CHAIRPERSON: Today, for the record, is Friday 15th October 1999. We are continuing with the amnesty applications of Mandla Lawrence Thanjekwayo and others. This morning is reserved for hearing the submissions of the parties. Mr Honnorat, have you now got submissions on the merits of the matter?
MR HONNORAT: Yes I've got submissions, Mr Chairperson.
CHAIRPERSON: Yes, Mr Honnorat, you may proceed?
MR HONNORAT IN ARGUMENT: Chairperson, I don't pretend to be knowledgeable enough to quote from the - I mean the Honourable Panel about the requirements of the Act. Surely you know it better than me. I submit that the application complies with the requirements of the Act. Well, I am certainly indebted to the Honourable Panel about accepting the applications of Mr Tshabalala and Mr Fakude although perhaps from the point of view of subtle technicalities they might have fallen without the scope of a proper application for amnesty but I assume it is accepted that their proper applications to be ...(indistinct) by this ...(indistinct).
As for the second requirement of the act, omission or offence, was associated with a political objective committed in the course of the conflicts of the past, I submit that political motivation has been established clearly in respect of all the applicants. I will elaborate a little bit on this aspect when considering submissions on behalf of each and every applicant.
Of course I mean the question of perception is important. We are not here to establish whether in fact beyond reasonable doubt or even the on balance of ...(indistinct) the deceased was a police informer, for how long he had been there, whether he was spying on the comrades and everything is a question of perception, how the applicants have perceived him bona fide to be at the time the incident took place taking into account the volatile political situation in the townships during that period and I submit that their perception is bona fide personal perception that indeed he was an enemy of the struggle and therefore something had to be done against him to stop that particular person from interfering with the matter of flow of the struggle against the previous regime. Specifically the case of Tshabalala and Fakude, the matter of personal malice, now I am considering the position of Section 20(3)(ii). It is my submission that personal malice or ill will or spite directed against the deceased was not the motive behind their association with the incident which resulted in the killing of the deceased and assaults against the deceased's family and that indeed there might have been some gripes concerning Mr Fakude. I will address the house later on, on that and the personal animosity on the part of Tshabalala which I submit is still related to a political reason, that is I mean, the police being sent to his house, you know, to search for firearms. But I submit that in respect of all the applicants, Sir, including these two particular applicants who were the neighbours of the deceased, no ill will or spite or personal malice has been shown, not even during the court proceedings, Sir, on the basis of the good effectual foundation therefore that it indeed was their motivation behind the act or omission of any of the applicants involved.
As far as financial gain, I assume that the matter is not even disputed and nobody can gain financially from the killing of the deceased and assault against the members of his family. Indeed his car was burnt to death, there is no evidence that his car was taken away or part of his property, his house ...(intervention)
CHAIRPERSON: Yes, you don't need to address us on that issue.
MR HONNORAT: Yes and on that last aspect, whether indeed the act was motivated by - it was a sort of exorcist act I mean, an act of exorcism, you know what I mean, to wipe away a perceived witch from the community. I submit the act in this has been quite clear about that, indeed I mean the matter did not come during the court proceedings that in fact he was perceived as a witch and that was the motivation behind the act.
And then I submit in general, full disclosure of all relevant material facts have been made by the applicants for amnesty at this hearing. Obviously I will tackle each and every act specifically. I also submit they were all either members or supporters of the ANC, more especially of the ANC Youth League. Four of them were directly related as it will be clarified as soon with the ANC Youth League or specifically crisis committee and street committee and two people were identifying themselves as supporters of the ANC.
CHAIRPERSON: ...(inaudible) identifying them, Mr Honnorat?
MR HONNORAT: Well I mean Shabangu he identified himself as being an ANC Youth League member, the matter indeed was never disputed. Mandla ...(intervention)
CHAIRPERSON: Just summarise it, yes.
MR HONNORAT: Yes, Mr Mandla Lawrence Thanjekwayo was part of the crisis committee of the ANC Youth League. Mr Patrick Ndumiso Nyaluka was an ANC Youth League member in Diepkloof, also part of the Crime Committee, he used to receive reports from people in the discharge of his duties within the committee.
Mr Charles Vusi Fakude was an ANC member of the Street Committee and concerning the other two applicants, Victor Tshabalala and Themba Patrick Zondo, they were ANC supporters.
CHAIRPERSON: Which Street Committee was Fakude a member of, what was his address? Do we have that information?
MR HONNORAT: Well, Mr Fakude was living, I mean he was a neighbour of the deceased.
CHAIRPERSON: Yes.
MR HONNORAT: The four men one can assume it is Street Committee.
CHAIRPERSON: So it was a Street Committee of that particular area?
MR HONNORAT: Of that particular area yes and the testimony was produced that Anna Gumede was part, was known also because she was part of the same committee. She used to be living in that particular area as well.
CHAIRPERSON: Yes, thank you.
MR HONNORAT: Indeed no elderly people were involved in the commission of the act, Sir, which led to the killing of the deceased and injuring to the members of his family which lends support to their own allegations, they were indeed members of the Youth League and it is my submission the type of action that was complained of in respect of all the applicants, Sir, is one which is associated with volatile youth carried out in this period and under the prevailing circumstances during the volatile period of our history which this amnesty hearing refers and it is not a type of action associated with personal grudge or class consciousness, based action or action based on the need for the elimination perceived which I submit also that in terms of Section 20(2) of the Act that the act was associated with a political objective and did indeed advise, planned, directed, commanded, ordered or at the very least committed within the Republic by members or supporters of the ANC, more especially ANC Youth League and with some kind of implied authority. It is clearly stated that that is a type of action that the members of the ANC, members of the Street Committee, the neighbourhoods in general involved in the liberation struggle would have sanctioned, would have liked people to have carried out and it seems to have been involvement of some organisations. ...(indistinct), Street Committee of elders, they did not openly disapprove of the action, there seems to have been approval subsequent to the action and in particular one of the applicants has mentioned that Comrade Hector who was ostensibly presiding over the meeting at the church, Lutheran Church, on the 21st April to have been clearly satisfied with the action taken. So I submit that even in that regard, if there was no express authority, certainly there seems to have been some kind of express authority from the ANC Youth League taking at the meeting of the 19th April 1993 according to a number of applicants, but at the very least I submit there was an implied authority. In that event I submit that there are also reasonable grounds for concluding that the people bona fide believed on reasonable grounds that they had the backing of the organisation at least ...(indistinct) to carry out the act which they in fact carried out, that in terms of Section 22 (f) of the Act and I further submit on this score that at the very least the act or omission was one carried out by a person who associated himself with any act or omission committed for the abovementioned purposes in terms of Section 22 (g).
All applicants maintain that they associated themselves in one form or another with an act committed by the group which assaulted and eventually killed the deceased. Even by way of omission if not necessarily by way of a positive act.
