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:
"I had earlier in 1987 been arrested for arson at a policeman's house."
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:
"They did not know who they were shooting at."
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:
"Our aim was to stop police from disarming the SDU's of their arms and harassing people."
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.