CHAIRPERSON: Good Morning. We want to continue with the proceedings. Just for the record it is Wednesday the 27th of October 1999 and we are continuing with the application of Mr Yekwani in respect of the Jack Incident. The Panel and the appearances are as have been indicated earlier on the record. Mr Jamie, have you got any further evidence that you intend to represent?

MR JAMIE: Mr Chairperson, I understand that Ms Patel has now spoken to Mr Toyise. Perhaps in the light of that, I'm sure she'll place on record, I don't have any further witnesses.

CHAIRPERSON: Yes. Thank you Mr Jamie. Perhaps, Ms Patel, you can just deal with that question of Mr Toyise.

MS PATEL: Alright, thank you Honourable Chairperson. I wish to place on record that I consulted with Mr Toyise regarding his statement which forms part of the bundle, page numbers 19 to 21 and he indeed confirmed the contents thereof to me and I guess that sorts out the question of whether he should be called, or not. Thank you.

CHAIRPERSON: Yes, that will form part of our record and the parties would be at liberty to deal with it. Thanks. Whilst you are at it, do you intend to present any evidence?

MS PATEL: No I do not, thank you Honourable Chairperson.

CHAIRPERSON: Thank you very much. Mr Williams, what is your situation?

MR WILLIAMS: Thank you, Mr Chairperson. Mr Chairperson I'm not going to present any witnesses.

CHAIRPERSON: Thank you Mr Williams. Yes, that would then conclude the evidence. Mr Riley, are you in a position to address us on the merits of the application?

MR RILEY: Thank you, Mr Chairperson. We are in a position to address you on the merits. The applicant has however requested that I place the following on record, prior to the address.

CHAIRPERSON: Yes.

MR RILEY: It particularly relates to the fact that first of all the TRC has made attempts to further identify and locate the individuals who were part of his unit on the night that Mr Pro Jack was killed. Inquiries were made at the Browns Farm, Nyanga area, but unfortunately no further information was obtained and these persons could not be traced there. The TRC further traced one of the alleged co-perpetrators, Kobane, to the South African National Defence Force at Kimberley, but follow-up information showed that there was no record of that individual there. The applicant himself has advised that Michael had, in the interim, passed away, he's deceased so regrettably the Committee will not have the benefit of their evidence.

The applicant has also asked that it be placed on record that and the TRC Investigative Unit can confirm this, that attempts were made to obtain a copy of the report of an investigation that was done by the ANC in respect of the death of Mr Pro jack. According to the TRC the ANC have advised that this document cannot be traced. Regrettably once again there is therefore no evidence in this regard before this Committee to assist in reaching the truth about what had allegedly then been found. That is all in so far as these aspects are concerned.

The applicant has requested as part of the argument, that he be allowed a final opportunity to address the Committee on the issue of the granting or not of amnesty.

Thank you.

CHAIRPERSON: Yes, thank you Mr Riley. We have noted what you have placed on record. Often the lapse of time plays havoc with one's wishes to present a full picture of what happened, so we're aware of the practicalities that arise in these matters, but we've noted what you have said. Yes, you can proceed to deal with the merits and then I assume once you're done, your client would want to make a further statement, so we'll deal with your submissions first.

MR RILEY: Thank you, Mr Chairman.

MR RILEY IN ARGUMENT: Honourable Chairperson, Members of the Committee, the application relates to the applicant's role in the murder of Mzwonke Pro Jack on the 19th of June 1991. It is so that the application for amnesty must comply with both formal as well as substantive requirements. It is submitted that the applicant's application indeed complies with the formal requirements and therefore no further submissions will be made in this regard.

As far as the purpose of the Act is concerned, it is common cause that the Act serves to advance reconciliation and reconstruction and it is submitted that amnesty should be granted in respect of acts and omissions and offences associated with political objectives which were committed in the course of the conflict of the past.

The Committee will, or must be satisfied that the applicant committed the particular act with a political objective, that the applicant has made full disclosure, and that the applicant did not gain personally from the act, or that he acted with personal gain in the circumstances. As far as the facts of this case are concerned, it's common cause that Mzwonke Pro Jack was wrongfully and intentionally killed on the 19th of June 1991 at Nyanga in the Western Cape. It's also common cause that the deceased died as a result of firearm wounds of the body and the consequences thereof.

It is further common cause that at the time of his death, the deceased was an active and prominent member of the ANC in the Western Cape. It was also further uncontested that his death occurred at the time when there was considerable political strife and tension within the Western Cape. There was violence between various taxi organisations, which was the order of the day at the time. There were situations where the members of the police and South African Defence Force, National Defence Force were targeted and killed and it is so that certain sections of the community were subjected to police brutality and were in fact being killed. It is also not disputed that the deceased had, at that point in time, tried to act as mediator in various situations but more particularly in regard to the taxi violence.

The applicant has admitted that he was responsible for the death of the deceased. It is not disputed that at the time of the deceased's death, the applicant was an active member of a self defence unit and that he in fact regarded him as a member of Umkhonto weSizwe, having undergone military training with them.

It is further not disputed that at the time of his death, that the deceased was accompanied by one Andile Jack. It is further not in dispute that Andile Jack was also shot at and that he suffered certain wounds as a result of the attack. It is further not in dispute, nor was it contested as such, that the applicant was accompanied by certain persons namely Kobane, Michael and Thandazile and that these persons were all armed. It must further be accepted that attempts were made to chase them, but without success.

The chief issue in dispute in this matter is in fact, issues that are in dispute are the reasons for the killing or the death of Mr Pro Jack and/or the circumstances under which they occurred. Now, there is no doubt that there is much speculation and conjecture about the reasons why Mr Pro Jack was killed. I don't know if we will ever find out precisely what the true reasons were that resulted in his untimely death, but among other things, there is the possibility that he was killed due to his involvement in trying to broker peace with rival taxi organisations or because there might have been allegations that he was favouring one taxi organisation as opposed to another, or there is the possibility or belief that he was killed because he had, there was a belief that he had caused the arrest of Christopher Toyise and his family on charges of possession of firearms and that in the circumstances, he was regarded or could possibly have been regarded as being a traitor, or there's a possibility that the authorities had instructed that his life be terminated. There are various theories that one can speculate about.

