very thin and one expects the - or expect the statement to be supplementary to that application.
Obviously if one can't then rely on any information supplied prior to the giving of evidence, then it certainly I think detracts to a very large extent from the testing of that evidence. Thank you Mr Chairman.
MR ARENDSE: Mr Chairman yes, the applicants were held at three different prisons. Mr Tanda at Pollsmoor and Mr Shiceka at Brandvlei and Mr Molefu at waterfall in Newcastle. My learned colleague Advocate Ngalwana visited the three of them separately and he took statements from them. He informs me that he would like to address the Committee on what he was told.
I have, as I said earlier, had the opportunity for the first time to consult with them jointly and I cleared up with them amongst other things what is contained in paragraph 17 and I anticipated that it would raised during cross-examination.
Unfortunately, being away from your home base I didn't have the facilities to amend the statement and to correct it and hand it up in that form to the Committee. But I'm satisfied that what Mr Shiceka and Mr Tanda and Mr Molefu have told this Committee are my instructions and that they've confirmed it under oath.
Before we, and in fact I don't think subject to what people may say and having conferred with my colleagues I think I'm still feeling very uncomfortable about whether we should counsel to explain what happened during his consultation with his clients. It's just not done unless exceptional circumstances do exist to what I'm not so sure whether they do in this case.
But perhaps Mr Prior I appreciate your concern but I think though that simply speaking it is not correct that you are prevented from using the statement because once the statement is given to you, you are free to use it in cross-examination like you have done.
It would have been something quite different if once you started wanting to use that statement Mr Arendse objected and said: "No, you can't use that statement because during consultation my client told me that it was not true and soforth, he didn't do that".
Had he done so we probably would have overruled him and said: "Well, let your clients give an explanation". So you are free to use it in cross-examination and you did in fact use that statement during cross-examination.
Once you confront a witness with a statement which he would have made in consultation with his counsel, like an affidavit, once you confront him with the contents thereof and he says: "Well, that's not what I told my counsel", you can't take it further.
Unless for some reason counsel himself feels that the witness is lying and counsel has got some other reasons why he would like to prove the witness a liar, like for example counsel wants to say that he feels that perhaps it's a reflection on himself and he wants to go into the witness box and then he wants to contradict the witness.
But once the witness has said: "That's not what I told my counsel", there could be a host of reasons. For example plain ordinary misunderstanding between the two of them during consultation. And we normally just leave it there once a witness has said: "I didn't say that".
Perhaps I should say this because it would appear that you're going to have possibly more of this kind of problem and we don't want to set a precedent where we call upon counsel to come and explain because in terms of the proposed guidelines which have not as yet been proclaimed, the new guidelines which we have drafted, it seems to me that legal practitioners are going to be required in advance to submit a summary of the statements by their clients like just happened now.
I can foresee that while this is going to be helpful in the sense that the leaders of the evidence would know in advance more or less what the applicants are going to say. We are going to also have this kind of problem where the statement will be found to be wanting in one or more respects.
And if on each such occasion when an applicant says: "Well that is not what I told my advocate", we would require of an advocate or an attorney to give an explanation, I think it would lead to an untenable situation.
And I don't think we should start today to create that kind of precedent. We are not saying that it can never happen but for now we feel that each has been sufficiently ventilated and that it should be left there.
ADV PRIOR: I accept unequivocally the explanation placed on record by Mr Arendse. There was no intention, there was no intention from my part to indicate that there was anything improper. It was simply a request that there appeared to be a material discrepancy, and Mr Arendse has answered that.
ADV PRIOR: Mr Chairman, the position has changed since yesterday. I've consulted with Mrs Swart who is the mother of Mrs van Wyk, the deceased in the matter, and she said that after deliberation she does not wish to give any evidence. She leaves the matter of amnesty in the hands of the Committee.
