MR SHANE IN ARGUMENT: Mr Chairman, learned Committee, Mr Chairman, you asked the question yesterday how did the applicant Jimmy Mkhonto expect to take on these white policemen without something happening to him, as you asked Mr Chairman, without getting shot.
Mr Chairman, it is extremely significant to consider that the applicant was in fact shot in this incident. When he took ...
CHAIRPERSON: Mr Shane, I did not ask that question. I asked the question, how does his activities on both his versions, fall within the scope of the Act which requires that whatever he did, had to have a political motive.
MR SHANE: That is what I am getting to Mr Chairman, that is what I am getting to. Well, it is important in this context Mr Chairman, the fact that he didn't get killed, is purely luck on his part, and we don't know how many bullets were fired at him, but what you must consider Mr Chairman, is that the question is when did the applicant get shot? Was it as a result of him shooting at the white policemen or was he shot before he shot at the white policemen?
ADV GCABASHE: Mr Shane, why would you ask that question? Are you trying to prove self defence?
MR SHANE: No, I want to show that in all probability, if he was shot, if he shot at the policemen first, and he was shot as retaliation, which I submit must have been the situation, in other words, he first shot at the white policemen, and as a result of that, he was shot.
ADV GCABASHE: Mr Shane, I must interrupt you here, we can't assume that that was the situation, we've got evidence, we have his testimony as to what happened.
MR SHANE: That is correct and on his testimony it is not clear that he shot, this is the crucial question, the crucial question is this, as to whether he was acting in self defence or not, I am trying to show that he wasn't acting in self defence, that he was not acting in self defence. As he says, he shot at - his testimony Mr Chairman, is clear, he says he shot at these white policemen.
Obviously they were at war, and he wanted to get their weapons.
CHAIRPERSON: That is one of his later suggestions.
MR SHANE: His later suggestion, look his application as such, the way his application form was filled in, clearly shows self defence, in terms of what is written in his application form before you.
CHAIRPERSON: And he confirms it under oath for most of his testimony?
MR SHANE: He was also, he was defending himself, but I am submitting with respect Mr Chairman, that he was shot after or rather, he was shot in retaliation. He was shot in the leg and that shooting was in retaliation.
CHAIRPERSON: Maybe I can help you Mr Shane. Who would you say in that scenario, was the first to be aggressive? We are talking about the firing of the first shot. Whose activities was the aggressive?
MR SHANE: Well Mr Chairman, I would say that ...
CHAIRPERSON: I am not asking what you are saying, I am asking what your client said.
MR SHANE: He says he was running away from the police.
CHAIRPERSON: So the police were the aggressor?
MR SHANE: The police, according to what he says, he was running away from them.
CHAIRPERSON: Which means that the police were the initial aggressive force?
MR SHANE: Correct.
CHAIRPERSON: He says, he turned around in order to either facilitate his escape or to defend himself, which amounts to almost the same thing, he shot at them. Isn't that what he says in his application, his written application and for most of his testimony?
MR SHANE: That is what he says in his written application, and he says that in his testimony, but there is nothing in his testimony that suggests that anything is done by the police, to him.
In other words, he had that fear and he ran away and he turned around and he shot.
CHAIRPERSON: What do you think they were running after him, practising for the olympics or the Commonwealth Games?
MR SHANE: Well Mr Chairman, there is evidence in previous application, that what the police would do for instance, if they didn't shoot members of the SDU, what the police would often do, they would take them to hostels and let them be dealt with by members of the IFP.
CHAIRPERSON: Precisely, he was worried about that.
MR SHANE: Right, he was worried about that, but I submit with the greatest respect, there was no shooting of him, there was no active attack of him, and he shot, and then the shots came afterwards. And then you have to look at the police actions afterwards. What did they do after they shot him? They didn't kill him, they didn't take him to a hostel to be dealt with, they took him to hospital.
This was, the police didn't do the normal thing that they were doing at the time, with him. The police didn't do to him, what they had done to many others, and I submit that is also significant Mr Chairman.
It might have not been clear that he was in fact, that an act of self defence would succeed or he might not even ...
CHAIRPERSON: You know Mr Shane, I just want to point, one of us is lost, it is not me. I want to point out to you that the activities of the police, is not the issue here. The issue here is, why did your applicant or you client do what he did.
MR SHANE: Right. Mr Chairman, he says he did what he did and he says in his words, he wanted to get weapons from the police, who were the enemy, from these white policemen.
CHAIRPERSON: And you are going to rely on that small bit of evidence?
MR SHANE: Mr Chairman, I would also ask you, the fact that in his application form, it is clear in his application form, he is relying on self defence.
CHAIRPERSON: And I must ignore that? We must ignore that?
MR SHANE: No, I am not telling you to ignore that, but I am asking you to consider the following as far as his application form is concerned.
CHAIRPERSON: Mr Shane, you are not here to plead for your client, you are here in argument, to assist us come to a proper and correct decision.
MR SHANE: Mr Chairman, it seems that - I am trying to do that Mr Chairman, when I refer to his application, I am asking you to take the following into consideration and that you have heard, it has emerged in these hearings about the unsatisfactory manner in which these statements were obtained on the last day.
We don't know if it was properly translated, we do know that the statements were written by a certain party and that is something that one should also consider.
CHAIRPERSON: Let us assume that we agree with you and we ignore the written application. Which one of his versions, must we accept? Both were given under oath.
Can we believe him on either version?
MR SHANE: Well Mr Chairman, I submit that it is not 100 percent, it is, there are problems and it is ambiguous his testimony, but I submit that ...
CHAIRPERSON: It is not ambiguous Mr Shane, it is contradictory.
MR SHANE: Well, Mr Chairman, I submit there are contradictions, but he says and you can't just disregard it, he wanted to shoot these police to get these weapons. That was a very foolish thing to do, it was dangerous for him, because he got shot in the process.
CHAIRPERSON: But doesn't that weigh against him, the improbabilities of him succeeding in shooting the police in order to get their weapons? Aside from the improbabilities of that, you have this other bit of evidence that forms a major portion of his testimony, where he says well, I actually shot to protect myself. In the face of that, what do you suggest we believe?
