CHAIRPERSON: Are you calling Mr Bonakele Bhayi?
MR KINCAID: I am Mr Chairman thank you.
BONAKELE BHAYI: (sworn states)
EXAMINATION BY MR KINCAID: Thank you Mr Chairman.
Bonakele, do you mind if I call you by your first name?
MR B BHAYI: No I don't mind.
MR KINCAID: In June of 1992 you were convicted in the Supreme Court of robbing Mr Hansel of a shotgun, of damage to his property in that you cut his wires. You were convicted of the attempted murder of Mr Cobus, of the crime of housebreaking, that you broke into Mr Cobus' house, of malicious damage to his property in that you cut his telephone wires. You were convicted of the attempted murder of Mr Pretorius, of breaking into the home of Mr Senti, you were convicted of causing malicious damage to the property of Mr Senti, you broke his window and to the property of Mr Pretorius in that you cut his telephone wires.
Do you concede that you were correctly convicted by the Supreme Court or is it your contention that your convictions were improper or not founded in fact or in law?
MR B BHAYI: Yes I do agree.
MR KINCAID: Do we not dispute the correctness and the properness of your convictions?
MR B BHAYI: As I'm not a legal person I wouldn't know whether I was convicted properly or not.
MR KINCAID: The time of commission of these offences, Bonakele, you were seventeen years of age is that correct?
MR B BHAYI: That is correct.
MR KINCAID: And you've listened to the testimony of your brother Rhandile of Mtzianda and Melvin?
MR B BHAYI: Yes.
MR KINCAID: Do you confirm the manner in which Jimmy described the civil unrest, the tensions of the community in which you lived in for the period 1985 to 1990? Do you confirm Jimmy's portrayal of every day life?
MR B BHAYI: Yes I do confirm that, which was like that.
MR KINCAID: Bonakele, Jimmy mentioned the church meeting at the Matamela Hall and so did Rhandile. Were you present at the church hall in December on the occasion that the security forces raided that meeting and caused that injury?
MR B BHAYI: Yes I was present.
MR KINCAID: Were you present Bonakele at these meetings which were held in consequence of that shooting, consequence of that event?
MR B BHAYI: Yes I was present.
MR KINCAID: And can you confirm that there was a decision taken by the community to target farmers living at Stutterheim and in that vicinity?
MR B BHAYI: Yes I confirm that.
MR KINCAID: You were convicted of essentially what were three incidents and you apply for amnesty in respect of those incidents. Firstly the Hansel incident. Were you party to the group that attacked Mr Hansel?
MR B BHAYI: Yes I was there.
MR KINCAID: Bonakele, we've heard through all the applicants what happened there and I don't want you to cover the entire sequence of events but I'd like you to tell the Committee what you did, your personal involvement there, what actions you took, what your role was? The Committee has a fair idea of the broad perspective of the circumstances of the attack but can you tell the Committee just what your role was?
MR B BHAYI: In Mr Hansel's, my role was to search in the rooms, I was searching for weapons that we were looking for. When we still searched for further weapons, I didn't get the weapons that I was searching for. We were then called to the room where Mr Hansel was and we were told that they had found a firearm there. I asked how many, they said they found only one firearm so I just thought that that was not enough because there were a lot of us. We wanted weapons for the whole group, we then searched again in other rooms but we didn't find anything.
After that we heard a sound while we were still searching in the rooms. We went there from that direction, we asked what was happening and we were told that they were testing this firearm and there was a poster that was hanging on the hall, a ...(indistinct) frame and they had shot at that poster on the wall.
MR KINCAID: There has been evidence that Mr Hansel was previously assaulted. Rhandile says that he struck him on his back with a hammer. Did you cause any injury to Mr Hansel? Did you inflict him with injury, assault him?
MR B BHAYI: No, I didn't assault him because I was not in that room where he was, I didn't manage to get into that room.
MR KINCAID: Did you have any personal dislike of Mr Hansel, did you bear him any ill will, any feelings of malice or spite?
MR B BHAYI: No I didn't hate him as such but we just wanted him to give us weapons and to leave that area.
MR KINCAID: The next incident was the attack on Mr Cobus' farm and were you party to that attack as well?
MR B BHAYI: In Mr Cobus' I didn't attack but what I did is to remove the net that was in the window, I was the one who removed that net from the window.
MR KINCAID: The evidence was that no one could get to Mr Cobus' because he barricaded himself behind a security gate. Did your involvement in the attack on his home was you say to have broken into the house, was that the only role that you took, that you assumed or did you do anything else?
MR B BHAYI: What I did again was to go round after the comrade had went inside the house through the window, we were just surrounding that house together with the comrades. I was part of the people who were trying to let him out while the other comrades were inside.
MR KINCAID: Did you bear him any ill will any hatred or any malice?
MR B BHAYI: I didn't hate him apart from wanting weapons from him and wanted him to leave that area to go and stay in town so that we can get places where we could stay.
MR KINCAID: The injury to Mr Senti and Mr Pretorius, that was the Pretorius incident, were you involved in the group which went to attack Mr Pretorius?
MR B BHAYI: Yes I was there in Mr Pretorius'.
MR KINCAID: And what was your role, what specifically did you do during the attack on Mr Senti's house and then again later during the attack on Mr Pretorius?
MR B BHAYI: I was at the back of that house as I was looking for people from the next doors, I thought they might come out of their houses and report us. I was at the back of the house.
MR KINCAID: So you didn't injure Mr Senti in any way and Mr Pretorius, did you injure him in any way?
MR B BHAYI: I didn't even get near Mr Pretorius' house. When the comrades went from Joe Senti to Mr Pretorius we were left behind together with other comrades. We were looking for people that might come out and report us as the comrades were going to Mr Pretorius' home. Some of our comrades who went to the house of Mr Pretorius then we were left behind.
MR KINCAID: Likewise during the attacks on Joe Senti and Mr Pretorius, did you involve yourself in those attacks for any reason of a personal nature such as personal ill will or spite or malice?
MR B BHAYI: No I had nothing against Mr Joe Senti, I took him as a black person who suffered just like me, I didn't have a problem with him and Mr Pretorius, I didn't have a problem with him as such, we just wanted weapons from him and we wanted him to move out of his farm.
MR KINCAID: Bonakele, the annexure to that charge sheet alleged that when you attacked Mr Hansel it wasn't just firearms, a firearm that you took from him but there were other items of a normal household nature, food, clothing, linen, did you take any of those items from Mr Hansel when you attacked him?
MR B BHAYI: No I didn't take anything from Mr Hansel's.
MR KINCAID: Did you see any of your fellow comrades take anything from Mr Hansel which was not an arm or ammunition?
MR B BHAYI: No I didn't see but except for the military uniform, I only saw the military uniform, the boots and the overall and a black panama. Those where the things that we used to use to disguise as soldiers.
MR KINCAID: Who took possession of those items, can you recall?
MR B BHAYI: I saw those items at the roadblocks when we were surrendering that firearm.
MR KINCAID: So you didn't see who took it from Mr Hansel?
MR B BHAYI: No I didn't see who took them from Mr Hansel.
MR KINCAID: It was asked by the Chairman of Rhandile whether when you went to attack the farmers you envisaged that the weapons that you had with you, the firearms that you had with you, would possibly be used in the attack, the intimidation of the farmers. What's your view of that?
MR B BHAYI: Our policy when we left the community was that we did not, there was no need for us to use those firearms because the policy of the African National Congress doesn't encourage the killing of the people so it was not our aim, what happened there was not our aim. I also had a 9 mm with me but I didn't use it.
MR KINCAID: So what you're saying, it wasn't your initial objective, you didn't go out there with preconceived intentions of killing and of shooting farmers?
MR B BHAYI: Yes, that is like that.