And finally on the general points, Sir, concerning Section 20(3), I submit on behalf of all the applicants that the motives of the persons who committed the act, omission or offence was clearly a political motive, every one of the applicants testified to that effect and indeed it has not been disputed, not even at the court hearing in any satisfactory manner. I also submit that the context in which the act, omission or offence took place was indeed as such that it was committed in the course of the political uprising, disturbance or event. The was a political struggle at the time, there was a disturbance at the church, ...(indistinct) in a meeting held at the Lutheran Church on the 21st April. It was also in reaction to a particular event which was the sending of the police to the house of Sipho Tshabalala and other information having emerged that indeed the deceased had done acts of that kind in the past against other people.
Concerning (c), I submit that if one look at the legal and factual matter of the act, omission, or offence including of the gravity, it's the type of action of a grave nature, is associated with heavy political uprising and disturbance in the townships at the time the incident took place. Indeed it was the evidence of all the applicants that some kind of very robust action should be taken against people perceived or found with reasonable conviction to have been clearly associated with the policy of the past regime.
On (d), I submit that the objective or objective act, omission or offence was directed at perceived political opponent of the liberation struggle. Evidence has been adduced by all the applicants that they could not tolerate the presence of a police informer amidst themselves and the neighbourhood, who was harassing, I mean the comrades were associating with police who never took part in meetings or allowed his premises contrary to what there was done by his neighbours to be used as venues of meetings of people engaged in the liberation struggle against the former regime. So indeed all of the applicants proceeded to be a political opponent of the struggle.
As to (e), I submit the action was at the very least carried out on behalf of the liberation movement and the ANC organisation and the Youth League in particular. And in terms of (f), I submit that there is a clear proximity and a clear relationship and proportionality of the act to the political objective pursued. The political objective was clear that informers would not be tolerated within the community especially if they were concretely found to be opposing comrades, to be harassing them and subjecting them to the risk of imprisonment and the like and indeed the objective pursued was directly proportionately to the action taken whether we take them in the view that the original decision was just to fetch him and summon him hastily to the meeting at the church in order to answer to the allegations against him, there was a policy formulated or the decision was already taken that he should be killed nevertheless. The action of the crowd and the setting out for the deceased was directly related to the objective sought to be pursued to act against, robustly against a perceived police informer, the way of deterring action which as explained by Mr Nyaluka of burning his property, putting him to death etc.
Now we turn quickly to each and every applicant in this matter starting with Peter Shabangu. We've already specified what his position was within the liberation movement. He clearly explained the political motivation of the act, he clearly explained the necessity to carry out the execution of a police informer in public which I submit is consistent with the prevailing volatile political situation in the townships at the time and indeed he specified without any holding back any reticence, his very direct and very substantial participation in the events which led to the killing of the deceased and on that basis I submit that he made a very full and frank disclosure to the house about his participation in the event and the reason why he falls within the ambit of the act and is entitled to amnesty on the basis thereof.
As for the applicant number two, Mandla Lawrence Thanjekwayo, his position in the organisation has already been explained. He has also made quite clear what the political motivation behind his association with the act was. As far as paragraph 4 of his statement which is on the page 10 of the bundle is concerned, I mean submit should it be attached that clearly he is not an educated person, he only completed Standard 2. The ...(indistinct) were completed by other people, it is indeed clear from a number of his statements which were found in the bundle that he said that he did take part in the killing and that the kind of action by the deceased "forced us" including himself, to necklace the deceased and burn him to death. So whatever he's semantically found to be in consistent with that I submit is something that needs to be attached no weight to in the circumstances under which the statements were taken on behalf of an uneducated person who just completed Standard 2. I also submit that the explanation for the reason for attacking Beverley, the deceased's daughter, that was just convincing just to take her out of the way. The primary objective was always to get at the deceased not at any member of the family. Therefore I submit that full and frank disclosure of all the material facts concerning his participation in the relevant facts leading to the killing of the deceased and the assaults against the members of his family has been made by this particular applicant before this Honourable Panel. I just want to add all the testimony of Mr Thanjekwayo concerning three of the applicants at this hearing is Vusi Charles Fakude, Sipho Victor Tshabalala and Themba Zondo, that whatever he stated concerning them which might be found to be inconsistent with the testimony produced by these three aforesaid applicants, must be considered in the light of the following circumstances. There were many people at the scene of the crime, there are many people that must have come out of the church. Himself said he was out of the church and he did not take a direct part in the meeting at the Lutheran Church on the 21st April. Even according to the testimony of the deceased's widow in court there were up to hundred people involved in the attack so it would have been impossible for him to identify each and every person who came out of the church and who proceeded to the scene of the crime. He was not in ...(indistinct) of the deceased, the fact undisputed even during the court proceedings so he didn't have a good prior knowledge of the three of them. That includes also Mandla Mbata who seems he was one of the teenagers, he seems to have been known by the deceased's son as it appears from the court proceedings because of participation in soccer activities and things like that. So the knowledge of these four people rely lies with the deceased and his family. There's not a shred of evidence to suggest that Mr Mandla Thanjekwayo had prior knowledge of them. So it would have been quite difficult for him to know exactly that these four people were at the church meeting, came out together with the group from the church meeting or not. As far as the statement that he received from them subsequent to his writing the letter that they were not at the scene of the attack, this is a very ambiguous statement. Indeed his relation to Mrs Zondo, Mr Zondo himself said he was not directly at the scene of the attack so there's no contradiction in that regard. As far as the other two applicants are concerned, Mr Fakude testified that he was not amongst the first people who arrived at the scene. They started throwing stones so a person like Mandla who was quite involved very directly, very substantially with attack against the deceased who not had paid attention to the fact whether Mr Fakude was in fact at the scene of the attack. This is also ambiguous because the scene of the attack might be reference to the scene of the actual killing of the deceased. Mr Zondo was certainly not there, Mr Fakude testified that he came out of the yard by the time they had already burnt him to death and Mr Tshabalala testified to the effect that he would have taken further part in the attack were it not for the fainting of the deceased and the necessity to rush her to hospital because of that. So in the light of that I submit there is nothing stated either in the bundle or directly by evidence adduced by Mr Thanjekwayo in the evidence of chief or under cross-examination or at the time of ...(indistinct) questions by any member of this Honourable Panel which contradicts substantially or otherwise the evidence adduced by these three applicants.