The applicant however, has contended throughout the Hearing that the deceased was killed in circumstances where he believed that he was shooting at the police. It is also so though that his version of the events and I do not intend to deal with each and every aspect of the evidence that the applicant has presented to this Committee. His evidence is still fresh in our memories. We know what he says what happened there and the position is, however, that his version of the events is contradicted, or gainsaid by the evidence that was presented by Mr Andile Jack. Mr Andile Jack's evidence, we will recall in brief, was that the deceased had been called by his killers, where they were standing under trees and then shot and killed.

CHAIRPERSON: Mr Riley, was that presented as a matter of fact, or was it more an inference that was drawn by Mr Jack? Was he quite adamant that it was in fact the three people that he saw under the tree that called out, or just his inference in the circumstances, that it must have been those people?

MR RILEY: I must say that, Mr Chairperson, my impression initially was that there was uncertainty as to, in the first place, whether or not he himself had heard the calling, so my submission in that regard is that there is uncertainty in that regard and then I submit to the Committee today that in fact the impression that I gained was that he had drawn certain inferences. I submit that the possibility cannot in fact be excluded that in the circumstances that prevailed there, that Mr Jack could have in fact decided out of his own accord to proceed to the place where he was eventually then shot and killed.

CHAIRPERSON: Or possibly that his name was called, but not necessarily by the applicant and the people standing there.

MR RILEY: That is ...(intervention).

CHAIRPERSON: Although they would have been the people who were immediately on Mr Jack's side of the car, so if he had looked outside they would have been the first people that he would have focused on and possibly thought that was where it came from.

MR RILEY: That is correct. I would agree with the Honourable Chairperson on that point.

Was there a further aspect? Can I proceed? Thank you.

So Mr Chairperson, Committee, it is submitted that at all material times when the applicant went out on this mission as he put it, a mission to kill police on the 19th of January 1991, there is no doubt that he believed that he was acting with a political objective. That was his objective. He believed and the evidence is so and he was indeed a member of a Self-Defence Unit and Umkhonto weSizwe and he believed he was obliged to go out and in fact perform missions like this particular one, for example ambush the police, which was his intention on that particular night.

There is no evidence whatsoever that the applicant had acted for personal gain. There's no evidence that he received any monetary reward or any other reward as a result of the incident that had occurred. In fact the only reward, it is submitted, that the applicant acted for, was a political reward. That was his belief. The fact of the matter is that the applicant's evidence is quite clear. What cannot be thought away is the fact that he went out there, there was obviously a lot of tension that existed at the time, there was a lot of nervousness that existed at the time, there was waiting under the trees for the kill as it were, there was a lot of anticipation, a motor vehicle pulls up, he hears at practically the last moment that the motor vehicle is there. He is, from his version, blinded by the lights of the motor vehicle, he turns around and in fact fires shots at the motor vehicle in these circumstances. At the time when he fires the shots, he believes that he is in fact firing at the police and when acting as he does, his version of the events is that he wants to make sure that whoever is in the motor vehicle, won't have the opportunity of pursuing them wherever they were going to go to.

CHAIRPERSON: Mr Riley, on what grounds, according to his testimony, did he base his belief that he was firing at the police? Are you able just to break it down?

MR RILEY: Mr Chairperson, the impression that is created from his evidence is that at the time when he fired, he believed that he was firing at police. I get the impression from his evidence that he did not and there was obviously cross-examination on this particular aspect, he didn't check to make sure whether it was the police or not, because at the time that he was there, they were waiting for the police and his response was almost instinctive in the sense that he then proceeded to fire shots in the belief that he was in fact firing at the police at the time. It is so that he was asked whether he made sure that it was a police vehicle, whether he made sure whether the people were in fact going to fire shots back at him, or going to do something to him, whether he made sure as to the identity of the persons. His version of the events in that regard is that he didn't think of those things at that particular point in time, he just acted, shall I say almost automatically when he in fact fired the shots.

CHAIRPERSON: That belief has to be a reasonable one. It has to be bona fide in the circumstances, in terms of the substantive legal requirements of the Act. Now you say that he, is it common cause that he took no steps to ascertain the identity of the people who were in the vehicle?

MR RILEY: I think, Mr Chairperson, that it's common cause that he didn't do that. I think that is borne out by his evidence. He says that he didn't check. The question that he obviously raised, or his contention was that there was, in his mind, not time to check that because if he did in fact check that he might have found himself in a situation where he had been attacked.

CHAIRPERSON: He believed that he was under threat at that point?

MR RILEY: That is the thrust of his version.

CHAIRPERSON: Did he say that, I don't know if I remember correctly, did he say that where they were standing under the trees, he didn't expect another vehicle but police to come up there?

MR RILEY: That is what I understood him to say.

CHAIRPERSON: Now was there anything else that he had said? I'm just trying to isolate, if it's possible, the sort of grounds for his belief that he was acting against the police. Wasn't this vehicle approaching from a totally different direction from whence he was expecting the police to come?

MR RILEY: Yes, that is so, however one must also accept that the police could possibly also have come from the direction in which that particular motor vehicle came from and the police did not necessarily have to in fact drive in a motor vehicle such as he had been expecting at the time, they could in fact have been from a totally different unit.

CHAIRPERSON: Yes, in fact I was going to just raise that too. Is that entirely irrelevant in the circumstances, that he was expecting a canto vehicle, a sort of a - not a sedan vehicle, so he was on the lookout for this canto, would it be totally irrelevant that the vehicle that arrived where they were standing, clearly was not a canto vehicle. Would that have been reason for the applicant to have at least inquired a bit further into the situation, seeing that on the appearance, on the immediate outward appearance of the vehicle, it was not the type that he was actually expecting, or are you submitting that he was still entitled reasonably to have just opened up and fired shots at the vehicle without taking any further steps?

