CHAIRPERSON: Good morning to you all. By pronouncing a decision in respect of an application that we heard yesterday and that is the application of Mr Jewel Mshlashene Sishaba, who was duly represented by Mr Motepe. Both the applicant and Mr Motepe are present today.
F I N D I N G
The applicant is applying for amnesty in terms of Section 18(1) of the Act for the killing of Mr Boy Buthelezi and the unlawful possession of a firearm and ammunition committed on the 25th October 1993 at Esangweni Section in Tembisa.
At all times material hereto the applicant was a member of the ANC from 1982 and went into exile to join Umkhonto weSizwe in March 1988. Upon his return from exile he became a member of the Self Defence Unit.
The area in which the applicant lived was subjected to a reign of terror and I'm told harassment at the behest of the members of the Toaster gang, who were perceived by the residents to be collaborating with the IFP hostel dwellers at Kosenye Hostel, an area which was an IFP stronghold.
It is common cause that there was an ongoing political battle between the IFP hostel dwellers and the members of the Toaster gang on one side and the ANC people living in Tembisa on the other. Consequently the ANC formed Self Defence Units to protect their supporters as well as the residents. This they did because the South African Police was perceived to be collaborating with the IFP hostel dwellers and members of the Toaster gang and the SAP took therefore no effective measures to prevent or stop the ongoing violence in Tembisa.
The applicant testified that on the 25th October he was at his home when he heard the sound of gunfire. As he was on duty to patrol and protect the neighbourhood, he went outside to investigate. Whilst outside he met one Nhlanhla Ncala, a resident who informed him that three alleged members of the Toaster gang had robbed him of his wristwatch and money and had also robbed the shop of Ms Sweetness Mkosazana Ntlhapo. Nhlanhla was able to point out the alleged offenders one of whom was the deceased, Mr Buthelezi. At that time the applicant was armed with an AK47 and ammunition which was the possession of the SDU in the area and was part of the consignment of weapons bought by the SDUs in order to carry out their activities of defending and protecting the community, from funds collected from the members of the community.
The applicant's objective at the time was to kill the members of the Toaster gang in line with a standing command to do so. He did not personally know the deceased, nor the other two members pointed out by Nhlanhla but believed Nhlanhla and relied on his information about their identity as gang members. As these gang members were openly armed at the time with firearms and outnumbered him, he decided not to use his firearm but to rather follow at a safe distance with a view to getting an opportune moment to kill them. He followed them until they went into House 25 Esangweni Section Tembisa which was a tavern which sold liquor. When the alleged members of the Toaster gang entered the tavern, the applicant observed their movements at a distance. The said members bought alcohol and sat outside the premises of the tavern with their weapons leaning against the wall.
He thought this was an opportune moment to confront them and kill them as they were causing mayhem in the community and were a political anathema to the residents in the township. Moreover, it was a standing policy of the SDU to kill both the IFP hostel dwellers and their perceived collaborators, the Toaster Gang. When the applicant confronted the alleged members of the Toaster gang, the deceased tried to reach for his firearm and the applicant shot him. He was unable to accomplish the objective of shooting the other alleged members because they ran away.
Mrs Buthelezi, the deceased's mother, gave evidence and opposed the application on the basis that the deceased was not a member of the Toaster gang and that at the time of his death the gang was not longer active and in operation in Tembisa. She averred that she did not stay with the deceased. The deceased lived at Umthambeni Section with him mother particularly and pertinently after January 1993 until his death, whilst Mrs Buthelezi lived at Moedi Section.
Having regard to the basis of her opposition, this Committee is satisfied that Mrs Buthelezi is in no way able whatsoever to admit nor deny the allegation that her son was a member of the Toaster gang as he was not staying with her at all times relevant hereto. To that extent the evidence of the applicant that the deceased was pointed out to him by Nhlanhla as such a member, stands uncontradicted and in the absence of any evidence to the contrary we have to accept the evidence of the applicant.
Furthermore it is common cause that the Toaster gang remained in operation in Tembisa in 1993 and her evidence that the gang was no longer in operation at the time of her son's killing can therefore not be accepted. We have already alluded to the applicant's evidence with regard to the objective sought to be
achieved when he followed the alleged members of the gang and ultimately killed the deceased and do not propose to repeat that evidence, as well as the policy or standing command of the SDU towards killing of their political opponents in their battle for political hegemony in Tembisa. Having considered all the evidence before us, we are satisfied that the offences for which amnesty is sought by the applicant are acts associated with a political objective as defined in the Act and that the applicant has complied with the requirements of Section 20, sub-section 1 of the Act. In the premises amnesty is hereby GRANTED to the applicant for the following offences: the killing of Boy Buthelezi, attempted murder of the two unknown members of the Toaster gang, unlawful possession of a firearm being an AK47 and ammunition. We are also of the opinion that the family of the deceased, Boy Buthelezi, and the family of the two unknown members of the Toaster gangs are victims in terms of the Act and we recommend that they be referred to the Committee on reparation and rehabilitation in terms of Section 26 to be considered as such. That is our decision, Mr Motepe, Ms Thabethe.
MS THABETHE: As it pleases the Committee.
MR MOTEPE: May I be excused Madam?
CHAIRPERSON: You may be excused, as well as your client.
Ms Thabethe where do we proceed from here?