MR SHANE: Mr Chairman, it depends on how strong the onus is, where the onus rests.
CHAIRPERSON: For your information then if you don't know about the onus, all that the applicant must do is satisfy us that he has complied with the Act. It is even in my view, less than the onus, civil onus.
MR SHANE: If that is the case then Mr Chairman, he says he tried to ...
CHAIRPERSON: But we are also not here to do favours.
MR SHANE: No, I accept that. In exercising your discretion as to whether he has satisfied the requirements of Section 20, Mr Chairman, if the onus is not as strong as the civil onus, if he says that he tried to shoot the white policemen in this vehicle, to get their weapons, he also says at the same time he was trying to protect himself, which he does say, it doesn't mean that the fact that he tried to shoot these police for their weapons, must be rejected out of hand, with the greatest respect sir.
He could have been doing both at the same time, trying to protect himself with that also in mind. It is stupid ...
CHAIRPERSON: Are you serious?
MR SHANE: Well Mr Chairman, the fact of the matter is this, he got shot in the process. Maybe he could have had it in his mind, he wanted to do a heroic thing for which he could die possibly.
CHAIRPERSON: It is not for you or us to speculate what he had in his mind, we are stuck with what he had testified. I am asking you one last time, can we believe him, and if you say we must believe him, on what basis must we choose a particular version which is self destructive?
MR SHANE: Well Mr Chairman, I would submit that if you take into account, the unsatisfactory way in which his initial statement went, the fact that he says he was trying to defend himself, unfortunately is destructive for him, I must concede that Mr Chairman.
The other aspects which I suppose you will find not relevant to this, which I thought should be mentioned and which should be considered, is also the fact that of all the applicants who were pursued, of all the applicants who were before you, I think there are about 40, it is significant that only three were actually pursued by the justice system.
In this particular one, he was pursued for attempted murder. There have been far more gruesome accounts of murder before you, none of those ever went through the justice system.
CHAIRPERSON: So what has that got to do with ...
MR SHANE: No, I am just mentioning it Mr Chairman.
CHAIRPERSON: Mr Shane, I need to write notes, I don't plan to write unnecessary things.
MR SHANE: Well Mr Chairman, as far as his actions are concerned, I cannot take it further than what I have tried to put to you, that he wasn't acting in self defence when he shot those white policemen. You've got to take into account that there were other policemen as well. There were black policemen who he didn't shoot either, who were there.
CHAIRPERSON: Okay. Yes, that may count against him, but anyway.
Now tell me, has he made full disclosure?
MR SHANE: Well Mr Chairman, he has said everything that he can say. He has not hidden any facts. There are certain things that may have been misunderstood, but I submit he said what he could say. I don't believe he is wilfully ...
CHAIRPERSON: I don't know if you are going to agree with me and my suggestion that in the circumstances that he described, he could not have been acting in self defence and aggressively trying to get the firearms off the police at the same time?
Now, if we should find that, do you still say that he has made full disclosure?
MR SHANE: Well Mr Chairman, he couldn't have acted aggressively and in self defence at the same time, that is quite clear.
CHAIRPERSON: You agree with that?
MR SHANE: I agree with that.
CHAIRPERSON: Now has he then complied with the second leg of the requirements, did he then make full disclosure to us?
MR SHANE: Well, all I could say Mr Chairman is, when he testified he believed he was disclosing everything. He believed he was saying everything.
CHAIRPERSON: Well, he has contradicted himself in a material aspect, on the material aspect?
MR SHANE: Well Mr Chairman, if contradiction means that you cannot make full disclosure if you are contradicting yourself, then if that is the case, then he hasn't made full disclosure.
CHAIRPERSON: Well, would you like to argue the point that it could be or do you concede that it can't be full disclosure?
MR SHANE: Well Mr Chairman, it could be a mistake. If mistake is - if you make a mistake, then you are not giving full disclosure, Mr Chairman, what I understand is full disclosure is knowingly withholding facts, information, from you.
CHAIRPERSON: No, it is not restricted to that. It is when you give two different stories, one of which is false. That is also not making full disclosure, you are not telling the truth.
MR SHANE: I would submit Mr Chairman, that he is not being dishonest. He could be mistaken and I would submit it is more mistake than dishonesty.
CHAIRPERSON: Okay.
MR SHANE: I would say that the lack of full disclosure would have a hint, at least a hint of dishonesty if you are not going to give full disclosure, you would do so knowingly withholding something.
CHAIRPERSON: One last question, I don't know if you can answer it. Is there any significance in the fact that he changed his version after one of the many breaks that we had?
MR SHANE: Absolutely no significance Mr Chairman, I didn't pick up a big change in his version.
CHAIRPERSON: Do you have any questions?
ADV GCABASHE: I just, I am not too sure about this mistake you mentioned. He was mistaken about what Mr Shane?
MR SHANE: Madam, the crucial, the time factor is this, when he says he was acting in self defence, he also says he was, he had aggression, he had the intention to shoot the police to get their weapons. There are these two contradictory versions, but I submit that maybe the contradictions can be dealt with if you look at the time factor, at the time he was acting in self defence and also at the time, he had this aggression.
Now if for instance, obviously not at the same time, he could have in that action, that action could have taken minutes, it could have taken maybe five minutes, we don't know, but let's assume this action that he was involved in, took five minutes for argument sake. Maybe at the beginning when he acted, he acted with the aggression and when there was no threat on him, and it wasn't self defence, and later in that action, he acted in self defence, because he says he acted in self defence.
I am saying that by him saying that he acted in self defence, he is saying he did both. He acted in self defence and with aggression. They are contradictory if they happened at the same time, but if they didn't happen at the same time, then they are not necessarily contradictory, with respect.
CHAIRPERSON: Mr Shane, just to follow up there, I don't know if you recall your client's evidence. He was retreating, running away when he shot. It is strange for you to run away and shooting, from the very things that you want to obtain? How does that work?
MR SHANE: I can't answer that Mr Chairman, that I must concede, I cannot answer that. That is why I said madam, there could be a mistake on his part on that.
CHAIRPERSON: But we asked you what is the mistake, what is the mistake?