As to the applicant number three, Mr Patrick Ndumiso Nyaluka, his position within the structure has already been explained, his political motivation for associating with the act was clearly established by him in evidence. He knew full well the reason for the church meeting, Comrade Hector had informed him that the reason therefore was to discuss the status of the deceased as a possible informer collaborating with the police or the previous regime and indeed he became convinced about the status because of his prior belief in concerning the deceased status what emerged from the meeting although he was in and out of the meeting he must have had something concerning these allegations being flung against the accused that he was a police informer plus the fact that he met the group of youngsters arriving at his premises by fighting, strength was in itself in dictum of the fact that he was a police informer in the mind of Mr Nyaluka which strengthened his personal conviction that he was taking part in a politically motivated act aimed at dealing in some robust way with a police informer and also he testified that the action was approved that there was no cession of the action afterwards, that indeed even a higher member of the organisation such as Hector expressed their satisfaction with the action taken by the youth in eliminating the police informer. As for his active participation of the offence he gave details about that, he was not registered, he did not hold anything here back, he clearly stated he participated and he did so with the full understanding of why he was doing that. As for certain aspects of his evidence, well he was not fully at the meeting, he was in and out, he alleged that - well he testified to the fact that he came at the time that the meeting was already in progress, the meeting was chaotic, so there was a suggestion from a man that elected to speak to the deceased which was raised at the meeting, it seems from also elucidatory question raised by Advocate Bosman that he was not absolutely certain about the particular fact but there seems to have been a possibility that he had needed some suggestion and he clearly said that it was one view expressed at the meeting that indeed people marched to his house to speak to the deceased. So it was his own perception at the chaotic meeting by men who seemed to be quite young, he said it struck to him as being a younger person, it was clarified after elucidatory questions from the Honourable Chairperson that indeed he was just an ordinary member of the ANC Youth League, he was not in leadership position so he could not have assumed a very leading role during that meeting, he was not leading the group going towards the deceased's property, he was in the middle of that group so I submit that it was his own factual perception which was quite understandable in the circumstances in the light of all the facts which I've mentioned that they were going to the deceased's house in order to speak to him and forcibly drag him into the meeting in order for him to explain his position before the people assembled at the church and I submit that this factual perception is justified in the circumstances and it is not something which is a serious contradiction of the perceptions of other people who were hired in the structure, more older than him, who knew the deceased better, who were more fully acquainted with the facts, who had a full view of the proceedings of the church from his inception who took part at a meeting on the 19th April of the ANC Youth League that indeed the decision was taken in order to kill the deceased. But even on the assumption that his version which I submit was a factual perception quite justified in the circumstances, a person without a proper overview, panoramic vision of the events, that even on the assumption of his version been correct especially as he was concerned, it was a politically motivated to go and give a robust address to the deceased that all have been met with a violent reaction on the part of the deceased that decision was rightly changed into to fight back and to kill the deceased because as he himself testified in evidence as an organisation they could not tolerate that kind of violent reaction on the part of a person who was already alleged to have been a police informer given the history of the fact that people are confronted by the organisation, used to cooperate with the organisation and address them on any perceived grievance level against any such particular person, the members of the community and members of the liberation in particular. So I submit that he has made a full disclosure of all material facts related to the act, of course as perceived by him and under the circumstances allowed him to perceive them.
I move to Mr Charles Vusi Fakude who was the fifth one I mean to give evidence at this hearing. His position within the structure or within the liberation movement has already been explained to this Honourable Panel. The political motivation behind the act was clearly given by him and I submit that it is quite a reasonable explanation why he perceived the act to be politically motivated one in furtherance of the struggle at the time.
Concerning the reason for regarding the deceased as an informer, well he saw him in movements in police cars a number of times, on a number of occasions and there's been some information given to him reinforcement of that view by other people and the conviction was strengthened by Sipho's incident. I submit that the fact that despite his seeing police cars coming to and from the deceased's house, despite that not having taken action before against the deceased, is quite a reasonable one because he just kept his association to himself, he didn't seem to be endangering comrades in the struggle but when the Sipho incident, Sipho Tshabalala's incident took place, the conviction was strengthened that this man was becoming really dangerous and was becoming an overt direct danger to the comrades involved in the struggle. He also had a similar perception or as Patrick Nyaluka of the resolution taken at the 21st April meeting at the church and again more or less what I said in my submissions concerning the personalised nature of this factual perception which I've tendered concerning Mr Nyaluka applying here as well largely and I submit that he gave a reasonable explanation for the foreseeability of the death ensuing from the group or the mob of people setting out for the deceased's house despite his factual perception at the meeting had simply decided to go and fetch him to ...(indistinct) with the allegations against him to the people still convened at the church, that explanation of possibility of death was a reasonable because he said of the way the youth set out he must have realised that indeed that they were after the deceased's blood.
I also submit that it was reasonable that he was not one of the first people to arrive at the scene, he was an older person than most of the youth, indeed he was part of the Street Committee, not an ANC Youth League member. Mr Nyaluka said there was a rush towards the deceased house where the people, the youth who were able to run and to run fast so I submit that was also a reasonable allegation on the part of Mr Fakude. It is also reasonable in my submission that he did not actually take part in the physical assault or killing of the deceased and did not see it, he was a neighbour, he didn't want to be seen in the act of the physical assault or killing and that it was reasonable that his participation would be what he said it was, namely giving open assistance to the comrades to use his house and use his yard to get access to the fortified house of the deceased, access thereto being indeed difficult without his open co-operation in that regard. Plus that there was the aspect of his omission, he could have easily have telephonically have alerted the police to what was happening there but he refrained from doing that. He could have inflated his contribution to the events in order to make him more likely to be granted amnesty by this house but he gave a frank disclosure of what he did. He assisted, he contributed also by omission and I submit in the circumstances of the case being a neighbour well known to the deceased and his family, it was quite understandable for him to leave it himself to those actions but nevertheless, he associated himself with the act and he gave a reasonable explanation why according to him his association was politically motivated.
Indeed it was evidence of his frank disclosure of all the material facts of the house that he did not deny raising the dispute during the church meeting about the wall which was once raised in to say between himself and the deceased and the dispute concerning his gate making a noise. He could have easily denied that, none of the other applicants indeed mentioned during the evidence of what happened or transpired during the church meeting of the 21st April that indeed he brought up those disputes or all disputes with the accused so he could have easily if he didn't want to make a frank or full disclosure to this house, deny that or play down the relevance of raising those disputes, it is part of the frankness of the disclosure to the house, that he did not deny that. He clearly said that he said there were those disputes, one being that they were raised at the meeting and I submit it was quite natural that in such a heated debate against a person perceived to be a police informer or gripe would also come out from people attending such a meeting and as far as his amnesty application is concerned I submit very quickly that not much weight, in fact hardly any weight should be attached to it concerning the circumstances in which the amnesty application was drafted and it is quite likely that the defence he raised in court would have been discussed for the person taking down or filling in that amnesty application and that such a person would have found it necessary to incorporate that kind of explanation about what defence he had raised in court into the application which was not directly filled in by this applicant and on the matter of the personal gripe, just to conclude this, to deny the fact that it was personal malice, ill will or spite directed against the deceased which motivated him into his act, I submit that if that had been the real reason comrades would have been alerted by this particular applicant long time before to take some type of action against a person whom was perceived by a number of people to be a police informer, who was seen by himself and Mr Tshabalala to accommodate the presence of policemen and policemen's vehicles in the yard of his own house and if indeed that was the reason he would have denied raising those disputes at that meeting. I further submit that in conclusion to say that this applicant, that his application falls squarely within the four corners of the relevant sections of the Act and that he has made a full and frank disclosure of all the material facts with which he associated and in which he took active or passive role in.