In other words she does not oppose it. What she simply wanted to ask was a question of the third applicant, Mr Shiceka, which I understand was put. She wanted to know in essence what Mr Shiceka would have said to the children of the deceased if they were able to be here. And I think Mr Shiceka fully answered that question. He would ask for forgiveness and would ask the Committee to a recommendation at some later stage.
The only other aspect is, since the death of the mother of the four children, Mirinda, Cathy, Neville and Dawie, is that his matter be referred to the R&R Committee for consideration. She does not wish to give evidence viva voce. So from Evidence Leader's side there are no witnesses that I can call in this matter. Thank you Mr Chairman.
CHAIRPERSON: Yes, like you say Mr Shiceka has publicly conveyed his apologies. On another level though, I'm beyond that level on a person to person level, normally the Committee doesn't get involved. Normally the representative of the applicant and the leader of evidence, if an applicant wants to meet with the family it is done extra curially and that could be done during our adjournment.
CHAIRPERSON: You'll put them in touch with the people because as you know at this stage it's premature for us to say that they are victims because that could depend on the - I think it's going to depend largely on the decision we come to.
Mr Chairman, members of the Committee, the applicants have applied for amnesty in respect of several offences committed during an attack on the Crazy Beat Disco in Newcastle on the 14th of February 1994 when one person was killed and two people were injured.
Mr Chairman, although another tribunal trial court and therefore expressing it's opinion found the applicants and guilty and sentenced them. We respectfully submit that the trial court was well placed to make it's findings on the evidence before it and it's therefore important to note that some of these findings included the following factual findings.
That applicant Molefu was a member of the PAC at the time and that applicants Shiceka and Tanda were soldiers of APLA. The trial court also found that these offences were committed with a political objective, namely to further the aims and objectives of APLA.
In fact the court found that the applicants carried out the orders given by APLA High Command on the evidence before you by one, Power Mzala, also referred to as Jones. The trial court also found that these offences were not committed for any personal gain.
We respectfully submit Mr Chairman and members of the Committee, that the uncontroverted evidence of the applicants before you confirm that trial court's findings. Based on these findings it is submitted that the applicants are entitled to amnesty and they have complied with the requirements of Section 20 of the Act. Although not a factor in terms of the statute it is of importance and relevance to the whole reconciliation process, the attitude of victims. In this case none of the victims oppose amnesty. Mrs Swart who is here whose daughter was killed abides the decision of this Committee.
If there is any basis for objection to this application then it's because of an alleged lack of full disclosure. In this regard we respectfully submit that the applicants have disclosed all the relevant and material facts relating to the Crazy Beat Disco incident before, during and after the incident.
The arms and ammunition were brought from Umtata by motor car by Molefu already in 1993. He stored and hid these arms at his place here in Newcastle during all this time. And these are the arms and ammunition used by the applicants to launch the attack on the disco.
To launch the attack a car was highjacked and that car was highjacked by Tanda and the two other members of his unit. Shiceka was not one of them. Molefu was driving the other vehicle which took them to the highjacked car.
As far as the operation itself is concerned Tanda and Shiceka have admitted and confessed to you that they were directly involved in perpetrating the attack. They were armed with automatic weapons and grenades. The automatic weapons were used.
Molefu was involved in the attack, he supported it, he knew about it. But his involvement was confined to a supporting role both before the attack and after the attack. In fact he was arrested together with Tanda and Shiceka the next day, February the 15th.
Mr Chairman, the applicants have shown remorse, they have asked for forgiveness and we submit with respect, that their plea is a genuine one and that they too are the victims of our apartheid past as much as the actual victims are, who were either killed or injured during this attack. And therefore Mr Chairman, they deserve amnesty.
In terms of supporting our submissions we would just like to refer to the decisions given in the Coetzee application and the Mitchell application and we submit that the case of the applicants before you is even more clear cut, if one can put it that way, than both of those decisions given by this Committee.