MR KINCAID: But do I understand you correctly to be disputing the possibility that in the heat of such an attack, such a raid, such an action as it's been referred to, resort to the firearms was a possibility? Not necessarily to kill but certainly to intimidate?
MR B BHAYI: Yes we would have used the firearms to intimidate, not to shoot.
MR KINCAID: Jimmy in his affidavit tendered an apology to the victims of these attacks, do you likewise echo that apology?
MR B BHAYI: Yes that is correct, I also apologise to the victims for what happened to them and I don't see some of them so I'm worried because they are not here. I wanted them to be here when I'm testifying.
MR KINCAID: Can you confirm the contents of your confirmatory affidavit, Bonakele? The affidavit that you signed in April of this year?
MR B BHAYI: Yes that is correct.
MR KINCAID: Thank you Mr Chairperson.
NO FURTHER QUESTIONS BY MR KINCAID
CHAIRPERSON: Thank you Mr Kincaid. I assume no questions, Mr Clarke?
MR CLARKE: I have no questions, thank you Mr Chairman.
CHAIRPERSON: Thank you very much. Ms Patel, any questions?
CROSS-EXAMINATION BY MS PATEL: Thank you Honourable Chairperson.
Mr Bhayi, during the incidents that you've testified to, were you and your cousin Rhandile together or were you just part of the group separately?
MR B BHAYI: We were not together but I was present, I took part in whatever what was happening there.
MS PATEL: And how did you become involved in let's start with the Hansel incident?
MR B BHAYI: I became involved because I heard the discussions that we heard because it was said that we wanted weapons and I saw that because this was going to liberate us from our situation so I decided to take part.
MS PATEL: Okay. You stated that you saw some of the goods that were in fact stolen, you said that they were then surrendered at the roadblock. Can you tell us, the roadblock that you referred to, was this immediately after the attack on Mr Hansel, did everybody gather there again?
MR B BHAYI: Yes we all went there.
MS PATEL: Okay and I know this happened a long time ago. Can you recall whether any of the other items that you haven't mentioned were handed over.
MR B BHAYI: What was handed over it was a firearm and the military uniform, there was nothing else that was handed over.
MS PATEL: Okay and to whom was it handed over?
MR B BHAYI: We handed them over to the comrades that were there, I don't remember actually who was given because it was dark in the community, there were no lights.
MS PATEL: Okay. Can you tell us why these goods were handed over to the rest of the comrades who were there? Was there a decision taken by the community prior to these incidents taking place that all goods retrieved must be handed back?
MR B BHAYI: Things that we found from the farmers we had to hand them over to the roadblock and from there they would be handed forward to our commanders.
MS PATEL: Who were your commanders?
MR B BHAYI: It was Umfana Green and Rhandile Maneni.
MS PATEL: Okay. Can you tell us whether there was a specific instruction that no one was to be killed, none of the farmers were to be killed on these operations?
MR B BHAYI: Yes, there was such an instruction and most of knew that if you were under the ANC there was no policy to kill.
MS PATEL: Okay. Were there any decisions taken as to how the farmers should be attacked?
MR B BHAYI: Yes there were those decisions.
MS PATEL: Can you please give us the details of that decision?
MR B BHAYI: We decided that when we were going to the farms there would be a sign that would make a person that was inside to come out even though that person was not able to see us.
MS PATEL: What kind of sign are you referring to?
MR B BHAYI: For example throwing stones on the roof of the house.
MS PATEL: Okay and then? What would be the next step?
MR B BHAYI: If that failed, throwing stones failed, we would try to make means to go to the door and knock at the door and use a right approach.
MS PATEL: What do you mean by a right approach?
MR B BHAYI: We wouldn't go there and kick the door without knocking.
MS PATEL: Alright and then hopefully the farmer or whoever would open the door but if he doesn't would any decision be taken as to how you would proceed?
MR B BHAYI: If he doesn't open the door whilst we were there we'd make noise at the windows and while he was concentrating on the windows we would then open the door.
MS PATEL: And what would happen once you're inside?
MR B BHAYI: Inside we'd look for weapons.
MS PATEL: And what was meant to happen to the occupants of the house while you were or the group was looking for weapons, what decision was taken in terms of that?
MR B BHAYI: They would leave and go and stay in town to join other people, other white people in town.
MS PATEL: Okay so are you saying that there was a clear instruction that no one was to be injured?
MR B BHAYI: Yes that is correct.
MS PATEL: Okay and in terms of getting the farmers to move out and go to the town would they merely be told that this is what you wanted from them?
MR B BHAYI: After searching for the weapons or looking for the weapons we would leave that message.
MS PATEL: Okay. Now you can you tell us where the ...[intervention]
ADV BOSMAN: Can I come in here Ms Patel just to get some clarity? Mr Bhayi, how were you to deal with the farmers in the event of them resisting this search for weapons, was there any instruction there?
MR B BHAYI: We trusted our approach, we thought that they would understand.
ADV BOSMAN: Thank you.
MS PATEL: Thanks. Was there a system in place whereby you would have to report back to either Mr Green or Mr Maneni after each operation or perhaps somebody else?
MR B BHAYI: Yes we had to report but if Umfane Green was not available there would be other people available that we could report to.
MS PATEL: Okay. What is your comments on - there was an allegation made that farmers were sent notices warning them or instructing them to leave their farms prior to these attacks taking place. Do you bear any knowledge of these notices that would have been sent out?
MR B BHAYI: I only heard about that about the letters that were supposed to be sent to the farmers. Those were people's ideas in the meeting so I'm not sure whether that happened or not.
MS PATEL: Okay, given that your mandate was clear how do you reconcile your mandate with what had in fact taken place at all of these attacks, that people were in fact injured, shot at?
MR B BHAYI: Those happened because of the conditions or the situation at the time. They didn't go out as we had discussed.
MS PATEL: Alright, let's talk about the Hansel incident first. He was a sickly old man, he was alone in his house. There were many of you who were going through his place looking for the firearms. Surely in terms of your mandate it wasn't necessary to assault as grievously as he was assaulted?
MR B BHAYI: Yes it was not necessary for him to be assaulted that way but we approached him and he didn't understand and the comrades then decided to assault him because they wanted weapons from him.
MS PATEL: Okay, was this reported back to Umfane Green or somebody else of the command structure as you state?
MR B BHAYI: Yes from there we went back to the roadblocks so everything that happened they were reported back.
MS PATEL: Was there any feedback from the command in terms of how that operation had in fact been conducted?
MR B BHAYI: I don't remember when because there were a lot of us and other people who didn't go to that operation were interested in seeing the firearms or the weapons so I'm not sure whether there was such feedback.
MS PATEL: I'm sorry, I didn't get your response. Sorry, Madame interpreter, can you just repeat that for me please?
MR B BHAYI: Whenever we came from an action we used to go to the roadblock to surrender the firearms and the people that were left behind were interested, they wanted to know or to see the weapons that we found so I'm not sure whether Umfane Green was there because when you're coming out of an operation you would be shocked so I'm not sure about what happened.
MS PATEL: Regarding - can you tell us a bit more about the group who had gone on these operations. How was the planning done amongst that group before you embarked on an operation, was it done at the roadblock, were people informed about what was going to happen and who would be in charge of what as when you went to Mr Senti's house you were guarding the fellow workers' homes, can you just briefly enlighten us on what the planning was?
MR B BHAYI: We were not told what to do, you just decide where to stand as you were there. You would then see where to look for the enemy or where to guard.
MS PATEL: Okay. If I can just refer back to these specific incidents that you've been convicted of? Do you know anything about Mr Hansel's telephone lines being cut. Was it part of the plan, were you present?
MR B BHAYI: Yes it was part of the plan, it was our decision that the first thing to do was to cut the phone wires so that the farmer cannot be able to call out for information.
