CHAIRPERSON: Good morning. Mr Claassen, are you ready to proceed?
MR CLAASSEN: We are indeed ready to proceed, Madam Chair.
CHAIRPERSON: You may proceed Mr Claassen.
MR CLAASSEN IN ARGUMENT: Thank you Madam Chair. Madam Chair, this Honourable Commission yesterday heard the amnesty applications of the two applicants, Mr Leonard Radebe and Mr R.S. Sithomo.
Madam Chair, if I might just start by referring to the application of Mr Sithomo. I think there is nothing said surrounding the merits of this application, and I will commence with the application of Mr Radebe and the evidence led surrounding the application.
Madam Chair, Mr Radebe applied for amnesty in his application, concerning an incident which occurred on the 28th of September 1992, near the Ratanda Hostel and for which he was convicted on the 2nd of November 1995, on a charge of murder and several charges of attempted murder.
The applicant then applied for amnesty and submitted his Form 1 application with supporting affidavits, and in this respect, submitted two affidavits.
If I may, Madam Chair, the first affidavit states applicant's involvement in the crime for which amnesty is sought, and also shows his involvement or his alleged involvement in this crime. Madam Chair, as far as the second affidavit is concerned, it makes mention of several other incidents, but which were not specifically, for which amnesty was not specifically applied, but an amendment of the application was then asked for in respect of these crimes mentioned or participation in certain incidents, mentioned in this second application.
Madam Chair, I would like to start by saying that as far as the applicant's viva voce evidence yesterday before this Commission is concerned, it should be and one would be naive not to agree that there was certain shortcomings in his evidence, it is indeed so that he gave certain very elaborate answers concerning some questions which was repeated to him.
Whether this was a question of not clearly understanding of deliberating evading the answers, I presume is open for debate. Madam Chair, getting back to the specific application, it is then so and the point was also specifically raised by the Commission yesterday that amnesty is applied in connection with an offence for which Mr Radebe the applicant, was convicted, and that was one specifically of murder, in which it was found that he was the perpetrator of the said crime.
It is then again also true that yesterday, following from his application and his affidavit annexed to the application, that Mr Radebe has indicated that his involvement is only limited to the planning of this particular crime.
He gives broad evidence surrounding the planning and his involvement which is according to him, limited to the planning and he also says that he saw the act committed, but he was not a person who actually committed these particular deeds.
Madam Chair, it is true that this creates a problem in as far as that is the specific crime for which amnesty is sought. Madam Chair, I would like and this is my humble submission to this Commission today, that even though the applicant had been convicted or murder and in the capacity as the person who actually committed this crime, if I may be given the opportunity Madam Chair, it is my line of reasoning that I followed up on the issue, and it is true that the Committee yesterday asked me that they would like to hear me on some specific points.
Madam Chair, it is my submission that surrounding the specific crime, it is well known in the criminal law that there are the perpetrators, the accomplices and if I may just, the definition of a perpetrator is somebody who by his conduct, state of mind and personal quality falls within the definition of the crime.
Madam Chair, it is my submission that it was indeed in this capacity which the accused was found guilty by the court, for which he is currently serving a jail term. If I may also just refer to the ...
CHAIRPERSON: Before you proceed, wasn't he convicted on the basis of evidence given by amongst others, Johanna Msibi?
MR CLAASSEN: That is correct Madam Chair.
CHAIRPERSON: Which identified him as being at the scene and which suggested that he actually threw the bomb that caused the explosion, that led to one person being killed and several other people suffering injuries?
MR CLAASSEN: That is one hundred percent correct Madam Chair. My line of reasoning is this that it is indeed true that this evidence was heard and it was in a criminal court, he was found guilty of these offences.
Madam Chair, if I might address that issue later, surrounding the merits of his testimony. If I may just - I looked at the definition of murder, and it is stated that it is unlawful, intentional causing of another's death, and any person who, in whatever way, unlawfully, intentionally causes another person's death, is therefore a perpetrator of this murder, or the murderer, which is indeed the capacity in which he was convicted.
Madam Chair, I would however like to take it a bit further and also look at the definition of an accomplice to such a murder. It is also said that an accomplice is somebody who does not in terms of his conduct, state of mind and personal qualities, comply with the definition of the crime, but nevertheless unlawfully and intentionally furthers its commission by somebody else.