ADV PRIOR IN ARGUMENT: Thank you Mr Chairman. Mr Chairman, I only wish to draw the Committee's attention to certain aspects of the evidence, as well as certain aspects of the Act and certain general considerations when considering whether amnesty should be granted or not.
I wish to refer to the submission made by a Mr D.J. Ackerman and Mr V.L. Smith, who represented the victims at the St James attack. No doubt Mr Chairman you were involved in that matter and you'd alive to those considerations. With submission I submit they are also of application here.
And thirdly, nor does a political slogan amount to a political objective which justifies murder. Particularly in the light of what the APLA command had indicated, Mr Sabelo Palma, that 1994 was to be "The Year of the Ballot and the Bullet". That certainly doesn't justify murder at any level.
Now the Committee must also be mindful of the limitations which is placed on acts, whether they can be categorised as acts of a political character or associated with a political object. And in the respect the well-known principles upon which our Founding Act is based, being the Norgaard principles, I think it's appropriate to say that it was clear in the Namibian context where the Norgaard principles applied, that attacks on purely civilian targets were not considered to be acts of a political nature or sufficient political nature which justified amnesty.
It is also important to analyse whether the act of the applicants before this Committee was carried out in the furtherance or as assistance to the political objective alleged. The general political objective stated by the applicants was to liberate AZANIA to dismantle the apartheid regime or the apartheid state and rewin the land taken by the oppressors.
It is significant that none of the applicants were able to explain how the attack on the discotech could have advanced that objective. In contra distinction to that I think the Committee, with respect, ought to be mindful that the process which was in place at the time and in which is common cause, that is the negotiations which led to the elections in April, were far more likelier to achieve the ends which the attack was allegedly intended to achieve were in fact successfully in operation at the very time of the attack which was only two months away.
It would appear from the evidence that all was not well in the PAC camp. It appears from the evidence that during the conference at Umtata there appeared to be two schools of thought, one opposing violence and the other advocating violence or the armed struggle to continue.
That also seems to be borne out by the press clippings annexed to the bundle, which seems to indicate that the politicians were saying one thing, suspending the armed struggle, yet APLA was saying another thing.
Another aspect is the gravity of the act in questions. It is significant that defenceless civilians who pose not threat, and certainly on the evidence, were unconnected to any state, organisation, or body were the object of the attack.
It is also significant that none of the applicants were able to advance any cogent reason what would have happened if such orders were disobeyed. There seemed to be no sanction in place to have been an effective way to have cohersed the applicants to have acted as they did.
We heard from Mr Tanda that if one smoked dagga for example, one would be stripped and made to roll in the dirt or the mud and the water but certainly there was no indication that if they had failed to carry out the attack which they did, that there would have been a type of court martial where they would have been severely reprimanded or corporally punished or anything in that vein.
It certainly seems from the evidence that those on the ground were left to their own devices. Power, alias, sorry with the other Mzala and soforth, seemed to give a general indication of what the policy was. Yet it appears from Mr Tanda's evidence and Mr Shiceka's evidence that the selection of the target was left up to themselves.
Regarding the question of proportionality, my submission is that the very nature of the means used and the nature of the target and what was to be achieved thereby, as I've addressed earlier, was disproportionate in the circumstances.
Mr Chairman, I also highlight the remark made by the Committee which appeared to be forthcoming from the evidence of Mr Tanda, that if the target was selected purely because the people were white then, with submission, that seems to have been the motivation which was based on racial lines.
And if one then accepts Mr Shiceka's evidence as it is supported by Mr Tanda, that the restaurant was avoided because black people may have been injured, then the only inference that can be drawn was that white people were attacked purely because they were white people and for no other reason.
CHAIRPERSON: At that aspect you know, it's a very - sorry to chip in here. You could see that it made some of us a bit uncomfortable and it cropped in one or two matters not referred to by Mr Arendse. I said in the applications of Botha and Steyn I think - Marais, Botha Marais and Steyn, which I think we heard evidence here in this hall.