MR SHANE: As you say, it is speculation, it is pure speculation on my part. He says he was running away, but he also says and all I am saying is, you shouldn't loose sight of the fact that he says he was trying to defend himself. It is a contradiction as you said. I can't take it further.
MR SIBANYONI: Just one aspect Mr Shane, if we look at the version of shooting to take the weapons from the police, is there any evidence before the Committee as to when such a decision was made, when did he decide to shoot the police and obtain weapons?
MR SHANE: As far as I recall sir, he did say that when he saw them, he made that decision. That was the gist of his testimony. When he became aware of these police, that is when he decided he wants to get their weapons.
I think that is what came from the applicant.
MR SIBANYONI: Was it not at the stage when he was already retreating?
ADV GCABASHE: That is my recollection as well Mr Shane, not your version.
MR SHANE: If that is the case, then he decided to attack as these problems, as pointed out by the Chairman, he decided to attack when he retreated, that is the problem that he faces because if he decided to attack, the question is why was he running away?
That obviously becomes significant.
MR SIBANYONI: That is all Mr Chairperson.
MR SHANE: I don't know if Mr Steenkamp is going to address you or if I am excused.
CHAIRPERSON: No, you are excused.
MR SIBEKO IN ARGUMENT: Thank you Mr Chairman, Mr Chairman, the applicant Mr Madlala gave testimony about the plan that they had firstly to rob a motor vehicle. The said motor vehicle as part of the plan, was to be a vehicle belonging to a company, not a private citizen.
The said vehicle had to be robbed for the sole purpose of transporting arms from Duduza to Tokoza, where the said arms were to be used in the defence of the community.
It is common knowledge that the Self Defence Units used every method of acquiring arms to be used in such actions. In this particular instance, his evidence was that the arms were bought from one Zidtu at Duduza squatter camp.
The said vehicle that was robbed, was robbed at the industrial sites in Alrode, which I submit Mr Chairman, is one of the economic strongholds in the East Rand, where the government derives its income.
Mr Chairman, I would submit that the said robbery in itself, was politically motivated firstly because had it not been for the fact that a targeted vehicle should be a company vehicle, then it would loose - the political motive would loose its meaning. It had to be a company vehicle so that the government should also feel by the cries from the industries, about the crime.
The industries which are taxpayers, the said taxes which were used in sponsoring the State's violence. Mr Chairman, intertwined to this motive, as I have already stated, the purpose was to fetch arms and it is also common cause that there was violence already in that township.
Mr Chairman, the applicant further testified that they succeeded after he was instructed or commanded by his Commander to rob the vehicle which happened to be a bakkie, and which I submit Mr Chairman, was identifiable as a company vehicle. Although a question was asked, whether wouldn't it have made sense if it was a sedan rather than a bakkie, to transport arms. I would submit Mr Chairman, that what was a plan, was to get the vehicle to transport arms.
As to whether it could be a bakkie, a kombi or a sedan, it was not of much importance. All that was important was a motor vehicle.
CHAIRPERSON: Why would it not be important? They are transporting illegal arms which was a contravention of the law at the time? That must have ranked as one of the top priorities of the Police Force at the time?
They want to transport these weapons in the back of a bakkie, of course he did say they put the weapons in the front. That may be so, but wouldn't it be safer to have hijacked an ordinary sedan? Does the fact that they didn't, not cast a bit of doubt as to actually why the van was hijacked?
MR SIBEKO: Mr Chairman, I would concede that a sedan most obviously would have been much more safer and easier to use to transport the said illegal arms. Having said that Mr Chairman, I would state, I would submit that applicant testified that the mission was they had to transport these arms at whatever cost.
Mr Chairman, as I have already conceded that it would have been safe to have used the sedan, the instruction that was given by the Commander was clear and bold enough, even if the police had to stop them, at the end of the day they had to do something so that they succeeded in transporting these arms.
So Mr Chairman, I would submit that although the sedan could have been much more safer, or convenient for this purpose, the applicant testified that all that they needed is a transport.
ADV GCABASHE: You see Mr Sibeko, I have the same difficulty that the Chairman has. I understood the testimony to be that the priority was not to make a political statement about companies and people who owned companies, complaining to the government about crime. The priority was to get the firearms.
Why they would then go and get a, hijack a company motor vehicle, that they are going to use at night, a vehicle that is being sought for, and it is probably a marked car, a car that is obviously not a car that would be running around at night, in Tokoza or at any other area for that matter, why they would use that particular vehicle as the best vehicle to transport a rather important package, is something that I still do not understand.
He was asked about the bakkie as opposed to a sedan, as has been indicated, and the answers were difficult to fathom, they were really unsatisfactorily.
At the end of the day your argument that there was some political statement they were making, vis-a-vis crime and companies and complaints, is also rather difficult to understand, I must say, in the circumstances as set out for us by the applicant.
MR SIBEKO: I would submit that as it has been correctly pointed out, the evidence that we have before us, is that they targeted the bakkie and although questions were asked, not a single satisfactory answer came forth.
I therefore submit that the plan was initiated and put into action, on the same day, that is on the morning, at a later stage, when the said vehicle was to be used. I wouldn't argue and say the plan was properly thought or there were some flaws in it, but I would submit that in the mind of the applicant, and his comrades, what they thought to be important for them, was to get a vehicle, which vehicle they did get.
CHAIRPERSON: What time of day did they collect these firearms?
MR SIBEKO: Mr Chairman, the firearms were collected in the afternoon.
CHAIRPERSON: Remember that is the evidence, yet, I don't know the area, maybe you can help me. From Dawn Park to I think it was Duduza where they collected the firearms, how long would one drive in that bakkie?
MR SIBEKO: Mr Chairman, it could be 20 to 30 minutes' drive, driving at a ...
CHAIRPERSON: At a reasonable speed? Just keep your finger on that button please. They were arrested around half past seven that night? How do you explain that then?
They say, or your client says that on their way from collecting these firearms, they came across a roadblock, these firearms, they came across a roadblock which required them to turn around and enter Dawn Park and go park under a lamp post. I thought that was at night but when my colleague asked about it and it became clear from your client's evidence that no, the lamp post was not a significant issue because it all happened in the afternoon? Now this gentleman who died in the whole arrest scene, that occurrence occurred about half past seven at night. How do you gel the two? Are we really being told the truth?