I think this follows clearly that the perpetrator and the accomplice promote the commission of the crime, before it is completed.
Madam Chair, if I might just also look at the different degrees of perpetrators. There is a definite difference made in the criminal law between a principal perpetrator, a co-perpetrator and an indirect perpetrator.
It is my submission that once again, as stated and as it was conducted, he was in the context of the conviction, as stated by the witnesses, the perpetrator of this particular crime. Madam Chair, it is my line of reasoning, if one looks at the well known principle of doctrine of common purpose, known in our criminal law, and if I may, it is stated in this doctrine although not impossible, it is improbable that somebody would participate in a murder merely as an accomplice and not as a perpetrator. It is improbable that the furthering of death, would be regarded as anything other than causing it.
If two or more persons decide to murder someone, for all of them to be liable as co-perpetrators, it is not necessary that each of them should stab or fire a shot at the deceased. It is not even necessary for them to touch the deceased, or be present at the scene of the crime. This is especially relative, say a relatively large number of persons decide to murder a single victim, which was not the exact facts, but just - there was a meeting held according to the evidence, and it was decided at this particular meeting that a person or that the bus should be attacked.
ADV BOSMAN: Excuse me Mr Claassen, are you quoting from a particular decision or a text book?
MR CLAASSEN: This is a text book.
ADV BOSMAN: Would you mind just giving us the reference?
MR CLAASSEN: I would Madam, it is Snyman Strafreg, and this is on page 210 and 211.
ADV BOSMAN: And the edition, the latest?
MR CLAASSEN: Madam Chair, I am not sure, I think it is the latest edition.
ADV BOSMAN: Thank you, I am sorry for having interrupted you, but I just wanted to know the authority, whether it - thank you.
MR CLAASSEN: No, no, I realised I should have put it on record, thank you madam. If I might just continue, there is a further reference made and it clearly states and it is said that if a number of persons conspire to murder now just for reference sake, Y, and one of them does not fire the mortal shot, is not even on the scene of the crime, and does not in any way, aid its commission after its conspiracy, it is a factual question whether in the circumstances, his mere participation in the conspiracy can be described as together with the participation of other, causing the person's death.
In view of the test of causation, the mere participation in a conspiracy, Madam Chair, and if I may here, I also went further and specifically had a look at the requirements for a conspiracy and if I may, once again, out of Snyman, page 244, the requirements for conspiracy is inter alia stated that the scope of a conspiracy is particularly wide. Conspiracy in the South African law can be committed only if what the parties agree to do, is a crime.
There can be conspiracy only if there is a definite agreement between at least two persons to commit a crime. The mere fact that X and Y both have the same intention, does not mean that therefore there is a conspiracy between them, they must subjectively agree with each other, there must be a meeting of minds.
If I may continue, it is also further stated that as soon as they have reached agreement, the crime of conspiracy is complete and it is unnecessary to prove the commission of any further acts in execution of the conspiracy.
I think this is all taken together in saying that the conspirator need not be in direct communication with each other, if two or more persons unite in organisation with the agreed purpose of committing a crime or crimes, there is a conspiracy.
It then also follows that the conspirator is liable to the same punishment as a person convicted of committing the offence.
Madam Chair, this said, I would like to get back to the doctrine of common purpose, where I left off. In the view of the test of causation, his mere participation in conspiracy, either on its own or coupled with his further conduct, may account to at least psychological engagement of or assistance to his fellow conspirator, who actually kills a person and therefore, to causing together with the others, the death of such a person.
Madam Chair, my line of reasoning would be if I may address the merits of Mr Radebe's evidence before this Commission, evidence was indeed led and also tested by amongst others, Mr Sithole for the families of the deceased, and it was very clearly stated that the incidents preceding the actual commission of this crime, I think it was clearly established that according to the applicant's evidence, there was a meeting held on this particular Sunday Madam Chair, following the death of an induna.
The applicant clearly states that this was a party meeting, which contained the ranks of IFP party members. If I may, I think his evidence was specifically, he also gave the names of these members. He said it was a party of eight, he could only remember the names of four, which included himself - this was after the death of Mr Mkababa, and Mr Meyela which was the Chairman of this particular party that was, this meeting that was held.
