MS MTANGA: It's been indicated to me by Faiza, that you had agreed that the sitting will go on up until five to accommodate Correctional Services who are coming from Pretoria and who are going back there.
CHAIRPERSON: Oh, I thought that was corrected to the effect that Correctional Services hasn't got a problem if we were to sit a bit later.
MS MTANGA: Apparently it was ...(indistinct) after I had done so. They arrived late and then Faiza spoke to them after I had spoken to you about it. With the other Correctional Services people from Witbank.
CHAIRPERSON: Yes, but now what is the present position? We were told before we convened that Correctional Services hasn't got a problem if we were to continue later. Now what is the present situation, because I intend to carry on.
MS MTANGA: The present situation is that I spoke to the authorities coming from Witbank, that is the people who brought the first applicant, and then when the second group arrived we were busy consulting and they spoke to Faiza, and then I didn't get the feedback from them. So Faiza has just indicated to me now that they were only prepared to stay up until five.
CHAIRPERSON: Oh, which group is that
MS MTANGA: That will be Michael Phasha - it's the Pretoria group that brought Michael Phasha, Adgadi Skosana and one ...(intervention)
CHAIRPERSON: So it doesn't concern Daniel, who is now to testify?
CHAIRPERSON: Not him. Sorry, Ms Mtanga - Mr Richard, where's the other Phasha?
MS MTANGA: The third Phasha is said to be sick, so he won't be attending the hearing, he's hospitalised.
MR RICHARD: That is correct. I haven't taken it further. I think it's in everybody's interest for us to proceed. I do not know when he will be well enough to attend, and at this stage of the Truth and Reconciliation Commission's activities, I don't think we can hold back proceedings.
MS MTANGA: Chairperson, if I may just come in. Faiza has just indicated that the authorities from Pretoria, they're willing to wait for you to finish with Daniel as well.
CHAIRPERSON: Alright, we'll do that because it appears that they don't actually need, physically need Daniel in their group, but it might be good for Michael just to be present. I'll proceed to administer the oath.
MR RICHARD: Mr Phasha, would you please rise and be sworn. Daniel.
CHAIRPERSON: Are your full names Daniel Lisufi Phasha?
DANIEL LISUFI PHASHA: (sworn states)
CHAIRPERSON: Thank you, you can sit down. Yes Mr Richard.
EXAMINATION BY MR RICHARD: Thank you, Mr Phasha.
Mr Phasha, you've heard your brother's evidence and from that evidence we have the impression that you arrived late in the afternoon of the day that the deceased, Madibeng Phasha died, could you tell us what time you did arrive that day?
MR D L PHASHA: I arrived after five, that is between 5 o'clock and 6 o'clock.
MR RICHARD: Now why did you come there that day?
MR D L PHASHA: The reason I was there on that day, I received a telephone call from my sister and I was told that Moses had been missing and they are busy looking for him and they haven't yet discovered him. So I decided to go home to also help.
MR RICHARD: Now as you arrived in the village, what did you find? Who did you talk to? What did you learn?
MR D L PHASHA: At first I went home and I enquired as to where other members of the family were. I was told that everyone had gathered in the chief's kraal and they are having a meeting in connection with the disappearance of Moses.
MR RICHARD: Now did you know that any other meetings had happened, or did you know whey those meetings had happened?
MR D L PHASHA: No, I didn't know, I only came to know that time. I was told that since the beginning of the week there were meetings. I only arrived on Sunday.
MR RICHARD: Now when you joined the crowd, what was happening? When you joined your brother ...
MR D L PHASHA: When I went to the people who were in a meeting, I discovered that people were going back home to go and eat and somebody was going to fetch the person who knew where Moses was.
MR RICHARD: And who was that person who knew where Moses was?
MR D L PHASHA: When I heard - people were talking, and I heard that it was Makhubelani Moloto.
MR RICHARD: Now what is Mr Moloto?
MR D L PHASHA: He is a citizen and a community member and also he is a witch-doctor, and also he's the chief's witch-doctor.
MR RICHARD: Now when you use the word "witch-doctor", I must ask the first question. Is there a difference between a moloi and a ngaka?
MR D L PHASHA: There is a difference.
CHAIRPERSON: Do you agree or disagree with the testimony of your brother Michael in this connection?
MR D L PHASHA: I do not quite understand.
CHAIRPERSON: You've heard what Michael told us about a witch-doctor and a traditional doctor, the one is the bad one and the one is the good one. You've listened to that evidence, do you know agree or disagree with that? If you agree I don't want to hear everything about that again, if you disagree then you can tell us.
MR D L PHASHA: I do agree because it is true, there is a difference.
MR RICHARD: So Mr Moloto, is he a ngaka or a moloi?
MR D L PHASHA: A witch-doctor.
MR SIBANYONI: Ms Interpreter, he's using the word ngaka to refer to a traditional healer, and he doesn't use the word ngaka to refer to a witch-doctor. That is why there is such a confusion.
MR RICHARD: Thank you, I won't correct the interpreter, I'll just continue.
CHAIRPERSON: Yes, it seems as if the chief was using the good one and the ones that were doing the evil stuff are the bad ones. So we're talking about the good one now.
Now to go quickly, was Mr Moloto called to the chief's kraal where there was a meeting, and did he get there?
MR D L PHASHA: He was called, but he didn't come according to my knowledge.