That was the case in which Both and Steyn, they went around that evening and they said that they were looking for a group of at least 10 people, black people to kill and they said they were specifically looking for black people, to kill at least 10 of them because they said there had been - earlier that day there had been an attack of white people by a group PAC people according to them, and they said they are going to attack in revenge.
They said the policy of their organisation was that for every white, one white person killed, 10 people must be killed and they then went out to go and - because one white person had been killed. That evening they went out to go and kill at least 10 black people and they actually went about looking for a group of - specifically 10 black people to kill.
And then they saw a kombi, they let it go for some reason and then they spotted a bus, a Putco bus and they were also armed with machine guns and two of them, it was two of them who opened fire on the bus because they wanted to kill black people. And the two of them got amnesty, that notwithstanding and because on the basis that they were acting according to orders. They were carrying out the orders that they must go around, get 10 black people and kill them.
CHAIRPERSON: It was a very uncomfortable decision and I won't disclose who I stood in that Judgement but my recollection is that it was not a unanimous Judgement. But the majority Judgement was that even though these people specifically wanted to go and kill black people and they went out to go and kill black people, they killed about six or seven of them, they got amnesty for ADV PRIOR: I'm simply - I'm familiar with the facts of all the amnesty applications. Each application should be on it's own merits. Unfortunately if the Amnesty Committee has created a precedent that it must follow then it becomes very difficult to argue in any given case, that one should deviate from that. It's unfortunate that such precedence may have, for whatever reason, have been formulated.
CHAIRPERSON: Another one was, somebody got amnesty for - he was convicted for abducting and assaulting a black person and he said: well, they drove around in the evening because they didn't want black people to be in town after 9 o'clock in the evening. So they were specifically targeting black people and to forcefully drive them out of town.
They were not just looking for any person, they said: "We're looking for specifically black people to assault them, to beat them so that they could get out of town simply because they were black and then he got amnesty for having abducted a black person under circumstances.
You know this - if you consider these types of cases, there are precedents and maybe uncomfortable ones but I'm just mentioning this you know, to make you understand that there are certain precedents which seem to find the face of this argument which make all of us, not all of us, most of us or some of us uncomfortable.
ADV PRIOR: I simply raised it because the literature on amnesty indicates that. And I think if acts were perpetrated on that basis alone, on race, then it's a factor that must be weighed up. It is an uncomfortable area but it's an area that obviously must be met head on, it must be ventilated and it must be analysed.
I accept that there are precedents and obviously this Committee will have to, in the light of those precedents, whether it can deviate from those precedents or feel itself bound by those precedents. I certainly accept what you say Mr Chairman, that amnesty has been granted in - probably if you have to compare those incidents with the one before you, are more shocking, are more barbaric and more savage.
However, I respect what you have said and I accept that there are precedents in that nature. I simply refer to race because it was mentioned by the Chair itself, it was mentioned that it seemed to be one of the motives for the attack and that is context on which I address the Committee.
Just finally, it would appear that - I simply bring it to the Committee's attention, that amnesty can only be granted to the applicants in terms of Section 20 (2) sub-sections (a), (d) or (f). With submission, sub-paragraphs 2(a) and (d) don't seem to be applicable because the targets or the object of the attack must another political organisation or movement against the state or former state or other publicly known organisations.
And (d) says it must be members of the security forces or the state or supporters of such publicly known political organisations. It would appear that the application may then be limited or restricted to sub-paragraph (f) which says:
"Any person referred to in paragraphs (b), (c) and (d) above who on reasonable grounds believe that he or she was acting in the course of scope of his or her duties and within the scope of his or her express or implied authority".
MR ARENDSE: Mr Chairman, yes just on the racial aspect. I want to advance three reasons why it should not be held, certainly not against the applicants, that they - or found rather that they had committed a purely racist act.
