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Type AMNESTY HEARING
Starting Date 01 March 1999
Location IDASA DEMOCRACY CENTRE, PRETORIA
Matter MR CORNELIUS IN ARGUMENT
MR LEVINE: Mr Chairman, a few matters, I've been asked by Mr Du Plessis to request that he be excused for a short while. He's had to go up and see one of the judges in the Motion Court if you could excuse him for a short while. He says please could we carry on?
MR LEVINE: Second point Mr Chairman is that as undertaken on Friday I have cause to be typed those matters which are argued which were not contained in my typed heads and I beg leave to hand them up and thirdly, paragraph 276 of my heads as they originally stood contained some unhappy wording. I've taken Mr Chairman's point in regard thereto and paragraph 276 has been redrafted to give the true intent of what my argument is and I beg leave to hand that up as well.
MR CORNELIUS: Mr Chairman, Members of the Committee, Cornelius on behalf of McPherson, I believe I'm next. By agreement with Mr Louis Visser we discussed that I should finish McPherson then John Adam, I think then Louis, is that correct, Louis?
I'm going to argue that my client in fact complies with Section 21(a) of the Act in all it's aspects in that his application was timeously filed with the Committee, complied to all the necessary formalities and this was never at any stage also placed in dispute.
You would note on page 8 - Mr Chairman, I see you've got some difficulty there? On page 8 I quoted from his testimony in which I also led him on the aspect that he complied fully with the ...[intervention]
ADV DE JAGER: You see the trouble is, we haven't got any lights above us so it's throwing shadows towards us, my papers are in a shadow here and if we could have something here but we don't want to have a warm light at the top of us too so I don't know how we should try and arrange it.
On page 8 I reflect on the requirements of Section 21(b) and you would note if you looked at the Act, I've taken the Section and I've compiled it into different paragraphs which I discuss it on page 8:
"It is the applicant's humble submission to the Committee that his acts, omissions and offences to which his application relates or acts associated with political objectives, committed in the course of the conflicts of the past in accordance with sub-section 22 and 23 of the Act."
"Extensive evidence was led pertaining to the conflicts of the past, the contents against which these conflicts took place, the political uprising and disturbances or events which happened and the general background against which the different political parties acted, the ideologies to which they ascribed. It is submitted that this evidence is important for the purposes of satisfying the requirements of the Act and/or delict offence, must have been committed in the course of the conflicts of the past and this evidence is also important in determining the principles in Section 3, 3(a), (b), (d) and (f)."
"The evidence was General van der Merwe, provided in documentation to the Committee, indicated the ANC in particular and other liberation movements, including the South African Communist Party, were involved in the so called people's war, that revolutionary warfare which included political uprisings, guerilla warfare and accumulated in a full scale low intensity war."
Mr Chairman, I refer you to page 10. I've got three quotes from the Khotso/Cosatu House bombings. I reflect that these are general matters which can be taken cognisance of. You would recall Mr Vlok testified that everybody was satisfied with the successes against the terrorists and even thanked the operatives of Vlakplaas. There were further congratulations at a security council meeting where Mr Vlok reported back to President P W Botha. Furthermore, P W Botha never asked any questions about Khotso House or Cosatu House afterwards although he must have known that the security forces were responsible. He must have intended the action to be outside the legal system otherwise he would not have asked questions and conducted enquiries.
"P W Botha never confronted or questioned any operation which seemed to have been by the security forces outside the legal system."
"No action was taken against the security forces in respect of the Khotso House bomb or the Cosatu House bomb although it was a major attack with wide publicity and quite clearly carried out with full approval of the government. It's furthermore submitted the government simply never asked questions about the way the security police acted, turned a blind eye thereto, as not having authorised these specific actions. It is however submitted that the actions of the units of Vlakplaas, Koevoet and other counter-insurgency units was silent if not directly authorised by the government and were used outside the normal system to form part of the government's counter-revolutionary strategy, action and strategy."
"No objections were raised by Mr Botha about any of the actions undertaken in respect of the Cosatu/Khotso House and no questions were asked about Vlakplaas involvement."
"The applicant, McPherson, believed that his acts were justified as a part of war. He believe that they were justified in acting illegally, the way orders were given contributed to the acceptance that orders were illegal but acceptable and in some cases it was unnecessary to give an order as an operative would have acted in any event because they accepted that this was authorised. Mr Vlok further testified that such actions fell within the principles of the National Party at that time which is important when evaluating the evidence.
"It's important to comply with the Act, that a full disclosure is made. It is clear from the minutes of proceedings and the intensive cross-examination of the applicant that he may be considered as a credible witness who testified to the best of his knowledge in the light of the passage of time and has made a full disclosure of all the relevant facts. No contradiction in his evidence has been made and although General Coetzee cannot recall certain facts, it may not be said that the applicant was untruthful."
I will furthermore refer in that aspect infra. Topic of full disclosure I discussed further on the argument as well. Mr Chairman, to be as brief as possible, from page 15 on the requirements of Section 22, I have discussed this in great detail, I would just scan through this very, very lightly.
"Which is important is that the applicant was a member of the National Party, supported the National Party and enacted in favour of the National Party and for the upholding of apartheid. It is furthermore clear that from the evidence of General van der Merwe, that the evidence of the applicant as well as the authorities referred to relating to the struggle and the National Party itself was involved in a political struggle against the liberation movements such as the ANC, PAC and SACP. It furthermore submitted that the applicant at all relevant times acted bona fide in the furtherance of political struggle. A clear distinction was drawn by the applicant between action simple and purely as employees of State and their actions fall on behalf of the National Party and it's military wing. He fell under the latter."
"In the case of the London bomb we know now that the instruction came from Louis Le Grange from General Coetzee, through Brigadier Goosen and apparently through Mr Williamson to your level, is that correct?"