MS THABETHE: Madam Chair, I would suggest we proceed with the matter of Charles Bongane Zwane.
CHAIRPERSON: Yes. It has been brought to the attention of this Committee whilst in chambers, that Mr Zwane intended to apply for an amendment. We have not been given details of the nature of the intended amendment, but before we proceed to do so may I, for the record, state that the Panel that will sit to consider and decide upon this application consist of myself, Judge Sisi Khampepe, on my right-hand side is Adv Francis Bosman, on my left-hand side Mr Ilan Lax. Will the legal representatives who are going to be involved in the matter as it stands before us, kindly state their names for the record.
MR SHAI: Ms Chairlady I'm Khama Shai for the applicant, from Shai Attorneys in Germiston.
CHAIRPERSON: Yes, Mr Shai, I would prefer to addressed as Madam Chair.
MR SHAI: Thanks Madam Chair.
CHAIRPERSON: Ms Thabethe.
MS THABETHE: Thank you Madam Chair, I am Ms Thabethe, Evidence Leader of the TRC.
CHAIRPERSON: Mr Shai, the ball is in your court, you may address this Committee.
MR SHAI IN ARGUMENT: Thank you. An application is actually brought for amending the application that was brought by the applicant. The reasons for the said application are as follows.
CHAIRPERSON: Give us first the nature of the application and then you can advance reasons therefore.
MR SHAI: It's an application to actually, for amnesty for incidents that were initially not applied for.
MS THABETHE: Sorry Madam Chair, can I interpose please? I just want to advise the listeners that the channel for Zulu is 3.
CHAIRPERSON: It is an important announcement. May we bring it to the attention of the members of the public that the channel that will be translating the evidence in Zulu will be channel 3 and English will be on channel 1. If you do require assistance with regard to you headphones, just give an indication. We do have - channel 3 is Zulu and channel 2 is English. If you experience any problems during these proceedings with the sound system with regard to your headphones, just give an indication and we will be at hand to come to your assistance.
Mr Shai you were still busy indicating the incidents for which you intend to apply for amnesty.
MR SHAI: That's correct, Madam Chair. The first incident according to the application that is before the Committee now, only an application for amnesty is made in relation to the incident on the 20th January 1989.
CHAIRPERSON: Refer us to the relevant page, we have the bundle, so that we can all be on the same page. Will you be referring to the incident mentioned under paragraph 9(a) which is on page 4 of our bundle?
MR SHAI: That is correct. That will be the incident on the 20th January 1989.
CHAIRPERSON: Yes the murder of three municipal policemen and a passer-by.
MR SHAI: That is correct, Madam Chair. The application that is brought today is for incidents that took place on the 26th December 1988. I'll refer to it as the tavern incident.
CHAIRPERSON: Give us the date again.
MR SHAI: That will be the 26th December 1988.
CHAIRPERSON: Yes.
MR SHAI: Then for the incident on the 26th February 1989, I will refer to it as the petrol bomb incident, as well as an incident on the 1st April 1989 and I will refer to it as the hand-grenade incident.
MR LAX: Mr Shai, the date of the second incident, you said the 26th of February, is it not the 22nd of February?
MR SHAI: The petrol bomb incident?
MR LAX: Yes, is that not the 22nd?
MR SHAI: I think it could be between the 22nd and the 26th February 1989.
CHAIRPERSON: Are you not in a position to be precise?
Bearing in mind that you are dealing with incidents that have already been dealt with previously in a different forum, surely you should be able to have the dates? You must have had recourse to the criminal trial, the charge sheet in relation to that?
MR SHAI: Yes, Madam Chair, may I just state that as far as the dates are concerned, as I will actually advance reasons later for the application for the amendment, I rely solely, when we actually were consulting with the applicant, he himself he didn't know exactly what the dates are, so it was after we had actually gotten hold of the bundle before the Committee, that we actually ourselves tried to particularise the incident.
CHAIRPERSON: Yes, with regard to the date, now that you have the bundle before you, which bundle also includes the transcript of the criminal record.
MR SHAI: That is correct.
CHAIRPERSON: Are you not in a position to be specific as you apply for this application now?
MR SHAI: That is correct, Madam Chair. Madam Chair, that will be the 26th February 1989.
MR LAX: Please continue.
MR SHAI: Then over and above the incident on the - for which I have already mentioned, there is an incident that took place in 1987 and for that incident he has already served his sentence, but it was our instructions when we consulted with him, that he wanted to make an application for that incident as well. The precise date is not known to applicant.
CHAIRPERSON: What is the nature of this incident?
MR SHAI: It is actually possession of a firearm, Madam Chair.
ADV BOSMAN: And there's no reference to this in the bundle at all?
MR SHAI: No, there is no reference to this incident in the bundle as well.
CHAIRPERSON: So this is in possession of a firearm. What kind of a firearm?
MR SHAI: It was a, he says it was a scorpion.
CHAIRPERSON: And ammunition?
MR SHAI: And ammunition. May I advance reasons, Madam Chair, for the application?
CHAIRPERSON: Yes, you may proceed to do so.