MR SIBEKO: Mr Chairman, I would submit that what has been testified by the applicant is the truth. Firstly because having to travel to Duduza, although we don't have evidence as to how long did it take them to exchange the firearms, that is from Zinde to them, how long did it take them to conclude the deal and driving back, but having to be disturbed by the road block and having to turn back, drive to Dawn Park. Mr Chairman, he further testified that they arrived in Dawn Park where they parked the car and got into discussions as to what was to be done thereafter.
It is possible Mr Chairman that during their discussions or during the period when they were strategising, the victims arrived and the shooting started. It's possible Mr Chairman that if the arms were fetched in the afternoon, that is travelling to Duduza and coming back and having to turn back into Dawn Park and park these cars, it's possible Mr Chairman that at the time the incident where the late Mr Thompson died could be the time that is reflected in the records that we have.
CHAIRPERSON: Mr Sibeko, maybe you can help us. There's a bit of discrepancy about when the firearms were actually fetched. My recollection is that he did testify that it was in the afternoon and that the parking under the lamp post was insignificant because the light was not on because I think he was asked by my colleague that if you're on this operation, why go park under a light which is, well, it wasn't as if he wanted to be seen, it was in the afternoon. Am I correct in my recollection?
MR SIBEKO: Mr Chairman, yes the question was asked but as I submit Mr Chairman, the time frame between the fetching of the firearms and the parking it's between the afternoon towards the evening even if ...(intervention)
CHAIRPERSON: Why do I get a feeling that 3 o'clock or so was mentioned?
MR SIBEKO: Mr Chairman with due respect I don't have that in my records, I don't have that in my notes. No specific time was mentioned.
CHAIRPERSON: Okay. But he did say that at the time they were there parked the lights were not on because it was still light. Now October/November in Gauteng, wouldn't the lights be on at half past 7?
MR SIBEKO: Mr Chairman, in my knowledge in most suburbs the street lamps are on at about 6 o'clock.
CHAIRPERSON: Ja. Okay.
MR SIBEKO: Be that as it may Mr Chairman, to the applicant and his comrades I would request this forum to view or to approach the whole scenario from this point that an agreement or in fact an order was made that at whatever cost be it the fact that they could have been observed, they could have been seen, to them was not much of a disturbance because at whatever cost they had to take these arms.
Mr Chairman, it is clear that if the instruction or the order says at whatever cost, if it means killing, then exchange of fire would occur as it has occurred in this particular incident.
CHAIRPERSON: You see I have a difficulty with that timespan because if it was essential to collect and transport these weapons and get it to a safe place, one wonders then why they didn't take another route to their destination instead of park at this lamp post and not take precautions and see to it that they got these firearms to a safe place. It doesn't ring true that they had the luxury of parking under this lamp post and discussing and doing all sorts of other things when they were in possession of all these firearms in a stolen vehicle nogal which was marked I suppose. If it was a furniture business, a certain name of the furnitures would have been on there. The hijacking must have been reported by then I assume and the police would be out looking for it or at least aware that that bakkie if they see it is recorded as being a stolen bakkie. Now all those kinds of factors will give me singular problems and looked at it globally one must really really start to ask questions and that's why I've asked you to argue those issues. It's really difficult to assume that whatever happened, especially the killing, could have been done with a political motive when you have all these niggling problems attached to their version. Do you follow what I'm saying?
MR SIBEKO: I follow Mr Chairman.
CHAIRPERSON: And if you can I'd really like you to - I'll appreciate if you can deal with those aspects in an attempt to persuade us that it could fall under the ambit of the Act because there are other options, not options, possibilities as to why these things occurred which are non-political and we are duty bound to consider all aspects.
MR SIBEKO: In an attempt to try to be of assistance Mr Chairman, I would start by saying the route from - in fact the entrance points into Thokoza from the direction of Duduza, it's my submission Mr Chairman, the easiest is through Vosloorus. Firstly because Vosloorus happens to be a township, from Vosloorus you go through to Kathlehong, from Kathlehong you go into Thokoza. Other routes from the direction of Duduza to Thokoza will take you through either at Wadeville, Germiston or Alberton where it is clear that more often than not you'll encounter policemen.
Following thereon Mr Chairman, I'll further submit the nearest suburb from Vosloorus to any direction that is away from Vosloorus is Dawn Park. Other than ...(intervention)
CHAIRPERSON: Could they get to their destination through Dawn Park then?
MR SIBEKO: Mr Chairman, there is no route from Dawn Park directly into Thokoza except where you use Dawn Park, the back roads into Kathlehong, from Kathlehong ...(intervention)
CHAIRPERSON: Why wouldn't that have been an option to them?
MR SIBEKO: Mr Chairman, the evidence that we have is that they had to stop and see, that is and discuss whether in the event this is not the only roadblock but should we meet any other roadblock on the way, what is to be done? That is the evidence that we have amongst other things that was discussed.
CHAIRPERSON: You see, the other issue that worries me is that clearly the order was that should we encounter any hurdle we're going to fight it out. Now the roadblock was a hurdle. Turn around, go to Dawn Park. Essentially you say to discuss alternative routes. Of course the routes through Germiston and all those established towns are out of the question because of the prospects of meeting policemen. From what you tell me they had only had one other option then, go through Dawn Park through to Thokoza and then come to Vosloosrus through that route. One must then question why that didn't happen and it follows then that certain other questions must be asked as to what real motive they had in this whole operation. A stolen bakkie, one would have expect them to do their job as quick as possible and get rid of the bakkie. They decide to park under a lamp post. There's four hours, more or less four hours or let's say 5 o'clock they collected, two hours to account for between them collecting the arms and the arrest. It doesn't make sense. One must then also question whether we are being told the truth, whether those arms which if we accept and find were collected, were they really being collected for the purpose of self defence units or for some other reason? Do you follow what I'm getting at?
MR SIBEKO: I follow Mr Chairman.
CHAIRPERSON: Now those are the types of problems we face.