Page 19 on the aspect of the territorial boundaries, with or outside the Republic, it's been argued before the Committee on the matters of extradition and the possible defences thereto. I'm not going to elaborate on this. What's important and I can draw your attention to it Mr Chairman is page 20, 7.3
"In the light of the above mentioned, it is therefore submitted the applicant could not have questioned the orders that had given to him together with the tacit ratification of his actions as having being unlawful in an international context. The evidence was that he regarded his actions as part of war, as part of the armed conflict in South Africa which was nothing else than an internal war. Orders therefore to act as he did and to eliminate and kill opponents could therefore not have been regarded by him as anything else than a legal order in a war situation."
operation in the sense that at that time we were planning along with the Special Forces for cross-border operations into neighbouring states, for example the Gabarone raid. This operation I saw as an additional to the central operation."
"Mr Visser: So in other words against a background of lawful cross-border operations you then viewed it in that sense as an authorised operation?"
CHAIRPERSON: Sorry, before you go on, my recollection is and it's a long time since I've looked at all this so correct me please, but on the London bomb he accepted that his instructions were not to cause any injury to people resident in London.
I have discussed on page 21, Section 22(a) in detail but I think it's important and I somehow did not discuss Section 22(b). Section 22(b) is a more appropriate appliance I would say of the section applicable to my client and as you mentioned, Mr Chairman, during this hearing it is quite clear that everything was funded, from travelling, tickets, clothing, allowances in Britain, so this was clearly a government supported planned operation and there can be no doubt that Section 22(b) of the Act will be applicable. I think Section 22(a) just in a passing point as interest, I think this will be more applicable to politicians if a politician had to apply if he did something. I would say Section 22(a) would be his candidate's application. I ask the Chairman then to read in Section 22(b), part of my argument on this page.
I would then draw the attention of the Chairman and Members of the Board, we can pass my whole written argument up until page 32 where I will then take it to the evidence of the applicant, John McPherson. The whole discussion up until Section - page 32 is on the requirements of the Act, Section 22 which I don't think I should burden this Committee with any further.
On page 32 I discussed the police background of the applicant. I think just to scan over it there can be no doubt that he was intensively involved in the security branch of the South African Police, that he was trained, that he went through all the normal hierarchies, all the way up to the top and eventually ended up at Stratcom. As a matter of fact he is still involved in the South African Police Service.
"He was trained to work on a strictly need to know basis for security reasons and any order from a superior officer was not questioned and he carried the order out without any hesitation. Later on, the applicant Craig Williamson also testified that he knew him as a police officer to strictly adhere to orders."
discussion of the interpretation of the Amnesty Act it is furthermore clear that although some of the orders were clearly unlawful in the light of legal system, the applicant at all times acted bona fide belief that if he carried out the order it would further promote a prevention of the total onslaught on the government of the day. It's thus clear that he acted with a strong political motive."
"It was within the knowledge of the applicant that in the period 1981 to 1982 several policemen of the South African Police Force were killed by MK insurgents in South Africa and various police stations were attacked an sabotaged."
"It was within the knowledge of the applicant that the Commissioner General Johan Coetzee received instructions from Minister Louis Le Grange to select a symbolic target of the ANC in a foreign country which target should then be attacked to convey a message to the country, in this instance the United Kingdom, not to harbour ANC activists. That is exactly what he knew, that was his subjective thought and that was his thoughts that he was carrying out as well."
Page 36, 37 and 38, I elaborate on the fact that he had to carry out surveillance that what happened, none of these facts were placed in dispute and I think it's common cause amongst all the parties what happened in London so I'm not going to elaborate on that. He carried out surveillance in the area. There was a small contradiction between the applicant Taylor and McPherson regarding surveillance but I think due to the passage of time it's possible that we can have a small contradiction. I reflect on, in my heads, on the quality of the evidence of the applicant Taylor, I want to make it clear that I'm not attacking his credibility, I think it's a matter of passage of time and it's possible that people couldn't recall. My client wasn't so clear on certain aspects himself.
Then I take the Committee to page 39, the bomb at the offices of the African National Congress ...[indistinct], Lusaka. This might be the one part of the application which is a bit more contentious, I would submit that my client's application as far as the London Bomb is concerned is quite clear. Mr Chairman, I think he fully complies with the requirements of the Act, I don't think there can be any doubt why he should not be granted amnesty for the London bomb.
"He testified that he received instructions or he received evidence from a certain source called Ali who had direct access or access could be obtained to the ANC offices in Lusaka to plant a bomb, a briefcase bomb which would result to damage the ANC offices and possibly target Joe Slovo.
The applicant in Captain Kobus Pretorius approached General Johan Coetzee and discussed the possibility of the operation with him. General Johan Coetzee gave approval for the operation although General Coetzee cannot recall the approval he testified he would have. On a balance of probabilities I say he did."
"Mr Cornelius: I see, would you have authorised this type of an attack on the headquarters in Lusaka?"
"General Coetzee instructed the applicant to capture the negotiation with Ali in Swaziland on tape which was in fact done."
"The bomb was manufactured and handed to Ali in Swaziland where the instructions to him were to capture on tape as instructed by General Coetzee."
"The applicant returned to Pretoria and handed the tape to General Coetzee who locked the tape away in his safe in his office at Wagthuis police headquarters, Pretoria."
"It's common cause that the bomb was placed by the operative Ali at the gates at the ANC offices in Lusaka which caused minimal damage. No deaths or injuries resulted from the bomb."
"After the bomb had exploded the applicant once again approached General Coetzee who then instructed that a reward of R15 000 should be paid instead of R20 000 which was initially offered to Ali for a successful operation. This was due to the fact that only minimal damage resulted in the bomb and that Joe Slovo was not killed or injured. This could only be authorised by the Commissioner of Police."
"It is of importance to note that there is undisputed evidence that R20 000 reward out of the secret funds of the police could only be consented to by General Johan Coetzee at the time in his capacity as Commissioner of Police."
"More or less Sir, as far as I recollect local commanders outside headquarters who authorised an amount of R5000 on a particular issue and not above that. The officer commanding in the security branch was authorised under correction to authorise something like R10 - R15 000. The commission is something like, I think Sir, R50 000 beyond that had to go to the Minister of Law and Order. He was reflecting that the maximum he could obviously authorise was up to R50 000. There was also the position that members could apply for authorisation, in which case they submitted an application, a confidential application and when the money was eventually disbursed, witnesses besides, police witnesses besides received had to sign their receipt which had to be returned to the police headquarters. That was the position at my time."