Firstly, the applicants, on the uncontested evidence were foot soldiers carrying out orders, that is not disputed. They were not part of the APLA hierarchy or high command which it is well established made the policy decisions and decided on matters of strategy. For the same reason that Brian Mitchell or Coetzee or any other ex-South African defence force soldier wasn't part of the inner ...[indistinct] of Botha's cabinet making decisions to pursue cross-border raids etc.
Secondly, the struggle for liberation in this country inevitably had to have a racial dimension and the reason for that is quite simple and very glaring and we don't need evidence for that because the applicants lived through it.
Black people in this country lived through it who were born here. They were governed by whites, they were controlled by white, they were suppressed by whites and the overwhelming majority of the white electorate voted in the same government repeatedly by in fact increased majorities as we moved towards the April 1994 election.
So that was an inevitable part of the history of this country. Now it's very important that our parliament a democratic elected parliament recognised this by making the cut-off date the 10th of May 1997. It recognised, the law makers recognised that we were engaged in a racial struggle up to that point. And the 14th of February falls within that cutt-off date.
Then just thirdly, again on a parity of - because this is what this Committee must do, this is what the Commission as a whole must do is to be even-handed and to treat people in the same fashion. The apartheid government targeted overwhelmingly black people. Coetzee was told to get rid of Griffiths Xenge and he did so very effectively.
Griffiths Xenge was a well-known human rights activist but he was a black civilian. Brian Mitchell committed the trust feeds matter where he killed innocent black young men, woman and children, he slaughtered them. Those were civilians and both of them got amnesty.
CHAIRPERSON: And Xenge, his killing was justified on the basis that - you see the argument was that he was not really a civilian in the true sense of the word because the allegation was that he was a functionary of the ANC in some way. He was channelling funds into the country for the benefit of the ANC, something like that and therefore he was a political activist of some kind.
They were supporting the - they put the government in place and they supported that government. They were also therefore seen by a logical extension as functionaries supporting the state. Without them voting the government in who knows what would have happened.
But in any case, the point that I'm making, those considerations, do you just kill white people and so on, those considerations didn't feature for the applicants because they were not part of the decision making process they were soldiers and they carried out their orders.
Mr Chairman, then just on a few other matters. I think I made the point that yes, there were negotiations on at the time. If one must take this factor seriously, and with respect I say we can't, then the legislature would have made cutt-off point the time when we had the negotiations at CODESSA. Then it would have been and I think maybe it was, I think earlier December 1993 but the Act was amended and it was extended to May 1994. And that period covers the applicants more than adequately.
The issue of proportionality like all the other factors that are mentioned in sub-paragraph 23(a) to (f) is not on it's own decisive. And clearly if we look at each case in isolation then I think this Committee would have difficulty in giving amnesty to anybody.
I mean how on earth could Coetzee's murder of Xenge or Mitchell's mistake where he kills 11 people, how could that possibly be proportionate to the end which is being sought i.e. to get rid, in Mitchell's case, to get rid of ANC, UDF activists. And in Coetzee's case, to get rid of one functionary, a person who is alleged to have been a ...[indistinct] for the ANC.
ADV SANDI: Sorry Mr Arendse, if I can just chip in for a moment here. Consistent with your line of argument I thought in the Brian Mitchell matter you were referring to, you were saying even if he ended up hitting a target which he never intended, at the end of the day he would have hit black activists anyway. Isn't that what you are saying?
MR ARENDSE: Yes, I mean the end result was not the same because he didn't hit the intended target but I was just trying to draw some parallels with this case. I didn't understand Advocate Prior's submission with regard to similar submissions made in the St James that not every act is a political act and not every - evoking a slogan doesn't mean that that's a political objective. I think the evidence is very clear in this case.
With respect, it is very clear that these applicants, they are not what one can call ordinary criminals. You've heard from them Mr Chairman and learned members of the Committee, how they articulated their position, where they found themselves in, where they come from, their background and why they joined the liberation movement. They clearly don't deserve to be locked up for committing what was purely a political act clearly on their evidence.