MR RICHARD: So since he didn't come, what was done about it? Was some other ngaka consulted?
MR D L PHASHA: After it was realised that he didn't come the community was angry, they left the chief's kraal and they talked to Mr Mashyani Phasha, because he was the one who had more information on the person who had disappeared and also he had more information as to what happened.
MR RICHARD: And what happened as a result of that discussion with Mr Mashyani Phasha?
MR D L PHASHA: When they left with him to his house they wanted him to point to them as to where the person who had disappeared was. I realised that the community was angry and probably things can get out of hand, therefore I joined those people who left with Mr Phasha.
MR RICHARD: And where did you go?
MR D L PHASHA: To his home. When we arrived in his house he started to be doubtful, he didn't want to point to these people as to where the person was, that's when I stopped the crowd and I started speaking to him. I explained to him that I didn't have more information since I wasn't at home. I explained to him that the reason these people were there, they wanted to know as to how the person had disappeared. They wanted him to point out to the place where they can discover the person who had disappeared, but then he didn't know exactly.
MR RICHARD: Did Mr Mashyani Phasha point out anyone else who might be able to help the crowd identify who knew where Moses was?
MR D L PHASHA: Yes, if I remember very well, on that day a certain man asked something and this person was the leader of the Youth League.
MR RICHARD: And did this leader of the Youth League ask?
MR D L PHASHA: He asked him as to who were the culprits, the people who were involved in the witchcraft. He said it was Johannes Maletswai Phasha. Immediately they didn't waste time, they looked for him and they didn't find him. They went looking for Johannes Maletswai Phasha.
MR RICHARD: Why did they look for Johannes Maletswai? Isn't that Jan M Phasha? Johannes and Jan, aren't they the same person? Mr Phasha, is Johannes Maletswai Phasha the same person as Jan Phasha? I think there may be some confusion.
MR D L PHASHA: No, it's not one person. Maletswai Phasha is one of the people who were suspected to be witches and Jan Mashyani Phasha is the one who had more information on the searching of the missing person.
MR RICHARD: Now as a result of this discussion between the ANC Youth League leader, people were going to look for Jan Phasha, did they find him?
MR D L PHASHA: They were looking for Maletswai Phasha, not Jan Phasha.
MR RICHARD: Maletswai Phasha, sorry I'm ... Did they find Maletswai Phasha?
MR D L PHASHA: No, they didn't.
MR RICHARD: Then what did they do next after not finding Maletswai Phasha?
MR D L PHASHA: After they didn't get hold of Maletswai, I left that group. I went home because on that day it was raining and I was wearing clothes that I could say that I cannot wear in that weather. When I asked them as to where they were going, I was told that they were looking for Madibeng Phasha.
MR RICHARD: Sorry, they were looking for which Phasha? Mr Madibeng Phasha, Abraham?
MR D L PHASHA: Yes, they were looking for Madibeng Abraham Phasha.
MR RICHARD: And do you know why they were looking for Abraham Madibeng Phasha?
MR D L PHASHA: I wanted to know at that time, because I didn't have more information, and they explained or it was explained to me that he was also a suspect in the witchcraft.
MR RICHARD: And what did you do next?
MR D L PHASHA: After a while I could hear a loud noise and that's when I left my home, because I wanted to know if they had got hold of the person they were looking for, and I met them near a playground. I requested them to stop there because I wanted to speak to them. They stopped there. I started questioning my uncle, Madibeng, and I said to him, or I wanted to find out from him if he knew anything about these allegations, and he explained to me that he was being used by these people and he also said he was in conflict with his brother's children.
MR RICHARD: How was he being used?
MR D L PHASHA: The way he explained to me, he said he was being sent, even though he didn't explain into details as to how he's being sent to take those people he has been sent to take them, or rather, the targets.
MR RICHARD: And who was using him?
MR D L PHASHA: When I questioned him he said it was Maletswai Phasha who was sending him.
ADV SANDI: Sorry, I'm just confused about the names now. Who is this uncle of yours you were questioning?
ADV SANDI: Abraham. Okay, I thought it's Johannes ... too many Phashas here.
MR RICHARD: Now while you were talking to your uncle in front of the crowd, what did your uncle say about Moses?
MR D L PHASHA: When he responded to my question he just said he was being used, these people are sending him to fetch their targets.
MR RICHARD: Was Moses a target?
MR D L PHASHA: According to his version it was like that, he was sent to fetch Moses.
MR SIBANYONI: Can I just ask a question here.
Was Moses not related to Madibeng?
MR D L PHASHA: They are somehow related because Moses' father and Madibeng, they're probably brothers.
MR RICHARD: Now from your last question these people used Madibeng Abraham Phasha as a means of fetching Moses as a target, who were the people that you call "these people"?
MR D L PHASHA: He told me about Maletswai Phasha and he didn't tell me about others, he just told me about Maletswai Phasha.
MR RICHARD: So if I understand your answer to my question, Abraham Phasha now in front of the crowd, admits procuring a victim for the moloi, am I right?
MR D L PHASHA: Yes, it is so, because he also requested me to ask for forgiveness from these people, he said I must apologise to these people on his behalf.
MR RICHARD: Now you're using the phrase "these people", this time I'm assuming that these people are the ANC youth that are around him and you.
MR RICHARD: Now did you try and intercede on his behalf with the community?