Madam Chair, it is my line of reasoning that following the evidence given by the applicant concerning this particular meeting, it clearly states that the members who were present, were all IFP members. It was done because of their distress over the death of a fellow IFP member.
Madam Chair, he goes further to also say that there was a general meeting and later, Committee meeting followed this general meeting, in which it was expressly Committee members which attended and it was already on this ill-fated Sunday evening that the decision was taken, and it was also his evidence that the decision was already taken on the Sunday evening, that a bus should be attacked.
Under cross-examination by Mr Sithole, I believe he said that the decision was taken, but the operatives were not chosen the Sunday night, they would be chosen later by the indunas, even though the objective was clearly stated.
Madam Chair, this said in context with my reference to the doctrine of common cause, it is my submission that and further if I may also, under examination the applicant also clearly stated that he fully reconciled himself with this decision.
He said that he did not commit it, but should he have been asked to do so, he would have. He said it was not his place to choose to commit this act, but it was a choice that was to be left to the indunas.
Madam Chair, he then decided that or it was then decided that this decision should be taken. Madam Chair, if I might just continue on the evidence that was led, the accused said that when he went to work the following day, and it should also be admitted, there are certain points concerning his presence at work the next day which were not entirely cleared up, specifically surrounding when he went home from his place of employment.
Madam Chair, it is stated by the accused that he was extremely distraught and upset because he was being pointed out by FAWU members who were also perceived to be ANC member, that he was going to be killed, and his honest belief was that his life was in danger.
It is his evidence that it was because of this, that he decided to leave the factory. I think this is to some extent his, the fact that he indicated that he was very upset, corroborated by the witness, Mrs Msibi who said she saw the applicant crying that particular day.
Madam Chair, I think it is fairly clear and it is not denied by any party, that he was indeed very upset when he went home. Madam Chair, it is true that he says that he got back to the hostel to find this planning of the act or the operatives were appointed at that stage and the act was committed.
He further also states that he then went with them or was outside the gate of the hostel when this throwing of the hand grenades actually occurred. It is also true that there are certain aspects which I believe, might not have been answered satisfactorily concerning what he actually saw and it differed slightly from his original version and the time when he was cross-examined.
CHAIRPERSON: What weight should be attached to that?
MR CLAASSEN: Madam Chair, it is true, I believe that inference might be drawn as to the value of his testimony regarding this particular incident.
Madam Chair, the lines along which amnesty is granted and the requirements for the granting of amnesty, is very clear and it is, I think, best described by the three major or prime requirements, being full disclosure from the side of the applicant, the fact that the crime was committed with an expressed political objective and the proportionality of this said incident.
Madam Chair, if I might just address the Committee on these requirements, if I may start with the political objective. Madam Chair, I think looking at the circumstances surrounding or preceding this incident, it is clear that there had been struggles, there had been incidents as Mrs Msibi testified, after the strike when FAWU members returned, there was indeed incidents between FAWU and the union supported by the applicant, which was predominantly perceived to the IFP supported.
It was also the evidence of the applicant that he had several run ins prior to the incident, with members of FAWU. Under questioning from the Committee, he stated that he feared his life at his work place, and thus he came to the conclusion that there was no other way. It is also expressly stated in his evidence, it was decided at this meeting that steps should be taken to decrease the popularity of the ANC and increase the possibility for the IFP to broaden their political hold in this particular area.
Madam Chair, it is my submission that as far as this particular motive is concerned, it is clearly established in that with reference to the two unions, UWUSA and FAWU involved, I think it was also to some extent corroborated by the applicant, although she said she was not a member of any political party, that UWUSA was perceived to be IFP and FAWU was predominantly perceived to be ANC orientated.
CHAIRPERSON: You don't have to elaborate on that, we are satisfied. I think that was confirmed also by Ms Msibi.
MR CLAASSEN: Thank you Madam Chair. Specifically in this regard, I think the inference can be drawn to the fact that there was no clear distinction between party politics, that being the fight between the ANC and the IFP, and the fight which extended perhaps to the work place between FAWU and UWUSA. It was clearly a political quarrel.