MR SHAI: Madam Chair, the applicant is presently serving 9 life sentences amongst others and the incident that led to the multiple convictions and sentences is the incident on the 1st April 1989 and it was during the course of the investigations in that incident that he was linked to the other incidents. It's going to be part of his evidence that he actually operated within a unit. Without dealing with the merits for the application itself, but when they were operating in the unit they used different firearms and that these firearms were not entrusted specifically to a member of the unit, but they were jointly entrusted to the unit. Now it was during the course of the operations that were run by this unit that these firearms would change hands and our instructions are, when he was arrested for the incident that took place on the 1st April 1989, the firearm that was actually found in possession of the person referred to in the bundle as Sonwabu, was found to have been linked to different incidents and of these incidents he personally had knowledge of the incident on the 20th January 1989, which is the killing of the policemen and that is why he actually in his application brought an application for amnesty for the incident on the 20th January 1989. At the stage when he actually made this application, he was not legally represented. Our instructions are as far as the incident on the 26th December 1988, that is the tavern incident and the incident on the 22nd of February 1989 are involved, he even at this stage, doesn't know the relevant specific activities that were carried out on the day in question, but it was found by the investigating officer and that was later to be found by the court that actually ran the trial, criminal trial, that the weapon that were in the possession of the accused as a member of the unit, was actually used in these other incidents and that is why he was also convicted of these incidents as well.
CHAIRPERSON: And that incident relates to the tavern incident, which is the 26th December 1988
MR SHAI: And the 22nd of February 1989.
CHAIRPERSON: And crisply, the reason you are advancing is that it is the applicant's contention that he did not personally participate.
MR SHAI: That's correct, Madam Chair, but as a member of the unit he indirectly participated.
CHAIRPERSON: How?
MR SHAI: In the form of them actually being in possession of the same weapons that were used in all these incidents and in the form of the unit, whose membership they had, taking part in the incidents.
MR LAX: Surely ex post facto possession of those firearms isn't participation, even indirect.
MR SHAI: That is my submission, but if one looks at the way it was actually connected to these other incidents which led to his arrest, one would actually see the chain as being that because he was a member of the unit and if one looks at the bundle that is before the Committee, the chain of reasoning was because the firearm was used in this incident, then he surely should have some knowledge as far as these incidents are concerned and for that he actually had to be punished.
CHAIRPERSON: Yes, you are surely, Mr Shai, fully aware of the provisions of the Act with the granting of amnesty?
MR SHAI: That is correct, Madam Chair.
CHAIRPERSON: And you are aware of the requirements that an applicant has to satisfy in order to qualify for amnesty, so if your reasons can please be advanced in such a way as to enable us to assist you. Now you are talking about incidents for which he has not applied.
MR SHAI: That is correct, Madam Chair.
CHAIRPERSON: Now can you just give us a reason why he did not apply for those incidents?
MR SHAI: Madam Chair as, I alluded earlier on, when he made an application for this, he had in mind the question of full disclosure to the Amnesty Committee, but at the time of the application itself when he actually handed in the application, our instructions are, he was actually or his thinking was actually overshadowed by the requirement that in full disclosure he has to actually give the particulars relating to each and every incident and as such ...(intervention)
CHAIRPERSON: He had the presence of mind that full disclosure required him to particularise all the incidents for which he wanted to seek amnesty?
MR SHAI: No, what happened in each and every incident, not exactly that he has to particularise the incidents themselves in the application, but as far as the activities that were involved in the incident.
CHAIRPERSON: In each and every incident?
MR SHAI: In each and every incident.
CHAIRPERSON: We want to hear you properly with regard to that. Yes?
MR SHAI: Then in the light of the fact that he was not involved in the two incidents that I've actually mentioned, he came to the conclusion that he won't be allowed to actually make an application for the incidents involved.
CHAIRPERSON: Why? Because he was not involved?
MR SHAI: Because he was not personally involved. That was his line of reasoning, according to our instructions, Madam Chair.
MR LAX: Sorry, Mr Shai, did I hear you right? Did you say he won't be involved, not he wanted to be involved. I just couldn't hear it properly.
CHAIRPERSON: He was not involved.
MR LAX: Ok, thank you.
CHAIRPERSON: Yes, you may proceed Mr Shai.
MR SHAI: Then my submission is the following. In the light of the fact that the incidents are intertwined as a result of him being a member of the unit and in the light of the fact that the firearm ...(intervention)
CHAIRPERSON: Just hold on a second. In the light of the fact that the incidents are intertwined because of the usage of the firearm.
MR SHAI: The usage of the firearm and he being linked to these two incidents by means of forensic evidence, that is our instructions, and he was ultimately convicted for these incidents as well, then he wants to bring an application for these two incidents as well that were mentioned.
CHAIRPERSON: It is still his contention that he did not participate in any way whatsoever in relation to these incidents, is it not?
MR SHAI: Madam Chair, when we actually consulted with him, we were not in possession of the bundle and after getting hold of the bundle ...(intervention)
CHAIRPERSON: No, you don't apply for amnesty because you are in possession of the bundle, you apply for amnesty because you believe that you are an offender and that the act that you have committed is an act associated with a political objective as defined in the Act. Forget about the bundle, forget about the forensic evidence, we want to know whether he himself believed that he is qualified to apply for amnesty because of what he has personally done.
MR SHAI: Madam Chair, that is the position. The reason why I mentioned the bundle was, after getting hold of the bundle, we actually consulted with him again and he still maintained, I think that the question for Madam Chair was whether he still insists that he was not personally involved. The reason why I mentioned the bundle was, even after we acquired the bundle and consulting with him, he still maintained that he was not personally involved in these incidents and he still maintained that he will actually move for an application for these incidents in which he was not personally involved, that is what we were instructed.