MR D L PHASHA: I wanted to but then the crowd was angry, therefore I was scared that if I do so they will also be mad at me, thinking that I'm protecting him.
MR RICHARD: So you didn't attempt to protect him or persuade the crowd to leave him alone, what did you do instead, did you stay with the crowd or leave the crowd?
MR D L PHASHA: It was a big group, the group divided itself into two, one group left, that's the group that I joined because this group that left were looking for someone else who was also a suspect. According to the group this person was also a suspect, therefore I decided to accompany the group because I wanted to protect this person because he was not a witch.
MR RICHARD: No who was this person that you wanted to protect, who was not a witch?
MR D L PHASHA: Mashayani Phasha.
MR RICHARD: Now did your part of the crowd find Mashyani Phasha?
MR D L PHASHA: Yes, I found him, I met him on the road after I left the crowd.
MR RICHARD: So the big group of people that you left weren't with you anymore? In other words, there were two groups of people, you had gone with one to look for Mashyani Phasha and the others stayed with Madibeng and by the time you met Mashyani Phasha, you weren't part of a crowd anymore, is that correct?
MR D L PHASHA: When I found Mashyani Phasha there were two people who were with him and the other people were running, they were not just walking, because they were in a hurry to find a suspect before they flee.
MR RICHARD: And who were you with? Now we know who Mashyani - were you with the big crowd?
MR D L PHASHA: I was the only one.
MR RICHARD: So what did you say to Mashyani Phasha?
MR D L PHASHA: I told him that I had heard from the group that he was also a suspect and these people wanted to kill him, it will be better for him if he runs to the police station because there he will be protected and the police will intervene. As we were talking two police vans approached. I don't know whether they were called by other witches who ran to the police station. When they met us they started firing. As they were firing the group which was in front ran away. After they ran away Mashyani and myself were left there.
MR RICHARD: Now in the meantime as you've heard from your brother, there were around 500 people with Madibeng Phasha, did you ever see Madibeng Phasha alive again after you left him with his big crowd?
MR D L PHASHA: I left him alive there.
MR RICHARD: Did you ever see him alive afterwards, after you left him?
MR D L PHASHA: No, I never saw him alive.
MR RICHARD: Did you participate in the stoning?
MR RICHARD: Very well. Now as at February 1993, did you belong to any political organisation or were you a supporter of any political organisation?
MR D L PHASHA: I was a supporter and a follower and I used to attend all the meetings. When I was home I would attend all the meetings.
MR RICHARD: You were a supporter and follower and a meeting attender of which party's activities?
MR D L PHASHA: I was a supporter of the ANC Youth League.
MR RICHARD: Now did you know Moses Phasha?
MR D L PHASHA: Yes, I knew him, he is my brother, because his mother is my mother's sister.
MR RICHARD: Now was he a supporter or member of any particular political party?
MR D L PHASHA: He was one of the supporters because I used to see him in the meetings and every time when the ANC Youth League was having meetings he was there, one of the people present.
MR RICHARD: So was he an active supporter who assisted the ANC in holding their meetings and doing what they wanted to do, or did he just go to meetings every now and then?
MR D L PHASHA: What I know is that he would attend the meetings. When they ask all the members of the Youth League to come and converge there, he was always present.
MR RICHARD: And for how long had he been an active supporter of the ANC?
MR D L PHASHA: I think from 1993, because I followed the ANC since 1986.
MR RICHARD: I didn't hear your answer. From when was Moses an active supporter of the ANC? I'm sorry, I missed your answer.
MR D L PHASHA: The first time I saw him in the ANC activities was from 1993, because he died in 1993.
MR RICHARD: And before he died, how often had you seen him at ANC activities? We know he died in ...(intervention)
CHAIRPERSON: Mr Richard, I don't think this is really in dispute.
CHAIRPERSON: If it is in dispute, then it can be picked up in cross-examination, but it's not in respect of the evidence of Michael.
So you had been a member since 1986, or a supporter since 1986, is that correct?
MR D L PHASHA: That is correct.
MR RICHARD: Now earlier in your evidence you mentioned an ANC leader who was speaking to Jan M Phasha, do you remember the name of that leader, the youth leader that you were talking about?
MR D L PHASHA: Yes, I do remember his name.
MR RICHARD: What was his name?
MR D L PHASHA: His names were Oupa Kleinbooi Mokwala.
MR RICHARD: Now as you had been a supporter for a long time, would you be able to say that in the crowd around there, there other supporters of the ANC or were they just observers, spectators, curious people? Or were they ANC supporters?
MR D L PHASHA: I would put it this way. I did not know whether some of them were supporters of the ANC, but two to three of them I indeed knew that they were supporters, because I remember on a particular day when a meeting was held, a community meetings, I saw them in that meeting and they were the people who were actually leading the meeting, the proceedings in the meeting.
MR RICHARD: So from that we infer that the ANC youth leaders were part of the crowd that ultimately stoned Madibeng Phasha, or were present in the crowd.
MR D L PHASHA: They were present, some of them were present.
MR RICHARD: Now to curtail the number of questions I'll put it as a catchall, is it also correct that you like your brother Michael, grew up and were educated in that area, and familiar with the tribal customs of the area?
MR D L PHASHA: That is correct.
MR RICHARD: Now do you or did you then believe in witchcraft?