"Mr Coetzee: I would only have authorised it Sir if a complete memorandum entailing all the needs had been provided to me and it had it's origin in the office of the commanding of the security branch."
"Mr Cornelius: I see. You see Mr Applicant, my applicant McPherson will state that there was an authorisation granted for R20 000 reward to be given to an Indian chap called Ali. Would you dispute that?"
"General Coetzee denied all knowledge of the consultations in the office between himself, the applicant and Captain Pretorius but it is clear from the cross-examination by the counsel for the applicant, McPherson, that he is in doubt and had to concede in fact that there was a possibility that such a discussion could have taken place. It is the submission of the applicant that General Coetzee finds himself in great difficulty as he did not apply for amnesty for the Lusaka bombing."
"Mr Coetzee: All that I repeat again Sir that I don't see it is completely impossible but it would have been completely out of the recognised procedure for him not to approach his own commanding officer of the security branch and in turn provide me with a proper memorandum, and I'm depending upon the circumstances, would surely have discussed it with the Minister because even at that stage there was overtures between South Africa and Zambia and I was part and parcel of the overtures, Sir, to try and make peace in the sub-continent. All things considered, I am very reluctant to say this, but I've got very serious doubts whether this could have happened."
"If General Johan Coetzee admitted his knowledge of the actions of the applicant McPherson he would place himself in a position where he may not be granted amnesty and he then made no full disclosure of the facts to the Amnesty Committee. It is the submission of the applicant that General Johan Coetzee has no alternative but to deny any knowledge of the Lusaka bomb as to protect himself. He in fact admitted he has no recollection. He did not outright deny it."
"Mr Cornelius: Thank you Mr Chairman. The applicant Mr McPherson will testify that he approached you on three occasions at your official offices in your capacity as Commissioner of Police in 1985 regarding the Lusaka Bomb incident?"
"Mr Coetzee: I can only repeat what I said before the recess, Mr Chairman, I have no recollection of these approaches, I've got no independent recollection of it. All I can say is that if it is so, it was outside the existing procedures which existed at the time. I've got no recollection Sir"
"Mr Coetzee: I'm not saying that Mr Chairman, what I'm saying is I've got no recollection whatsoever. I may add Sir that as a target, as it is described as a target and I do not want to minimise the effect of my words, it seems to me to be the type of target if it was presented in a correct format, I would have, I would have authorised it but I have no recollection whatsoever of this approach of the situation."
"To rely on the fact that the applicant McPherson entered into a frolic of his own, to engage in an international operation, to murder a leading political figure of the ANC, Joe Slovo, in a foreign country without any form of authorisation from his line of command, is purely ludicrous."
"Let me ask you in this fashion then, you testified that you discussed the matter with General Coetzee?"
"Mr Cornelius: I appreciate that, the contrary is also true, that he would agree that my client will have no malice to implicate you as commissioner of the police service in something which he honestly discussed with you?"
"Mr Cornelius: Now you were present when General Coetzee testified regarding the Lusaka/Zambia bomb. Would you be surprised if it came to your attention that McPherson whom -"
"Mr Cornelius: Now you were present when General Coetzee testified regarding the Lusaka/Zambia bomb. Would you be surprised if it came to your attention that McPherson whom you knew well took it upon himself to bomb a foreign target in Zambia and a prominent figure like Joe Slovo without authorisation or knowledge of the superior officers?"
"Mr Cornelius: Yes I think what is important is that you stated that there was a plan so it was clear that McPherson wasn't on a little frolic of his own?"
"Mr Williamson: Mr Chairman, if I recollect correctly as I said in my recollection is that the idea was to attack the ANC so called Kabwe Conference and this would have been a very high profile attack had it succeeded and I can't see any possibility that this was because it couldn't even just have been a frolic on Mr McPherson's own, it would have had to also involve the special forces."
"It is the submission of the applicant that there can be no doubt of any nature whatsoever that the actions and the operation carried the full authority of the Commissioner of Police and was only carried out after his blessing for the operation had been received. General Coetzee is in doubt, if you" ...[intervention]
ADV DE JAGER: Just if you look at Williamson's answer, is he in fact also talking about the Lusaka office or is he talking about a different occasion when they wanted to target the Kabwe Conference? Are we talking about the same event here?
MR CORNELIUS: No they're not. You are quite correct Mr De Jager. What happened there is when I asked this question to Mr Williamson he got confused with the Kabwe Conference which was two weeks later. He reflected there that it could have been approved but he confused it with the Kabwe Conference, we cleared that up during the questioning. I put this in, you know, so that it's not unclear, there is no confusion on that.
And 19.10 - I'm sorry I refer the Committee now to page 52, this is regarding the authorisation of the amount of the reward and why it was reduced from R20 000 to R15 000. Now this is relevant as far as General Coetzee is concerned.
"Mr Cornelius: Can you recall out of your own knowledge that an amount of R15 000 was ever paid to an Indian chap called Ali Coetzee?"
CHAIRPERSON: Before we go on, could I interrupt here to enquire whether the Amnesty Committee's investigation department made any effort to discover whether the authorisations were still available which had been signed by General Coetzee? He refers there to
"General Coetzee endeavoured to file his flight tickets with the Amnesty Committee to indicate that he was in Cape Town during the period to which the applicant McPherson is referring, would have taken place. On perusal of the flight ticket documentation it is however clear that at all three consultations which the applicant McPherson is referring to, General Coetzee was in fact in Pretoria and the discussions could have taken place."
"The applicant was a police officer who religiously carried out his instructions from his superior officers"
"Mr Williamson, you worked closely with Mr McPherson for a period of approximately four years in the period '81 to '85, is that correct?
"Mr Cornelius: Would you obviously agree that he carried out his instructions with the same political objective of damaging the ANC offices in London?"