ADV BOSMAN: Does it not go further Mr Shai? Is it not that he did not even know that these incidents had taken place? That was my understanding. He did not even - apart from the information which he subsequently obtained, he did not know that these incidents had taken place. He had no knowledge of these incidents.
MR LAX: Just before you talk, your client's trying to draw your attention to something.
MR SHAI: ...(indistinct - microphone not on)
CHAIRPERSON: Yes, you may. Yes are you in a position to respond to Ms Bosman's question?
MR SHAI: I am indebted to the Committee. Is she referring to at the time of the making of the application or I don't get it clear?
ADV BOSMAN: Did he have personal knowledge of these incidents, of what had happened there or didn't he know at all? At any time. Did he at any time have personal knowledge of what had happened in the other incidents?
MR SHAI: In the form of him being involved, or in the form of him knowing what?
ADV BOSMAN: In the form of him knowing, and where did he obtain this knowledge?
MR SHAI: He says at the time of making the application, he knew of the incident and at the time of his being sentenced he knew about the incident, he had personal knowledge about the incident because they actually happened in the area in which he resided.
ADV BOSMAN: Then my next question is, did he obtain this information after the incidents had taken place or did he have knowledge that these incidents were planned and that they were going to take place?
MR SHAI: My instructions are, he knew before but he actually didn't know that it was carried out by members of the unit.
CHAIRPERSON: I thought, with due respect Mr Shai, and sorry to interpose, I thought when I questioned you with regard to this particular point, whether it was not his contention that he was never involved in any of these incidents for which he now intends to apply for their inclusion in his amnesty application, I thought your response was quite unequivocal, that he was never involved.
MR SHAI: And that is still the position. That's why I wanted some clarity on the question that she actually posed, because it could be before the application or after the incident had taken place, you see, that's why I wanted her to clarify as to at what stage the knowledge was actually acquired by the applicant because full knowledge, as far as the particularity of the incidents are concerned, according to our instructions, were actually heard of when he was actually standing trial for these incidents, among others.
CHAIRPERSON: Yes, you have also had recourse to the bundle, in particular the application form completed by him and signed on the 10th October 1996 that appears on page 4 to 6, and further to a profile or supplementation of that application which appears on page 8 - 9.
MR SHAI: That is correct, Madam Chair.
CHAIRPERSON: Yes, and you will agree with us that this supplementation was actually sent simultaneous with his form 2 application for amnesty.
MR SHAI: That will be correct, Madam Chair.
CHAIRPERSON: I wanted to confirm that because it is not apparent from the documents.
MR SHAI: No, that is what we were actually instructed.
CHAIRPERSON: Now that being so, may I invite you to go through paragraph 3, that is on page 9, it's the third paragraph, on page 9.
MR LAX: In the middle of the page.
CHAIRPERSON: Yes, right in the middle of the page.
MR SHAI: During interrogation?
CHAIRPERSON: Yes, now you see where he states quite early in his amnesty application that during his interrogation he was forced to admit and accept responsibility for other crimes he did not know. I quote him "I did not know (had no knowledge of)".
MR SHAI: That is correct, Madam Chair. In other words as I said to your colleague, Ms Bosman, the issue of when he came to the knowledge of the incident in question as far as time factor is involved, is essential. You see at the time of his arrest, as it is explained in that paragraph, he didn't know that there were other incidents he was actually linked to. Then it was during, I think somewhere in the middle of the same paragraph, he mentions that the results of the ballistic and forensic tests confirmed the places where the firearms were used.
CHAIRPERSON: Yes, I'm still not concerned with that.
MR LAX: May I just interpose Chairperson?
CHAIRPERSON: Yes, you may.
MR LAX: What didn't he know? Didn't he know that he was linked to those matters, or didn't he know about those matters, because from this document the issue seems to be that he didn't know about them at all, not that he didn't know that he was linked to them. Do you understand the difference?
MR SHAI: I have already alluded to that. I said that he said that he knows that such incidents happened in the area in which he resided, but he didn't have knowledge of the fact that his unit was involved in carrying out these activities.
CHAIRPERSON: Yes, he had no knowledge at all about the incident.
MR LAX: What he's saying, if I can just paraphrase, just so that we can be absolutely clear, because this is quite fundamental to your application, just let me finish, I'd hate to misrepresent what you're saying and get the wrong end of the stick here. What you're saying is, he heard these things happened, because they happened in the neighbourhood. He heard about the incidents, what he didn't know was that his unit was involved in these matters and he didn't know that they were going to happen and he had no involvement personally in them. Have I captured the essence of it?
MR SHAI: That is correct.
CHAIRPERSON: Yes, that's how I understand it. Now, just on that point, that being the case, what is the basis for your application to include these incidents in his amnesty application?
MR SHAI: Madam Chair, as I have already mentioned that the problem that is actually entailed or inherent in an application for this incident would be encompassed in the requirement for full disclosure, to start with.
CHAIRPERSON: No, if he applies for amnesty in respect of these incidents, that is because he accepts responsibility, that is because he is admitting to his involvement in the commission of the offences arriving out of those incidents and the way I understand you and I seem to be understanding you quite clearly, is that he is still contending that he never participated in any of these incidents in question.