MR D L PHASHA: I did not believe in witchcraft because I haven't seen anything about that.
MR RICHARD: Now do you believe that molois and ngakas have powers to do things with the supernatural that will help or harm people?
MR D L PHASHA: I believe that a witch can harm a person, but not a traditional doctor.
MR SIBANYONI: Excuse me Mr Richard, I'm sorry to interrupt.
From what you are saying I understood you to say you did not take part in the killing of Madibeng Phasha, is that so?
MR D L PHASHA: That is correct.
MR SIBANYONI: And you even assisted Maletswai Phasha to avoid from being killed, is that so?
MR D L PHASHA: It is not Maletswai Phasha, but Mashyani Phasha.
MR SIBANYONI: The question is, for what incident are you applying for amnesty?
MR D L PHASHA: I apply for amnesty in connection with my involvement and my inability to assist Madibeng when he asked me to ask for forgiveness on his behalf, because I was afraid they would also think that I am involved and I want to protect him. That is the mistake that I made. If I had asked for forgiveness on his behalf, maybe they could have not killed him.
MR RICHARD: Chairperson, I'm aware of the Committee Members' problems. The applicant was convicted on the basis of common purpose, as it quite often in the case of witchcraft killings. There were certain witnesses whose evidence was preferred instead of his denial at the trial. If we accept that the trial court found him guilty on the basis of common purpose, I would then attempt to argue that there is an act that he can receive amnesty for. It's the best I can do in the situation. He denies participating in the killing, but within the act, the concept of common purpose.
CHAIRPERSON: Yes, it's not necessary, physical participation, but we can deal with that. Perhaps we can carry on with the evidence.
My last question established the you do believe in witchcraft, now you've heard your brother's evidence as to why he believes the moloi for political reasons, decided to arrange or cause your brother Moses to be killed. Do you associate with what he said, or not?
MR D L PHASHA: I would say that I associate myself, but on the other hand I would say I do not because in truth most of the things that happened there and were said there, I did not know because I was not always present at that place, because I was a person who was working, I was employed.
MR RICHARD: Why do you think Moses Phasha was killed?
MR D L PHASHA: To be honest even today I cannot say why he was killed, I really do not know, but what I hear from other people is that he was killed because he was one of the people who was used, or rather his parts were used, were taken to be used for muti purposes.
MR RICHARD: And do you see any political advantage that the ANC or its opposition would get by that act of taking body parts for mixing into muti?
MR RICHARD: No further questions.
NO FURTHER QUESTIONS BY MR RICHARD
CHAIRPERSON: Yes thank you, Mr Richard. Mr Mokoena.
MR MOKOENA: No questions, Chairperson.
CHAIRPERSON: Thank you. Ms Mtanga.
MS MTANGA: Thank you, Chairperson, I have a few questions.
CROSS-EXAMINATION BY MS MTANGA: Mr Phasha, what did you understand to be political about the death of Mr Abraham Phasha?
MR D L PHASHA: Like I have already explained, the killing of Madibeng Phasha happened because he was a person who was sent to go and fetch Moses Phasha, because he was one of the family members. So it would be easy for him to do that, because other people would be suspected if they enter the household.
MR RICHARD: How did his death benefit your organisation, that is the ANC Youth League?
MR D L PHASHA: Are you referring to Moses or Madibeng?
MS MTANGA: I'm referring to Abraham Madibeng.
MR D L PHASHA: There is nothing that ANC benefitted from his death, or any other political organisation for that matter. That is my perception.
MS MTANGA: Did you believe that your brother's death had anything to do with politics? That is the death of Moses.
MR D L PHASHA: Like I have already explained, I did not have that knowledge and I did not have that belief, that he might have been killed for political reasons.
MS MTANGA: When you discovered that Abraham was killed, what was your - when you heard that he was killed and he was killed by the ANC Youth League members or supporters, what was your attitude towards his killing?
MR D L PHASHA: I was disturbed by that, because I heard that when I was at work. I didn't like that, it disturbed me a lot and I knew that it wouldn't be easy for the person who was responsible for his killing to be caught.
MS MTANGA: Are you talking about Abraham Phasha?
MR D L PHASHA: Yes, I am talking about Abraham Phasha.
MS MTANGA: If the youth had not killed Abraham on that day, what would have happened to Abraham? When you look back now - at the time, how would he have been dealt with had the youth not killed him?
MR D L PHASHA: If they did not kill him, I think that would be handled by the police because I also pressurised them that that should be handled by the police, maybe we could have managed to get the person that was responsible.
MS MTANGA: I have no further questions, Chairperson.
NO FURTHER QUESTIONS BY MS MTANGA
CHAIRPERSON: Thank you, Ms Mtanga. Panel.
ADV SANDI: Yes, just one or two.
Mr Phasha, do you perhaps know of any frictions, personal frictions that existed within the Phasha family?
MR D L PHASHA: Because I am the first-born at home, I remember that I once heard about conflicts that existed in the family. I remember that at one stage I even wanted to know why that was happening, but I was never given a reason.
ADV SANDI: Do you know if there was any conflict between Jan Phasha and Abraham Madibeng Phasha?
MR D L PHASHA: I wasn't certain about a conflict that existed between the two, what I knew was that they were in good terms.
ADV SANDI: How were they related to each other, were they brothers, cousins?