MS PATEL: Okay. Alright, you've also been convicted of the attempted murder of Mr Cobus. Do you by the conduct - sorry, let me rephrase that, that was not the intention when you went there, your cousin, Mr Rhandile Bhayi, has stated that the only reason that your group reacted in the manner that they did at Mr Cobus' house was in fact because he was shooting on them, shooting on your group and that you were all acting in self-defence. Is that your position as well?
MR B BHAYI: Yes that is so and even our shooting back at him, I don't think that we aimed at him but we were just giving him a sign that what he was using we also had it with us, the firearm was also with us.
MS PATEL: Okay. Alright, the attempted - you've also been found guilty of the attempted murder of Mr Pretorius. What do you have to say about that, did you reconcile yourself with the conduct of the other members of the group who'd in fact shot Mr Pretorius or did you feel that that was beyond the decision and the mandate of the community and that you're not willing to be a party to that?
MR B BHAYI: The shooting of Mr Pretorius and Joe Senti was not the instruction that we received and that was not our decision but it just happened while we were there.
MS PATEL: And you don't have a problem with the fact that it just happened, you reconcile yourself with the fact that it happened in the way that it happened?
MR B BHAYI: No I don't reconcile myself with the way it happened, the spilling of blood because it was not our policy to do that.
MS PATEL: Okay, can I ask you, given that you knew what the specific policy of the organisation was in terms of the specific operations and also the manner in which the first operation had panned out given that Mr Hansel was seriously assaulted and that wasn't part of the mandate given the drawn out attack on the old Mr Cobus which was also not part of the mandate. Why did you still carry on with this group, why did you still proceed to the second and the third attacks?
MR B BHAYI: The comrades that were there at the time I think they didn't know how to approach him so that they can get weapons and the reason why I continued in these attacks is because I trusted our approach although it failed.
MS PATEL: Well the approach failed after the first time, how could you still have had trust in the approach?
MR B BHAYI: What I was sure about is that it might happen that in the next action what happened before would not happen.
MS PATEL: Okay. There were other operations undertaken after Mr Pretorius and Mr Senti were in fact attacked. Why did you not participate in those?
MR B BHAYI: It is because I was harassed by the police and they also had my name so I was running away from the police, I was not staying n that township.
MS PATEL: Were you harassed because of your involvement in these incidents or was it for some other reason?
MR B BHAYI: I was harassed because of the incidents that I got arrested about.
MS PATEL: Okay, now this specific mandate of the community in terms of carrying out these operations, can you tell us whether your co-applicants were aware of that, of the specifics of the mandate of how the operations were meant to be carried out?
MR B BHAYI: I think they were aware because we were all in the meeting and we were told about not to kill or not to shoot.
MS PATEL: Alright. Honourable Chairperson, I'm almost through but I've just been handed some papers that may be relevant, if I'm granted a short adjournment just to go through these papers that I've just been handed? I believe they come from our investigative unit?
CHAIRPERSON: Where do they come from at this late stage? This matter is being heard for the last how many days?
MS PATEL: I'm not sure exactly what the source is, Honourable Chairperson, I'll have to speak to them. I was just handed the envelope now.
CHAIRPERSON: Are you done with your cross-examination but for this stuff or what is your position?
MS PATEL: Ja, I'm done but for this.
CHAIRPERSON: We would like to get this done and it is obviously unacceptable for the investigative unit to produce documents which we don't know whether they have anything to do with this case at this late stage and expecting you to interrupt the flow of the proceedings in order to study those things and so I certainly don't take very kindly to that and you can tell them that. I'd intended to conclude the testimony of this witness, to then adjourn for a while to enable the parties to prepare their addresses to us and to come in and to take those addresses and to dispose of this matter so I very reluctantly interrupt the proceedings at this stage and I trust that if there is anything that is really important and relevant you will deal with it otherwise we won't have to suffer anything that doesn't really add value to the process.
MS PATEL: I'm indebted to you Honourable Chairperson.
CHAIRPERSON: We'll adjourn for a short while.
COMMITTEE ADJOURNS
ON RESUMPTION
CHAIRPERSON: Ms Patel, any further questions?
MS PATEL: Thank you Chairperson. There's just one final thing I'd like to put to this applicant.
Mr Bhayi, it is not disputed that there was political strife in Stutterheim, it is not disputed that there was in fact a meeting that had taken place and in which a decision was taken in terms of how to deal with the farmers. What I'm putting to you now, however, is that when you embarked on these different attacks for which you have been convicted, I put it to you that you did not act in accordance with a political motivation, that you were not carrying out the mandate of the community. What is your comment?
MR B BHAYI: I disagree with your view because if we went there on our personal mission we would have even received or got a lot of money from those operations or those attacks and those people would have been killed.
MS PATEL: I furthermore put it to you that you haven't made full disclosure to this Committee, that you haven't been entirely honest with us.
MR B BHAYI: If the farm owners were here, were present in this hall and if they would have been asked about this incident they would say that this happened as we have testified but I don't see anybody who was there. Now it's like we're talking a lie, these people are not here.
MS PATEL: Alright, in response to your and or for purposes of the record I might just add, Honourable Chairperson, that the only victims in this matter we were really unable to trace were in fact, if I can just - I think it's the Cobus family that we were unable to, the rest of the victims, Mrs Marulia who was not involved with you but - and have stated that they do not wish to relive the incident again. They were all old at the time that it happened and they didn't want to be traumatised again by this process and so that is the reason that the victims are not here, not because they agree with what you say. Thank you Honourable Chairperson, I have no further questions.
NO FURTHER QUESTIONS BY MS PATEL
CHAIRPERSON: Yes thank you Ms Patel. Has the Panel got any questions?
ADV BOSMAN: Just one. Mr Bhayi, how well did you know the other applicants at the time, Jimmy and Mr Ntonga and the other Nokawusana?
MR B BHAYI: I only knew Rhandile Bhayi, I didn't know the others, I saw them when we were in prison, I didn't know them before.
ADV BOSMAN: Thank you, that's all. Thank you Chairperson.
CHAIRPERSON: Mr Kincaid, have you got any re-examination?
MR KINCAID: I have none, thank you Mr Chairman. That concludes the case for this applicant.
CHAIRPERSON: Thank you very much. Mr Bhayi, you are excused.
WITNESS EXCUSED
CHAIRPERSON: Have you got any further witnesses?
MR KINCAID: Mr Chairman, with the agreement of the evidence leader and the representative for Mrs ...(indistinct), I wish to have the following recorded. It obviates the necessity of calling Mr Rhandile Maneni who was subpoenaed to appear before this body but has not done so. My instructions were that the applicants wish to have someone from the leadership structure appear before the Committee and corroborate their testimony so
the agreement which the parties have reached obviates the necessity for calling such a witness and essentially there's that the civil conflict in the Stutterheim area has been accurately contextualised by Jimmy Nokuwasana for the period 1985 to 1990 when these incidents occurred and, secondly, that in consequence of the church hall shootings a community decision was taken to target the farmers of Stutterheim and to intimidate them and drive them from their farms, that is the extent of the agreement I have with my colleagues.
CHAIRPERSON: Is there no agreement that the decision also encompassed dispossessing farmers of firearms?
MR KINCAID: That was the gist of Jimmy's evidence and it stands unchallenged so it's very much part of the applicants' case, I'm not sure whether for purposes of this record that fact could be agreed but it was certainly the applicants case, it has been right from the very first testimony led by Jimmy himself that the object was, as Jimmy's affidavit sets out in fact threefold, dispossess them of arms, intimidate them and then remove perceived support for the security forces.
CHAIRPERSON: Yes, what I wanted to try and ascertain was whether this was something that was simply not focused on in the agreement or was it something that was discussed and disagreed on.
MR KINCAID: The specific terms were not discussed Mr Chairperson.
CHAIRPERSON: Thank you Mr Kincaid. Mr Clarke do you confirm what Mr Kincaid has ...(inaudible).