MR RILEY: Mr Chairperson, on that particular point, from the applicant's evidence there was no opportunity, according to his version, for him to identify the particular vehicle. In fact his version was that he had practically been blinded by the lights. He didn't in fact check or make sure what kind of motor vehicle it was and because of what he says, his comrades or the persons who were with him, made him aware of the fact that the vehicle was approaching. He, as I said, acted instinctively it appears and fired the shots on the basis that the vehicle was part of the police or was the police who had arrived on the scene.

CHAIRPERSON: Just in conclusion on this issue, do you agree that if the belief could not have been reasonable in the circumstances, in other words if the conduct of the applicant was not reasonable, that that would be a failure to comply with one of the principle requirements of the Act?

MR RILEY: We would have to concede that, Mr Chairperson.

ADV BOSMAN: If I could just ask, to take this point further, there was evidence that it was a fairly busy public road, Lansdowne Road and it wasn't particularly late at night, it was between half-past Nine and Ten, according to the evidence, are these not also two factors that should be taken into account in trying to establish whether it was a bona fide belief?

MR RILEY: Yes, Adv Bosman, those factors are certainly factors which must be taken into account. It does appear though that at the time when this incident occurred, there's no evidence that in fact the traffic conditions were such, busy as you indicated, it would appear that it was fairly, a relatively quiet night there.

ADV BOSMAN: I'm not trying to indicate that there was evidence that it was busy at the time, but it was a busy road and it wasn't particularly late at night, surely that should have had an effect on the frame of mind of whoever was there and if a vehicle came past, that it would not necessarily be a police vehicle?

MR RILEY: That is a factor to consider.

CHAIRPERSON: Yes, thank you Mr Riley, you can carry on.

MR RILEY: Thank you Mr Chairperson.

Another issue which obviously arises and which I referred to earlier on, is the fact that, which is obviously a difficult and contentious kind of situation for the applicant. The position which arises is whether or not, if the applicant and the persons who were with him, had believed that Mr Toyise had in fact been arrested as a result of, incorrectly maybe, as a result of information which the deceased might have given the police, if the applicant and others had believed that and obviously that is not the applicant's version, but if he had believed that and had acted in accordance with that belief and believed he and others had believed that, that Mr Pro Jack was in fact therefore an enemy and a traitor, if he had believed that and acted in accordance with the belief that it was important politically therefore to target him, it is submitted that I would want to argue that his motives in acting then were also political in the broader sense of the word, in the sense that he believed that he was acting in the best interests of the organisation of which he was a member at the time. Whether or not he was entitled to act in that fashion at that time is a different thing. But certainly, that is a factor to be considered.

The applicant has further contended throughout the Hearing that his version of the events was the correct version. I submit, notwithstanding rigorous cross-examination, did not deviate materially from his version. He stuck to his version. On the contrary, he was at great pains to in fact point out that he had no reason to in fact tell the story that he did. If he did want to implicate any other persons in this event or said that he was acting on instructions, then he would have done so.

It is submitted that his version of the events cannot be rejected unless it's found that it's false and not reasonable in the circumstances.

It is submitted further that the evidence of Mr Andile Jack must be viewed against the background of him being very young at the time of the incident. It was obviously a traumatic event for him. He was very close and attached to the deceased. The deceased's death and the circumstances under which the deceased was killed, must have had an effect on him in some or other way. The possibility can therefore not be excluded that his version of the events was not influenced in some or other way by these factors that existed at the time. He, we will all remember, was also not prepared, or his evidence in certain respects in regard to how he became aware of the persons under the trees, whether or not a window was open or closed at the time that the shooting occurred is, with respect, not satisfactory in all material respects. So his evidence must also then be treated with caution.

The upshot then is that the possibility cannot be excluded that Mr Pro Jack proceeded to the area under the trees where he was killed, out of his own accord and therefore effectively in doing so, surprised the applicant and others who were there and was killed in those circumstances and if we find that Mr Pro Jack in fact drove to that area out of his own accord, then the version that the applicant has presented, is a version which is reasonably possible and it is submitted that it must then be found that it's an acceptable version.

According here to the applicant, submitted on his behalf, that he has made full disclosure and that it's accordingly argued that all the requirements for amnesty have in fact been met and that amnesty should therefore be granted in this matter. Thank you Mr Chairperson, Committee. Any further aspects you wish to hear me on, I'll be glad to address you on.

CHAIRPERSON: Thank you, Mr Riley. I don't know if your client wishes to address us at this point, before I go to the other parties, or what did you have in mind?

MR RILEY: He could wait until everyone else has addressed. Thank you.

CHAIRPERSON: Very well, thank you. Mr Toyise, is there anything that you want to say about this case?

MR TOYISE: (not translated)

CHAIRPERSON: Thank you. Mr Williams, have you got any submissions?

MR WILLIAMS IN ARGUMENT: Yes, thank you Chairperson. Mr Chairperson, we've heard the evidence of Mr Andile as well as the evidence of the applicant. It is my respectful submission that there's nothing inherently improbable in the evidence of Mr Andile Jack. His evidence is logical, it's coherent and it's consistent.

My learned colleague Mr Riley said that he gained the impression that Mr Andile Jack drew inferences when he testified about the fact that he heard the perpetrators calling out the name of Mr Pro Jack, but Mr Chairperson, Mr Riley does not tell us on which facts does he gain that impression. On the contrary I get the impression that Mr Andile did not draw inferences because his direct testimony is consistently that he himself heard people calling out the name and he also says that Mr Pro Jack also said that people were calling him.

Mr Chairperson, the evidence on record is also that there was no-one else in the immediate vicinity and an argument which runs that other people might have called him, is based purely on conjecture and does not tally with the facts before this Commission. It is also my respectful submission that that also does not tally with the probabilities, it does not tie in with the probabilities that the testimony of Andile is that they were driving in the car, they heard someone calling out Pro Jack's name, they then reversed and the fact of the reversal of the motor vehicle is important here, Mr Chairperson because it then explains or, let me put it this way, it explains the fact that they heard someone calling out his name and it is therefore more probable that someone did call out his name and that is the reason why he reversed.

Mr Chairperson, with respect, if one looks at the testimony of the applicant, his version is riddled with contradictions, inconsistencies and improbabilities and I just want to refer the Commission to a few of those.