Concerning Mr Victor Sipho Tshabalala, his position within the liberation struggle has already been mentioned. Concerning his political motivation I submit that he has given a proper explanation therefore. The fact that Mr Manato has sent people, policemen to his house, must have strengthened -must have created quite a strong conviction in his mind that he was a police informer and he has testified to the effect that his conviction in that regard was strengthened by the opinion of other people express of the church meeting. So even other people say that, even more elderly people must have convinced him considering also the circumstances prevailing in the townships during that period that indeed he was a police informer. I submit it was reasonable what he said that his association with the policemen did not concern him so long as the deceased kept that to himself but he sent policemen to his house to search him for an alleged firearm and other comrades expressed several opinions as the one. He must have formed in his mind after the event that must have convinced him that his association with the police was not just one he was keeping to himself, this man was on a mission to eliminate comrades and the form in some kind of action should be taken against him and he was quite ready to take part in that action, politically motivated against the deceased because of his open association with the police. Also he has made a disclosure about what association the offence, he had on a particular day of the incident, again he could have well and easily have inflated his role and part of the attack, but he did not do so and admits to the fact that he had to rush, he sees to ...(indistinct) because she fainted, which I submit is further proof of the frankness of his testimony adduced before this house.
Concerning the meeting of the 19th April it clearly specified that there was the decision to kill the deceased and Mr Zondo's input was, Mr Zondo wanted the matter to be considered at a higher level and he decided at a higher level I submit supports and backs up the evidence of Mr Zondo in that regard. He also gave a reasonable explanation I submit for not contributing to the church meeting, that he was late in attending that meeting, it was fully packed and again I submit that hardly any weight in fact no weight at all should be attached to the statements, the way they were jotted down there was no evidence that he himself wrote down those statements. Mr Zulu, his own legal representative was not even familiar with such statements of ...(indistinct) November. Yesterday during the hearing of this applications for the first time there was hardly any contradiction in any event because between what was in the statements and what he adduced in evidence almost one can say that certain elements were left out but there was no substantial factual contribution even that he did not physically take part in the killing of the deceased or even witnessed the event taken place because of the reasons which he explained to this house and there was no hard basis to deny the fact that the purpose behind the amnesty application and what exactly he should have said in the amnesty application statements was clearly explained to him other times that those statements were taken, jotted down by somebody else and he appended his signature thereto. Before you know the circumstances I submit that there was political motivation, association with the offence and full and frank disclosure of all the relevant facts as far as his understanding of the act as being politically motivated one, his participation in the act was concerned.
And finally concerning the applicant Mr Zondo, his position within the struggle has already been briefly mentioned. I submit that Mr Zondo was particularly impressive as a person adducing evidence. He had no hesitation in answering the questions, he came to answer us to all questions, he was not shaken at all by any cross-examination. He clearly stated the political motivation behind the act. There is suspicion as the deceased's status as an informer was well founded, he gave proper explanation for that. Indeed he knew about the violent confrontation between the deceased and Tshabalala on the 18th, he was briefed about what happened on the 19th, of the meeting of the 19th, he actively participated in the steps following the 19th April meeting, he actively participated in convening the meeting after church so it was clear in his mind why all these steps were being taken, why comrades were particularly angry including Mr Tshabalala about the deceased and that was simply because the deceased was clearly seen as a police informer and as a supporter of the previous regime. I submit that he gave a proper explanation for wanting a more formal, sanctioned decision backed up by higher levels of affiliation of the elders and that that was understandable. That is one of the reasons also why he convened the meeting on the 21st in order to ratify the decision on the 19th, taken by the ANC Youth League at a higher level and my impression I submit, my impression of this particular applicant was that he's the kind of person who likes things to be done if possible, whenever possible, in a most appropriate manner. But his participation in the 21st April meeting was clearly explained and he clearly explained that there was no chance, that sort of more formalised approach formerly sanctioned by the elders, committees, higher level of ANC affiliation could have been in the chaotic situation prevailing at the meeting and he expressed himself clearly in his affidavit to be chaotic, could have been insisted upon and I submit that his explanation for associating with the act is not unreasonable at all indeed not even the affidavit is it clearly stated that he was against their decision to kill the deceased.
In paragraph 10 he just says the meeting was chaotic and eventually disrupted by Anna Gumede who criticised the conciliatory approach adopted by the elders and their eagerness to what's termed the struggle. It was never said in the affidavit that he himself pushed for a conciliatory approach at the time of the church meeting. He just wanted whatever decision be taken against the deceased including the decision of killing him with which she was quite satisfied to be ratified at a higher level but obviously he realised it was no longer possible. His explanation for his desire not to be physically identified at the scene is absolutely reasonable, he's a next door neighbour to the deceased and I submit that that emerges clearly from paragraph 11 of his affidavit. Mrs Thabethe cross-examined him, at that he stood by his explanation during evidence-in-chief and I submit that he convincingly stood by that explanation what he wanted to say he didn't want to be identified with the physical action as such because of the ...(indistinct) repercussions against him that that would have entailed but that does not detract I submit from the fact that he associated himself with the act and the political motivation being behind the act.
I also submit that it is undoubted, it has not been a successfully challenged, under cross-examination it was extremely easy for him to render assistance to the deceased's family by means of anonymous telephonic call that even members of his own family at the house could have actually made. Indeed in paragraph 13 of the affidavit he states that Mrs Maloto identified him as one of the persons present at the time of the attack because she felt betrayed by her neighbours for failing to come to the rescue of the family during the attack and otherwise she has full knowledge of that, he did not physically take part in the assault. I submit that is absolutely reasonable, one can understand also the feelings of the deceased's widow of feeling betrayed by the neighbours for not coming to the rescue which strongly suggests the fact that indeed it was quite easily for him to have come to the rescue and he has given reasonable explanation why politically he felt he did not come to the rescue of the endangered deceased and his family.
As for the remainder of the allegations, I mean his affidavit one must understand the legal question of guilt is a very subtle one. What this applicant was trying to see, explain in evidence concerning paragraphs 13 to 15 of his affidavit was clearly that he was not guilty as far as the physical action of killing the deceased, assaulting members of his family were concerned.