MR D L PHASHA: I would put it this way, Mashyani Phasha's mother was the sister to Madibeng Phasha's father. They had one - Madibeng Phasha's father and Abraham Phasha's mother were brother and sister.
ADV SANDI: Abraham Madibeng Phasha, what was his occupation, how did he make a living?
MR D L PHASHA: I was once with him in Johannesburg, he actually took me to Johannesburg. He was working there, but I did not know where he was working in Johannesburg.
MR D L PHASHA: He was working at Iscor in Pretoria.
ADV SANDI: Just one last question. Your actions and involvement in this incident on that day, would you say that had anything to do with your political convictions? Did it have anything to do with your being a supporter of the ANC?
MR D L PHASHA: My involvement on that day, I would agree that they associated me with that, because whenever the Youth League holds meetings they would invite me and I would go and attend those meetings.
ADV SANDI: Yes, but you did not get involved in this incident because you wanted to further the aims and objectives of your organisation, as I understand you, you were just concerned about your brother, Moses, who had disappeared and everyone was looking for him. Wasn't that the main problem you had in your mind and the reason why you were involved in this incident?
MR D L PHASHA: That is correct, that is why I was actually involved in this thing.
ADV SANDI: Do you know the political affiliation of Jan Phasha?
ADV SANDI: The political affiliation of Johannes Maletswai Phasha, do you know?
MR D L PHASHA: I do not know which organisation he was supporting.
ADV SANDI: Do you know which organisation Abraham Madibeng Phasha supported or sympathised with?
MR D L PHASHA: I did not know which organisation he was supporting because he was a parent.
ADV SANDI: Thank you, Mr Phasha. Thank you, Mr Chairman.
MR SIBANYONI: Mr Phasha, what did the ANC Youth League lose by the death of Moses?
MR D L PHASHA: I believe that he will be one of the community leaders because even the community was involved in the search of Moses.
MR SIBANYONI: You said you believe in witchcraft, do you know about this belief that if you want to be rich or you want to be strong, well protected, you have to bring body parts from a member of your family or a relative? - as muti.
MR D L PHASHA: I did not know about that, I only heard people saying that. I do not have certainty about that, because I am a Christian.
MR SIBANYONI: But people talk a lot about that, you are aware of such beliefs.
MR D L PHASHA: Yes, that is correct, I did hear about that.
MR SIBANYONI: Thank you, Mr Chairperson.
Mr Phasha, let me just explain to you that you are not able to get amnesty unless you have committed a crime. Now I want to come back to what you did on this day when Abraham Phasha was killed, did you commit any crimes against Abraham Phasha on that day?
MR D L PHASHA: The only thing I can say I did that say was my refusal to ask for forgiveness on his behalf. I feel guilty about that because had I don that, maybe I could have managed to save him. That is my belief.
CHAIRPERSON: Yes, but did you do anything that was wrong to Abraham Phasha himself? Any crime.
MR D L PHASHA: The only thing that I think I can say I did is that when he ask me to ask for forgiveness on his behalf, I refused. I think that is the big mistake that I did, because he was really in trouble. He was going to be killed and indeed they killed him. That is why I even today believe that I was wrong by refusing because I could have managed to save his life. But on the other hand, I think if I did that, if I did ask for forgiveness on his behalf, maybe they could have harmed me as well. But I feel guilty for my refusal.
CHAIRPERSON: Did you cause any harm, yourself personally, did you cause any harm towards Abraham Phasha?
MR D L PHASHA: I did not harm him.
CHAIRPERSON: Did you want him to be killed?
MR D L PHASHA: No, I didn't want him to be killed, but due to my refusal I think I have contributed in his death.
CHAIRPERSON: If you had asked and the crowd killed him anyway, would you then have felt guilty?
MR D L PHASHA: If I had done that and they proceeded with their intentions of killing him I would not feel guilty about that today because I had at least tried something, but I could not ...
CHAIRPERSON: Did you associate yourself in any way with what the crowd, the ANC Youth League crowd were about to do to Abraham Phasha, or eventually did to him? Did you associate yourself in any way with that? In other words, did you agree in any way with that?
MR D L PHASHA: I did not agree with him that he should be killed, but I supported them that the person who was involved in the killing should be hunted and - he should be caught and handed over to the police.
CHAIRPERSON: That's all that you were prepared to associate yourself with, to expose those who were responsible and to hand them over to the police so that the police can deal with that.
MR D L PHASHA: Yes, that is the only thing that I supported.
CHAIRPERSON: Yes. Yes Mr Richard, any re-examination?
MR RICHARD: None, Chairperson, argument yes, later.
NO RE-EXAMINATION BY MR RICHARD
CHAIRPERSON: Yes thank you, Mr Richard. Mr Phasha, thank you, you're excused.
MR RICHARD: That is Mr Phasha's case.
CHAIRPERSON: Thank you, Mr Richard. Mr Mokoena, have you got any evidence that you need to tender?
MR MOKOENA: There is no evidence that I can tender, Mr Chairperson.
CHAIRPERSON: Thank you, Mr Mokoena. Ms Mtanga?
MS MTANGA: No evidence, Chairperson.
CHAIRPERSON: Thank you. Yes Mr Richard, you have your opportunity now to argue.
MR RICHARD IN ARGUMENT: Thank you.