As far as contradictions are concerned, it might be minor aspects, but if one looks at his testimony as a whole, it diminishes the value of his testimony. He says at some stage that when his statement was taken, that he was not explained his right to legal representation, he later contradicts this evidence. He also initially says that he was pressurised into making a statement, he later contradicts this statement and says that it was voluntarily made. When asked whether high-placed ANC officials knew about his actions, he says yes, but then he goes on and he directly denies that they knew it. He says that when Chris Hani approached him, he denied any knowledge and when Msondile Jacobs approached him, he denied knowledge.

If I look at some of the inconsistencies of his testimony, the following few emerge. Firstly, he says that they went out looking for a police van and it is common cause that the vehicle in question, a Golf, does not resemble a police vehicle in any way. When asked why he did not go to the ANC and tell them, he says that he was waiting for someone to ask him, but yet he also testified that numerous people asked him, Msondile Jacobs asked him, Chris Hani asked him, other people also asked him but he denied it. He says further that Mr Mthama was his Commander, but then he also goes on and then the effect of his testimony is that Mthama wasn't really his Commander. He also says that Mthama knew that they were going out to attack the police and when he asked why didn't he tell the people beforehand that they were going to attack the police, he said no he was scared that the police might arrive there and wait for him. These also are inconsistencies which I wish to point out.

Mr Chairperson, I also want to show quite a few improbabilities in his version. The applicant states that he did not hear the vehicle or see the lights until the vehicle was two to three metres away from him. Now with respect, Mr Chairperson, I want to submit that this is highly, extremely improbable, given the fact that the applicant was a trained cadre, he went out on a mission, he had experience in those type of missions. He knew that he had to be cautious, he had to be alert and he would in all probability have noticed the vehicle beyond two or three metres from him. So I want to say that his testimony in that regard is highly improbable.

Mr Chairperson, it is also highly improbable that Mr Pro Jack would leave his path of travel and then for some inexplicable reason, go to the place where the applicant and his friends were hiding. Go, for some inexplicable reason, leave his path of travel and go to the trees. That doesn't make sense to me, it doesn't tie in with the probabilities and Andile's evidence in this regard makes more sense. Mr Chairperson ...(intervention)

ADV SIGODI: Sorry Mr Williams, when the applicant, or when Andile was being asked questions, some questions from the Panel, it transpired that before this Andile and his uncle were at home, they were watching TV and it's like he decided at that point that he was going to take Andile home. He mentioned that there were other routes available to him to go back to his home, that was not the only possible route. I want you to address this aspect. Yes, just hang on. Now what concerns me is the fact that it doesn't seem that anybody knew that Pro Jack was going to go that route on that particular day and if the applicant and the other co-perpetrators had wanted or had targeted Pro Jack on that particular evening, they would have chosen a place closer to his home, to me that seems more reasonable, because from the way it has been explained to us, Pro Jack's home was two streets further down and you had to go into the street and go into the fourth house. There doesn't seem to be any evidence linking that, or to give one reason to believe that they must have targeted him particularly on that particular night, because nobody seemed to have known that he would have travelled that route on that particular night and at that time. So is it not also possible that whilst somebody may have called him, we do not know who called him and Pro Jack may have thought that he was being called by the applicant and the other perpetrators, that he went towards them and surprised them. Is it not also a likely possibility?

MR WILLIAMS: Thank you. Adv Sigodi, with respect, there's no evidence by the applicant himself that other people were in that immediate vicinity and it is highly likely that if there were in fact other people that called out April Jack's name, that the applicant would have heard that.

ADV SIGODI: Sorry, but the applicant has stated that he did not hear anybody calling out Pro Jack and at that time he was looking out for police vehicles.

CHAIRPERSON: Also bearing in mind that this seemed to have been not the best of weather conditions that applied there, it looks as if it was a misty evening.

MR WILLIAMS: Thank you. Mr Chairperson, Adv Sigodi, ...(tape blank)

Mr Chairperson, the evidence before us is that the house from whence Mr Pro Jack came was in close proximity of where the applicant and his friends were hiding out. There's no maybe reliable evidence in that regard, or it's not very clear but it's possible that maybe they could have seen the house or the car from the distance where they were and they were just in luck. That's a possibility. When he actually came down - when he actually decided to follow that route.

ADV SIGODI: Isn't it more likely that if they wanted to shoot Pro Jack particularly, they would have shot him also on the road? He need not have reversed and come to them.

MR WILLIAMS: Mr Chairperson, I will leave it at that. I can take the matter no further on that aspect.

CHAIRPERSON: Yes.

MR WILLIAMS: I also want to submit that the applicant had absolutely no grounds for believing that the car in which Pro Jack was travelling contained members of the SAP. He had not ground whatsoever for believing that and furthermore, that they were now coming to arrest him. He could have waited a little while, or he could have followed a few steps to ascertain whether that was in fact correct and his evidence in that regard is also extremely improbable.

He says, he goes on further and he states in his evidence that he shot at the driver and he wanted to make sure that, he thought that there were other occupants in the car as well. He wanted to make sure that no one escapes alive. Then the logical thing for him to do would then be to go to the vehicle and see whether there are still occupants in the vehicle. Why doesn't he do that? Mr Chairperson, it seems, or the probabilities - it's highly probable that he knew that he was shooting at Pro Jack. His direct intention was to kill Pro Jack and he knew that whoever else was in the car, wouldn't be in a position to identify him, maybe because of the way his face was hidden, or whatever, but that would seem to tie in more with the probabilities. Mr Chairperson he also doesn't dispute the fact that Pro Jack was a well-known figure in the community and the applicant himself was active in community organisations, probably the same organisation that Mr Jack belonged to and it seems highly probable that he knew who Mr Jack was and that he deliberately set out to kill Mr Jack.

The last thing on this point Mr Chairperson is, if he was convinced that he was shooting at the policemen, why did he still ask his friends afterwards; "Was that a police vehicle?" That would also not seem to tie in with the probabilities.

Mr Chairperson, with respect, then my submission is that the applicant's testimony leads us to the inescapable inference that the application of the applicant is a scheme of lies designed to conceal the truth and that he's not making a full disclosure here.