MR CLARKE: Mr Chairman, this doesn't really effect my client, the facts of circumstances surrounding my client are somewhat different and have been distinguished all along so from my client's point of view I've got no objection, I'm not party to it either really, I think my client's case is distinguishable entirely, thank you.
CHAIRPERSON: Ms Patel?
MS PATEL: Thank you Honourable Chairperson, I wish to confirm the agreement reached with my learned colleague.
CHAIRPERSON: What is your position on the question of the firearms that I raised with Mr Kincaid?
MS PATEL: Honourable Chairperson, I have no information at hand on which to dispute that specific point of the decision that was taken by the community in 1989. Thank you.
CHAIRPERSON: Yes thank you Ms Patel. So that concludes your evidence, I assume you don't have any further evidence that you're going to lead Mr Clarke?
MR CLARKE: No Mr Chairman.
CHAIRPERSON: Ms Patel have you any evidence that you're going to lead?
MS PATEL: No none at all, thanks.
CHAIRPERSON: Thank you.
Mr Kincaid, have you got any submissions?
MR KINCAID IN ARGUMENT: I do thank you Mr Chairman, Members of the Committee.
Firstly, it's my submission that when you consider the strategy requirements set out in Section 20 of Act 34 of 1995, that you give effect to those sections by interpreting them purposely, by interpreting them in the light of the preamble to the Act and not just the Promotion of National Unity and Reconciliation Act but also the preamble and long title of the Indemnity Act of 1990 and if you'll just grant me the indulgence of - I made notes just concerning that preamble. The application the preamble to the focus of this Committee is that it provides for the establishment for as complete a picture as possible of the nature, causes and extent of gross violations of human rights emanating from the conflicts of the past. The granting of amnesty to persons who made full disclosure of all the relevant facts relating to acts associated with a political objective committed in the course of the conflicts of the past. The preamble goes on to state:
"that the constitution requires that the pursuit of national unity, the war being of all South African citizens and peace demands reconciliation between the people of South Africa and reconstruction of society. In order to advance such reconciliation and reconstruction, amnesty shall be granted in respect of acts, omissions and offences associated with political objectives committed in the course of the conflicts of the past."
The phrase "conflicts of the past" seems to enjoy pertinent prominence in the preamble and it's my submission that the purpose of this legislation really is to - it recognises the troubled history of our country and it's violent genesis into what is now a new democratic South Africa. It's with that in mind, Mr Chairman and Members of the Committee, that you will interpret the statutory requirements set out in Section 20. Now it is without doubt that the applicants were very much part of a conflict, a tension, a strife in their community of Stutterheim. That doesn't seem to be disputed at all and in my respectful submission they were young men at the time of this conflict, very susceptible to influence, to suggestion, very capable of being aroused by inflammatory oratory. Those are the kind of applicants you're dealing with, they were youngsters, very sensitive to the incursions and disruptions of their community life.
Now I suppose I'm obliged to stand still for a moment at the statutory requirement in Section 20 that they make a full disclosure of all relevant facts. Now they may well be taken to task for not admitting, for not coming entirely clean. Now some applicants did suggest that they didn't actually climb the telephone wire and cut the wires or that they didn't go into a hut or that they didn't pull a trigger but sight must not be lost of the fact that these convictions were in the vast majority based on the doctrine of common purpose and the evidence was clear that at all times it was a group activity, there was prior planning and so the judge had no difficulty
when applying the principles set out in States versus Safoster, in convicting them of a common purpose. So the cross-examination of some of them might have listed evidence which suggested that although they had no direct involvement in the commission of the crime that doesn't necessarily mean that they were not admitting their participation. I think all of them admitted that they did participate, they were part of a group, so to quiz them with fancy notions of a doctrine of common purpose or of factual causation and legal intent as opposed to factual intent and all those legal niceties just wouldn't have brought about a proper response. It's not how they saw it, it's not how they understand the mechanisms of the law.
I think the evidence is quite clearly established that there was a community decision to target the farmers. Now I'm not sure whether the Committee will invite me to address them as to whether that qualifies them in terms of Section 22 because the community decision doesn't necessarily imply that it was the community decision of a political movement or of a political organisation. Section 20.2 seems to categorise the types of amnesty applicants into either members or supporters of publicly known political organisations or liberation movements or employees of State or members of the security forces. It doesn't specifically make provision for a community decision but Mr Chairman, I'm informed that there have been applications before this Committee where a community decision has been sanctioned and the crimes which have arisen in consequence thereof have been sanctioned.
CHAIRPERSON: Yes Mr Kincaid, yes this reference to the community and organisations and so on in most instances some of these organisations in fact are the community so that I understand these applicants to say that they were either supporters, I'm not sure about membership but at least supporters of some or other ANC structure, would it be the Youth League or whatever so it appears to me as if there is not very much in dispute on that score, on whose behalf they were acting and that it clearly had even is evidence by your agreement with the other parties that it's clearly in a political sort of milieu that all this happened.
MR KINCAID: Thank you Mr Chairman, then there's an aspect of my address which I can leave by the wayside but Mr Chairman, the sub-section 3 is the base upon which one determines whether an act is associated with a political objective or not and I think it's quite clear from the applicants' testimony that their motive when they committed the act was to acquire weapons, was to intimidate the farmers. That was in consequence of this resolution that was taken. Now I think most of them were candid enough to have mentioned that they didn't really foresee that a cordial invitation would be effective, that by going to the farmers and saying "look please leave your farms now and before you go, hand over your weaponry". They didn't foresee that that was actually going to materialise. So intimidation was very much part of the strategy to get the farmers off the land and that is why obviously they would have gone armed to achieve that particular objective. If one looks at the four incidents involving the farmers, Mr Hansel and Mr Cobus, Mr Pretorius and Mrs Marulia, then there is nothing to dispute, nothing to suggest that obtaining ammunitions was not a purpose. From Mr Hansel they did retrieve and did secure a firearm and ammunition. From Mrs Marulia likewise they got arms and ammunition. Mr Cobus and Mr Pretorius frustrated their efforts and nothing was taken from those properties but when you look at what was taken, firearms certainly enjoyed prominence. The applicants have all distanced themselves from other items which were removed, items of a normal household nature and there's only one count which really supports the fact that there were other items taken, items of a household nature and that is the count involving the attack on Mrs Marulia. Mr Hansel, all that they were convicted of was the robbery of the twelve bore shotgun. The annexure to the charge sheet alleged other items but there was no evidence placed before court that those items were taken so their conviction was solely of a firearm. The Marulia incident, they were convicted of robbery and it also involved items unrelated to firearms.
Now it is my submission that there's nothing to dispute that their motive was to carry out the order, the community decision. The only incident which might give the lie to that submission would be the Marulia incident. Now the context in which the act or omission or offence took place ...[intervention]
CHAIRPERSON: May I just ask you something Mr Kincaid? Leaving aside the Clackers' incident for the moment because there Mrs Clackers testified that she had handed over some small change to one of the assailants but insofar as the other incidents are concerned, do we have to find that or is there a basis for us to find that items other than the firearms and ammunition were in fact stolen from the farms?
MR KINCAID: Mr Chairman, I don't think there is a basis in the Hansel incident which was the other incident which involved, where goods were actually recovered because none of the applicants were convicted of robbery of any other items except the twelve bore shotgun but their case is that they can't whether items were taken or not because they didn't see the removal of those items and they can categorically state for the Committee that they personally didn't involve themselves in taking any item other than an armed weapon.
Mrs Marulia at that incident, as items were taken and that's not placed in issue by the applicants but their case is solely whether you believe them or not that they didn't take any of those items themselves.
CHAIRPERSON: Are you saying that the applicants are conceding that items of a non-weaponry nature had in fact been stolen in other cases or what are they saying, are they saying they can't say because we certainly, we have all these papers before us, court papers and so on, but apart from Mrs Clackers we don't have any evidence before us, really, on any other items apart from the money that Mrs Clackers has been talking about.