Madam Chair, in this regard, as far as the political objective is concerned, it is my submission that I think it has been satisfactorily indicated that there was a very express political motive behind this crime.
Madam Chair, as far as full disclosure is concerned, it is so that in a court of law, the accused had been, the applicant, at that stage the accused, had been convicted of a crime, and in the capacity of not a conspirator, but the one who actually committed the crime.
This necessarily raises some questions, and I think the applicant answered to some of these questions in saying that what had happened that day, he had several reasons for it, in that he wanted to protect some people, but he also concluded by saying that the evidence given before this Committee in his application, is the actual truth.
Madam Chair, based on those submissions, I am also of the opinion that the applicant did disclose his actual role, I think it goes further in his saying that had he been asked to do so, he would have.
I think that might indicate that not the intention of a person who wants to hide anything from this Commission. Madam Chair, if I may just as far as the proportionality is concerned, it is true that this was a very serious crime indeed, but I think it also follows from the evidence surrounding this particular meeting, that the accused said that according to his version, there was a not trying to exaggerate but the impression was created by him, that there was almost a running battle between the Ratanda hostel, the Ratanda residence and this also extended to his work place, between FAWU and UWUSA members.
He said that he felt threatened on a daily basis, and on that particular Monday, he said that he felt his life was threatened, when he was pointed. I stand to be corrected, I think he also said that it was said to him that he was going to be killed.
Madam Chair, he said that it was decided that drastic measures should be taken and it was decided to bomb the bus and it was also clearly stated why this decision was taken. He said that they wanted to increase the support of the IFP to the detriment of the ANC.
Madam Chair, as far as the merits of this application is concerned, and the applicant's worthiness or the value of his testimony, it is true that it was often asked of him to clearly explain himself on some of the very elaborate answers he gave to I believe, fairly simple questions.
Madam Chair, as I said, it would be naive to say that he was a very, he was an outstanding witness. It is however my submission, and I think he was truthful and tried to answer the questions to the best of his ability.
Madam Chair, in conclusion, it would be my humble submission before this Committee that taken into account, the value of his testimony, it is my submission that I think the applicant should be believed in the truthfulness of his application.
As such, should the merits warrant it, we are still as I explained or tried to convey with this doctrine of common purpose, the question remains that which the applicant in his viva voce evidence gave before this Commission and that which was actually applied for, is not in the same context. It is my submission that this could be remedied if the inference is drawn that although not convicted as a conspirator or a co-perpetrator, the accused, once again the applicant, in his criminal case, might have received the same sentence.
In this regard, I would like the Committee to view it as such, that he clearly states his involvement and the fact that he reconciled himself with what was going to happen, that he was also a perpetrator of this crime, and as such fall under the ambit of the granting of amnesty.
I therefore request this Honourable Commission to consider his application as such.
CHAIRPERSON: Thank you Mr Claassen. Can I find out what you think this Committee should do about not the evidence that was given at a criminal trial, but the evidence that is before us from Ms Johanna Msibi, which puts Mr Radebe not only at the scene of the crime, but which identifies him as the principal perpetrator of the offence?
That is my problem. You heard that evidence, you are unable to punch holes on the evidence given by Ms Msibi. That evidence stands in stark contrast to that given by Mr Radebe?
MR CLAASSEN: That is very true Madam Chair, and I think it would be no less than fair to say that there was - Ms Msibi was a truthful witness. Madam Chair, it is indeed so that there are two directly opposing versions.
It was my instruction, it was also put to her that the applicant will deny any such involvement, but it is nonetheless true that these are two directly opposing versions and I must concede that that does create a problem.
Madam Chair, it remains my submission however that in weighing these two, I think it ultimately boils down to weighing these two versions against each other and seeing which one ought to be believed. Madam Chair, not taking anything away from Ms Msibi's testimony, I would like the Commission to consider the evidence of the applicant as being truthful despite the obvious difference between the two versions.
ADV BOSMAN: Mr Claassen, I am sorry Madam Chair, I did not realise you were going to pursue it further. Mr Claassen, shouldn't you then at least, if you accept the truthfulness of Ms Msibi's evidence, shouldn't you argue the possibility of possible mistaken identity?