Just before I conclude, I want to deal with a submission by Mr Riley. He says that there are other possibilities and that his client could have thought that Mr Jack worked for the establishment or whatever and maybe that was the motive why he could have killed Mr Pro Jack. Now that flies in the face of the direct testimony of the applicant and if that is in fact the case, why didn't the applicant come and testify to that effect to the Commission?

Then lastly, my instructions from the ANC are that the ANC completely distances itself from the action of the applicant and they've instructed me to oppose amnesty and to request that the Committee should not give amnesty to the applicant. Thank you Mr Chairperson.

CHAIRPERSON: Thank you Mr Williams. Mr Jamie have you got any submissions on the merits of the application?

MR JAMIE: I do, Mr Chairperson.

MR JAMIE IN ARGUMENT: Mr Chairperson, the representative for the applicant, Mr Riley, made a somewhat extraordinary submission to the Panel which does indeed coincide with the submissions that I am going to make but it's extraordinary coming from the applicant. His submission was, Mr Chairperson, that we will probably never know the true reasons behind the killing of Mr Pro Jack. They could have been to do with the taxi violence, which was endemic in the area, in respect whereof Mr Jack was attempting to broker a settlement. It could have been because of the arrest of Mr Toyise and his family over the firearms that were seized from his home, or it could have been as a result of ...(indistinct) action. Now that is quite correct, Mr Chairperson,

it could have been any of those and the position is, we don't know which of those it is, but in our submission the one thing that it wasn't is a mistake on the part of the applicant who thought that he was firing at a police vehicle that evening. There are a number of reasons for that submission and they are reasons both of logic and that arise from the evidence.

If I can begin perhaps with dealing with an issue which appears to cause the members of the Panel some concern and that is whether or not indeed this could have been a targeting specifically of Pro Jack that evening and not merely an accident. So now I'm dealing with the version of Andile, because there are two contradictory versions. In our submission and as a matter of basic and fundamental fairness, this Committee will be very loath and very hesitant to find, or it should be hesitant to find that, or let me preface that by saying that the uncontradicted evidence of Andile was that he heard someone, or more than one person calling "Mzwonke, Mzwonke" and in fact his uncle Pro Jack then confirmed himself by saying: "Someone is calling me". Now the applicant's representative attempted to cross-examine on the first of those propositions, but never ever suggested that the second had not taken place, that Pro Jack in the car, had told Andile: "Someone else is calling me" and that evidence stands uncontradicted.

Now there are two possibilities here, or three. The first one is that he's making that up, Andile, and that never happened. It's not the sort of evidence you can be mistaken about. You can't be mistaken that someone tells you: "Someone's calling me" and he also can't be mistaken in the ordinary course of events that you hear someone calling: "Mzwonke". Everyone called Pro, Pro's common nickname was Pro. Mzwonke was his formal name, his proper name, so if one is making this up or if you're having a flight of the imagination, it's far more likely you would think that somebody was calling Pro, not Mzwonke. That's the first point.

The second is that it's not the sort of thing you can be mistaken about, so if you're going to find that it never happened, then Andile made this all up and he was lying, the second possibility is the one that was raised by the members of the Committee and Mr Riley then took it up as well when it was offered to him and that is that it could have come from someone else, other people on the scene. Now the problems with that, some of them have been mentioned by Mr Williams, that there was no evidence whatsoever and this appears to be pure and utter speculation. There was simply no evidence and it was never suggested that there were other people, but a more fundamental reason that we have for, with respect, saying that that cannot be the basis of the finding of the Committee, is that it was never ever put to Andile and as a matter of fundamental fairness, if a witness is going to be disbelieved on an issue as crucial as this, then it should have been put to him: "Well is it possible this could have been other people?". He then could have dealt with it. He could have said: "Well there were no other people", or he could have said: "Well I did see other people but it wasn't them". He could have said: "Well it came from the direction of the people that I did see."

CHAIRPERSON: But Mr Jamie, did he in fact say that it came from the attackers?

MR JAMIE: On the evidence that he did give and the contents of his statement, that is what he is saying. The only people, because if I can just read to you what he is saying in his statement, he said in paragraphs 7 and 8:

Now one of the reasons, Mr Chairperson, that I requested yesterday an opportunity to perhaps conduct an inspection in loco is that the area that we are talking about where this incident occurred, is not very large. The area between First Avenue where they were driving and Lansdowne Road, and certainly the area between the trees where these people were standing and the stop street is not very long at all, there's not a great distance and it is our submission that clearly what this statement intends saying although it's not spelled out perhaps because it is indeed implicit, is that the people who called him were his killers. Now that was also the basis whereupon certainly we proceeded in this matter and it, with respect, is also the basis the applicant proceeded on, because the applicant never suggested it was someone else, nor did the applicant's representative in argument attempt to suggest that till, with respect, the Members of the Committee put it to him that this was a possible ...(indistinct) in the case, but at the end of the day, Mr Chairperson, perhaps if this was a civil trial and there were issues of onus and if the Jack Family in this matter bore some sort of onus, there might be perhaps some room, but as a fundamental proposition, the difficulty we've got is that it was simply never put to Andile and therefore he's never had an opportunity to deal with it.

CHAIRPERSON: Yes and the question is, I mean if he had testified as a matter of fact that the attackers called out, then one assumes that there would have been some joining of issue on that particular aspect of his evidence, but there certainly doesn't seem to have been that sort of evidence on his part and perhaps it's understandable, you know when you drive between 9 and 10 o'clock at night in a misty situation, your windows are closed and you hear people calling, you can't be certain about that.