MR KINCAID: I think it's safe to say, Mr Chairman, that they would concede that in the Marulia incident there were other items taken which weren't weapons or arms. It's their case that they didn't take it but all of them during cross-examination conceded that that was possible, that these other items were taken. That doesn't make them less guilty of robbery because it's - they did rob firearms from Mrs Marulia so from the robbery aspect they were correctly convicted but in my submission the incident of Mr Hansel, the judge was unable to find that any items were taken from Mr Hansel. He was unable to find that as a fact and in that regard the applicants once again say, well if it happened we don't know anything about it, we can't say that it did, we can't say it didn't, all that we can say is we weren't involved in it. So I don't know if that answers your query, Mr Chairman.
CHAIRPERSON: Yes, no I note what you are submitting, I'm just trying to ascertain exactly what the ambit of the issues before us amount to, whether it is necessary for us to deal with items of a non-weaponry nature but if you say that the applicants concede in the Marulia matter that there were items of that nature taken then of course it does become an issue that we have to consider.
MR KINCAID: I don't make that concession, I think it was made by the applicants themselves, Mr Chairman, I think it was their case that they don't dispute that those items were taken.
CHAIRPERSON: Yes but are we in a position then to conclude on that, that those items were in fact taken because I don't know whether they sort of explicitly conceded that those things were taken they say it was possible, they didn't see it but it is very possible that it was taken, they certainly didn't take it themselves.
MR KINCAID: Mr Chairman, well I can't go outside of that, outside of that concession.
CHAIRPERSON: Oh, so are you saying that in view of the material before us and view of the evidence of the applicants which seems to say not very much to be quite honest with you that we are able to conclude or that we should conclude that there were items of this nature taken in the Marulia matter only?
MR KINCAID: Yes Mr Chairman. Mr Chairman, with regard to the full disclosure, it may well be argued that given the mandate, the applicants exceeded the terms of that mandate. The applicants are all clear in their testimony that they went there to intimidate and Jimmy's affidavit which was confirmed by the rest of the applicants, they said that although the instruction was not to kill, they foresaw that violence might have to be used to remove firearms from the farmers and to intimidate them. At paragraph 4.5 page 6 he says
"Some of us would be tasked with going to attack the farmers and by so doing instil fear in them and frighten them from the land. Now attacks on the farmers we were not specifically ordered to kill anything of them but we were ordered to take firearms from them even if this involved violently doing so."
So robbery certainly was envisaged right from the start or when the farmers were attacked. There's little room for an interpretation here of the pacifist approach and though it was the evidence that the farmers were warned to leave their farms the applicants all seemed to acknowledge that the only way they were going to get them to leave the farms would be by intimidating them with violence and that would fit in with the general background of the events in Stutterheim at the time and of the nature and character and the personality of the applicants themselves, all young men, all easily fired up, in the cold face of the conflict of the security forces. So it would be very hollow to come now before this Committee and say that violence wasn't on our agenda, that's not what their case is, that's not what their affidavits say.
When we have regard to whether they made a true and full disclosure or not, we must distinguish, the Committee must distinguish between what the original intention was and what the legal intent may have been when ...(indistinct) Ntonga had a firearm on his arm and how he held it and what he did, in what circumstances he discharged the firearm. So motive and intention mustn't be confused and during the cross-examination of the applicants in my respectful submission, that sometimes wasn't made clear. Their motive and purpose was always consistent. A firearm was discharged on two occasions, it injured Mr Cobus and it injured Mr Pretorius, on three occasions, and Mr Senti and the circumstances in which the firearm was discharged have been placed before the Committee, essentially it was a discharge in what the applicants say, in the heat of the moment. There's nothing to suggest that from the circumstances of the discharge that their motive in going to the farms was anything other than to rob the farmers of firearms and to violently intimidate them. The legal and factual nature of the act including the gravity of the act, they were serious crimes, it's conceded, all the applicants acknowledged that. There was no direct loss of life.
Paragraph (d) requires a consideration of whether the objective of the act was directed at a political opponent or a State property or against private property individuals. This was against innocent targets, innocent victims, but it was done for what was perceived to be properly motivated reasons. The applicants were all of the perception that the farmers were in the camp of the security forces, that's where their loyalties lay and understandably one doesn't easily find fault with that reasoning, understandably too, that the farmers should have been in the camp of the security forces. The purpose of acquiring weaponry would have been to not only defend the community but to make policing and make the enforcement of security measures more difficult in Stutterheim, it would have obliged the State to spend more resources in containing that conflict and it would have brought a focus of international eyes on the problems besetting this country. So in my respectful submission, that in respect of the criteria set out in sub-section 3, what the applicants did there qualifies them and qualifies their acts as meeting the criteria of acts associated with a political objective.
There is one incident which is problematic for the applicants, for three of the applicants, and that is the Clackers incident. In my submission it is severable, as the Judge found out, it was different from the other attacks on the farmers as he determined. It wasn't an attack on a farmer to acquire arms or weaponry, it was an attack on a trader to prevent trade. What happened there and Mrs Clackers wasn't challenged, she wasn't challenged in the court, in the criminal court and she wasn't challenged before this Committee, exceeds any possible political objective if the Committee finds as she testified that she was robbed of various items in the shop.
CHAIRPERSON: Yes I mean it is hard to conceive of a basis to reject that evidence. You see the question in regard to the Clackers matter really comes into the goings on inside the shop, exactly what happened it could very well be that the circumstances under which the three applicants landed up at the shop are as they testified acting on an instruction to go tell her to close down because she seems to concede that there was a consumer boycott and it's common cause if she was trading and that she was a White shop but the real issue concerns what actually happened inside the shop. You clients seem to deny that they robbed her, they were convicted of robbery so it appears as if there's some difficulty in conceding of a basis of an amnesty application in respect of that incident because they were convicted of robbery, they don't admit that, the two versions seem to diverge completely as to what happened inside the shop and of course to be able to reject the evidence of Mrs Clackers which isn't being challenged in cross-examination, there has to be compelling reason.
MR KINCAID: I concede those difficulties Mr Chairman.
Mr Chairman, it is my submission that that instances severable and that if the Committee were to refuse amnesty in regard thereto, it ought not to reflect negatively or read down to the prejudice when the Committee considers the applications in respect of the other incidents. If I may just deal with the individual applicants? If I may deal with Melvin Nokawusana, Mr Chairman, that's application AM2009/96. He seeks amnesty for the attempted murder of Mr Cobus, housebreaking with intent to rob Mr Cobus and for malicious damage to Mr Cobus' property in that the telephone wires were cut.
CHAIRPERSON: Contained in one of the summaries of convictions and sentence that we have in these papers?
MR KINCAID: Yes.
CHAIRPERSON: Which page is that?
MR KINCAID: Page 41, sorry Mr Chairman. He is also seeking amnesty for the attempted murder of Mr Pretorius and housebreaking with intent to or to commit a crime unknown to the State of Mr Senti's home, damage to Mr Senti's window and damage to Mr Pretorius' property. On those counts none of these convictions suggest that the motive was to rob the victims or in any way act in a way to their economic prejudice. All these convictions are consistent with a prior plan to intimidate a farmer, to forcefully oblige him to vacate his farm. Mr Cobus and Mr Pretorius, neither of them surrendered any firearms, none were obtained, but there's nothing to gainsay the motive. The cutting of the telephone wires were necessary, a part of the attack on Mr Cobus as was the housebreaking, all those convictions are consistent with the motive to intimidate and to rob. In respect of count 11 however, which is the attack on Mrs Clackers I have made a concession already and I won't be addressing that conviction but in my respectful submission this applicant made a full disclosure, true disclosure of his involvement and the attack on Mr Cobus and on Mr Pretorius. He wasn't charged with assaulting Mr Pretorius, but on his own evidence he set about striking Mr Pretorius after he had fallen to the ground, that evidence wasn't led at trial, he didn't face the jeopardy of that charge. So that's indicative in my respectful submission of his bona fides.
