In an unprecedented legal turn, an alleged Umkhonto weSizwe member this week refused to plead to charges of terrorism being an ANC member and furthering the organisations' aims and instead claimed the protection of the Geneva Protocol of 1977.
Mxolise Edward Petane, 29, of New Crossroads told the Cape Town Supreme Court: "With reverence and respect for you as office bearers of this court, I refuse to be party to these proceedings. I therefore refuse to plead." The protocol, which supplements the Geneva Convention of 1949, relates to the protection of victims of international armed conflicts.
A second protocol deals with the protection of victims of national armed conflicts. South Africa is not a signatory of the Geneva protocol but the document bears the signature of the ANC leader, Oliver Tambo. Pleas of not guilty to three charges of terrorism in terms of the Internal Security Act and alternative charges of attempted murder, being an ANC member and furthering the aims of the ANC were entered on Petane's behalf. His counsel, Mike Donen, said he had been instructed to continue representing Petane.
In order to prove that the government was bound by the protocol, although not a signatory, expert evidence would have to be led for which he required time. Judge JH Conradie granted his request. Article 1(4) identifies as an international armed conflict "armed conflict in which peoples are fighting against racist regimes in the exercise of their right to self determination, as enshrined in the Charter of the United Nations".
Apartheid features in Article 85 which condemns it as a "grave breach" of protocol. Article 44 provides that "any combatant who falls into the power of an adverse party shall be a prisoner of war and Article 45 lays down that where there is any doubt about this, the person shall continue to have the status of a prisoner of war "until such time as his status has' been determined by a competent tribunal".
Article 75 provides that "no sentence may be passed and no penalty may be executed on a person found guilty of a penal offence related to the armed conflict except purusant to the conviction pronounced by an impartial and regularly constituted court respecting the generally recognized principles of regular judicial procedure".
The trial resumes on September 15. – Sapa, Weekly Mail Reporter
This article originally appeared in the Weekly Mail.