MR SHAI: That is correct, Madam Chair.
CHAIRPERSON: Now, you are the lawyer assisting Mr Zwane, you know the requirements of Section 20 sub-section 1 of the Act, don't you?
MR SHAI: That is correct, Madam Chair.
CHAIRPERSON: Now in the light of the requirements of Section 20 sub-section 1 of the Act, on what basis can you bring such an application to include incidents for which he disclaims responsibility, which he says he never committed? He never participated in any way whatsoever in their commission.
MR SHAI: Madam Chair, in - there is actually an affidavit that was drafted. We actually drafted that affidavit after consultation with him, and in that affidavit, I think I gave a copy to the legal rep. for the victims and I faxed one to the Evidence Leader and I've got copies here for the Committee as well, we actually grappled with that issue as well, as to how he comes to be making application for the incidents as well if he didn't actually have personal knowledge of what actually transpired in the activities leading to the said incidents. Now his contention is, because they were committed by members of the unit, of which unit he was actually a member, whatever was found to have been carried out by the unit, he also could be held accountable for that.
CHAIRPERSON: ...(indistinct - mike not on)
MR SHAI: That is correct, but he knew what his unit was actually - that his unit was in possession of firearms and that they were using the firearms, even though he himself was not present.
CHAIRPERSON: He did not know that his unit was going to commit these incidents, that is the evidence you have just presented to us.
MR SHAI: It is my instructions as well, Madam Chair.
CHAIRPERSON: Yes, now on what basis can he then seek an application to include the incidents for which he has no personal knowledge? What would be the basis for including those incidents for an amnesty application? How is he going to satisfy the requirements of Section 20 sub-section 1 if he is going to say, I did not commit, I have no knowledge, I only became aware that my unit was involved after the operations had been carried out?
MR SHAI: Madam Chair, may I just put it in the following manner? At the time of the commission, he was still a member of the unit and the firearms that were used in commission of these offences, he had knowledge of and the members who were carrying out these activities were part of his unit and at the end of the day the activities that were actually found to have been carried out by members of the unit were also attributed to him. My contention as far as these incidents are concerned, using the very same line of reasoning that seems to be running across the reasoning in the trial itself that led to his multiple convictions and sentences as well, is because that unit was responsible for the commission of these offences, even though he himself didn't have personal knowledge of what was actually going on, but he knew what the unit was actually up to.
CHAIRPERSON: No, may I interpose? He knew what the unit was up to? That was not your submission.
MR SHAI: Not specifically to these incidents. He knew that they were in possession of firearms and he knew what these firearms were being used for.
CHAIRPERSON: He knew that the unit possessed firearms.
MR SHAI: That he knew.
CHAIRPERSON: It changed hands.
MR SHAI: That is correct, Madam Chair.
CHAIRPERSON: He did not know that members of that unit were going to commit any of the offences which came as a result of the incidents that you are now seeking to apply for an amendment.
MR SHAI: That is correct.
CHAIRPERSON: That's very fundamental.
MR SHAI: May I just beg your indulgence to converse with him?
CHAIRPERSON: Yes.
MR SHAI: I am indebted to the Committee. Madam Chair, his contention is and I think it is at the cost of actually repeating what I've already said. Madam Chair, he says, in short, at the time when they were planning these activities that led to the incident he was not personally involved. At the time ...(intervention)
CHAIRPERSON: At the time when the members of his unit were planning these incidents, he was not present, he was not involved.
MR SHAI: Yes, these specific incidents and at the time when these activities were carried out, he wasn't involved, but now because it's common cause, he's not going to dispute that, it's common cause that the unit was involved and for each and every incident that was carried out, not all members, as one will actually go through the affidavit, not all members were actually involved in carrying out these activities, but as a member of the unit that carried out these activities and he knew that they were involved in such activities, not specifically these ones but related activities, then he himself takes responsibility for whatever incidents occurred as a result of the activities of the unit itself, that is in short.
CHAIRPERSON: Yes. He can be in no position to say what really motivated the members of his unit to commit the deeds which he ultimately was convicted for, can he?
MR SHAI: May I just?
CHAIRPERSON: No, I mean based on what you have said, you can respond. This I'm taking from the submission. Your line of submission. He did not, he was not involved in the planning, he was not involved in the commission of these offences, so he is in no way able to satisfy any of the criteria in terms of Section 20 sub-section 3. He doesn't know what really motivated them at the time when they did, to commit these offences, all he can say is that these offences were committed by members of his unit and he came to know of that when he was arrested for a particular offence which is unrelated to these incidents.
MR SHAI: That is correct, Madam Chair, but over and above that, over and above the fact that he actually cannot say whether they were politically motivated or whether there was some other form of motivation, when these incidents were carried out, he knew that the unit itself was involved in political activities.
CHAIRPERSON: Yes, the unit was involved in activities such as these, as is reflected in these incidents.
MR SHAI: That is correct, Madam Chair, but as far as whether a specific motive could be actually attributed to an incident, he doesn't have knowledge as far as the two concerned.
CHAIRPERSON: Yes, and you will be in no position to give us details of how these incidents occurred?
MR SHAI: You see, that's why initially I said the problem that I actually pinpointed was as to full disclosure and that element that was actually mentioned falls under the very same category of full disclosure because then particularity of how the incident took place can never and we never actually in our instructions came across any of them.