"...in London as a symbolic high-profile strike to disrupt the ANC and to serve as a warning to the British Government not to harbour ANC activists."
" From the overall evidence of all witnesses it transpired clearly that General Coetzee is trying to indicate that he knew about virtually no illegal actions and it came to his notice he would have disciplined his perpetrators. Now the incident that worries me is why didn't he discipline Eugene de Kok and his men after the Swaziland cross-border raid when they reported to his home in Brooklyn? This is a striking contradiction with the initial portrayal of an apparent leading disciplinary figure."
"What were the functions of the ANC headquarters in Lusaka, is it possible to shortly comment on that?"
"It was where the entire organisation was managed and run from, both the political as well as the military element."
So Mr Chairman, what I'm saying there, this is a type of target that the security forces at that time would have obviously tried to hurt or disrupt or cause disruption in their administrative services there."
"No memorandum would ever have been written for this covert operation as is indicated by General Coetzee."
"McPherson: Because of the nature of the situation one could never write a memorandum as motivation or explanation that this one was about to seriously injure someone, one could never put that in writing and that is why we had to create a cover story. We told the Commissioner that we would write a cover up."
"I'm afraid I'm getting a little confused, I understood that the reason why you put up this motivation and made no mention of the bomb was that the motivation would have to be approved by the Commission and then sent to the Auditor General and others who would not have approved of the bomb."
That is the whole reason why they did this, Mr Chairman, they wanted - this was out of the normal routine. It was presented to the Commissioner, a false motivation was written and the money was obtained.
"Mr Visser: Is the normal procedure if you have this bright idea to bomb the ANC offices to go to your head, Brigadier Stadler and to clarify this with him?"
"McPherson: Mr Chairman, Captain Kobus Pretorius and myself went to Major Derek Broon who was our immediate head and if he took it further to Brigadier Stadler I don't know. I just reacted to what he told me."
"Chairperson: Didn't he tell us, Mr Visser, that he went to the Commissioner to get permission to pay the R20 000 because it had to come from the Commissioner? He couldn't have put the proposal in writing. They told the Commissioner that they would prepare a motivation and this that he would be paid for services rendered in the past?"
"Mr Visser: Yes, but the witness also told him Mr Chairman that the reason why he reacted to the Commissioner directly and jumped the intermediate officers was because Broon, after he had heard what their motivation or what their plan was, sent him directly to the Commissioner. That is the only point I'm making Mr Chairman."
"Chairperson: And he told the Commissioner that they would give him written motivation, you are now asking about it, why didn't he prepare the motivation? But that was as I understand his evidence what he arranged with the Commissioner?"
That averment that I'm referring to Mr Chairman is that he has no knowledge of the action and he did not authorise it. It was not unusual, as I reflect in 19.18, for the applicant to approach the special forces of the South African Defence Force contrary to the picture painted by General Coetzee. You would recall that he tried to paint a picture, Mr Chairman, that he found it strange that my client approached the special forces of the South African Defence Force, he tried to paint a picture that that's where my client's frolic of his own came from.
MR CORNELIUS: That came later, that is correct Mr Chairman. Where my client had a very close working relationship with Derek Broon, prior to that with the London bomb as well, if we go through the record we could see that there was this close cooperation between McPherson and Broon and that's why he approached Broon.
MR CORNELIUS: ...[inaudible] spoke to Broon and Broon said go to the Commissioner, discuss this idea, it sounds like a good target. He went to the Commissioner and then the discussion took place of the ...[intervention].
"General Coetzee did not oppose the application of McPherson which was extremely strange in the light of his total denial of the involvement in the Lusaka bomb."
"The question may be raised if Joe Slovo at the time of the Lusaka bombing could be considered as a so called legitimate target. This was clearly clarified during the cross-examination by myself of Professor Klug of the University of Wisconsin. Unfortunately at the time of drawing the heads of argument the transcription of this evidence was not available due to the fact that Professor Klug testified two days before, a couple of days before this argument is tendered. The Committee would recall that the following questions were put to him
ADV DE JAGER: He is not agreeing that Joe Slovo was a legitimate target, he assumes that he would have been a target of the - you put it to him: "Do you agree that Joe Slovo was a target of the security forces?" "I assume so." But he's not saying that he agrees that Joe Slovo would have been a so called legitimate target. He says well he was a target whether he was legitimate or not, in fact "I assume he was a target."
MR CORNELIUS: I've also got problems with the "legitimacy" of the target Mr Chairman, it's unfortunate wording for me. I think no, he agrees that he's a target as I put it to him and that if he was targeted it would have disrupted the actions of the ANC. Then I say Mr Chairman
"It's the applicant's humble submission to the Committee that this is important to establish if he was in fact a legitimate target in a political milieu"
"It is clear that Joe Slovo was a high-profile political figure in the ANC on which a political attack with political motive could have been carried out."
"Various counsel have tendered documentation to the Committee in support of this fact and it is clear from the actions of Mr Joe Slovo himself, especially during his stay in Mozambique that he feared a political attack on his life and possible assassinations."
"It's therefore submitted that the applicant acted in a bona fide belief upon authority of his superior officers that he was entitled to attempt the murder on Joe Slovo and he had the necessary political objective as envisaged by Act 34 of 1995."
"It is furthermore submitted that the relevant facts relate to the elements in respect of also delicts committed. These requirements have been complied within and the evidence pertaining to each and every incident. The applicant furthermore submits that there was no evidence to the contrary and where it was not to put to any of the witnesses that the other witnesses which contradict his evidence, that the Committee should accept that the applicant's evidence as uncontested and furthermore that his evidence should be accepted as true and a full disclosure of all facts. The Committee should however take care to not easily reject the evidence of the applicant as various incidents had occurred after a lapse of some considerable period of time. Obviously his memory would be affected in relation to smaller detail. Due to the covert nature of the operations most documents were destructed and virtually no relevant documents exist to support the averments as we have now seen with the motivations for secret ...[indistinct] payments. The applicant had to rely purely on his memory when he gave evidence. For the applicant to mislead the Committee and to lie to the Committee would be to the applicant's disadvantage as amnesty would then obviously be refused. It is therefore the submission to the Committee that there is no reason for the applicant to lie to this Committee."