MR JAMIE: Mr Chairperson, with great respect, if I can just respond to that. The evidence is clearly, he did not say in terms and perhaps he is to be commended more than faulted for this, that he didn't say in terms the attackers called out, because that would perhaps have been a deduction and an inference, but my submission is that even though he did not say that, that is clearly the purport of his evidence, it's clearly the intention and it is clearly his understanding. In the dark at a distance of 10 metres, you may well not be able to see the mouth of the person moving who is calling but you can certainly get an idea of the direction from which the calling is coming. That was never suggested, that when they drove toward the killers, either Pro or Andile thought: "Well, we're not driving toward the people who called." Obviously and I say this as a matter not of evidence, but as a matter of logic again, the persons who called, the voices came from the side of the car in which they drove, so in other words it came from the right. It couldn't have come from the left. It would then be totally illogical that they reverse and drive to the right to go and respond to the call. So the voices must have come, or the voice from the right. Now if you accept that, Mr Chairperson, which in my submission it must be accepted, then it begs the question, if this was some other people unconnected with the killers, where were they? Were they beyond the killers, in which event why would they have called and why would they have not gotten involved, or not seen what happened? They obviously would have known Pro Jack, if they were calling him by name. But all I'm saying, Mr Chairperson, is we're totally in the realm of speculation and there is simply no evidence and the crucial aspect upon which that entire conjecture falls down is that there are no other people. It's not suggested by the applicant, or his attorney, or anyone else, who gave evidence in this matter, it certainly was not stated by Andile that there was anyone else on the scene. Now if there was no-one else on the scene, the possibility that it could be someone else can't be excluded, you're quite correct, but that is not the test, Mr Chairperson, the test in this matter is whether you are satisfied and the correct standard of proof, in our submission, is a balance of probabilities and that is a balance that will be considered and the decision will be made on the evidence, not on speculation and although, if this was a criminal case and I was a prosecutor, it may be said that I have not proved my case beyond reasonable doubt, I would submit, Mr Chairperson, that if this was a civil trial and I was the plaintiff's attorney or advocate, I would have gone a long way to proving my case on a balance of probabilities because there is no contrary suggestion and there never was, but I think I've said what I can say on that topic unless there's something that you need to ask me.

CHAIRPERSON: Yes and we've noted your submission in that regard. In fact the point, as I understand it, that turns on this question is whether or not this is an assassination?

MR JAMIE: That's correct.

CHAIRPERSON: This was a hit and that's where all of the other considerations that my colleague had alluded to, come into play and of course one has to assess this particular issue in the light of all that, because ...(intervention)

MR JAMIE: You do. You have to, Mr Chairman.

CHAIRPERSON: Because if indeed it was the assassins that, as part of their plan, called out Mr Jack's name, then of course it tends to support a conclusion that this was in fact a hit, it's a pre-planned attack on Mr Jack and not an accidental sort of a killing.

MR JAMIE: Mr Chairperson, if it's found as a fact that the killers called out "Mzwonke, Mzwonke" it was a hit, there can be no doubt about it. A finding to that effect is totally destructive of the entire applicant's case and then it clearly was a hit because they knew who they were killing. But Mr Chairperson, I will address or attempt to address Adv Sigodi's concerns about the route and that sort of thing in a moment, but there's just another point that I want to make and that is this, what lends enormous support and credence to the evidence of Andile and the evidence that it was a hit and not the evidence of the applicant that it was a mistake, is the fact that and is the connection between Mr Toyise, Pro Jack and the applicant. We did not know when we came to this Hearing that in fact the applicant was so close to Mr Toyise that he lived on his property, albeit in a separate house, but he lived on his property. Now if you consider that fact Mr Chairperson, that the applicant in this matter lived on Toyise's property and you then consider the other facts that we know, Mr Toyise has now confirmed his affidavit, so we can refer to that, Mr Toyise and his family members had been arrested shortly before this incident and an AK47 had been seized by the police. Now a day or so before the arrest of Mr Toyise, people had come to Mr Toyise's home to get the AK47 and these people included Pro Jack. Now the story on the street afterwards, Mr Chairperson, was that the hit on, the killing of Pro Jack was because it was thought that he'd been in some way responsible for betraying the fact to the police that Mr Toyise had the AK47. Now if one considers those facts, all of which are uncontradicted and you then look at the application of the applicant and specifically paragraph - not his application Mr Chairperson, his evidence, when he indicated that one of the reasons that he participated in the attack, supposed attack on the police that evening was because of the raid on Mr Toyise's house. If you consider all those facts, all of which are uncontradicted, then it is, in our submission, entirely impossible to conclude that it is pure coincidence that the very car that is attacked and the only person in that vehicle who was killed that evening a few days after the Toyise incident, is the person suspected by some people of having been responsible for Mr Toyise's arrest and that the killer, the person who pulls the trigger, is a person living on Mr Toyise's property. That is so incredible a series of coincidences, Mr Chairperson, that in our submission it makes it far more likely that this was indeed a hit, although we, as we sit here today, may not be able to explain precisely how it happened and how it was planned, but if we accept that this was a pure mistake and Mr Jack was in the wrong place at the wrong time and surprised these people and that's why he was killed, then all those other facts make this an extraordinary, extraordinary coincidence, Mr Chairperson. So in our submission that is another and it's a very strong indication that this was not a mistake.

To attempt to deal with Adv Sigodi's concerns about why was it that they were there and could this not simply have been a coincidence, the evidence of Andile, not contradicted, was that this occurred very close to the home of Mr Jack's mother. You will recall he said it would take 20 minutes of so to run there, clearly that's not correct. It was a few houses away, two blocks and a few houses down the road. It's very close, in other words, to the place where Mr Jack frequented, his mother's home. It is correct there are other routes to get from his mother's home to his home, but certainly this is one of them and it's right around the corner. Whether, Mr Chairperson and we're again in the realm of speculation, they were there to attempt an attack on the police, as the applicant says, they then saw Mr Jack's vehicle coming past and seized the opportunity to dispose of someone whom the applicant regarded as a traitor, I don't know, there's no such evidence, but that is as likely as the fact that some unknown third person, who is not on the scene, calls out to Mr Jack and Mr Jack then drives in the wrong direction and drives to the killers, we don't know what the correct events are that evening from the applicant's point of view, precisely because he's not told the truth in this Commission, but what we do know is what Andile says and in my submission, there's no reason to disbelieve what Andile says. He obviously was traumatised by this event. He gave his evidence in a straightforward manner, he didn't attempt to incriminate the applicant any more than what he'd seen, he in fact testified, as you recall, to being pushed under the dashboard and getting under the dashboard, thus putting himself in a position where he couldn't see what was happening, so there's no suggestion and in fact I don't think it is suggested that he should not be believed, what is rather suggested is that perhaps it's unreliable, but on the crucial aspects of his evidence which is that they were going home, that there was no reason for Mr Jack to go off the road, that someone called out Mr Jack's name, that he reversed his vehicle and then drove it onto the gravel and under the trees and that the people then opened fire, on all of that testimony there is no reason, in our submission, to doubt Mr Jack's evidence and it should be accepted. If it is accepted that the people who killed him and shot at him were also the people who called him, then for the reasons I've already given, you should find that there was a deliberate attempt to assassinate Pro Jack.