As the Committee is more than aware, there is a huge distinction between the first and second applicants before it. On the one hand we need remind ourselves that the test which should be applied to an applicant, is what his honest and bona fide, but subjective intention was when he did what he admits to doing.
In Michael Phasha's case, and for the sake of formality I'll call him the first applicant, he gave evidence first, he admits the crime of murder in that he certainly joined in with the crowd by associating himself by the act of throwing the first stone. However, if we look further in his chain of perception, what he perceived and saw then was that he was stoning a person who had been part and parcel of the chain that had led to the death of his brother, Moses Phasha. His evidence was straightforward and clear and I believe credible. The questions that we need ask when we talk about witchcraft, is not whether the belief is reasonable in the logical sense but whether it is reasonable in the cultural sense.
The evidence before the Committee is clear, that the applicant comes an area where belief in witchcraft is rife. We all know, and I don't intend labouring this argument by quoting from the various volumes of Commissions and Reports that we all have copies of, they do establish the prevalence of the belief. What's further, they also establish that at this time, that is January 1991, there was a very strong politically motivated, anti-witchcraft mood. Without arguing chapter and verse from the various reports, I believe it may be submitted, and one may in the year 2000 say with good reason, that for political reasons the crime or the practise of witchcraft was seen as reactionary, oppressive and counter to the development and movement towards a democratic State at the time. And indeed it might well have been perceived so, for good reason. Without labouring the argument, the coup in Venda had happened, the case can be made clearly that as a result of the political failure of the homeland structures, homeland leaders and the security apparatuses of the old State, did have an ascendancy and they were seen as the enemy. Evidence in other hearings has been led, to the effect that crowds such as the 500-crowd that we talk about today, did chant freedom slogans and did chant praises such as "Kill the impimpi, kill the moloi".
Now one then need go no further than to think of a matter that I know Adv Sandi and I are both familiar with, and that's the decision in the Sekela Dlomo matter. There the decision was that when an ANC MK operative shot his junior, who was found not to be an impimpi, he was entitled to amnesty on the basis that subjectively he bona fide and honestly believed that the non-impimpi posed a threat to his unit. Here there is much stronger and far more cogent factual reason for it to be argued and held, that Michael Phasha had an honest and bona fide belief that Madibeng Phasha posed a threat to the liberation movement of which he was an associate and with which he had an associated himself.
It is also useful when reflecting on other decisions, to think of those where ANC supporters/members has decided to go out and put an end to criminal gangsters. In those cases the act of murdering a gangster was not held to be one committed with a political motive. However, they are clearly distinguishable. The subject of belief held by Michael Phasha, was that whether it was the unknown molois or the named molois, or the fatality, that is Madibeng Phasha, they were seen and believed to be persons operating with a political agenda against the cause he was associated with. And I don't believe it would be a violation of the expectation of consistency to distinguish between the two situations.
CHAIRPERSON: Yes Mr Richard, I don't think it always helps to try and squeeze these different kinds of decisions into the same old ... what we must really do is, we must look at this particular instance here. Now isn't this - this is not so much prima facie in my view, it's not so much about the broader concept of witchcraft, witches and so on, this was a specific context where the ANC Youth League regarded people who were also seen as being associated with witchcraft, in the beliefs of that particular society there, but they were seen a part of the political enemy. And that's where it starts off. I assume, on the factual situation, if they were not regarded as witches they would still have been political enemies.
MR RICHARD: My argument is, in that particular context of this area that we talk about, the perception of the witch cannot be distinguished of an urban Self-Defence Unit's perception of a policeman. It's the same ...(intervention)
CHAIRPERSON: Yes, I mean it's not so much the concept of a witch, it is the question of a political opponent. These individuals were regarded as being on the part a chief who was seen, through his interruption of the activities of the ANC Youth League, as a political opponent. And that's really where it starts off. So the question of witchcraft, the way I see the matter, I might be wrong, the way I see it is not so determining of this scenario.
MR RICHARD: The only point that I labour on witchcraft, is in the bona fides of the belief.
MR RICHARD: And after that it becomes almost irrelevant.
CHAIRPERSON: Ja, that is certainly the approach of the Committee, but I mean as I've said, to try and squeeze these matters into the same sort of mould doesn't really help very much, they're always different. We must look at the particular circumstances of this one, we must decide on these facts.
MR RICHARD: Chairperson, I'm anticipating arguments that I don't need to reply to tonight, so I thought I'll deal with them now.
However, while - I think, should the Committee want written argument, I'm quite happy to prepare it and have it finished by the end of the week after next, but I think for the moment I can pass to Daniel Phasha's situation.
CHAIRPERSON: So is your submission that the conduct of the first applicant, as you call him, has been associated with a political objective?
MR RICHARD: That is my submission. The political objective was to eliminate a political opponent, which witches were perceived to be at the time, and that ...(intervention)
CHAIRPERSON: Not witches in general, but those people in Driekoppen, who were regarded as siding with the chief?
CHAIRPERSON: Or allowing themselves to be used by the chief.
MR RICHARD: Whether it's siding with the chief, or siding with a certain percentage of molois, as they are termed, were against progress. Again it doesn't really particularly matter, the perception and belief and conviction that the perpetrator of the violation, such as Michael Moloi had, was that he was furthering the cause of the ANC, as much as a person who might have shot a community Constable at the time, had the same belief. And the fact that it was witch doesn't matter in any material sense, it's the belief and intention and subject of perception. I really believe that at this stage of the TRC proceedings, to repeat all the arguments in that context takes us very little further, we all know them.