"Save for the fact that the applicant received an S.O.E. medal from the South African Police force for his actions associated with the London bomb, the applicant received no personal gain from any of his actions, the Lusaka bomb included. He did not act out of personal malice, ill will or spite directed against the victim. At all times the applicant acted with political motivation in the course and scope of his duties and within the scope of his express and/or implied authorities directed against the ANC which was a publicly known political organisation engaged in political struggle against the former state. At all times the applicant acted bona fide with the object of countering or otherwise resisting the said struggle."
And then on page 64 I've just set out basically what he's applying for, for amnesty for attempted murder, malicious damage to property, conspiracy, obviously within this country, intimidation, assault, obstructing the course of justice under the Terrorism Act, Explosives Act, Dangerous Weapons Act, Arms and Ammunitions Act and all possible delicts flowing from that. If I read the Act correctly, that will also cover claims for civil damages and this type of thing.
when, where, for what? We can't grant a blanket conspiracy or a possession of firearms or contraventions of the ...[indistinct]. Over which period exactly are you asking for that kind of thing? But it's all in connection with the June incident and only the June incident as far as contravention of the Explosives Acts are concerned. What about the London during which period as it's two different periods and it would be of assistance if you could give, connect the exact incidents because otherwise it would seem as though we are granting amnesty for having explosives 1960 up till now?
MR CORNELIUS: Quite correct Mr Chairman, I apologise for that. Obviously to categorise it two categories, the first category would be for the period 14th March 1982, that is the time and the date and time of the London bomb incident. So in that period the preparation, the possible conspiracy committed in that period for the planning up until following the end of the London bomb so obviously that period ...[intervention]
ADV DE JAGER: Mr Cornelius, could I perhaps ask you to try and formulate for instance a conspiracy obstructing the course of justice, exactly what and in respect of what do you want amnesty therefore? It's you know to come sit down now and thinking about amnesty for the obstructing the course of justice, what exactly are you applying for?
MR CORNELIUS: Mr Chairman, what I can do, I can supplement my heads with a very detailed averment of exactly what I want. Obviously obstructing the course of justice would be the fact that they covered everything up and they came back.
MR CORNELIUS: I think what I can do Mr Chairman, I would draw you a short supplement, not a lengthy thing, which will detail it in great detail exactly what I'm applying for and I can table that before the close of the proceedings to the Committee. Thank you.
Therefore on page 65, Mr Chairman and Members of the Committee, the applicant prays as he has submitted that John Louis McPherson has made out a proper case for amnesty and in the light of the argument submitted supra the applicant prays that amnesty should be granted to him in respect of the two applications dealt with in front of this Committee and that is my argument. Thank you Mr Chairman. Therefore I conclude my argument. Thank you Mr Chairman.
MR JANSEN IN ARGUMENT: Thank you Mr Chairman. By agreement between all of us around the tables here I will present argument next. Mr Chairman, three stapled heads if I may call it that, has just been handed to you. If I can just explain these
three documents? The first one is the written heads on behalf of John Adam in the London bombing incident. The second one relates to Mr Coetzee's position as an implicated party and a witness in these proceedings and an applicant in other proceedings that have been concluded some time ago. And then Mr Chairman just over the weekend I just drafted some short additional points of arguments which deals with some of the issues that have been raised during the course of last week in argument before you.
Mr Chairman, the Adam heads were actually lodged some time ago in October of last year with the Committee. I don't know if you had it, whether you've received it but in any event the heads that you received now is just identical copies of the heads lodged at that stage.
Mr Chairman, as you will recall, to start with the Adam matter, John Adam, as you will recall he was not available for evidence at the time of the initial hearings on the last day and you made a ruling that his evidence can be considered in chambers and be presented as it is found in the application, pages 201 and 207.
Mr Chairman, just the first point that I must deal with is found in paragraphs 4 and 5 of the heads, exactly what amnesty is being sought for. You will note from the application that it is clearly insufficient the application, it just refers to the London Bomb and again Mr Chairman, this represents my sort of understanding of the general way in which amnesty is being sought at this stage of the process and being granted having had regard to some of the Government Gazettes that have come out in respect of amnesty, but again I will as far as the precise wording of the amnesty being granted is concerned I am obviously in your hands. Just the way I've set it out here in paragraph 5 is:
" that amnesty be granted for the acts, omissions and offences of malicious damage to property and conspiracy to commit malicious damage to property in respect of the bombing of the ANC and Communist Party offices in London."
Mr Chairman, maybe one should fill in after the word "London" or after the words "Communist Party offices" the word "respectively" because the conspiracy relates to the Communist Party offices and the actual malicious damage to property relates to the ANC offices. And then just the conclusion there, well the date being the 14 March 1982, I think that has been established by now and all other delicts and offences which relate directly to the incident. Now Mr Chairman, it's really in respect of that last sentence which I'm in your hands as to what is the appropriate way of wording that. There are of course a multitude of other specially statutory offences that one can think of Mr Chairman but having had regard to some of the other instances of amnesty it would seem that this is the way presently the Committee deals with these kind of situations or ...[intervention]
MR JANSEN: Yes Mr Chairman, that's why I think the wording there is "which relate directly to the incident" so yes, as long as that is just very clear it can obviously - and I think as a matter of reasonable interpretation and I'm sure that one will find authority for the proposition, if you commit an offence of which the one portion or the elements are part and parcel of another offence, you would either deal with it as one offence or at least consider the close proximity of the offences at sentencing stage in criminal law, so I don't think that kind of think would be too foreign.