There's just one last aspect on this part of my submission and that is, as it was pointed out by my colleague Mr Williams, if it was a mistake, as the applicant testified, and if the Committee is of the view that this is a situation where Pro Jack, for some reason unknown to us, drove onto the gravel of his own accord and found himself in a position where he surprised the killers, the difficulty with that is and they've been mentioned by Mr Williams and perhaps just to emphasise them, these were people, who on the applicant's own version, he'd gone on this sort of mission before, he was looking for police to shoot, surely under those circumstances where there are four of you, you don't all stand in a row looking in one direction only? It doesn't make any sense, not if you have even a modicum of training, they must have been keeping an eye open around them to make sure that they were not taken by surprise.

The second point is that the vehicle had its lights on, that is common cause and it's not disputed, this is an important point, that the vehicle first reversed from the stop street and then drove onto the open field. How all of that, with its lights on, how all of that could have gone unobserved, again defies belief and is a very serious problem in the applicant's version that they were taken by surprise because if there was a reversal first and then driving on with the lights on, then one of those four must have noticed that vehicle before it pulled up two to three metres behind Mr Jack and he then opens fire. So his version is not acceptable on that basis.

Mr Chairperson, if I can move from Andile's version to the applicant's own version, because in our submission, on his own version he doesn't qualify for amnesty and should not get amnesty. The first point to make is that there is absolutely no corroboration of his evidence. Now two of the people whom he says he confided in are dead, that is Huxley Joshua and Mr Langa, but two others are not dead, they are alive. Alwyn Wilkinson, the attorney, Msize spoke to and Dan Nokwatia, the ANC person. Mr Nokwatia, according to the applicant, was at this Hearing yesterday and something was made of the fact that he could be called, but he wasn't, so there's simply no corroboration of the applicant's version, or not his version so much as the fact that he gave an account of his version shortly thereafter, it's simply not established. But on his own version, he did not tell his Commander in the ANC and despite being questioned by various persons including Mr Jacobs, whom he knew was in the ANC's investigation department and was investigating this very matter and also being questioned by Chris Hani the Chief of Staff of Umkhonto weSizwe, he denied to both of these persons who eminently would have been the correct persons to confide in when he was asked that he'd had anything to do with this incident. That suggests, in our submission, that he knew that the ANC did not approve and would not have approved of this mission, at the time that this occurred. We also have his own evidence that he'd been arrested for arson in 1987 and he'd served some time in prison and that he hated the police. That was his own evidence. In his application, this is borne out by his application for amnesty in paragraph 10(b) where, when asked what the motivation was and why, he says this has a political objective, he gives the reason as being what the police were doing to people in the communities and also for the fact that:

So our submission, Mr Chairperson, is that his motives were not the motives that he is attempting to portray here which is to further the aims of the ANC, it was rather a personal animus that he had because of his own arrest and imprisonment and that arises from his own evidence.

You could not - he contradicted himself in a fundamental fashion in his statement and then in his evidence before you, whereas in his statement he makes it clear that he did not know and he says in terms:

In his evidence here he suggested that he was sure they had been shooting police, but even then on his own evidence afterwards, he asked his comrades who they had shot. He could not satisfactorily explain or give any reason why he would have thought that they were police and nor could he explain why he distinguished, both in his evidence and in his statement, between killing the driver and killing the other passengers, if he thought they were police.

If I turn to the statutory criteria for giving amnesty, Mr Chairperson, in terms of Section 20 (iii) (a) of the Act, the act must have been committed by a person who was a member or supporter of a publicly known political organisation or liberation movement, on behalf of or in support of such organisation or movement, bona fide in furtherance of a political struggle waged by such organisation or movement against the State or any former State. Now he fails to bring himself, in our submission, within that definition because, for the reasons already given, he was not acting on behalf of or in support of the ANC. The reasons for that are clear from his evidence. He steadfastly refused to disclose to members of the ANC that he was responsible for this act. We know that he lied to Mr Nimthamo the evening that he was going out, he told him that he was going to patrol in Brown's farm and he did not tell him that he was going to attack the police. He proudly suggests, weakly in our submission, that Mr Nimthamo knew when, it was some sort of code, he said he was going to patrol, Mr Nimthamo knew he would attack the police. That, in our submission, is unlikely and improbable, but in as much as it's suggested that he was acting in furtherance of the aims of a political organisation or movement, we know that at the time this incident occurred, the ANC had suspended its arms struggle, negotiations were taking place with the government and SDU's had been set up for defensive purposes. Clearly their purpose was not to hunt and kill police and certainly it was not to hunt and kill police without any specific instruction. So he doesn't fall, on his own admission and his own account, he does not fall within Section 20 (iii) (a). If one then turns to the criteria for an act which is associated with a political objective which is Section 20 (iii) of the Act, there a number of criteria and I just want to go through them briefly and submit why he doesn't fall within any of those either.

The first criterion (a) is motive. The motive of a person who committed the act. In our submission it appears to have been a personal motive, a hatred for the police, which was animated by his own experience of being arrested and imprisoned and had nothing to do with the motives of the ANC or an intention or belief that the ANC would support or endorse what he was doing. This again is clear from the subsequent events and his attempt to keep this away from the ANC structures.

(b) Is the context in which the act occurred and in particular if it occurred, whether it occurred within the course of a political uprise and disturbance or event. It was suggested by his counsel in argument that there was a general unrest and strife in the township. There was no such evidence before this Commission. The facts are that this did not occur in the context of any general uprising or other disturbance which would explain or justify his conduct.