CHAIRPERSON: So you would obviously fall short of that?
MR SHAI: Madam Chair, that is my submission.
CHAIRPERSON: Yes. And what do you say to the fact that Section 18(1) provides for the period within which to apply for amnesty in respect of any act, omission or offence? Do you think, if we were to allow you to include these incidents, we would actually be acting within the provisions of the Act?
MR SHAI: Madam Chair, I will submit that you will be acting within the provisions of the Act in the following manner. In the first instance, he is not an applicant who brought an application after the cut-off date.
CHAIRPERSON: Yes.
MR SHAI: And in his application for the one incident that is mentioned in his application, some averments are made relating to the other incidents and if one were to look at the application itself, on page 6 of the bundle,
CHAIRPERSON: What paragraph?
MR SHAI: That will be paragraph number 12, relating to the prosecution. He knew that he was actually convicted and sentenced for murder, attempted murder, arson, possession of firearms and ammunition.
CHAIRPERSON: Yes.
MR SHAI: He knew that arson related to the incident on the, my submission the 22nd February 1989, that will be the petrol bomb incident, if one were to look at the annexure that starts at page no. 8, the paragraph that was actually referred to, the predicament in which he found himself is actually mentioned in that paragraph, because he didn't know of the incident. It's a matter of him knowing that maybe I can bring an application.
CHAIRPERSON: Maybe I can bring an application, not that I'm bringing an application?
MR SHAI: No. I'm now referring to after, before our consultation with him. Now the problem was because he didn't know personally, but he knew that they were actually related to the very incident that he was actually seeking amnesty for, because in that very same paragraph he actually refers to this specific incident and he refers to the issue of ballistic tests, so at the time of the application itself, the information that he is actually disclosing for amending the application, is actually entailed in the very same application for this first incident, so it's not a matter of him actually bringing information that was not actually brought at the time of the application. The information is there and so it doesn't actually fall beyond the cut-off date. That would be my submission, Madam Chair.
CHAIRPERSON: Let's take your argument in seriatim. You've referred us to page 6 paragraph 12. Now the question which is being asked of him is whether any prosecution followed. Now, and if it did, it was in respect of which charge?
MR SHAI: Madam Chair, on the very same prosecution that is listed under number 12 and I had the privilege of actually going through the bundle and the court proceedings and he was actually convicted of all these charges that he actually alluded to under paragraph number 12 and he was sentenced therefore.
CHAIRPERSON: Yes, I'm aware of that. Now let's go back to the question that specifically asks him to give details of the act, omission or offence for which he seeks amnesty, which is paragraph 9. Now where the section, the paragraph 9 (a) says furnish sufficient particulars of the act, omission or offence, associated with a political objective in respect of which amnesty is sought including dates, places and nature thereof. Do you see what he has written thereunder in response thereto?
MR SHAI: He has written "murder of three municipal policemen and a passer-by".
CHAIRPERSON: Yes, he's been quite precise. He specifies the offence.
MR SHAI: That is correct.
CHAIRPERSON: And under (ii), same paragraph he also goes on to specify the date on which that particular offence was committed, and he's been also very specific in relation to the offence. The date corresponds to the murder of the municipal policemen and with regard to the question that sought for particulars with regard to the place where the offence was committed, he has also been quite specific and that refers to the killing of the municipal policemen at Meadowlands.
MR SHAI: That is correct, Madam Chair.
CHAIRPERSON: And in response to paragraph 9(b), which asked him to state whether any person was injured, killed or suffered any damage to property as a result of such acts, omission or offences, his response has also been very specific and precise,"two municipal police died, or three, and a passer-by."
MR SHAI: That is correct.
CHAIRPERSON: Now, what do you say to the information that's provided? Is there anything else that he has mentioned under those paragraphs that will then suggest that he had the presence of mind or the intention to include any other incident other than the attack on the municipal police and a passer-by on a specific day at a specific place?
MR SHAI: It's my submission that this is the only incident in which particulars are actually furnished and as far as the other incidents are concerned, no particulars are furnished.
CHAIRPERSON: Nor are they referred to in any of his applications. I'm now dealing the form 2 application.
MR SHAI: No, they are not referred to.
CHAIRPERSON: Now you've also referred to the supplementation which is referred to as a profile by him, which appears on page 8 and 9, and your submission is that he has referred to these incidents and the fact that he has referred to them therefore makes him - gives us jurisdiction to hear them because he made mention of them in his supplementation and you bring that to the fact that he made mention thereof, on page 9 which is right in the middle, to the passage which I previously and initially referred you to, which is the fact that he admits that he did confess to the commission of the crimes under duress.
MR SHAI: That is correct.
CHAIRPERSON: And you've further submitted today that that confession he no longer stands by because he has no personal knowledge of the offences, for which he ultimately confessed because he so confessed under duress when he was tortured at the hands of the police.
MR SHAI: That will be correct.
CHAIRPERSON: Now if that is so, obviously there would be no basis for him to apply for amnesty because he still stands by his contention that he knew nothing of the incidents in question, he never participated, he was not involved in the planning thereof and does not associate himself with those incidents. His only connection is that the firearms which were used in these incidents are the firearms that belonged to his unit.
MR SHAI: Madam Chair, I think in my submission I have actually mentioned that he says that he takes full responsibility for whatever it is that the unit was actually involved in.