Mr Chairman, then paragraph 6, the requirements that Mr Adam must meet to enable you to grant amnesty, I respectfully submit cannot be controversial in this case. Mr Chairman, certainly what is different of this case and what may be termed controversial is that the security forces planned such an elaborate bombing or engaged on this project of theirs in a country half way on the other side of the globe at the time of the fracture government which was, well to some extent had positive relations with this country at the time. But Mr Chairman, all of that is of course irrelevant for purposes of this Act. What is relevant here is that it was damage against property, property clearly associated with the ANC and it is in essence really the same as comparable to the other bombing incidents where bombs were placed in buildings and buildings were destroyed. I'm not suggesting Mr Chairman that it's comparable to more formal types of offences such as crossing a border without a passport or breaking one's - or breaching one's banning orders etcetera Mr Chairman, clearly not. In any bombing in a residential area there is inherent and serious risks but the fact of the matter is, Mr Chairman, that we are not dealing with an incident involving a gross human rights violation, we are dealing with the destruction of property and in the framework of this act where we are dealing with offences and omissions Mr Chairman, it can only be seen as involving destruction to property considering the evidence of all the steps that were taken to avoid injury to other persons, Mr Chairman. We don't in our law have a offence of reckless endangerment, we deal with those issues by various statutory offences and on that basis, Mr Chairman, in the greater scheme of things considering that the planning and the orders came from very high up, possibly right to the very top of the political system or of the political system, that all the indications were that it was a properly sanctioned operation and considering the fact that Mr Adam was really just a foot soldier in this very elaborate operation, Mr Chairman. I respectfully submit that granting amnesty to him cannot be controversial.
Mr Chairman, as far as the issue of full disclosure is concerned, I deal with that in paragraph 9 and further. The evidence found in his application really accords with that as given by Mr de Kok. It is before this Committee, his application is before this Committee without any contradiction from any other source and as far as details are lacking in the sense that Mr Adam didn't testify, you can have regard to the evidence of Mr Eugene de Kok. I deal with that in paragraphs 10, 11 and further of the heads. De Kok and Adam formed an operational team for this operation, Mr Chairman, and interestingly, in their position at the time was slightly different to the rest. They were stationed at Koevoet in the then South West Africa and Koevoet, although it fell under the command of the security police in Pretoria, Mr Chairman, it's efforts were really tied up and involved in the war in the north of Namibia and the southern parts of Angola and they came from that very military type of environment and they were simply told that they were going to go on a mission to London. Mr Chairman, it is quite reasonable to accept that these two gentlemen who were at that stage fairly junior officers, both as far as I know were Lieutenants at that stage, one can expect that their compliance with their orders would almost have been of a mechanical nature.
Mr Chairman, then further I have dealt with the issue of full disclosure. I see in the heads I deal with it from paragraph 17, I don't think that can be controversial. The next issue "an act associated with a political objective" - Mr Chairman the first point that I make there to the extent that it's relevant for purposes of deciding this issue is, is an apparent or a possible contradiction to which I don't really know whether I have the answer, Mr Chairman. In paragraph 21 I start dealing with the words of Section 2 sub-paragraph 2, sub-paragraph (b) where it uses the words that it must be in the course and scope of his or her duties and within the scope of his or her express or implied authority. Now you would first note, Mr Chairman, that the words course and scope of duty is coupled with scope of express or implied authority by the word "and" which would normally connote that one has to comply with both those elements. Now if one takes that wording and compares it to sub-sub (f) where one need not prove actual course and scope or not actual authority but only to have reasonable grounds that those were present.
What puzzles me a bit about the wording of sub-sub (b) is that considering the fact that you have to be guilty of some kind of an offence or delict to be able to apply for amnesty in the very first place. Now what creates the question is whether the words "express or implied authority" in sub-sub section (b) must therefore mean something different to what is normally understood by the words express or implied authority.
MR JANSEN: Exactly Mr Chairman. If the words were only "course and scope of his or her duties" I could still live with it because it is well known in our law that you can act in the course and scope of your duties but still transgress the law, that is the principles developed in the law in vicarious reliability, Mr Chairman, and I refer in paragraph 26 to the case of Masuka vs Nglalosi where a '98 decision where the Supreme Court of Appeal definitively, I submit, dealt with this difference between the words "course and scope" of his duties on the one hand and within the confines of an act or statutory powers on the other.
Mr Chairman, I don't think it's necessary for purposes of this application to go into this argument all that much save to state that all the applicants here, certainly the junior ones, comply with sub-sub section (f) but to the extent that sub-sub section (b) must be interpreted, you must respectfully give some kind of a functional interpretation to the words "express or implied authority" and that can obviously not mean express or implied statutory authority, Mr Chairman, it must mean ...[intervention]
MR JANSEN: Yes, factual - the factual, a factual order Mr Chairman and I think Mr de Jager, during the course of the argument you raised the issue that where does the notion come from that you need to have an order and I think it may be from this wording compared or the absence thereof in sub-sub section (a) and the inclusion thereof in (b) which has led to the understanding or the argument that when you're dealing with somebody who functioned within the strict and rigid structures of the State machinery, that for them it's a requirement that there be an order but not for somebody in a liberation movement or in another type of political movement involving itself in armed conflict, that there that requirement of following a strict order that comes from somewhere is not, although it's a factor, it's not so strictly required. I submit that that is probably where that argument comes from. Yes, the rest of my argument's until the end really just deals with exactly that, the same, what I've just been arguing.
"On the evidence before the Committee it cannot seriously be suggested that any individual was the target of the bombing"
And I believe that that was in fact corroborated by Ms Marcus herself which said that she believe that she herself was the target of the bombing but that her attitude is of course that the security forces simply wouldn't really care who they bombed or not. Whatever the controversy is and whatever one's suspicion in that regard is, Mr Chairman, I submit that at the end of the day there's no evidence that there was no attempt to ensure that the risk of injury was minimised. In fact one gets the clear indication from the evidence as a whole that some amount of steps were taken, certainly the surveillance of the building obviously had a dual purpose. On the one hand it served the purpose of ensuring that the operation and that the bombs could be planted and the operation completed without any risk of being caught but certainly also of minimising any potential injury. If the contrary had been true, the bomb would simply have been placed there on a week day.