One must understand the legal question of guilt is a very subtle one and even on the basis of the evidence in court largely his participation in the attack was never said to be a direct one and there was no evidence even in the court proceedings that he physically took part in the killing of the deceased so those paragraphs of the affidavit I submit must be read in the light of the ambiguity of the legal question of guilt. He was simply saying I'm not guilty as far as the actual physical killing of the deceased is concerned and the assault against members of his family and on this ...(indistinct) I would like to submit that he could have easily fabricated now the statement, tailored in what was said in court against him that indeed he pushed members of the deceased's family out of the roof in order to make his participation in the act a more direct one in order to fit more directly within the perimeters, the ambit of the legal requirements of an application for amnesty and that he did not do that again is in my submission indicium of the frankness of his disclosure to this house. No basis was ever laid for personal animosity on the part of this neighbour of the deceased against the deceased or his family. Indeed he seems understandable that the main gripe on the part of the deceased's widow was that he was a neighbour, he could have come to the rescue, he could have assisted in some form of the other and he didn't do so.
So I submit that the political motivation was clear, indeed he took part, quite an active role in setting the whole ball into motion about the 21st April at the church he was absolutely knowledgeable about what was the reason for doing so and that his participation was ...(indistinct) the meeting plus his omission which I submit was at the very least a delict in the circumstances of the case and which was legally and effectually grave because he could have easily done so and he could have saved the lives of the deceased, indeed it was evidence of Mr Nyaluka that the fighting between the deceased and the assailants took place for quite some time before they could grab him, take physical hold of him and eventually beat him up and burnt him. So therefore the quick, prompt alerting of the police to what was happening could - it was likely to have saved, to have gone to great lengths in saving the life of the deceased and avoiding the shedding of blood.
As far as the people, I submit that people didn't seem to have noticed his absence at the scene and that is quite reasonable concerning the huge crowd of people and again this explains also the evidence adduced by Mandla Thanjekwayo when in cross-examination of the bundle of documents read into his own application is concerned. Indeed the fact that the people didn't seem to have noticed his absence in the huge crowed gives substance and lends further credence to the allegations that he could have easily have gone to his house, he was just a neighbour, staying in his house and alerted the police for prompt intervention. So there's been an association of the act by participation as a convenor of the meeting, by grave omission, by associating himself in his heart with what was going on for political reason although very understandable reasons he didn't want to be seen at the scene and easily identified by neighbours and there's been dissociating of himself from the act and I before I may conclude by submitting that he has made a frank and full disclosure of all the material relevant facts leading to his participation in the event. He could have easily twisted the thing in order to boost his case artificially in front of this house.
On the question of omission I just want to briefly, legally submit that the omission is clearly covered by the contents of the relevant sections of the Act that indeed the omission was an offence or at very least a delict on his part which was associated with a political objective as he clearly testified and it was bona fide done by him in furtherance of a struggle perceived by him to be a hated police informer and that indeed the very fact that the motive of the person who committed the omission and the legal and factual matter of the meeting including the gravity thereof is mentioned in Section 20(3), and lends support to the fact that it is an aspect which can be canvassed at the stage of an application for amnesty and which can form the basis for an amnesty. My final submission on this score is that this particular act considers I mean the case of people who have never been brought to trial who have just been charged who are in the middle of court proceedings, but proceedings have not been finalised before one cannot submit that because the particular act he was charged with and the particular conviction and sentence related to an act and not to an omission this Honourable Panel cannot consider his omission as an important element to consider for the amnesty application as such regardless of what took place in the court proceedings. I've got no further submission.
CHAIRPERSON: Yes thank you. We'll just stand down for a minute.
COMMITTEE ADJOURNS
ON RESUMPTION
CHAIRPERSON: Mr Masagela, I assume you don't have any submissions.
MR HONNORAT: Maybe Mr Chairperson, if I can just add one final submission please?
CHAIRPERSON: Yes.
MR HONNORAT IN FURTHER ARGUMENT: The fact that there's been also factually different allegations put by different applicants in court, they didn't say it would be easy for them to do so is a further proof in my submission of the fact they did not ...(indistinct) each one that represented his own frank disclosure of what happened.
CHAIRPERSON: Yes, we understand that, you have already made that submission. Mr Masagela?
MR MASAGELA IN ARGUMENT: Thank you Mr Chairperson and Honourable Committee.
I am just going to be brief in my submission.
CHAIRPERSON: Yes.
MR MASAGELA: All the applicants in their testimony have testified that there was a general perception in the community that Mr Manato was a police informer and this was as a result of what some referred to in their testimony as the suspicious conduct on the part of Mr Manoto. The decision to kill Mr Manoto was taken in the first meeting on the 19th which was convened and attended by the youth league of the ANC and in that meeting at the first meeting Ms Gumede was not even present and the ...(intervention)
CHAIRPERSON: Yes, no she wasn't there and the only place where your client featured was at the meeting of the 21st in the Lutheran Church and there is an allegation that she expressed a certain view which is a view on the face of that is not material for our purposes to decide whether or not these applications comply with the requirements of the Act. We are not persuaded at this point that we are called upon to make a firm finding in respect of that issue so perhaps you should tailor your submissions if you have any around that.
MR MASAGELA: I'm indebted to you Mr Chair. On that basis Mr Chair is, I submit that Ms Gumede when she addressed the meeting on the 21st April 1993 she was just expressing an opinion.
CHAIRPERSON: Yes, they say the majority took a decision at the meeting and they're not suggesting that anybody was acting on the orders of Ms Gumede. So whatever she said or whatever she did not say at that meeting is not really relevant to our decision as to whether or not a decision was made at that meeting or not.
MR MASAGELA: Nevertheless Mr Chair, however in the event that this Honourable Committee is of the opinion that Ms Gumede's utterance in that meeting could warrant a criminal prosecution for the death of Mr Manoto it's my humble submission Mr Chair that Ms Gumede be indemnified from such a possible criminal prosecution.
CHAIRPERSON: Yes it's not really an issue that concerns us.
MR MASAGELA: And therefore I have no further submissions.
CHAIRPERSON: Yes as I say it doesn't really fall within our mandate and it's not something that strikes us as really material to be decided in order for us to conclude whether or not these applicants have complied. Thank you Mr Masagela.
Ms Vilakazi have you got any submissions?
MS VILAKAZI IN ARGUMENT: I do have submissions Honourable Committee but I will not burden the Committee with a thesis as my learned friend Mr Honnorat has. I would just
confine my submission to two aspects. Firstly the question as to whether the three tier requirements as contained in Section 20 of the Act have been complied with and secondly with regards to the credibility of the witnesses or of the applicants.
Before I could go into the main submission, let me still point out to the Committee that what the Committee is presented with at the moment or what it has at the moment is a half baked product in the sense that it has submissions from the applicant and not yet from the next-of-kin.