MR SIBEKO: Mr Chairman, I would submit that the vehicle was robbed the same day. The operation was carried out on the very same day. Had the mission been successful, that is the delivery of the arms at Thokoza, we would have said the mission was accomplished and as to what would have happened with the bakkie thereafter, it would always remain a speculation because what we have right now doesn't complete the full picture.
Mr Chairman, I would submit that the version of the applicant having to drive into Dawn Park, although the instruction or the order was clear that we, if needs be, we'll fight out way through and they meet the roadblock, Mr Chairman, I would submit that it is possible that the way they found the roadblock might have been problematic in such a way that in view of their number, they were four, they were in a bakkie and one would have a picture of a massive roadblock into a township where the said township neighbours, a township in turmoil. It could be expected Mr Chairman that the numbers of the officials or of the officers who are manning that roadblock could have been large in view of the fact that it is expected that arms were shipped into the township or were transported into the said township which is in turmoil.
Now at the end of the day Mr Chairman it is quite possible that although the order is there, that we've got to fight our way through, it doesn't necessarily mean we've got to submit to our death or to our arrest blindly, knowing very well that this would be impossible to overcome.
I would submit Mr Chairman that it is quite possible that going back to the drawing boards, going back to stragegise is quite probable under the circumstances. Mr Chairman, I would understand that there are incidental offences or incidental matters that occurred during this incident, that is the housebreaking which was said to have occurred in or around the area of Dawn Park. With your permission Mr Chairman, I would quickly try and explain that these are the incident that you are talking about right now, that is to say the applicant doesn't deny that housebreaking might have occurred. What he is saying that he was never involved. What he is saying, he and his comrades were never involved in the break in but all what they did was to transport arms from Duduza.
Mr Chairman, ...(intervention)
CHAIRPERSON: That may be so and I can understand the trend you're following and I must say it is not a far fetched theory. The problem with that is then how do you explain the time gap?
MR LEOPENG: The time within which this occurred?
CHAIRPERSON: Well 30 - let's say 45 minutes to travel from where they collected the firearms to Dawn Park. Even 5 o'clock maybe, traffic etcetera. This incident their arrest occurs in the vicinity of 7.30. It raises certain issues even on your sketching of what could have happened and a fortuitous presence of your client and his colleagues, not having anything to do with a break in. How does one explain that time lapse?
MR SIBEKO: Mr Chairman, the understanding that I got from the applicants' testimony was that when they parked their vehicle or the stolen or robbed vehicle, discussed, this Sierra approached and by that time in fact it is now common knowledge that the certain vehicle that is there, the Sierra, were not the police. The incident occurred, that is the shoot out occurred between the occupants of the Sierra and the applicant and his comrades which was thereafter followed by the arrival of the police. Mr Chairman, the testimony of the applicant is when he got an opportunity to take over Vusi's firearm, he fired whilst he was running. Further his testimony is as a result of being shot he lost consciousness. Mr Chairman, what we have is the version of the arresting officers and the version of the complainants or the witnesses to the safe break in. Unfortunately we don't have that part of the applicant's version. Why? Because he lost consciousness. He could have been - it could be true that the arresting time of the applicant is true but at the same time it could also happen that it's not true. Why, because we have one untested version of the witnesses and the arresting officers.
CHAIRPERSON: Tell me one last aspect. Should the orders or the motives as a result of which your client acted had had been false and not political, but yet your client believes it was politically motivated, what would be his position?
MR SIBEKO: Can you come again Mr Chairman?
CHAIRPERSON: Let's assume he got orders to do this, that and the other for political reasons and we find out that was not true actually, but your client actually believed it, but in reality there was no political motive, what would be your client's position?
MR SIBEKO: The applicants, client's vise vis this application?
CHAIRPERSON: Ja, if we in reality discover there was no political motive for collection of firearms and whatever happened thereafter?
MR SIBEKO: Mr Chairman, I submit that if that could be found then the necessary steps to discipline or to punish the applicant have to be followed because ...(intervention)
CHAIRPERSON: Well he has been punished, isn't it?
MR SIBEKO: Mr Chairman, he has been punished for the offences but what I'm trying to say here is for having brought such an application here knowing very well that it's ...(intervention)
CHAIRPERSON: No, I'm saying he doesn't know himself or he was lied to, he honestly believed it was for political reasons.
MR SIBEKO: Oh, okay.
CHAIRPERSON: But we discovered in reality that there were no such political motives for collecting firearms yet he believed that, what would be his position?
MR SIBEKO: Mr Chairman, I would submit that his position would still be the same. Why, because my understanding, it's my submission Mr Chairman, my understanding of the conflict situation, my understanding of the chain of command, my understanding of the structures of the defence structures in the township. In most cases it even happens in the formal structures of defence that when the commander issues instructions or orders, you don't really question those commands or instructions, you simply carry those commands or instructions out. Should it happen that those instructions or commands are not proper, then the relevant superior authorities, in the formal structures of course, follow the matter up. In this particular instance Mr Chairman, I would submit that this was not a formal structure, this was not a properly run defence structure or defence unit. The applicant shouldn't be made to suffer because of the intentions or the aims of those whom he took as his commanders or his superiors.
CHAIRPERSON: Yes thank you.
MR SIBEKO: Mr Chairman, I only hope that this covers everything, including the statement.
CHAIRPERSON: Well, you argued on the issues that bothered us.
MR SIBEKO: Thank you Mr Chairman.
CHAIRPERSON: Ja, what about the escape from custody, I forgot about that one?
MR SIBEKO: Mr Chairman, I would submit again that the applicant believed in the war that he was fighting. Mr Chairman, about the escape, the attempted escape occurred after he was ...(intervention)
CHAIRPERSON: In custody.
MR SIBEKO: In custody.
CHAIRPERSON: He had to be, it couldn't happen any other way.
MR SIBEKO: Right Mr Chairman.
CHAIRPERSON: I'm asking what date?
MR SIBEKO: Mr Chairman, I'll have to refer to my ...(intervention)
CHAIRPERSON: You see because there's the question also of making application for an offence that occurred before a particular date?
MR SIBEKO: Yes, correct so Mr Chairman.
CHAIRPERSON: I think it's the 12th or 14th December 1994?
MR SIBEKO: When he attempted to escape?