I mean if you should argue that there could possibly have been mistaken identity, you need not necessarily argue that Ms Msibi was an untruthful witness?
MR CLAASSEN: Thank you Madam. Madam this is true, and it is so that Ms Msibi stated that she did see the applicant as the person who actually threw something at the bus. Madam Chair, it is as I have said, my instructions are that the applicant were indeed on the scene, but not actually throwing anything at this particular bus.
In view of this, Madam Chair, it is my further humble submission that a mistake might have been made. It is true that the applicant in his own version, said that he was present when this occurred and in view of this, it is my submission that surely the possibility arises that Ms Msibi might have seen the applicant, but not actually throwing these projectiles towards the bus.
CHAIRPERSON: In that case, it is not a question of mistaken identity, is it? It is a question of mistaking what Mr Radebe was doing at the time when Ms Msibi saw him?
MR CLAASSEN: That is indeed correct Madam Chair.
CHAIRPERSON: Wouldn't in that case of mistaken identity, still be saddled with the fact that Ms Msibi's evidence stood unchallenged when she said she knew Mr Radebe for almost 13 years and could recognise him even with his back facing her?
MR CLAASSEN: That is true Madam Chair, that did in fact go unchallenged. It remains my submission however that as stated, he was on the scene and as such, recognised but not doing what was perceived or what the witness thought him to be doing.
CHAIRPERSON: Yes. You remember that Mr Radebe put the actual perpetrators of this offence, to about 20 paces away from where he was, about 15 paces?
MR CLAASSEN: 15 paces, that is correct.
CHAIRPERSON: 50? To about 50 paces from where he was, you recall that?
MR CLAASSEN: I do.
CHAIRPERSON: Can you make something out of that? Is there any argument you can proffer that would probably show Ms Msibi's innocent identification of Mr Radebe probably around the scene of the crime, which would then probably lead her to think that because she saw him there, and after seeing him there, there was this explosion, that it connects Mr Radebe to the actual throwing of the bomb?
Is there anything that you can make out of that evidence?
MR CLAASSEN: Madam Chair, I am speaking under correction, but I think the distance which was established at the actual throwers by the witness, the distance from the bus, were much closer than the actual distance that the applicant alleges he was from the bus.
Madam Chair, once again, I think the evidence and I stand to be corrected, of Ms Msibi was that the bus passed the applicant and after that, she saw a fire and then the explosions, or the fire inside the bus.
Madam Chair, 50 paces is a relatively long distance. Maybe just getting to the point that the accused once again, might have been seen by Ms Msibi to be part of this incident, whereas he was actually relatively removed from it all, but being a traumatic experience, this is a detail which stayed with her.
CHAIRPERSON: Obviously one must have regard to the fact that the bus was in motion?
MR CLAASSEN: That is true, the bus was in motion Madam Chair.
CHAIRPERSON: Is that your address, I suppose?
MR CLAASSEN: That would be the conclusion Madam Chair.
CHAIRPERSON: Yes. Mr Sithole, do you have anything on which you would want to address this Committee?
MR SITHOLE: Yes, Madam Chair.
CHAIRPERSON: You may proceed to do so Mr Sithole.
MR SITHOLE IN ARGUMENT: Thank you Madam Chair. I think there is no dispute as to the political motivation of the offence. The only outstanding aspect in my view is the question of full disclosure.
It is my submission that the applicant Mr Radebe, has failed to show to this Commission, that he has disclosed fully the incidents leading to the attack as well as his participation in the attack.
The victims as well as the evidence of Johanna Msibi, state clearly that he was one of the perpetrators and she also gives a background as to why he committed the said offence.
When Mr Radebe is asked as to why he misled the trial court, there are three different answers that come forth. He initially told this Committee that he doesn't know, he again said he was protecting himself as well as his colleagues, and in the affidavit that is before this Committee, he states further that he was told to admit the offence by his colleagues.
Those are signs of failure to disclose as to the circumstances, the full circumstances relating to the commission of the offence.
If Mr Radebe came to this Committee and led this Committee as to the real reason why the offence was committed and that he committed the offence, there would be no reason why this Committee wouldn't give him amnesty. It is a clear indication that yes, there was a fight between UWUSA and FAWU and there is a perception nationally that UWUSA is a union which always aligns itself with IFP and on the other side, FAWU aligns itself with the ANC.