CHAIRPERSON: I'm sorry to interrupt you, Mr Kincaid, were all of these applicants charged or is there one who hasn't been charged?
MR KINCAID: All these applicants were charged and convicted in the supreme court Mr Chairman, in respect of when you say charged?
CHAIRPERSON: Yes and tried and convicted. They were all tried?
MR KINCAID: They were all tried, yes. So in my respectful submission Mr Chairman, Melvin Nokawusana meets the criteria set out in the Act. If you disregard his evidence in respect of the Clacker's incident and you found that he was party to robbery, common robbery there then he doesn't qualify for amnesty in respect of that count but just because he is found to be untruthful in respect of that count, in my respectful submission doesn't compellingly determine that he has to be found to be untruthful in respect of the other disclosures. Bonakele Bhayi is the next applicant and he was the last applicant who testified. He was found guilty of the attack on Mr Hansel, on the attack on Mr Cobus and of Mr Pretorius. He wasn't involved in any crime which contained elements of the robbery of common household goods and he wasn't involved with the Clackers' incident, there's nothing to suggest that his motive in attacking Mr Hansel, his motive in attacking Mr Cobus and Mr Pretorius, was a motive other than of violently intimidating these farmers and attempting to rob them of firearms. In my respectful submission he has made a full disclosure and is entitled to amnesty.
His brother, Rhandile Bhayi, was convicted of exactly the same offences as his brother, Bonakele, and my submissions in respect of him are similar. Rhandile Bhayi in his evidence told of another incident for which amnesty was not sought namely the burning of a garage of Mr Madameni or a farmer known as Madameni and in my respectful submission he was quite candid and open in his disclosure. He testified to striking Mr Hansel three blows on the back with a hammer. He wasn't charged with that, it was a disclosure he made.
With respect to Nunu Umsianda, he was party to all of the incidents. He was also the gunman by the appearance of things and was found guilty of possession of firearms and ammunition without licences. The incident at Mrs Maria's home as we have conceded involved the additional element of common robbery as opposed to shall we call it political robbery. Nunu Umsianda testified that he was arrested shortly after the incident in the forest by the police. Nothing was found in his possession. The firearm that he had he had dumped. His conviction of the common robbery element would have been on the basis of common purpose. All the applicants testified that the group which attacked these farmers was a large one, that it at any rate was comprised of more people than just seven of them who stood trial. There was no evidence to link Umsianda Nunu with the robbery of any common household article.
CHAIRPERSON: Is that conduct susceptible to amnesty? The common law robbery?
MR KINCAID: No, Mr Chairman, I acknowledge the difficulty in establishing a political objective to a crime which nothing more than common law robbery and that is the difficulty I have with the Clacker's incident but the applicant's case is that they went along but they weren't alone, they weren't the - the group didn't just comprise them, the group was always larger and people did go over and above the terms of their mandate and those who took household articles certainly were doing just that. The applicant's case is that they themselves didn't do that. Now that will be a question of credibility whether you believe him or not but what corroborates his evidence in my respectful submission is the fact that he was arrested shortly after this event on his return home after the commission of Mrs Marulia's crime and nothing was recovered in his possession.
ADV SANDI: Sorry Mr Kincaid, just to clarify? The common purpose, can you separate that from what may appear to be a clearly politically motivated conduct on his part, can you separate the two in that particular context you're dealing with in respect of this applicant? You say nothing was found in his possession?
MR KINCAID: Sorry Advocate Sandi, the basis of their convictions essentially were on an application of the doctrine of common purpose and they've come before you as individual applicants expanding their personal motive in committing these attacks. What they've said to the Committee is "this is why I did it, I concede that there were items taken which belies the political motive but I didn't have any control over that, I wasn't party to it, if that did happen it was done by others in the group." Now if you're looking at - if you're applying the criminal law to such a scenario then there is no difficulty in confirming the properness of their conviction but the question for consideration for this Committee is vastly different from that facing the trial judge in the trial scenario. Here we have to look at their motive and the lie to the motive would be if it had been established that he personally had taken some of those common household goods and my submission merely is that that wasn't established. He wasn't found in possession of any of those items, his conviction was on the basis of common purpose.
The applicant Umsianda Nunu fired two shots, one which struck Joe Senti and one which struck Mr Pretorius. He has given a reason for the circumstances, he's explained the circumstances, he's given a reason for discharging the firearm. His conviction was proper in proper in law, my submission is that this Committee will take into account the circumstances in which he fired that shot and the fact, it will focus it's attention at him. He would have been a young boy of about sixteen given a firearm and I suppose to instil discipline in a man of such an age and to oblige him to stick by the strict rule of a mandate would have been an impossible task so Umsianda Nunu was fallible given that critical moment. Now it's my submission that he didn't cause the death of Mr Cobus or of Mr Pretorius. All the applicants envisaged the fact that a firearm may well have to be used. It's use by Nunu Umsianda was not the manner or the fashion in which the group intended or he intended. My submission in respect of him is that it is difficult to conceive of how he would qualify for amnesty in respect of count 11 but in respect of the other counts my submission is that he has essentially made a full and true disclosure.
And final applicant, Mr Chairman, is that of Jimmy Nokawusana. His case is very much the same as that of the previous applicant. He was also convicted on the count of robbing Mrs Marulia of firearms and household goods. That is the only conviction which deprives the political motive of some force. He was similarly convicted of robbing Mrs Clackers but there is nothing to suggest like Umsianda Ntonga that Jimmy was found in possession of these firearms - no, in possession of items not of a weapon or arm nature and in respect of count 11 I find it difficult to concede the base upon which he can qualify for amnesty but in respect of the other attacks on the farmers there's nothing to suggest that he wasn't heeding the call of the community that the attacks on the farmers were done with the purpose of intimidation and of driving them from the farms and of robbing them of firearms so in my respectful submission with the exception of count 11 this applicant too is entitled to amnesty.
Mr Chairman, those essentially are my submissions, if there's anything in particular I shall address it.
CHAIRPERSON: Yes, no thank you Mr Kincaid. I intend to take a brief adjournment at this stage but before doing so, Mr Clarke you've noted the concessions that Mr Kincaid seems to have made?
MR CLARKE: I'll be extremely brief Mr Chairman.
CHAIRPERSON: Ms Patel, what is your position?
MS PATEL: I shouldn't be too long Honourable Chairperson.
CHAIRPERSON: Alright.
COMMITTEE ADJOURNS
ON RESUMPTION
CHAIRPERSON: Well try and conclude. Mr Clarke have you got submissions?
MR CLARKE IN ARGUMENT: Thank you Mr Chairman, I undertook to be brief, that I'll do. I appear only for Mrs Clackers, she opposes amnesty in respect of her three attackers. My submission is very briefly that the applicants have three fences to clear, the compliance with requirements, we've got no difficulty with that, then I'd refer to Section 20 C, full disclosure of the relevant facts and then in the third place that the act was one associated with a political objective.
It's our submission that the applicants have not made a full disclosure of the relevant facts, far from it and if they fail to clear that fence then they stop there. Without going into specific detail as to what was said I submit that Mrs Clackers made an extremely - very strong impression as a witness, that compared to the offerings that had in evidence, it is perfectly clear that they've tried to dress their deeds up and grace them with the role of freedom fighter and grace them with the role of comrade when in fact it's little more than acts of thuggery and robbery. Maybe that the initial purpose or motive was to have gone to warn her off trading, I've got no difficulty with a submission like that, I don't for a moment ask you to accept that this was a plan that was hatched and conceived to go and rob before they left Stutterheim but it seems clear to me that during the course of the series of events it went beyond that, whether there was an apparent attempt to reach or a movement that gave them to think that they meant be moving, reaching for a firearm or not doesn't in my respectful submission alter the fact that they then seized upon a very vicious attack on a defenceless woman and that their account of what happened is patently untruthful hence they've failed to clear the second hurdle that I referred to.