CHAIRPERSON: No. He could only get amnesty for offences that occurred on or before that date.
MR SIBEKO: Okay Mr Chairman.
CHAIRPERSON: I've been trying to check, I can't find ...(intervention)
MR SIBEKO: Mr Chairman, I've just been advised by my colleague that this occurred after that, but Mr Chairman ...(intervention)
CHAIRPERSON: Well that's the end of the matter, isn't it?
MR SIBEKO: As part of my submission Mr Chairman, with your permission of course?
CHAIRPERSON: Well it's pointless making the submission, I can't give him amnesty even if I felt like giving him.
MR SIBEKO: Thank you Mr Chairman.
CHAIRPERSON: Can I accept that you are withdrawing that part of the application? It doesn't fall within the Act.
MR SIBEKO: That's correct so, Mr Chairman.
CHAIRPERSON: Okay, good. Thank you Sir.
CHAIRPERSON: Yes Ms Nhlayisi?
MS NHLAYISI IN ARGUMENT: Thank you Mr Chairman. Mr Chairman, the applicant's applied for amnesty for attempted murder on one Mr Kerso, but I would wish to start by saying there were two incidents of shooting on this particular day. The first one occured when the applicant and his friend met with the vigilantes and they were threatened with spears and then he ran away and then he shot and your - Mr Chairman, on that incident, the applicant has not brought any application for the reason that it was a clear act of self defence on that score.
Then after he has shot when he was threatened with spears by the vigilantes, these people who were threatening them then scattered and started to run into different directions. That's when the applicant and his friend decided to pursue some of the group that's run into the school and Mr Chairperson, it is my submission that at that stage it was no longer an act of self defence because these people were now running away from him because they've realised that he had a firearm. He pursued them, according to his evidence, with an intention to capture them because he regarded them as enemy because in his mind he believed that they belonged to the IFP and that's when the second shooting occurred inside the school premises when he met with two people whom he believed were part of the group that he was chasing but he later discovered that ...(intervention)
CHAIRPERSON: Could he have believed that? He couldn't see, he couldn't identify them?
MS NHLAYISI: Yes he couldn't identify them but his evidence is that at the time when this incident happened there was nobody at the school. According to him the school was in recess if I remember well, therefore he didn't expect that there was somebody in the school premises. He had earlier seen these people he was chasing, running into the school, therefore he believed that these people walking in the school grounds were part of the group that's running to the school ground. I wish to concede that he might have been negligent at that stage without identifying these people, to assume that these were part of the group but in this mind, as this thing was happening, he really believed that these were the people that he was chasing and that's when the second shot was fired.
CHAIRPERSON: In our considerations must we adopt the attitude that we must look at the applicant's morality in his actions or must we look at the factual situation? Because if we look at his morals and the morality of his actions then maybe you are correct, that he thought that these were IFP members in the circumstances and then he wanted to do certain things. The factual situation is that they were not, he concedes that. What is our duty?
MS NHLAYISI: Mr Chairman, my submission here would be that the test here should be subjective in that what the applicant believed at that stage. He only discovered at a later stage that he has mistook these people to be those that ran into the school. We look at the situation and the circumstances that prevailed at that time. Firstly like I have said that he knew the school was in recess at that time when this thing happened, he didn't expect that anybody was in the school premises and here he was chasing people who ran into the school yard. Taking those circumstances into account he was ...(intervention)
CHAIRPERSON: I understand that. If we must adopt a moral approach then I think you are correct when you say we must look at it subjectively. I'm asking would we be correct in doing so?
MS NHLAYISI: I submit Mr Chairman you'd be correct in doing so because he believed that was the position.
CHAIRPERSON: On that score can I picture the following circumstances to you? If the then Security Police wanted to kill somebody, they arrested the wrong person, that what they wanted to do and kill that person, believing it to be the person they wanted initially and they came to ask for amnesty on the basis that they thought they killed the wrong person but concede then - on the basis that they thought they could kill the correct person and they concede that they made a mistake, would they be entitled to amnesty?
MS NHLAYISI: I believe so, Mr Chairman. I believe the test would - what was going on in their mind at the time of the happening of the situation that you're illustrating, the bona fide of their actions at that stage, they believed that they had the correct person or else it was not the case.
CHAIRPERSON: You see, I asked the question as a guide, Section 20, sub-section 3. I'll read it to you, sub-paragraph E
"One of the guiding points is whether the act, ommission or offence was committed in the execution of an order of or on behalf of or with the approval of the organisation, institution, liberation movement or body of which the person who committed the act was a member or agent or supporter."
Now assuming that the battles occurred between the ANC and it's allies on the one hand and the IFP and it's associates on the other. The applicant here was at least an ally of the African National Congress and let's assume further that the African National Congress approved of these battles as against IFP elements. Would such a person have had the approval or tacit approval to kill a person that was not a member of the opposition or associated with the opposition?
Similarly, would my example of the Security Police, that such orders to policemen would be directed against opposition parties or opposition people to apartheid. If they did in fact kill the person on the mistaken belief that he was such a person but such a person was not an opponent of apartheid, can we infer approval?
MS NHLAYISI: Mr Chairman, I would stick to my earlier submission that yes, we can. With exception on this particular incident that we're talking about, the one where Mr Nswene was involved, I would say definitely yes. With exception of course, depending on what were the circumstances prevailing. With Mr Nswene's incident, this incident was not preplanned, it was something that just occurred and he had to react to it and then it was followed by him pursuing these people without having a chance maybe to investigate further whether this particular person was or was not a member of the IFP. The order, I would say, it can be inferred that it covers even this particular incident because it was generally known that there were fights between IFP and ANC and in meetings it was adopted that if you meet an IFP member then you've got to deal with him in a certain way. It is my submission that an order in this instance was inferred though at a later stage it was discovered that this particular person that he shot at was not an IFP member.
CHAIRPERSON: Does his negligence in not establishing the identity of that person not taint his position?
MS NHLAYISI: Again Mr Chairman I would like the Committee to look at the circumstances prevailing at that stage. Did he have an opportunity to, can establish the identity of that person because it was in a fight situation. I would request the Committee to take that as a guideline that ...(intervention)
CHAIRPERSON: Shouldn't he have refrained from shooting if he did not know?