CHAIRPERSON: You understand the Act, what would be the basis of him taking full responsibility if he did not participate in the planning, he never directed, he never advised, he never committed the offences. Forget about the fact that he was a member of a unit whose firearms were found in his possession.
MR SHAI: Madam Chair, if I were to answer by way of an example, if one is a member of a unit and the unit has to actually carry a certain activity at a certain place, and it's actually known as a general mandate, it's known to the members of the unit that these are activities that this unit is carrying out, then in the course of pursuing whatever it is that they are pursuing under a general mandate, they come across an unintended target and the person who's a party to the planning, is not part of the group that is going to carry out the mandate and as such, a person who I've referred to as an unintended target, is killed, my submission is, the person wouldn't be in a position to actually particularise the manner in which that person was actually killed and the motive, my submission is the motive wouldn't be known to the person who would be making application for amnesty for that specific killing of the unintended target. Now, at the end of the day, we have a unit that was carrying out its activities under the general mandate and one of the unit members who was not present, is now facing the Amnesty Committee for an application for that specific incident. My submission is the following. As far as that incident is concerned, that person won't be in a position to actually give full particulars of how it actually happened and in a way, at the end of the day, the person will only tell the Committee about what he heard ex post facto. My submission is, if one were to look at the position the applicant is in at the moment, in a way he is in the same position in that he can't actually tell the Committee what is it that actually prevailed when these incidents took place, but he knows for a fact and that is why he says that he's taking full responsibility of whatever it is that actually emanated from activities of the unit itself, because he knows what their motives were, as a member of the unit, but as far as the carrying out of these specific activities are concerned, then my submission is, his position is much the same as the position of the incident that I actually used in my hypothesis.
MR LAX: Mr Shai, sorry. The analogy that you try to use is a faulty one, with the greatest of respect. If someone's involved in the planning and then the operation goes haywire and somebody is killed who wasn't intended, that's very different to somebody in the position of your client. Your client wasn't involved in the planning, he had no prior knowledge of these incidents, he didn't participate in any way, so the misdirected target, or the aberratio as we call it, is very different to the analogy you use, or that is the analogy you're using. Your client's in a very different position. How can we impute some sort of vicarious responsibility for something he didn't even know about. Do you see our difficulty?
ADV BOSMAN: Mr Shai, can I put it to you this way, if you had these instructions in a court of law, would you be in a position to tender a plea of guilty on the charges?
MR SHAI: No, not at all.
ADV BOSMAN: This is part of my difficulty. Your client, by simply associating himself ex post facto, is not legally associated to that.
MR SHAI: Other than sticking to him being part of the unit that carried out the activities, as far as the knowledge is concerned, I don't think that I can go beyond that one.
CHAIRPERSON: We appreciate the difficulty in which you find yourself. You can take the matter no further, and I take it that you rest your submission.
MR SHAI: Right.
CHAIRPERSON: Ms Thabethe, do you have any responses to the submissions made by Mr Shai?
MS THABETHE IN ARGUMENT: Madam Chair, I would argue that clearly, as my learned colleague has indicated or alluded, the applicant has no basis for bringing an application because he was not involved, which is brought down to a denial of guilt and really, I don't see how his application can be granted. That's my submission.
CHAIRPERSON: Mr Shai, we are in a position to pronounce a decision in respect of your application for an amendment to include the incidents that you enumerated relating to the attack on a tavern on the 26th December 1988, the incident you refer to as a petrol bomb incident which took place on the 22nd December 1989 and the hand grenade incident which took place on the 1st April 1989 and the incident that took place in 1987, which was for possession of a firearm, being a scorpion and ammunition.
In order to properly and equitably determine whether it was ever the intention of the applicant to apply for amnesty in respect of these incidents, we must have recourse to the application form which the applicant completed, as well as the attachments thereto, which can either be referred to as his supplementation or profile, as he so decided to state.
In terms of the application signed by Mr Zwane on the 10th October 1996 and in response to a question which required him to furnish sufficient particulars of the act, omission or offence in respect of which amnesty was sought, including dates and places and the nature of the act, omission or offence as contained in that paragraph, which is paragraph 9(a) of the application form, his response thereto was unequivocal, precise and specific and we quote his response: "murder of three municipal policemen and a passer-by".
He further responded to the question under paragraph 9(a)(2) and (ii) and (iii) with regard to the date and the place where this incident or act occurred, in the same unequivocal and clear tone and was clear as crystal that that was the only incident that he intended to apply for amnesty. On page 8 of the supplementation referred to earlier on, he gave facts with regard to inter alia how he joined the members of the Umkhonto weSizwe. What is however paramount and this is significant, is his specific mentioning of the offence, which is the subject of his application, namely again the murder of the three policemen and also alluded to the fact that an AK47 was used and that led to his arrest. In this regard we must however admit that there is an oblique reference to a grenade attack on a house in Orlando West for which the applicant then went on to say that he had been acquitted and this appears on page 9 under paragraph 4. There is also an oblique reference to other crimes in respect of which he stated that he was coerced, through torture by the police, to confess to having committed but of which he had no knowledge whatsoever, and in fact knew nothing about. This appears on the 3rd paragraph of the same page 9.