CHAIRPERSON: To which we have said will deal with the question of political motivation. We have sealed from what you have submitted earlier there is no dispute on the merits of the incidents, that is common cause, that what happened at the house on the 21st April is not in dispute. The only thing that is in dispute is whether or not there was a political motivation for this act. I assume you understand the position of the next-of-kin correctly in that regard?
MS VILAKAZI: Thank you Honourable Chair. At the time when I made that submission it was not apparent that there were going to be some factual - although they are very minimal, but there are some factual dispute that have arisen from the testimony of the applicants. I would touch on those as I proceed.
With regard to the question as to the requirements of Section 20 of the Act, I would leave out the consideration as to whether or not the requirements for the application have been complied with to the Committee itself to determine whether all the requirements have been complied with. The information being disposal to the Committee - at the disposal, sorry, of the Committee. With regards to the question of the political motivation of the incident at hand I think with regard to that the applicant should be divided could be divided into two groups. The group that did not know Mr Manoto at all and the group that knew Mr Manoto and that refers to the neighbours.
CHAIRPERSON: Yes can I just ask you before you go into the detail of this, does it matter whether Mr Manoto was in fact a police informer or not or is it sufficient as Mr Honnorat submits that there should be established a bona fide belief?
MS VILAKAZI: It does matter with regard to the neighbours, the question of bona fide arises with regards to the neighbours because ...(intervention)
CHAIRPERSON: Yes but does it matter, the question is does it matter whether Mr Manoto was not a police informer provided that there's a reasonable basis for the applicants' belief in this regard?
MS VILAKAZI: Honourable Chair, I submit that it does matter with regard to - I mean if a person has information to his disposal then he cannot have a bona fide belief in an opposite matter. What I'm saying is that if the neighbours knew that he was not an informer then they could not bona fide believe that he was an informer.
CHAIRPERSON: Yes, no obviously.
MS VILAKAZI: In that respect it does matter.
CHAIRPERSON: But does it matter, perhaps I must be more concrete, does it matter for example if you were to bring witnesses, the widow, anybody else to say - or the police that went to the house to come and say no, he wasn't a police informer, we were just drinking there or we were discussing rugby or soccer or he was never police informer, does it matter?
MS VILAKAZI: Yes it would matter then because the political motive would have been excluded in that context and it would add weight to the finding of the court that the motivation of the applicant was a personal vengeance and not political.
CHAIRPERSON: Unless they come and say no these applicants are lying, the deceased was an active member of the liberation movements, he was at all the meetings, there were never police at his house, he never cut himself off from the community and therefore they had no basis for suggesting that he was a police informer, there was some other jealousy, they did not like the extensions to his house, they thought his house looked too nice or whatever or Fakude was cross because he was complaining about the creaking gate and that sort of stuff because then you know it does put a different light on the matter.
MS VILAKAZI: Indeed it does put a different light on the matter because then that motive would be ...(indistinct)
CHAIRPERSON: Yes.
MS VILAKAZI: So that requirement would not have been satisfied.
Okay, assuming that we accept that there was a bona fide belief on the part of those applicants who did not know Mr Manoto prior to the date of the incident then in that context the requirement with regards to political motivation might be accepted to have existed but then the version that has been given by the applicants is such that there are still gaps with regards to the course of events. There are still question marks with regard to the result, the end result of the actions. I would refer for instance to the fact that the impression given by the applicant is that a decision was taken to go and attack Mr Manoto and the group went to Mr Manoto to attack him and the applicants, all the applicants, their version taken in total and individually give an impression that they found Mr Manoto sitting on top of his house with stones and he started throwing those stones onto them. Now does that not suggest that there was a break in the chain, that the group went there and then Mr Manoto was on top of his house. Isn't there a gap there. What explanation is there for the fact that Mr Manoto was on top of his house? It is improbable I submit that without any act on the part of the group, Mr Manoto would not have been on top of his house.
CHAIRPERSON: Yes we can assume they were toyi-toyiing, they were coming down the road singing, toyi-toyiing, he obviously heard them so he obviously had an idea of what was coming.
MS VILAKAZI: If that is the submission, if that is accepted by the Committee that he might have gone onto the top of his house because of the sound of the toyi-toyiing and he expected that he might be attacked, the question as to is it possible that he might have been able to get - let us take it literally, get on top of his house with stones and all assortments of things to throw at the - I submit that it is improbable.
CHAIRPERSON: Yes, I'm not sure what the scene was but there was some talk about alterations to his house and all sorts of things that were going on.
MS VILAKAZI: Even if the Committee accepts that there were alterations onto his house he went onto his house, could he have had the ability to take stones going onto the top of his house? There was no submission that the scene on top of the house was such that there could have been sufficient stones that he could throw at the group.
CHAIRPERSON: There seems to have been a high wall around the property so one assumes that if you stand inside the yard, perhaps it's not even necessary to speculate on these things but I'm just mentioning it to you now that you are raising the point. Perhaps if you stand inside the yard you can't see out in the street and if the best vantage point is really on top of the roof to see what is happening in front?
MS VILAKAZI: I would really discourage the Committee from making assumptions.
CHAIRPERSON: No we're not making assumptions, we're debating with you because you are raising certain questions. We're not suggesting that that is what we would find as I say I don't know what is the relevance of all this but seeing that you are raising the topic, we're sharing some thoughts with you.
MS VILAKAZI: Yes I'm raising this to throw question marks onto the question of whether there has been a full disclosure of the relevance ...(intervention)
CHAIRPERSON: At this point you have said everything is not before us but at this point evidence is that he was on his roof. Now we've got the evidence, he was on his roof and he was throwing stones and they were throwing stones, that is the version before us now. You might be able to rebut that, we're not sure but you know that's where we must start off at this point.
MS VILAKAZI: Okay and then the other question mark is with regard to the fact that the decision that was taken was that Mr Manoto was going to be attacked. All the applicants give that impression that it was a decision that Mr Manoto was going to be attacked. But in the ultimate it is not Mr Manoto who was attacked, his house was burnt down, his property was damaged, the members of his family were also assaulted. Now the target of that political motivation, if the Committee finds that there is a political motive, the target was Mr Manoto and there is nothing that would have prevented the group considering the size of the group from attacking Mr Manoto only without having to damage his house particularly without having to assault his wife and his children.
CHAIRPERSON: Do any of the - if the daughter wasn't throwing hot water? Possibly nothing would have happened?
MS VILAKAZI: Even if that was the position, Honourable Chair, I submit that one person throwing water onto a large group and considering that it was accepted by the court that Beverley, the daughter, had to go to the house to go and fetch water so the container was small, I mean after throwing the water at the group, the group could have taken hold of her.
CHAIRPERSON: Yes but could they have killed the wife and the daughter of the deceased if they wanted to?
MS VILAKAZI: If they wanted to kill the daughter, if they wanted to they could have. From the court record it appears that the wife and the daughter were unconscious and it could easily have occurred to the assailants that they were dead at that time.