In any event, should the Committee find that they indeed did get that I would submit that the further conduct was clearly motivated for personal gain alternatively malice, spite and ill will and it's possible or conceivable that there was a bit of a verbal spat that turned into this very vicious assault. Accordingly I would respectfully associate myself with the view of reconcessions that were made by Mr Kincaid and submit that they've by no means succeeded in discharging what is required of them to be granted amnesty in respect of the attack on Mrs Clackers.
Further there are one or two outstanding things, I don't believe that it was in, on their evidence, it was within the community mandate that the traders should be visited and threatened. My understanding of a consumer boycott is to pressurise the effected community rather than to use strong arm tactics on the shoppers and clearly this was a frolic of their own. I have nothing further to say, thank you.
CHAIRPERSON: Thank you Mr Clarke. Ms Patel?
MS PATEL IN ARGUMENT: Thank you Honourable Chairperson.
Honourable Chairperson, it is my respectful submission that none of the applicants have met the requirements of the Act, that they were not politically motivated when they embarked on any of these operations, that none of them have made full disclosure. It is my further submission that none of the grounds that the applicants have tendered here have differed from that tendered at the trial court and I accordingly request, humbly request that you accept the decision made by the Judge at the trial where it was found that none of the - despite the fact that it was accepted, the political scenario was accepted, the decision taken at the meetings in December was accepted, it was found that none of the accused or the applicants at that time were motivated by any high minded political idealism. I would ask you all to also take into consideration that the applicants had all applied for indemnity that one of the criteria that they had to meet at that indemnity application was in fact that their crimes were politically motivated. They in fact failed in their indemnity application, I would submit that that is of highly persuasive value to yourselves when you come to a decision as to whether they were in fact politically motivated or not. In as much as there might have been a decision taken by the community, we have heard clearly from Mr Bhayi what the ambit of that decision was and without going into the specifics of all the applicants, it is my respectful submission that none of them abided by the specifics of the decision and the manner in which these operations were meant to carry out.
As an example one looks at Mr Hansel, if one looks at the motivation for the decision that was taken by the community, it was conceded by the applicant, Jimmy Nokawusana, that Mr Hansel was in fact a good person and would never have fallen within the ambit of that decision.
One looks further at the housebreaking of Mr Senti, the fact that he was shot, the entire scenario fell clearly outside the ambit of that decision. It is my respectful submission, Honourable Chairperson, that when one looks at political motivation, even if, and this not conceded, even if it is accepted that the applicants were carrying out the decision of the community, if one looks at the question of proportionality which you are required to do in terms of Section 20, sub-section 3 of the Act, we look at all the victims, they were all old, they were all alone. To a large extent they were not in a position to protect themselves save for Mr Cobus who managed to stave off the attackers for quite some time.
ADV SANDI: Ms Patel, if I can come in there? With the exception of Mr Hansel, is there any evidence here that the ages of these victims were known to the applicants? Did they know whose these people are with the exception of Mr Hansel?
MS PATEL: There is no evidence that - I'm not sure whether that specific evidence was tendered at the trial court, I'm certainly not in a position to say whether the ages were in fact known. However, the ages of the victims was in fact testified to at the trial and if one considers that the applicants were present at the farms they would have realised that these were old people that they were dealing with and so if one looks at the way in which they went about trying to achieve their alleged objective and the seriousness of the assaults and the time period for which these victims were in fact assaulted, surely there can be no basis upon which it was necessary for them to assault these old people in the manner in which they did in order to achieve their alleged political objective.
ADV SANDI: If they wanted to kill these people, wouldn't they have killed some of them, wasn't there an opportunity to do that?
CHAIRPERSON: And isn't that the most ideal target if you want to obtain firearms, you want to dispossess the farmers of firearms, isn't that the most logical target or least resistance? You're not going to go to a farm that is barricaded by a young colonel in the army with an automatic rifle?
MS PATEL: That might be so, Honourable Chairperson, I will however still submit that one of the other objectives was also to drive the farmers away and my submission is simply that it wasn't necessary to assault them in the manner in which they were assaulted in order to achieve that desired objective. Also to get the firearms, it wasn't necessary for those victims to be assaulted in that way, they could very easily have perhaps tied them up.
CHAIRPERSON: You mean verbally persuade them to hand over the firearms?
MS PATEL: No not verbally persuade them but they ...[intervention]
CHAIRPERSON: How else are you going to intimidate them without using violence, you're going to talk to them and try and persuade them to accept the viewpoint of the ANC that they should leave their farms and go live in the town?
MS PATEL: That may be so Honourable Chairperson but there was no need to assault them to the extent that they were in fact assaulted.
ADV SANDI: Is it your contention that they had gone there to commit robbery on these people and if you say so, one would like to know why should they go in such huge groups, if I may say so, you don't as far as I know you don't usually find robbers going in such big groups of 15, 17, 30 to 40 in some cases?
MS PATEL: It has been the evidence of the applicants here today that they went in huge groups Honourable Chairperson but that was not the evidence that was tendered at the trial. I am faced with the difficulty that none of the victims were prepared to come to the hearing so I'm not in a position to give you, to tender further evidence in terms of the number of people that were in fact part of the group. It was, however, contended - not contended, it was in fact stated by one of applicants at the trial that there were in fact a lot less in number than they would have us believe. In fact, one of the applicants I can't recall, it's one of the Bhayi applicants would in fact conceded initially that they were half the number that he said - that the other applicants said that there were at the time.
ADV SANDI: But we heard one of them today, one of the applicants today telling us that he lied in court because he did not want to be sent to the gallows, he was scared of death sentence? What do you make of that?
CHAIRPERSON: And in fact added to that, he didn't want to really disclose how many there were because he was apprehensive that he was going to be questioned about what these fellows were doing, those people that were with him so he was cutting down on this sort of thing and it's perfectly understandable, I mean you know, we're not sitting in an ivory tower, we from our experience here in this Committee has seen the extent at which justice has been frustrated through court cases on all sides, on the prosecution side on the side of defence, I mean really, one is just amazed every time to look at this sort of thing that was going on.
MS PATEL: I will not take that point any further, Honourable Chairperson.
ADV BOSMAN: Tell me, this on the issue on intimidation, do you have any submissions as to whether the physical assaults could have been avoided and yet these old people could have been intimidated? What form of intimidation would you submit was possible?
MS PATEL: Before I respond directly to your question, I also want to place before you the finding of the court in that. None of the victims in terms of the finding of the court were in fact told that the purpose of the group coming there was to force those farmers to leave. So that is the one point and following on that my response would be that perhaps they could have been intimidated in other ways, perhaps their property could have been damaged to a serious extent. If my understanding of the type of farming in this area is correct, it relates to stock farming. There's no reason why they couldn't have been deprived of their stock on a continuous basis so that they would then eventually be forced to leave the area and if you accept that it was necessary for some measure of assault to take place in order for them to be intimidated, it is still my respectful submission that the extent of the assault upon these victims was unnecessary to achieve the desired object.
ADV SANDI: I don't know about that, perhaps taking into account that this seems to have been some sort of social political upheaval, commotion of some sort. Perhaps we have to be careful today not to adopt a kind of wise after the event armchair critic here? Perhaps we have to be a bit cautious not to be too critical here, taking into account that it seems to have been a complete commotion and upheaval they say.
MS PATEL: If one looks at the manner of the assault then as much as I'm fully aware of us not taking an armchair approach to the tensions prevalent at the time and the levels of anger. If one looks at the victims that were shot, they were all almost shot in the upper part of the body. Two of them were shot in the face If the mandate to the applicants as stated by Mr Bhayi was clear and he said the other members of the group would have known about the ambit of that mandate, then surely despite the levels of anger and the tension, the applicants have still gone beyond their motivation - not beyond their motivation, beyond the level of the authorization in a sense.