Yes Mr Chairman, then I just deal very cursorily with the general jurisprudence from paragraph 38 and further. Mr Chairman, you have been very ably and thoroughly been addressed on these issues by Mr Du Plessis and Mr Levine and I don't take that part of the issue much further other than pointing out that our act, that firstly we are not dealing here with a gross human rights violation and secondly that our act clearly is - it departs from the basic principles of international law.
Mr Chairman, then from paragraph 45 really to the end I deal with the issue with offences committed outside the Republic of South Africa and just say that it's very clear that this Committee can, from the wording of the Act Section 20 sub 2, that you can deal with acts inside and outside of the borders of this country and as I submitted really at the beginning of my argument, the fact that it was in London, took place in London, is for purposes of this Act of no consequence or at least of very little consequence Mr Chairman. It's irrelevant what the position in respect of extradition would be or whatever the international ramifications of the Act is.
The first issue or one of the issues that were raised in argument, Mr Chairman, is that it was said you have a bound discretion and not a free discretion and the heads on, my learned friend's heads on behalf of Mr Raven, paragraph 55, deals with this issue and Williamson, paragraph 72 and further deals with this issue of a discretion. Now there is of course support as I set out in paragraph 3 of these additional heads in the case of Gerber vs Die Komisie vir Waarheid and Versoening that you have some kind of a discretion in granting amnesty. Now Mr Chairman I have a problem with that approach and I believe that it is important for this process that one has careful regard to the wording of this Act and the constitution to decide before accepting or so easily accepting that you have a discretion.
Mr Chairman, my basic argument is that once you've decided that it's purely a judicial exercise that you are involved in, once you decide that the requirements of the Act have been met, you are obliged to give amnesty. Now one can easily argue well, it's of no real consequence because the requirements of the Act is why it allows you to have a look at all the facts in general etcetera but, Mr Chairman, the first point that militates against the discretion is that the words "shall grant amnesty" is used in the Act and Section 20.1, sub (i) it's also used in the post-amble to the constitution, admittedly in a slightly different context. In the constitution it obviously first means that there has to be at least a process, that is absolutely compulsory. But certainly the constitution also seems to suggest that when you are dealing with an Act which relates to a conflict of the past, there shall be amnesty and just to read the post-amble in this respect, it's the second or the third last paragraph of the constitution. It states as follows:
"In order to advance such reconciliation and reconstruction, amnesty shall be granted in respect of acts, omissions and offences associated with political objectives and committed in the course of the conflicts of the past."
Now there's a strong element that it refers to specific acts and specific omissions and not just only to a process that has to start. Mr Chairman, why I submit to some extent it is important is - or before I get to that, the other factor in the statute which militates against the discretion is, normally a discretion is associated with somebody being able to or an administrative tribunal or an administrative body being able to assess what is relevant for purposes of a specific decision and applying it's mind to that which it regards as relevant and there is no little umbrella or catch phrase at the end of Section 20 either sub-(ii) or sub-(iii) which says "or any other factor which you regard as relevant". Now even though sub-(iii) has many widely worded concepts which are clearly very - where distinctions are subtle and the concepts are subtle, Mr Chairman, that must not be confused with the issue of a discretion and the problem that I have with the issue of a discretion is, Mr Chairman, if you had a discretion it would most certainly have been permissable for you to say that in if you have regard to what you believe is relevant, it would have been permissable for you to say well, the liberation forces fought a just war, apartheid was regarded by the international community as a crime against humanity and this factor is in fact central to the entire struggle and to our history and I don't think it would have been a reviewable had you adopted such an approach if there was a discretion. But Mr Chairman, I believe the history of this Act considered with the constitution and the political framework, I believe the Act specifically steers away from these broad and general notions in international law and specifically says the distinction that we make between the liberation movements and the security forces and the different parties that were involved must be found fairly and squarely in the wordings of sub-(ii) (a) or (b) and it must be confined to that and it's in that sense Mr Chairman that I believe that once if you had to accept that you have some kind of a discretion in granting amnesty, you would enter a very dangerous area of entering into the very fluid situation of international law and I believe that you must firmly avoid such an approach.
In these additional heads, Mr Chairman, I refer in paragraph 10 thereof to some portions of Baxter's text book where he deals with tribunals and in that one portion with the process of adjudication. Now Mr Chairman, very often tribunals are set up simply to replace courts. Other times they are set up for different reasons because of the speciality of the subject matter etcetera. Now I don't want to enter into the argument as to what the nature of this Committee is or if one could call it a tribunal, but it certainly follows an adjudicative process and it certainly has to act within the four corners of this Act and considering the historical context of this Committee, Mr Chairman, it is really nothing other than a special court if one has regard to your qualifications, the original Committee had three high court judges sitting on it, Mr Chairman and again for that reason I believe that it militates against you regarding yourself as a discretionary body of some sort.
Mr Chairman, I just then deal quickly with the - or very briefly with the issues of Section 20 sub (ii) sub (a) from paragraph 12 in the additional heads. Mr Chairman, I would certainly as far as Adam is, also like to make ...[intervention]
MR JANSEN: Yes Mr Chairman, the way I regard it is that one must make a distinction between for instance just to get away from this Act. If one is dealing for instance the ordinary law of delict and you are dealing with concepts such as negligence or unlawfulness or you have, or a judge, or a judicial officer, dealing with the concept of unlawfulness, has a wide - the scope of enquiry might be very wide and there's certainly the process of deciding whether an act was unlawful or not is certainly not a mechanical and a rigid one and it takes cognisance of things such as the mores of the public at that time etcetera. But that is something, because that process is of such a nature and such let's say a non-rigid process, that is to be distinguished from a discretion. You must still bona fide decide is this an act associated with a political objective in terms of those criteria and once you've come to a conclusion, that's the end of the matter, the one or the other one.
MR JANSEN: Mr Chairman, I believe that if I may use the word now discretion in a very loose sense, the discretion in the judicial process of deciding what is relevant for purposes of proportionality, but that is not a discretion in the way the word is used in administrative law. That is really the issue of relevance which is decided by the rules of interpretation and the rules of evidence and I agree that the two concepts come very confusingly close to each other and certainly, Mr Chairman, even if there were the words "shall" but there had been a clause which you said that you could consider any aspect which you regard as relevant, I would have conceded under those circumstances that ...[inaudible].