I would ask this Commission to dismiss his application only on the basis that he failed to disclose to this Committee, thank you.
CHAIRPERSON: Mr Sithole, how probable is it that a person who has already been convicted of an offence, on the basis of his direct participation, as testified to be Ms Msibi during the criminal trial, how probable is it that that person could apply for amnesty and deny his participation when it would have been quite simple to admit his participation knowing full well that that would be supported by the version of events given by Ms Msibi during the criminal proceedings? Do you think a person would take a chance and expose himself to a risk of not admitting to that aspect of his participation but proceed to give details of the planning that resulted in the commission of the offence?
MR SITHOLE: Madam Chair, it is my view that although the applicant admitted to the planning, he doesn't go beyond the planning phase. Madam Chair, there are witnesses who came before this Commission and identified the applicant as a perpetrator, and to a certain extent Madam Chair, the applicant has not done anything to convince this Committee that those witnesses are misleading the Commission.
It is my submission that the applicant has something that he is hiding to the Committee, and if the applicant had come to this Committee and admitted having committed the offence, maybe there might be something that he is trying to hide Madam Chair.
ADV BOSMAN: Let's assume the applicant gave the evidence which he gave before this Committee, at the trial court, what would your submission be, of what would he have been convicted?
MR SITHOLE: Madam Chair, I would agree with Mr Claassen when he says that he would be convicted as a conspirator and not as the actual perpetrator of the offence.
ADV BOSMAN: This is not how I understood Mr Claassen's argument. I understood Mr Claassen's argument to be that he would have been convicted as a co-perpetrator? Would you not agree with that argument?
MR SITHOLE: I wouldn't agree with that at all Madam.
ADV BOSMAN: May I put this proposition to you on the evidence that was before us, is there any room for a construction that the Committee who decided on the murder and planned the murder, were the prime perpetrators and that the operatives, played no other role, than a hired gun would have played?
In other words, they were instruments used by the perpetrators to commit the murder? Is there any room for that argument perhaps?
MR SITHOLE: I think Madam Chair, there is room for that argument. The reason being that if you look at the incident as it is, the perpetrators were merely given instructions to go and commit a certain offence which was properly planned.
ADV BOSMAN: Thank you Chairperson.
CHAIRPERSON: Thank you. Mr Sithole, does it really matter whether, who committed this offence? Are the people who planned, not as guilty as those who actually threw the bomb? If we were to accept that indeed Mr Radebe participated in this incident, only to the extent of planning and if we were to accept that he has fully disclosed his participation with regard to the planning, the planning being an important aspect, because it led to the actual attack on the bus, if we were to accept that, would his participation not be similar to those of the operatives who ultimately carried out the plan of Mr Radebe?
MR SITHOLE: Yes Madam Chair, I think the people who planned the whole incident, when it comes to punishment, I would say yes, they deserve the same punishment, but Madam Chair, one has to look at their legal culpability to the offence, I would categorise them into two groups. That will be the conspirators, it will be the people who actually planned the offence and the people who committed the offence.
CHAIRPERSON: I am fully mindful of the various definitions given by Mr Claassen during his address, but one must take cognisance of the fact that one is dealing with the Act called the Promotion of National Unity and Reconciliation Act of 1995, and pertinently the Committee has to take regard to Section 20(2) that specifically defines and act associated with a political objective.
If one has regard to the fact that planning, directing, committing an offence is defined as an act associated with a political objective, as long as it meets the requirements of Section 20(3) of the Act, wouldn't you say that the legal culpability really becomes of no significance?
MR SITHOLE: Yes, Madam Chair, for the purposes of the promotion of national unity and reconciliation, I don't think the categorisation of the planners and the perpetrators, would help the Commission at all, because all we are looking at, is whether the person committed the offence or identified himself with the commission of the offence, and whether the offence was politically motivated or not.
That to me, is what is critical in this hearing. The point which I have raised previously is that in the view of the victims, the applicant did not disclose to the Committee fully as to what happened. He has withheld certain information which is critical to the Committee to take that decision.