CHAIRPERSON: Ms Patel, it would be very difficult. An organisation would be hard put to come and argue that they send a group of young people into the night armed with firearms and ammunition to come back and say "no, look, you know, are policy was that they shouldn't have used these firearms, they shouldn't have used violence". What do you expect? You have this group of people going off in the middle of the night armed, they go to confront farmers who are also armed and who clearly, I mean on all accounts, won't just sit back and allow people to walk into the houses and tell them what to do, I mean you're obviously creating a situation of conflict and as tragic as it is and as difficult as it is to accept that you know, this sort of thing has happened in our country, that is just the reality, you had these people going to confront you know, these old people and what do you expect, I mean an organisation is going to have great difficulty to turn around now and say the sanctimonious at this stage and say no, they exceeded the mandate and we told them no violence, yet we give them the means to kill people. I mean really, how realistic is that?
MS PATEL: My response to that, Honourable Chairperson, would be that inasmuch as you are dealing with the question of responsibility of the organisation, I would pitch it at the responsibility of the applicants and I will refer you specifically to the testimony of the last applicant who says that they were fully apprised of the ambit of the authorization and that he was at least willing to carry out or fall within the ambit of that authorization and if he as one of the young members of that group was in a position to say that he was there with noble intentions and was in a position to follow the strict rule of that authorization, then why can we not - on what basis are we not then extending that sense of responsibility to rest of the applicants??
CHAIRPERSON: Yes, the question is what happened at the scene of these incidents? Is that so grossly unreasonable that it could never have formed part of this particular mandate as having been foreseen to an extent? That is the question. What else did you expect was going to happen and let me add to what my colleague has said, Adv Sandi, you know to suggest that this was just common crimes, this crowd would go there and throw stones on people's houses or when the owner is locked up in his barricaded room not to empty his own, I mean you know, robbers the way we understand it just don't operate in that way so this clearly seemed to be related to this action against the farmers. That much seems you know to be quite clear to me at least insofar as the four incidents are concerned. Clackers of course is a totally different story but it seems clear that and then this was part of that action against the farmers.
MS PATEL: If you are then to accept the bona fides of the applicants in respect of the other four incidents save the Clackers, then my difficulty lies in terms of the thefts that accompanied the two incidents at least inasmuch as they were not convicted of robbery of any other goods except the shotgun in the Hansel incident. The applicants have testified that they've taken other goods besides the gun and that that was in fact handed over. With the Marulia incident and the goods that were taken there, my difficulty with accepting their bona fides is that I think that or it is my opinion that it is - what's the words I'm looking for - it's convenient for them to come here to us today and say that we only took firearms and ammunition because that fell within the mandate and they go further than that, they say not only do we deny taking any of the other goods but we didn't even see anybody else take any of the other goods. How probable is that, Honourable Chairperson, given that they were all present together in the same house. Does that not effect their bona fides and their motive. How does one distinguish and it is in fact conceded by their legal representative that the thefts don't relate to a political motive. How does one distinguish unless the applicants make full disclosure as to what exactly their motives were and it is my respectful submission that the onus lies on the applicants to leave us without any doubt as to what motivated them?
CHAIRPERSON: Yes the question of the non-weaponry items, of course that is a difficulty and I think Mr Kincaid has correctly dealt with that, with that question but even that is understandable you know, that you have this crowd of people invading somebody's house, that's actually a miracle you know, if you have a person who is as disciplined as the last witness or the last applicant seems to be, it's very likely that somebody's going to steal a packet of Knorr soup from the pantry, you know, I mean that is not so inconceivable. It might create difficulties for them in terms of amnesty but you know it's not totally unthinkable and if you have a large group of people the probabilities can go either way. It does raise a question mark then, these applicants just don't see or hear when it comes to certain items but I mean if there is a crowd action can one really reject it on the probabilities and say they were lying to us? They might be very suspicious that convenient from the amnesty perspective that those items that are not susceptible to amnesty doesn't fall within the action that they took but is it higher than a suspicion?
MS PATEL: Honourable Chairperson, I would argue that it is in fact higher than a suspicion, that on the probabilities they are lying and if one looks inasmuch as my learned colleague has argued that the Clackers incident should be separated from the rest in that they were motivated there by the need to close down Mrs Clackers' shop because of the consumer boycott. Mrs Clackers was indeed robbed and that cannot be denied and that wasn't politically motivated and so if the concession is made there, I would argue that that is the basis upon which one can infer that they were in fact involved in the theft of the non-weaponry items in the other incidents as well and that that takes it above suspicion into a reasonable probability.
CHAIRPERSON: Yes, no we hear your submission on that in that regard. As I say it appears that Mr Kincaid has actually made quite a proper concession in respect of the Clackers matter although again the Clackers matter takes on a totally different sort of turn, it's done in the middle of the day, there are three people, they go off there and on Mrs Clackers' version which seems to be unchallenged, you know, it turns into a robbery and an assault and everything else.
MS PATEL: Inasmuch as it's distinguishable in terms of the time of day it took place and the different intention in a sense, it was the applicants' testimony that they were mandated by the very group at the roadblock that was involved in all the other incidents, to go off to Mrs Clackers and commit whatever was committed there. So in terms of that it was not clearly distinguishable from the rest of the case, it is still committed by essentially - the decision is still according to the applicants themselves taken by the same group of people who in fact embarked on the other attacks in the area so inasmuch as we only have three people involved in that specific incident, they were mandated by the rest of the group, that is their own testimony, Honourable Chairperson.
CHAIRPERSON: Yes it seems to be the case and Mr Clarke has submitted that he wouldn't necessarily seriously argue against an allegation that they came to the shop on the basis of having been mandated by the roadblock which seems to have been the source of authority to embark on this but the question relates to the incident itself, you know, that is where the real issue lies, that of course on the evidence before us turns out to be you know a robbery, on all accounts it appears there's a lady on her own in the shop who knows what has happened there. Mr Clarke indicates that there might very well even have been some or other difference of opinion, some argument, one can't say what happened.
MS PATEL: Just on that point, Honourable Chairperson, if one accepts that they went to the Clackers farm with the intentions that - may on the face of it have been politically motivated, but that that changed given the manner in which that incident panned out, can one not use that same argument in respect of the other incidents where things were stolen, that they might have been and it seems as if that, as if given the mandate of the community at that time, that this group of people may very well have used that to abuse the mandate and act for their own personal gain in a sense so on one level they may have been motivated by the decision of the community to carry out the community's mandate but when they got there, things turns out very differently and can we then still say that given the way in which things panned out in some of the incidents that they can still say that ah, that because of our initial motivation you have to follow that through to what we did specifically at those various attacks. My submission is not, Honourable Chairperson, and that in fact the situation in that area perhaps allowed or made it easier for these applicants to act for personal gain.
Those are my submissions, Honourable Chairperson, if there's anything further?
MS PATEL: Thank you Ms Patel. Any further submissions Mr Kincaid?
MR KINCAID: I've no further submissions thank you Mr Chairman.
CHAIRPERSON: Thank you. Yes, we're obviously going to need some time to consider this matter and some time to formulate a decision in the matter. For that purpose we are going to reserve the decision in this matter and we will notify the parties once the decision is available. In fact that concludes the proceedings and the session here in East London. It remain just for us to thank all those people that assisted us in having the hearing and we also need to express our gratitude to the legal representatives, Mr Kincaid, Mr Clarke, Ms Patel for your assistance in this matter. For our staff and the interpreters and everybody else that goes with putting this together, it's not an easy job to arrange logistically a public hearing of this nature, we express our gratitude and to my colleagues on the Panel as well for their assistance. We are adjourned.
HEARING ADJOURNS