MS NHLAYISI: Mr Chairman, the danger here would have been if those people were really IFP members they would have attacked them. The applicant and his friend would have been attacked so to ...(intervention)
CHAIRPERSON: That was not his intention, not so? His intention was not to defend himself or to avoid a possible attack, his intention was to arrest them and take them somewhere for questioning etcetera, that's what you submit.
MS NHLAYISI: That's his evidence.
CHAIRPERSON: Ja.
MS NHLAYISI: When this issue was taken further with him in evidence, I cannot remember who of the members of the panel asked the question, he was asked why was it necessary to shoot at them first. Amongst what he said, he said
"I knew if I shoot first, they would not be in a position to shoot us."
That's what he said again in his evidence.
CHAIRPERSON: You see at best for him is that he shot at those people in an attempt to arrest IFP members. Had he shot at them to prevent them attacking, that would amount to self defence?
MS NHLAYISI: That is correct.
CHAIRPERSON: So let's stick to the version that he initially gave that "look, I shot them because I wanted to arrest them" which will be bound or covered by the political motive aspect. I'm saying his negligence at best for him to establish who he was shooting at, does that not taint his case?
MS NHLAYISI: In determining whether he was negligent or not, I request the Committee to take into account the circumstances that prevailed at the time when this incident occured in that there was no opportunity to can establish at that stage as to whether these people that he was seeing before him were or were not IFP members and the situation was such that there was a fight, it was not possible for him to make such an establishment.
ADV GCABASHE: Ms Nhlayisi, I just want to explore the subjective believe and those surrounding circumstances that you have referred to. Really, those surrounding circumstances as I understood the evidence are as follows.
This incident, the second shooting, occurred at about 2 o'clock in the afternoon, in broad daylight. It's only the applicant who was armed, his friend was not armed. They were not pursuing these particular persons in the sense that they were in hot pursuit but they had decided to come back to the school because they had realised that these chaps had run into the school, some of them had run into the school premises and as it was fairly contemporaneous but it was not a hot pursuit. As they approached the school yard, these two persons emerged from the school yard essentially. There's no evidence that they were wearing those distinctive red bands that the applicant and his friend had noticed earlier, vis a vis the vigilante group. There is no evidence that they were running in any particular direction. In fact when the translation was, it sounded like they were just walking by, passers by, so they were walking, yet - oh and then the applicant shouts at them to stop, which they do not do, they simply ignore him and he then shoots at them. Now all of this in broad daylight. Now just on the probabilities of him subjectively establishing that these two are persons who are part of that vigilinte group, I have a difficulty there.
My second difficulty arises from again the probabilities. Even if these two had been part of the vigilante group, which is what he believed, his intention is not to kill them, his intention is to arrest them and take them where to, 2 o'clock, broad daylight, brandishing a firearm, frog marching them or making sure they go to a particular place. I mean this the probabilities of that having been the intention and the consquences of his actions being that he was then going to take them to his comrades, the probabilities for me I still have a great difficulty with that. I don't know if you can assist at all in narrowing the probabilities and saying it was quite likely, very likely that indeed all the things that he testified to were subjectively what he believed in. Can you help me with this, having painted my own difficulties for you?
MS NHLAYISI: I will start by referring back to the evidence that he gave. He said when they met with this group some of them were wearing these red head bands and arm bands. Then if he says some of them, it means some were not and in his explanation again he says these two people that he met in the school yard were not dressed formally though he didn't take it further to explain as to how they were dressed. Therefore it is my submission that seeing two people emerging from where those other people disappeared played a role in him thinking that these were part of the group though they were not wearing the same head bands and arm bands that he described were worn by the other members of the vigilante group, but for the reason that they emerged from that same spot where these others have disappeared, to him he thought these are the people who had run into the school and the fact that at some stage he tried to give a verbal warning to say they should stop and they didn't react to act, played a role to an extent that these are the people we were chasing, he's requesting them to stop and they are not complying for whatever reason,. he doesn't know, therefore he resorts to firing a shot towards them to make them stop.
ADV GCABASHE: If I can interrupt you just there, they continue walking, they don't start running away as you would expect those vigilantes to have done, they simply ignore him and continue walking and yet in those circumstances he still assumes that assumes that this must be part of, this is his evidence, these people must be part of that grouping. People are just walking along chatting, probabilities there, that's where my difficulty is and then the last aspect of course being the - what does he then do with them, you know, just again the probabilities, where is he taking them to and how does he does he get them there? He's the only one who is armed?
MS NHLAYISI: If I recall the evidence, it's not clear because it was said in evidence that those people started running and it was after he shot, I distinctly remember that ...(intervention)
CHAIRPERSON: ...(inaudible)
MS NHLAYISI: Thank you for that. I wish to concede on that score that by them walking maybe it would have brought something to his mind that they are not part - but this is not what happened because of the other circumstances that surrounded the happening of this event, he concluded that these were part of the group.
CHAIRPERSON: Can I also raise something else on a similar issue. His evidence said there were a lot of people initially, some with arms bands and some with no arm bands. Some of them ran into the school. What are the probabilities of him shooting at two of the people even if he assumes they were members of that group in an attempt to arrest him. Did he think he was going to be allowed a free route to collect his two or ...(indistinct) colleagues in the school yard?
Surely he could not have thought that? He wouldn't take the chance. It is likely that he may have been arrested and taken to their hold out for similar treatment that he had in mind for them, is that not so?
MS NHLAYISI: That may be the case but Mr Chairman as we do not have any evidence regarding that ...(intervention)
CHAIRPERSON: Well what are the probabilities, what do you say about the probabilities? The probabilities that he shot there in order to arrest them and therefore commit a political act or did he shoot to really defend himself without any intention of making the arrest because it was unlikely that that kind of arrest would be successful and it was unlikely that somebody in the applicant's position would even have thought that he could make a successful arrest in those circumstances. That's what concerns me.
MS NHLAYISI: Mr Chairman, what you're saying, yes it's true but from the evidence it's clear that the applicant didn't think about that that far.