(c) Is the legal and factual nature of the act, omission or offence, including the gravity thereof. On his own evidence, he intended to kill, he did not intend any conduct or any consequence short of killing the driver. That was his intention. He fired lots of shots, on his own version at some point, while the version given in his statement was that he was not sure that it was police that he was shooting at and also on his evidence, there's no objective reason for him to have believed that it was police. Accordingly the act that he committed, namely the cold-blooded murder of Pro Jack, was entirely excessive and out of all proportion given its gravity to whatever supposed object he was hoping to achieve. In respect of (b), the criterion is the objective of the act and whether it was primarily directed at a political opponent or State property or personnel or against private property or individuals. In this case we know Pro was a private person, private individual, he was not a State employee. The supposed object of the act and in fact again this appears from the application of the applicant and appears in 10 (a) on page 6 of the application, he states that:

That was the stated objective. Now he has given no explanation as to how killing a policeman would prevent the SDU's from being disarmed or from being harassed by the police. In fact, if one just thinks about it for a moment, if police were being hunted in the townships and killed, that would have been the reason for the police to react and attack or try to disarm the SDU's and not to cease doing so. So there's absolutely no explanation as to how his conduct would have had any of the desired consequences. In our submission, it's been put into the application purely as a smoke screen.

(e) Is whether the act or omission was committed in the execution or order or on behalf of or with the approval of an organisation or liberation movement. In this case quite to the contrary we know that it occurred without the ANC's knowledge or approval, so much so that the ANC has taken the unusual step of formally appearing at this Hearing and opposing the grant of amnesty and distancing itself in public from the conduct of the applicant. Again we know that except for the supposed taking into his confidence of Mr Langa and Mr Nokwatia, neither which was confirmed before this Commission, he does not appear ever to have told the truth to the ANC and in fact denied it to everyone that he spoke to.

Then finally the relationship between the act and the political objective pursued and particularly the directness and proximity of that relationship and the proportionality of the act, I've touched on that to some extent already. The vehicle that was attacked that evening had a 14 year old boy in it, had an ANC activist in it, there's a total lack of explanation as to why he thought that that vehicle contained policemen. There's a total lack of explanation as to how he thought attacking that vehicle would achieve the supposed objectives, what we do know is that a large number of shots were fired from virtual point blank range of the driver, his head was blown off, his brains were scattered all over the car, he was killed in totally merciless and brutal fashion and the conduct of the applicant that evening bears absolutely no relationship, direct or otherwise, to the objectives and it was entirely out of proportion as the minimum of what he could have done. That he thought that they were the police, was to attempt to wound the driver or to attempt, since there were four of them and three of them were armed, to overwhelm and overpower the occupants and establish who they were. To just open fire in an entirely lethal manner and with the stated intention of killing the driver under those circumstances cannot by any stretch of the imagination be brought within an act associated with a political objective.

Finally, you will remember his evidence under cross-examination that there was no indication that the occupants of that vehicle posed any threat to him or to any of the others.

On those grounds, Mr Chairperson, it is our submission that the applicant has failed to make out a case for amnesty, has used this hearing for other purposes which are not disclosed to the Committee and that for those reasons the application should be refused.

CHAIRPERSON: Yes, thank you Mr Jamie. Ms Patel, have you got any submissions?

MS PATEL: Thank you, Honourable Chairperson. I wish to state that I support the submission made by my learned colleagues, Mr Williams and Adv Jamie and I believe that they have sufficiently ventilated the issues that I would have raised and I wish to take the matter no further.

CHAIRPERSON: Thank you Ms Patel. Mr Riley have you got anything in reply?

MR RILEY: Chairperson, I personally have nothing in reply to what has been said so far.

NO REPLY BY MR RILEY

CHAIRPERSON: Yes, thank you very much. Mr Yekwani, Mr Riley has indicated to us that there was something further that you wanted to say before we conclude the proceedings. I'm gong to allow you that opportunity to do so now. You can tell us what it was that you wanted to bring to our attention.

MR YEKWANI: Chairperson, what I wanted to say is this. If I had intention to kill Pro I could have gone to his house, there was no reason for me to wait for him on the public road because one thing that made me to be sure that those were the police, it's because they left the road and they came to the place where I was. Truly speaking, I did not see the car coming but I just heard someone telling me. If I heard someone calling his name, I couldn't have fired because I was going to know that he was coming to pay attention to the people who were calling him. That is all I wanted to explain.

CHAIRPERSON: Thank you Mr Yekwani.

MR YEKWANI: I would like to apologise to his family and I want them to trust that what I am telling is the truth. I have nothing to hide.

CHAIRPERSON: Yes. That concludes the formal proceedings in this application. The Panel will have to take some time to decide this application. There has been a lot of material that has been placed before us, a lot of arguments, a lot of issues that have arisen and it is a matter of some importance, as most of these applications, in fact all of them are normally to the parties with an interest in the application. This one, in particular, has enjoyed slightly wider attention than would normally be the case. We have to consider everything that was said here very carefully and we have to decide the application against the requirements which are laid down in the law and we have to consider whether in all the circumstances, whether the application satisfies those requirements which are set out in the law and which we have to apply in every case, in an even-handed fashion. It is the provisions of the law that apply to every single one of the amnesty applicants that appear before us. So under all those circumstances, we would require some time to consider this matter. We will make sure that all of the parties with an interest in this matter are notified as soon as a decision is available and our offices will then ensure that those interested parties are provided with the decision once it is available. So under those circumstances we would reserve the decision in this matter.

Ms Patel is there anything else on the role?

MS PATEL: No unfortunately no, Honourable Chairperson, that's our role for today.

CHAIRPERSON: Yes. There was another matter but perhaps we can deal with that once we've adjourned. Yes, very well. This concludes the matters that we had on the role for today. The Panel presided over by one of my other colleagues will continue with the Hearings tomorrow, so under those circumstances we will then adjourn the proceedings until tomorrow morning. We're adjourned.

Perhaps just in conclusion, I want to thank all of the lawyers, Mr Riley, Mr Williams, Mr Jamie, Ms Patel, Mr Toyise for your assistance in this matter. We appreciate it. We're adjourned.