CHAIRPERSON: Yes and the whole objective was to get to the deceased?
MS VILAKAZI: Exactly and they could deal with him the way they wanted to deal with him without having to harm the - so the political motivation cannot be transferred to the action against the wife and the children.
CHAIRPERSON: No but we're just talking about the daughter now, what the wife's position was, but if the daughter was intervening to frustrate the action against the deceased, why is that not part of the assuming that the attack against the deceased is a politically motivated one? Why would the force used to overcome her resistance, her attempts to frustrate the getting at the deceased, why should that not fall within the political objective? If she was a bystander, if she was in Fakude's yard or in Tshabalala's yard, just standing around there, just looking what was going on in the attack, assaulted her, it would be a different situation not so?
MS VILAKAZI: I would beg to differ with the Honourable Chair on that point because I still maintain that the group could have subdued her and her action within contrast with the group, the size of the group, would not have frustrated the aims of the group. I was I submit easy for the group to put her aside.
CHAIRPERSON: Yes of course, we're not suggesting it was a decent thing to do, this entire thing is a very unfortunate incident, it just reminds us of how bad the situation was in this country but you know that is what happens on a scene like that. We should be realistic in assessing these kinds of things. Nobody condones an assault on a girl so then I must just make that clear so that you can understand how these sort of things are approached.
MS VILAKAZI: Honourable Chair, perhaps I could point out that the reason why I raised the attack of the wife and kids as a matter to be taken into consideration is because of the fact that I, looking at the matters that have to be considered by the Committee with regards to whether all the requirements have been complied with, looking at (3)(f) that the relationship between the act, omission or offence to the political objective should be taken into consideration. That is why I'm raising ...(intervention)
CHAIRPERSON: No, I understand the submission.
ADV BOSMAN: Ms Vilakazi, I think one should concede that they couldn't really have subdued the members of the family without having applied some force but arguably one could look at the whole issue of proportionality of the force that was applied but they couldn't possibly have subdued them without applying some force?
MS VILAKAZI: Perhaps let me not take the matter any further least I ...(intervention)
CHAIRPERSON: Yes no but we do have your submission which is a very relevant one on this issue, we obviously have to weigh up why it was in the first place necessary to assault the members of the family in order to execute their plans against the accused and whether that assault was out of proportion to what they were ...(indistinct), that's a very relevant submission.
MS VILAKAZI: I thank you Honourable Chair. Okay, with regard to the question of the credibility of the applicants. I must say that the applicants, none of the applicants has really disposed himself as a credible witness. I would take the applicants one by one without going into much details.
Let us take Zondo for instance, it is common cause that Zondo was a neighbour of the applicant and Zondo is saying that he was not part of the group that attacked the house, he said he was not there but he was placed at the scene of the incident, he was seen taking part if one can rely on the findings of the court and I am sure that the submission of the next-of-kin would also confirm that he was at the scene and Mr Zondo also has tried by all means to paint a picture of himself being an innocent bystander and that is not the position, for the fact that he was placed at the scene for instance and the fact that he had knowledge and I submit that the submissions of the next-of-kin would prove that Mr Zondo did not like Mr Manoto and therefore he had to present his case in such a way that the ill feelings that existed between himself and Mr Manoto would not be prominent and I could say the same thing about Mr Fakude and I think much really needs to be said about Mr Fakude.
If one recalls the evidence of Mr Fakude, it is clear that the relationship between Mr Fakude and Mr Manoto was a cold one if one could use that particular expression and Mr Fakude himself on being asked about how they related, painted a picture that the relationship between himself and Mr Manoto was a cold one. On the one hand when being asked about the dispute concerning the wall that Mr Manoto built around his house, he tried by all means to paint a picture that he did not have any ill feelings against Mr Manoto with regard to that and that the matter was resolved and they even became friends because Mr Manoto even gave him a poem to use on his gate but then all of sudden, on being asked as to whether he at any point tried to raise the question of the police that he claimed to have seen going in and out of Mr Manoto's house with Mr Manoto, then all of a sudden the relationship between them was such that they could not approach him. That on the part of Mr Fakude I submit raises question marks with regard to his credibility, the question as to whether he has been consistent in his testimony and he has been honest in his testimony.
With regard to Mr Nyaluka, Mr Nyaluka has on being pursued by the Honourable Chair on the question of whether he was inside the hall when the decision was taken, at some stage he tried to convince the Committee that he had when the decision was taken that the group should go to Mr Manoto. He says that the decision was that Mr Manoto should be taken to - should be spoken to, that they should take Mr Manoto, take him to the hall, to the church and ask him questions about him being an informer. That version is contradicted by all the other applicants. All the other applicants were very firm in the fact that the decision taken was that Mr Manoto should be - some were saying, should be dealt with, some were saying to be killed but generally, what that means is that some aggression was going to be applied in terms of the decision and Mr Nyaluka tried to give an impression that the group was not going to fight with Mr Manoto, the only intention was to go and speak to him. In that respect his credibility as a witness is also questionable although I must say that to a very large extent Mr Nyaluka could be said to have been consistent in what he was saying.
ADV SANDI: Sorry, if I could just come in? Looking at the evidence as a whole is it not perhaps reasonable to infer that perhaps Nyaluka was just assuming that the idea was simply to go and fetch the deceased and bring him to the hall because I think I can recall that he was not even inside the hall whilst the discussions were taking place?
MS VILAKAZI: Yes I made reference to the effect that if your Honourable self can recall the Honourable Chairperson asked him as to whether he was inside the church when the decision was taken, he was inside the church at the time of the meeting and he alluded to the fact that he was going in and out of the hall but he emphasised that he heard what the decision was.
ADV SANDI: Coming in and out of the hall he may have picked up at some stage a suggestion that the deceased should be fetched from his house and brought along to the hall?
MS VILAKAZI: Perhaps one can make that assumption, let me not pursue the matter any further but I still maintain that he cannot be said to be a credible witness. Okay, Mr Thanjekwayo - leaving the submissions that Mr Thanjekwayo made with regards to the innocence of some of the applicants aside for the moment, Mr Thanjekwayo could be - might, let me understand that have been perceived to have been a credible witness particularly because of the fact that he has associated himself directly with the events that led to the death and his participation with regard to the death of Mr Manoto and the injuries of other family members but the fact that he has said in an affidavit that some of the applicants were absent, Mr Zondo and Mr Tshabalala were innocent let me say, Mr Zondo, Mr Tshabalala, Mr Fakude, it raises question marks as to whether he has been fully honest with the hearing. His legal representative has made a submission that given the number of people who were at the scene, Mr Thanjekwayo may not have been able to see who was there and who was not there and this submission is not that these people may not have been there, he has throughout tried to give an impression that he is certain that those parties that he has mentioned were not at the scene of the incident and I also submit that the statements that would be submitted by the family members of Mr Manoto would also indicate that these members were at the scene and therefore Mr Thanjekwayo was not honest with the Committee, I submit.