And then where I would like to go is I don't believe it would be appropriate to simply leave Daniel Phasha's situation commented on by the basis that he admits to no crime and therefore should not be considered.
CHAIRPERSON: Yes, that might have to be the focus of your submissions in regard to his situation.
MR RICHARD: I believe that is a far more difficult situation to argue, because there we have a man who sat before us and gave a straightforward direct and in my opinion, highly credible evidence. He had no political objective and he didn't commit a crime.
ADV SANDI: ...(inaudible) the context in which the incident took place, shouldn't that perhaps be a major consideration when one has to look at his application?
MR RICHARD: Chairperson, my next point would be that the context was that at the time the deceased was certainly in a broader context, murdered with the political motives that we've argued, and I believe convincingly so for his brother, Michael, and I believe it would be absurd to have a situation where quite rightly, Michael Phasha would qualify for amnesty for being part of what was a murder and the person who because he saw hit rationally and clearly, should be sanctioned.
There my argument is that since the incident of the killing of Madibeng Phasha, clearly constituted a crime, since Daniel Phasha was convicted on the basis of common purpose for it, the wording of the Act does stretch to the argument that since the crime was committed with a political motive and objective, he who might have been associated with it by virtue of the common purpose and therefore convicted on that basis, should enjoy the benefits that his co-perpetrators or common purpose partners, who fall within the strict language of the Act, do enjoy.
CHAIRPERSON: But the question is, I mean he says - he gives a certain sort of indication of his desires on the scene, but he's part of a murderous crowd, he says himself that he realises that this crowd is going to kill the deceased, and then he proceeds and he elicits a confession, in the presence of the crowd he elicits a confession from the deceased. Is that conduct without any legal consequences? Under those circumstances.
MR RICHARD: Listening to the applicant's evidence and also in preparation, my question was, on that level of participation, was he in the first instance correctly convicted? We don't have a transcript of the evidence, so I can't take that point further, but let's assume that the trial court's evidence did correctly convict him. It's difficult to see how, but if it is correct, that by the facts that we have before us today, there was a sufficient association and his ...(intervention)
CHAIRPERSON: At least with dolus eventualis.
MR RICHARD: I beg your pardon?
CHAIRPERSON: At least with dolus eventualis, where you elicit the confession under circumstances where you realise that that can only but contribute towards the killing. Wouldn't that amount to dolus eventualis, under those circumstances?
MR RICHARD: I believe the Chairperson is correct.
CHAIRPERSON: Because there you don't so much look at subjective beliefs and the subjective state of mind of the accused, you look at the objective circumstances.
MR RICHARD: In support of that argument I would use my first argument that since the context of the commission of this particular crime is such that it satisfies the requirements of the Act, if there be an objective dolus eventualis, as the Chairperson has argued, clearly the fact that it's not subjective, cannot be held against the applicant.
CHAIRPERSON: Yes, because that's a legal question, it's not a factual question, the question of dolus eventualis.
MR RICHARD: And where an applicant might be entitled to the benefit of a subjective test, that benefit should certainly not be used to exclude the benefit of an honestly political crime, which is objectively so on a dolus eventualis, and I believe the Chairperson is correct, the analysis is quite correct. By questioning his uncle, Madibeng, he provides the crowd with exactly what they're looking for, and that is the nexus that they've been trying to find, somebody's connection with the disappearance.
ADV SANDI: Isn't the question here, Mr Richard, really that a quasi judicial tribunal like the one we are as this Amnesty Committee, how far it should go? I mean should it test strictly, apply those principles of the doctrine of common purpose in the same way that a criminal court would do, where you deal with an accused person before ...?
MR RICHARD: My argument is that an Amnesty Committee is sui generis. I've decided that to analogise it to quasi judicial or quasi administerial, in fact takes us very little further.
ADV SANDI: Yes, we're not a criminal court.
MR RICHARD: And certainly there is a factual enquiry, but the purpose has to be seen in the postscript to the Interim Constitution and the Act constituting the Commission, and the object is, where on proper enquiry the Committee, therefore the Commission is satisfied that the elements of amnesty are satisfied, certainly it requires an applicant to come forward and make an application, but I have argued before that even a person who might not be mentally competent can qualify for amnesty, because the situation is there, the fact that there may not be full competence at the time of the application, it certainly doesn't exclude the operation of the act, it's not a juristic transaction where you have to have a contractual capacity, and in the same as sense the Committee now raises. The strict tests of common purpose, while they may be used to constitute a crime for the purposes of whether there's an act which constitutes a crime or delict, I don't believe we should apply them so strictly so as to make sure that we eliminate a crime or delict for which an applicant is serving a prison sentence. That would have been an ...(intervention)
ADV SANDI: He's been convicted already.
MR RICHARD: Yes. I don't think it's our job to try and destroy the conviction so as to prevent giving him amnesty, because that would be in fact a defeat of the purposes of the Act. The same way as my argument about mental competence. If your going to use those strict arguments in law to eliminate competence to bring it, it makes a mockery of the idea of amnesty, and it defeats the objectives of the Act, and that is to put the past behind us by giving amnesty where it can be properly given.