CHAIRPERSON: But to the extent that he has disclosed his participation in the planning, that resulted in the attack on the bus, I don't think you would have any basis to challenge the fact that he hasn't met the requirements of the full disclosure? There has been no evidence from the objectors that would suggest that that requirement has not been complied with?
MR SITHOLE: I agree with you on that Madam Chair.
CHAIRPERSON: Ms Thabete?
MS THABETE IN ARGUMENT: Without repeating what has been said Madam Chair, my submission is that there was clearly a political conflict between UWUSA which was perceived to be IFP, and FAWU.
I think this point has been elaborated and I agree with the parties. On the ensuing dispute which is whether the Committee should attach much weight to whether it makes a difference whether the applicant actually threw or did not throw the object as seen by Ms Msibi, my submission is that, or my argument is that the applicant disclosed the fact that he planned the whole act.
He further discloses the fact that he was present at the scene when the actual act was committed and I think this, how can I put it, it explains the other version of Ms Msibi having identified the applicant at the scene. Yes, the argument would be that she saw him throwing something at the bus, but considering the fact that Ms Msibi has also admitted to the fact that there was for lack of a better word, enmity between FAWU and UWUSA at that stage, I mean it would explain really why she associated, it explains why she associated seeing the applicant at the scene, with actually the fact that he committed the offence.
I think that is the explanation I would give, and that is my submission. Further considering the fact that the bus was in motion, and considering the fact that we heard the applicant saying when the explosion took place, he fell on the ground or something, I mean that as well, you know would explain maybe why Ms Msibi might have seen the applicant bowing down on the ground.
MR LAX: He in fact said that he ran away to another place, away from the scene and he hid behind an office. He didn't say he fell on the ground at all, but be that as it may.
MS THABETE: Maybe I stand to be corrected, I thought he said that when the explosion happened, he bent down and hid himself on the ground, but I stand to be corrected.
That is my submission that really in my view, he has disclosed so many critical elements to the Commission, of the crime, it doesn't make sense why he would deny such a small factor, that he actually threw the bomb or not, because it doesn't make any difference, he was there, he was placed at the scene of the crime.
I would agree with my colleague, Mr Claassen, that in court he would have been convicted of murder in the common purpose. Thank you.
CHAIRPERSON: Is it not so Ms Thabete, that there is no evidence that contradicted that of Mr Radebe about the leadership that participated in the planning of the attack in the names of Mr Meyela and himself, that he was the General Secretary of the IFP locally, in Heidelberg?
MS THABETE: Yes, that is so, and according to our investigations, there is nothing to the contrary.
It is my submission that I would have no objection to amnesty being granted. Thank you.
CHAIRPERSON: Thank you Ms Thabete. Mr Claassen, do you want to have any response to the address by Mr Sithole and Ms Thabete?
MR CLAASSEN: I have no response, Madam Chair.
CHAIRPERSON: Well, lady and gentlemen, we are going to reserve our judgement in respect of this application.
We hope to, however pronounce it in due course, not later than a week from now. We would appreciate if the record of the proceedings could be expedited in being transcribed to enable this panel to go through it with a view of making a speedy delivery of its judgement.
We thank you for your assistance in respect of this application.
MR CLAASSEN: Thank you.
MS THABETE: Thank you Madam Chair.
MR SITHOLE: Thank you Madam Chair.
CHAIRPERSON: Mr Sithole, you are excused, we know you are not going to be involved in the next application we are going to hear.
MR SITHOLE: Thank you Madam Chair.
CHAIRPERSON: We will adjourn to afford Mr Claassen an opportunity to consult with Mr Mtambo, who because he is a prisoner, he has not been able to consult with him. We would like Mr Claassen just to give an indication to the Committee, how long he would like to be afforded an opportunity to so consult with his client?
MR CLAASSEN: Thank you Madam Chair, it will take no longer than 30 minutes at the most.
CHAIRPERSON: Will you, if it should take shorter than 30 minutes, just give Ms Thabete an indication, so that she can call us and then we can proceed with that application.
MR CLAASSEN: Thank you Madam Chair, I will do so.
CHAIRPERSON: We will adjourn for 30 minutes.
COMMITTEE ADJOURNS