ADV SANDI: I think let's go back to the evidence. If I recall this he said he was assuming they were not there, remember this was a big group, he was not able to see everyone who was not there but subsequently the persons consigned told him that they were in fact there, that was at a stage he had already written his statement where he says they were not there. I think he did explain that in his evidence, that was just an assumption on his part?
MS VILAKAZI: Okay if that is the - I might have missed that one so I would not engage on the debate on that aspect. I would refrain from commenting about the credibility of Mr Shabangu at this point in time because I was present when he gave evidence so I was not able to test his demeanour or to yes, observe his demeanour.
The witness Mr Tshabalala, I think the applicant Tshabalala has made a good job of discrediting himself as a credible witness. Take for instance the question as to contents of his evidence and the contents of the application that he made, the statement that he gave to TRC official and the letter that was written on his behalf by Mr Nkosi. One thing is consistent in the three documents and that is that Mr Tshabalala was not at the place of the Manoto's when they were attacked.
CHAIRPERSON: With the killing?
MS VILAKAZI: No I'm saying the question of the killing is what he mentioned in his evidence but with regards to the document he was not there, he was at his own house looking at what was happening.
CHAIRPERSON: ...(inaudible) Is it your submission that he should be disbelieved, what he is saying in his statements is that he wasn't there and in his evidence he came and he placed himself on the scene and therefore he is not a credible witness and his version should be rejected?
MS VILAKAZI: That is my submission.
CHAIRPERSON: Yes, we've got that.
MS VILAKAZI: Now considering all the factors that I have pointed out I would submit, it is my submission that the applicant, none of the applicants have satisfied, has met the three requirements, all the requirements of the Act. I would not pursue the matter any further unless the Committee has questions.
CHAIRPERSON: Thank you very much Ms Vilakazi and the understanding of course is clear that if you were so minded and instructed to place further material before the Panel then you and all the parties would be given a further opportunity to deal with this matter and to deal with the arguments, to cross-examine people if it is necessary. So that is the express understanding.
MS VILAKAZI: Okay, thank you Sir.
CHAIRPERSON: Thank you very much.
Ms Thabethe, have you got any submissions?
MS THABETHE: Just a few Mr Chair. Nothing much and nothing much that hasn't been said but I just wanted to draw the Committee's attention to page 56.
CHAIRPERSON: Yes?
MS THABETHE IN ARGUMENT: Of the judgement, if you look there it was Mary Maloto's evidence and she said that okay, it's the judgement so the judge says she, that is Mary Maloto, commenced her evidence by saying that a problem had arisen in the street. Someone had given out that her husband was a police informer so this support that unfortunately with this unfortunate incident, there was a problem in the street and there was this perception in the community that Mr Maloto was perceived to be an informer and on the question of bona fide therefore, with both groups that knew Mr Maloto and the group that didn't know Mr Maloto, it supports their policy, their belief based on this problem that was in the community and secondly, with regard to all the applicants that participated and that were there, it is common cause that they participated, they have elaborated on their individual ...(indistinct) and why therefore they were liable for murder and my submission is, I leave that in the hands of the Committee, I have no problem with it as an Evidence Leader.
There's only one question that I maybe I would like the Committee Members to guide me on and that is the question of Zondo who says he was there in spirit. Can someone be charged and liable of murder if he was not there at the scene and was only there in spirit?
CHAIRPERSON: Yes I think he was just trying to express in a lay person's terms his intention.
MS THABETHE: So he would be liable of murder because he had the intention as well even though he was not at the scene?
CHAIRPERSON: Yes he says he fully associated himself with the conduct, it was in his outlook, in his mental state, he was in absolute agreement with what was going on, he was at the meetings, he was on the scene at meetings and so on and so on.
MS THABETHE: I must say that that's the problem I had that I thought that you know, to be charged of murder, this common purpose, you need to be there at the scene. If that's the case then that ends my submissions.
CHAIRPERSON: Yes but we note what you're saying in that regard, that he might have made it a case of common purpose. Are those your submissions, Ms Thabethe?
MS THABETHE: Those are my submissions Mr Chair.
CHAIRPERSON: Thank you very much. Yes Mr Honnorat have you got anything further?
MR HONNORAT IN REPLY: Just two quick points I mean apart from saying that I doubt very much, I did not look at the time, I doubt very much that Mrs Vilakazi's submissions were shorter than mine but on the question of Mr Zondo, he never tried to picture himself as an innocent bystander it's clear from his evidence and on Mr Fakude the submission made that he was trying always of creating a picture of the dispute with the deceased had been solved he would not have mentioned - no other applicant mentioned the fact that indeed he raised the point at the meeting himself. That in fact supports the ...(indistinct) of the submissions made by my learned colleague Ms Vilakazi. No further submissions, actually.
CHAIRPERSON: Yes thank you Mr Honnorat. Yes, well that concludes the proceedings subject to the decision that the next-of-kin will be taking in regard to participating in these proceedings or not and in view of any further material that might be placed before us by the next-of-kin at this stage the decision in this matter is reserved. It might very well be necessary depending on what is placed before us to reconvene a session where this matter might have to be dealt with further but at this stage subject to what the position of the next-of-kin would be, we reserve the decision in this matter. And that concludes the proceedings here, the session. It remains for us to thank all of the parties who participated in the proceedings who have been of assistance to us, all of the legal representatives, Mr Honnorat, Mr Masagela and your instructing attorney, Mr Zulu, in his absence, Ms Vilakazi and as usual Ms Thabethe. Yes, Ms Vilakazi, you wanted to raise something?
MS VILAKAZI: Yes just clarification, Chairperson, with regards to procedure?
CHAIRPERSON: Yes.
MS VILAKAZI: The requirement is that statements should be filed, your affidavits should be filed by the family?
CHAIRPERSON: Yes if they want to.
MS VILAKAZI: Yes, with regards to the question as to whether the exercising the right to cross-examination, how is that to be dealt with?
CHAIRPERSON: Well, you will have to make submissions in that regard. If your instructions are that your clients actually want to participate that the family gathering had decided that they really don't want to come into these proceedings then of course you will have to make those submissions to us.
MS VILAKAZI: Thank you.
CHAIRPERSON: Also of course basing it on the strength of the input that they can make in the matter so you'll have to somehow make a submission that justifies the matter being dealt with further so there will have to be something on your part.
MS VILAKAZI: Okay, thank you.
CHAIRPERSON: Well yes, that concludes the proceedings. As we've said we're indebted to all of you who have been of assistance to us and to our staff as usual, the venue, owners of the venue here who have as usual allowed us to make use of the facility here and for the assistance of everybody. We are indebted to you and we will now adjourn.
HEARING ADJOURNS