My interpretation of the Act is on a wide and liberal interpretation, but I don't see how anyone could argue that it should be a strict and narrow interpretation. One need only reflect on the case of Azapo vs The President of the Republic of South Africa. There the limitation is not seen from the language of the Act, it's seen only from the language of the protection and interests that the Commission should give to victims. In this particular instance there is no argument that the Act is disproportionate, as I understand it yet - I haven't gathered it from my learned colleague's cross-examination, or that the force or violence was inappropriate, or that there was no political context as opposed to political motive for
what was done. Certainly when it comes to Daniel's situation, there was a political context. These reports establish it without us going through it. And for those reasons, my submission Chairperson, is that the widest reasonable interpretation of the Act should be applied, which would favour an applicant such as a person in Daniel's position.
In conclusion, my argument is that in the case Michael Phasha, the requirements of the Act have been satisfied. The act was proportional, it was an act which constituted a crime committed during the struggle, for the purposes of the furtherance of the interests of the ANC, and there's not an iota of evidence before us that the ANC does not accept that it was done for the furtherances of its interests. It may well say it would have preferred not to, but it's not the test.
The subject of tests, flowing from (l) of Section 20(f), I think, of Section 20(2), I think it's plain that Michael Phasha certainly believed he had the authority to do what he was doing, even though it might not have been a rational logical belief. The hysteria of a crowd chanting freedom slogans and in high blood so as to eliminate a perceived enemy of its revolution, would endue such a belief.
In conclusion, in relation to Daniel Phasha I repeat the arguments, it would be absurd to interpret common purpose in such a way as to hold that there is no valid conviction and that while the applicant does not concede that he was guilty by way of common purpose, I believe that despite his objection to being associated, he should be associated with the crime ...(intervention)
CHAIRPERSON: Yes, as I've said, not because another tribunal has made a particular finding, but simply because in considering the application in the light of the requirements of this legislation that we are dealing with, that we are satisfied that there is sufficient to find that he had associated himself with culpable intent with the actions.
MR RICHARD: There is coherent evidence to that effect, I don't need to repeat what has been said.
CHAIRPERSON: Ja, but it would be wholly inappropriate for us to base that entirely upon what another tribunal had done, we have to apply our minds to what is before us, and as part of that exercise we take into account what might have happened elsewhere, in other proceedings, but at the end of the day it is still an exercise of your our minds on this particular application in the light of this legislation, and we have to be satisfied after having gone through that exercise, that what we have before us are acts which could be acceptable to amnesty.
MR RICHARD: Hence, Chairperson, my argument that the test is the application of mind to the requirements of a particular Act.
MR RICHARD: Certainly there's the constitutional backdrop as to how decisions need to be made, but this particular Act certainly is not being argued to be held in conflict with the Constitution, and therefore the conclusion, without labouring the point, is that an open and liberal interpretation should be given to the particular circumstances and facts of the matter, which may produce an apparent inconsistency, which is indeed not ...(indistinct)
CHAIRPERSON: Yes no, no, I follow that argument. My point is simply aimed at the weight of the criminal finding, the weight of the finding of the criminal court that there was indeed common purpose. I'm saying that's just one of the factors that we take into account in doing this exercise that's before us. It's not the only factor.
MR RICHARD: No, I concede it. The fact that there was a criminal conviction in fact assists me ...
CHAIRPERSON: Yes, it's a factor that can.
MR RICHARD: If it was simply an application without a conviction, my job might be a lot more difficult.
CHAIRPERSON: Yes. Yes, no, I think we follow your submissions. Is there anything else that you wanted to say?
MR RICHARD: Nothing further, Chairperson.
MR MOKOENA: Chairperson, I don't have any submissions.
CHAIRPERSON: Thank you. Ms Mtanga.
MS MTANGA: Chairperson, I do not wish to oppose this application and therefore I will not make any submissions.
CHAIRPERSON: Thank you. Yes, I assume you don't have anything further.
MR RICHARD: Nothing further. Thank you, Chairperson.
CHAIRPERSON: Thank you very much.
Yes, we have concluded the evidence on the formal part of the applications, we will consider the matter, consider the evidence and the argument that was submitted on behalf of the applicants, the other material that is before us, and we will endeavour to prepare a decision in this matter as soon as the circumstances permit. So the decision would be reserved.
We thank you already in anticipation, Mr Richard, we know that you have some other work here as well still. Thank you thusfar, Mr Mokoena. Thank you for your assistance, Ms Mtanga. And for the members of the Correctional Services as well, for your assistance and your patience in waiting for us to at least finalise the matter. We appreciate that. We know that you've travelled over some distance to come here, and we are grateful for that.
We will, in the circumstances, have to adjourn the proceedings. I think we've at least achieved something. There is another matter that remains, but I assume we'll have to rearrange and try and deal with that with the rest of the matters that we have to do.
MS MTANGA: Yes, Chairperson, the matter of Mtsweni and four others was set down for today and because of the time it will have to be heard tomorrow morning.
MR RICHARD: Chairperson, I believe the three further matters, there's a reasonable prospect of putting them into one day, and if it doesn't I can roll over to Friday, it depends on the Committee.
CHAIRPERSON: Yes, that's good news, that's a bit of good news. Yes, we'll do our best, but for now we will adjourn and we will reconvene at 9 o'clock tomorrow morning. We're adjourned.