The Norgaard Principles which is referred to by my learned friend, the attacks on purely civilian targets are attacks of a purely political nature which justifies amnesty. I'm sure that our law makers had regard to the Norgaard Principles but we have a process in this country which is unique and the Act is designed to cater for that uniqueness.
The law ...[indistinct] has recognised that lots and lots, hundreds and thousands of innocent people overwhelmingly black were caught up in the crossfire but to put the past behind us it was necessary to have an amnesty process. Civilians would be killed and they were killed and they were killed in this case.
Mr Chairman, can I just raise one aspect which I raised at the previous hearing and that is your decision. It concerns me and my clients who are not only the applicants but the PAC and those in the APLA High Command, that such a long time elapses and has already elapsed before the Committee makes a decision. It concerns us that it would appear that the Committee, not this Committee but the big Amnesty Committee, is waiting to hear all the evidence in all these matters.
With respect, I think that's irregular. Like my learned friend says, each case depends on it's own facts and I can't see how if this is the intention that an applicant may have a credibility finding against him or her in some other or subsequent proceeding, that it would then influence the result in for example, this particular matter.
I would accordingly urge this Committee to make a decision as soon as possible in this matter. The applicants have been in jail now for almost five years. Mr Molefu for example, who wasn't directly involved in the incident and was an accomplice is also sitting in jail for a long time.
CHAIRPERSON: But it must be pointed out though that it's also a question of practicalities. If you got only 12 members of the Amnesty Committee and an applicant has got 50 incidents in respect of which he could apply for amnesty, a difficulty may arise. And this has been as a result of the attitude adopted by some of the applicants and I don't blame them for that, perhaps they are right in doing so.
They brought an application in respect of one incident and a particular combination of the Amnesty Committee heard that particular application and took a decision which was not favourable to the applicant. And the next thing that same applicant comes again with another incident, in the meantime a decision had been given in respect of the first incident.
He appears again before the same Amnesty Committee or slightly constituted, differently constituted Committee, he comes with the next application and he says: "No, no amongst you there's somebody who sometimes turned down may application, I don't want you in this combination, let him go out. And then that person or those two people get out of the Amnesty Committee because previously they turned him down. And he's not through yet with his applications.
Next time we hear his third application, his fourth and his fifth, surely he's going to exhaust members of the Amnesty Committee. Who is going to hear the balance of these matters in the end, after everyone of us have been asked to excuse themselves because they would have heard his applications one after the other.
Now it's an over-simplification of the problem. The solution may well be that when a person brings applications in instalments, we should reserve judgement until we have heard all his applications to avoid that kind of scenario. Particularly if it is obvious that he has got a lot more applications to bring because the problem that I've explained to you may arise and force us to withhold the Judgement. I'm not necessarily saying that that is going to be the case but I'm just pointing out what in fact has already happened.
MR ARENDSE: Mr Chairman, just to comment on that. I understand and I appreciate the Committee's difficulty I'd also appreciate it if this - I think it's for the first time that this kind of explanation which sounds to me like a rational explanation is given in public. I would appreciate it if the organisations involved and the applicants could be told perhaps in writing that this is the reason why there is such a delay. Because I think there are some of them, and I think Mr Molefu for example, is one such person and Tanda, well Mr Molefu certainly, they've only got this one application before you. Do they also have to wait? Those kinds of things - or perhaps have a meeting to explain the situation but we know for example Coetzee I think, he had the one Xenge and he's - I'm not trying to exaggerate but like tens, hundreds of other applications.
CHAIRPERSON: And maybe he's going to ask all of us to recuse ourselves you know. But we have noted your point but I just wanted you to understand also that there are many other factors involved, it's not such a simple matter but we've noted your point. We will then reserve our judgment, thanks.