CHAIRPERSON: That's what he says. What are the probabilities? Any human being would have come to that conclusion that this, "I'm in danger here" as if to say he's going to play Tarzan and take on the world? It just doesn't happen any more.
MS NHLAYISI: That's why I'm saying Mr Chairman it's true what you're saying that the probabilities of him arresting these people and taking them to his comrades, if we analyse them now and look at it now we can see and reach a conclusion that his chances of succeeding in arresting them and taking them to his comrades, his chances were very narrow but at the time of the happening of this incident the applicant and his friend believed that they were going to do their turn, that's what they wanted to do and they believed because they thought these other people were not armed with firearms, like he said in his evidence that when he shot and they didn't shoot back he realised that they didn't have any firearms and then he took advantage and he pursued them. He thought because they had a firearm and these people didn't have a firearm and that their chances are greater of capturing them, so probably that's what came to their mind because they were armed with firearms and those other people were not armed with a firearm. Then to his mind, that made their chances greater.
CHAIRPERSON: Why didn't he attempt to make arrests initially, the first incident?
MS NHLAYISI: When you say Mr Chairman initially, you mean with a larger group? He couldn't have succeeded, he's saying there was a large group, that's why they had to flee because they realised that being two and these people were in a greater number, they didn't stand a chance.
CHAIRPERSON: Precisely and the probabilities favour that. Let's assume he had half of that group now to contend with in the school. What's the chances of him changing his attitude and becoming brave now and trying to make an arrest now?
MS NHLAYISI: Still with half of the group into the school yard his chances were still zero.
CHAIRPERSON: What would make him think now that he can succeed? Initially he knew he can't succeed because there were too many people.
MS NHLAYISI: Maybe it's because he knows only two people walking and the rest of group was no longer in sight?
CHAIRPERSON: But he knew they were there in that school yard, they were in the vicinity.
ADV GCABASHE: And he pursues these two into a classroom where in fact there's a whole group of people. This is exactly what point the Chairman makes. How did he know they were not all these other people from that initial group?
MS NHLAYISI: I would say the fact that he pursued these other two into a school classroom shows exactly that his actions were not thought of because he didn't know who was in the classroom in the first place, then he was surprised by this group of people who were seated in the classroom and he didn't expect them to be there. Hence I'm saying he didn't think about the probabilities and weighing them at the time he decided to capture those people.
ADV GCABASHE: But you see he should have known because he knew that a number of them had run into the school premises, others had run in whichever direction so he ought to have known that there were more than two people on the premises and that the others were somewhere in the vicinity and the probabilities of a successful arrest were next to nothing?
MS NHLAYISI: It's a question of a badly planned attack I would say.
MR SIBANYONI: Talking about the badly planned attack, when I asked him a question as to what was his first opinion in so far as the identity of these people, I recall him saying that his friend was saying these are not part of the vigilante group, am I correct in that recollection?
MS NHLAYISI: Yes it's what he said that at some stage there was some discussion between himself and the friend thought these were not and he thought he part of the group. You are correct.
MR SIBANYONI: Wouldn't you say his belief that they were part of the group was unreasonable, there was the friend who was saying no they're not part of the group?
MS NHLAYISI: I wouldn't say it was unreasonable in the circumstances because from his evidence it's clear that even the friend was not too sure as to whether they were the part of the group or they were not. Hence he said that he decided that by shooting towards them then that's when he was going to ascertain whether they were part of the vigilante group or not.
CHAIRPERSON: ...(inaudible) when it was too late. He shot at them, he may have killed them and what was the point of establishing it then?
MS NHLAYISI: If I remember his testimony well he said that he didn't shoot directly at them, he said he shot next to them for that reason in a follow up to the question asked by ...(intervention)
CHAIRPERSON: Are you saying he deliberately missed them?
MS NHLAYISI: That's the evidence that he gave.
CHAIRPERSON: Then he's not guilty of attempted murder because he never intended to hit them.
ADV GCABASHE: I think I agree with you on that score but ...(intervention)
CHAIRPERSON: What do we do about the application?
MS NHLAYISI: Is the Committee not going to take it further and look at what he intended doing had he been in a position to ...(intervention)
CHAIRPERSON: His application is directed at obtaining amnesty for attempted murder. Attempted murder comes just short of an unsuccessful attempt to murder. If it was successful he would have been guilty of murder. If he deliberately shot past them or near them which means he had no intention to kill them then how can he make application for attempted murder?
MS NHLAYISI: I concede that from that piece of evidence then it's clear that he did not have any intention to kill, that's what he said on record that he deliberately shot not towards them but not at them but shot on the side because there was this discussion between himself and the friend. I concede if that's the case there's no attempted murder.
MR SIBANYONI: I notice that he was convicted by the regional court for attempted murder. We believe your argument to say the regional court has made it a fact that what he did was ...(intervention)
MS NHLAYISI: Could you come again on that one, I didn't get the latter part?
MR SIBANYONI: I am saying the regional court found him guilty of attempted murder. Now what I want to establish from you is, will it be your argument that now that the regional court has convicted him it has been established as a fact that what he did on that day was an offence namely attempted murder.
MS NHLAYISI: It's unfortunate that personally I didn't have any access to the records but the fact that he was convicted it would say to anybody that the magistrate has satisfied himself that he has committed an offence and he deserved to be convicted.
ADV GCABASHE: But the question is are you then arguing that we should consider the greater offence of attempted murder which is what he has applied for as the issue to consider in his case?
MS NHLAYISI: If I argue it in line with the fact that he has been convicted and therefore the magistrate believed that he has done it, then I would request the Committee to consider his application for what he has applied for, that is for attempted murder.
CHAIRPERSON: You are of course bound by what he told us and not bound by what the magistrate found?
MS NHLAYISI: In that case Mr Chairman then I'll leave it in the hands of the Committee to decide whether they'll still consider his application for the attempted murder in view of the evidence that he has presented before this Committee.
CHAIRPERSON: Thank you.
MS NHLAYISI: Thank you.
CHAIRPERSON: Mr Steenkamp, is there anything you want to draw to our attention?
MR STEENKAMP: Nothing further thank you Mr Chairman.
CHAIRPERSON: We'll adjourn till tomorrow 9 a.m.
COMMITTEE ADJOURNS