Against this background, we now turn to deal with the requirements of the Act. In terms of the Act an application must relate to a specified act, omission or offence. In terms of Section 18 a specified act, omission or offence must be a subject of an application for which amnesty is sought. That it was the clear and unambiguous intention of the legislature to require an applicant to disclose a specified offence for which he seeks amnesty, is quite evident from the reading of Section 18(1) read with Section 20 sub-section 1, Section 20 sub-section 2, Section 19 sub-section 6, Section 19 sub-section 7 and Section 20 sub-section 25. In deciding the application for an amendment brought by the applicant to include the incidents which occurred at different places at different times and committed against different persons other than those stated in his application, this Committee has carefully considered the application form, as completed by the applicant on the 10th October and his supplementation, as contained in the bundle. We are satisfied that the applicant only specifies the offence relating to the killing of the two or three municipal policemen and a passer-by and that this is the only offence for which this Committee has jurisdiction to hear and consider his application with a view to either granting or refusing him amnesty.
MR SHAI: As the Committee pleases.
CHAIRPERSON: I am still proceeding Mr Shai. The applicant has not applied for amnesty for the other offences and the period within which he had to so apply in terms of Section 18 sub-section 1 of the Act as amended, has long expired. He had to so apply between then 14th December 1995 to the 30th September 1997 and his failure to so apply has disqualified him to have those offences committed by this Committee. In the premises we have no jurisdiction to consider his amnesty application in relation to these offences as he did not apply within the prescribed period.
We must emphasize the fact that we only apply the law as we find it, particularly where it is as clear and unambiguous as Section 18 sub-section 1 of the Act is. Having regard to the provisions of these sections, it is quite evident that any application sought to be made by the applicant for amnesty in respect of any particular act, omission or offence, on the grounds that it is an act associated with a political objective, cannot and accordingly does not succeed.
What is however also interesting in the application brought by Mr Shai on behalf of Mr Zwane, is the fact that the applicant contended that he never participated in any way whatsoever in the commission of the incidents for which he now seeks to apply for amnesty. It is his contention that he was never involved in advising, planning, directing, commanding, ordering or committing the said offences and in that regard, and that regard only, he would not in any event have satisfied the requirements of Section 20 sub-section 1 of the Act.
The application for an amendment to include the incidents already alluded to is therefore refused.
MR SHAI: As the Committee pleases.
CHAIRPERSON: We may now proceed to hear the application which is properly before us. To enable the parties to probably properly present the application, maybe we must take a short adjournment, Mr Shai.
MR SHAI: That is correct, Madam Chair, but I actually conversed with the legal rep for the victims and I think he indicated to me that he actually received instructions from some families of the victims in this specific incident, so I don't know whether that is still the position or whether it's changed.
CHAIRPERSON: Yes, Ms Thabethe, I've also had an opportunity to communicate with the legal representative my learned colleague has referred to and I explained to him that there is only one victim's next of kin and all the victims in this matter are deceased and I will be in a position to - I have spoken to the deceased's next of kin and I was not aware of any instructions. I would like to ask for an adjournment however.
CHAIRPERSON: Before we bring these proceedings to a close, that is with regard to an application brought by Mr Shai to amend the application to include the incidents that he has already referred to, maybe this is an opportune time to request the legal representative who is sitting next to Ms Thabethe to place his name on record.
MR ALLI: Thank you, Madam Chair, my name is Mr Fayaz Alli, it's spelled F - A - Y - A - Z, surname A - L - L - I. I'm from the Wits University Law Clinic.
CHAIRPERSON: Yes. Whose interest were you representing Mr Alli?
MR ALLI: Madam Chair, I've been asked to assist the family of Chili.
CHAIRPERSON: Yes. I note Mr Alli that there was a colossal procedural mistake by Ms Thabethe's office in having to purportedly serve notices in terms of Section 19 (4) to persons who you represent, who unfortunately have no interest whatsoever with regard to the offences disclosed in the amnesty application of Mr Zwane as it was presented before this Committee. We do not comprehend on what basis the victims were informed of their right to be present at this hearing and what testimony was envisaged to the adduced from all these victims by Ms Thabethe, for purposes of enabling this Committee to consider and decide the application as it presently stands before us. It is not for you to respond to all these questions that we have in our minds as a Committee, it is for Ms Thabethe to do so. All we can do as a Panel is to express our apologies for this mistake and hope that it doesn't happen again to you.
MR ALLI: Thank you, Madam Chair. If I may just add in, we were informed in fact that the proceedings may not take place in that the application for the amendment of the amnesty application may not have been granted and we chose to come anyway, so on that basis I'd request that Ms Thabethe be excused for any wrongdoing on that basis. In fact we were informed and we chose to come anyway, in the event that perhaps we have a better understanding of the proceedings from the beginning.
CHAIRPERSON: In that case we'll accept the reasons you advance on behalf of Ms Thabethe.
MR ALLI: Thank you.
CHAIRPERSON: That's very kind of you.
MR ALLI: Pleasure.
MS THABETHE: I would like to thank my learned colleague.
CHAIRPERSON: Where does this take us now? Can we take a short adjournment?
MS THABETHE: I would suggest so Madam Chair.
CHAIRPERSON: We will then, Mr Shai, you can raise whatever question you wish to raise with regard to the proper service of notice, if you so wish, after we have taken a 5 minute adjournment. We'll take a five minute adjournment.
MS THABETHE: As the Committee pleases.
COMMITTEE ADJOURNS