...[inaudible] the whole notion of reconciling the two opposing or the very many opposing sides show that one at least must have a strict, to some extent, a strict requirement. Maybe as an alternative argument what I should state is even if you consider there is a discretion, then you must consider your discretion to be so narrowly bound that you cannot introduce, even though relevant, in broader notions of reasoning. You cannot introduce factors which treat different parties unequally other than that permitted by the Act because I believe that international law would do precisely that, it would treat the security forces differently than it would the liberation movements.
Mr Chairman, I'm at paragraph 12 of the third document entitled "Additional Points of Argument." The issue I take with the interpretation of Section 20 sub (ii) sub-sub (a) is on instructions of applicant Adam, he says that he cannot make the allegation that he was a supporter of the National Party. I don't know, maybe it's a question that he doesn't want to do so under oath but be that as it may, Mr Chairman, I think it would be extremely unfair just taking the argument in a theoretical sense to refuse members of the security branch amnesty if they don't comply with either of sub (b) or sub-sub (f) but then to grant it in terms of (a) to those who happened to have been National Party members. The argument I simply make out here, Mr Chairman, up until paragraph 18, is that the National Party did not itself wage a political struggle against anybody, it was in control of the parliament and of the budget and therefore had the State machinery at it's disposal to wage such battles and in paragraph 16 I say that after 2 February 1990 the position may have changed because after that date parliament started abandoning some of it's sovereignty and certainly after the referendum certainly there was an irreversible process to a new constitutional order. I suppose somebody could even raise the argument while that after 1984 with the commencement of the tricameral parliament, one may have had parties in parliament with a double agenda. Those on the left hand side using the tricameral parliament to bring an end to apartheid or the way it was amended and those to the right which tried to use only the parliamentary processes for again reversing the constitutional order but be that as it may, none of those arguments can ever be relevant to a supporter of the National Party and Mr Chairman, in the Committee decision of I think it was Botha, Marais, etcetera, the rightwingers who killed black civilians in Durban, it was specifically held against the one person who did not receive amnesty that the persons higher up in that particular order did not support his contention that that was an authorised act. Now Mr Chairman, I believe that the same would go for the National Party. The evidence before the Commission is that it did not condone illegal acts.
Mr Chairman, then from paragraph 19 dealing with the issue of international law, the only point I take there Mr Chairman is whatever one makes of the international law, I believe it can only be an interpretative tool for some of the concepts in Section 20 either sub (ii) or sub (iii) but not even for all of them. Mr Chairman, again, looking at the overall interpretation of this Act coming from the post-amble of the constitution, the Act and it's political context in this country and with respect at the judgements that have been given by this Amnesty Committee, there are certain people have been granted amnesty for acts which I think many people would simply dismiss outright as being disproportional to the political aims and I say that in respect of judgements dealing both with security police actions as well as actions of liberation movements and Mr Chairman, it's therefore clear that not only the Act but the way in which the Committee has applied the Act, has been a clear departure of what is generally of at least the impression I get of what is permissable under international law.
For instance Mr Chairman, wherever you look at an extradition treaty, all of the South African extradition treaties as far as I know would have a clause saying that you don't extradite for political offences except where gross human rights violation has been committed. So the gross human rights violation is an exception to the exception of the political defence doctrine and therefore this Act is clearly moved in a different direction and for what I submit is obviously good reasons for creating a new future for everybody in this country.
Mr Chairman, that - no it does not conclude, I make a last point then, the last three paragraphs concerning the subject of an objective test. Mr Chairman I don't - it's been extensively argued in the other heads and all I really want to add is that I believe that the - if one has a look at Section 20 sub (iii), if one has a look at (a), the motive of the person who committed the act, that is clearly a subjective test.
(f) The relationship between the act, the political objective etcetera, again seems to be an objective element of some sort so it seems that the Act itself says where one must follow an objective approach and a subjective approach. The Act also disqualifies persons in sub (iii) who acted for personal gain, malice, ill spite or ill will or spite. Again there are certain subjective elements for which people are disqualified. So again, just as far as that is concerned, I respectfully submit it's a simple matter of - well, not a simple matter but at least a matter of interpreting the Act and following whatever is set down, laid down by the Act in respect of that.
Mr Chairman, that concludes the argument in respect of applicant Adam. As far as Mr Coetzee's position is concerned Mr Chairman, I don't really want to repeat what I say in here. I submitted similar heads of argument in respect of the Kondile matter where a similar situation arose where there was some factual disputes and Mr Coetzee was called upon by the victims, the families of the victim, to testify at an amnesty hearing at a stage subsequent to his initial application. Now Mr Chairman, those heads of argument I actually addressed to the original Committee because the attitude that we take is that none of the evidence here can effect the application of Mr Coetzee itself and I refer to some principles in our law and to some authority from paragraphs 7 and on in the heads and really I submit that that accords with your own attitude as came out during argument at some stage, Mr Chairman, that as far as details of facts are concerned, one can't simply supplant evidence from one application to another one, for that one has to comply with a few more things than simply just referring to it but that is something different than evidence of a general nature of which by this stage you can take judicial notice and I concede that there are a fair amount of things that you can take judicial notice of.
But it's important that on behalf of Mr Coetzee, the amnesty application of Brigadier Willem Schoon is not being opposed and that in short really ends in my respectful submission as far as Coetzee is concerned. I also submit in his heads, Mr Chairman, from page 9 and onwards, paragraph 22 and further, just dealing with some of the differences in the evidence.
Now Mr Chairman, you were not on the Committee that dealt with the Kondile matter but Advocate de Jager was and there was certainly far more serious differences in the evidence in the Kondile matter as with the Marius Schoon matter. In the Kondile matter the differences relate to issues of proportionality and of basic motive whereas in this case the differences really relate only to who initiated the suggestion and well, who else was involved, was West Rand security involved in the issue and did General Coetzee know of the operation? But important in respect of General Coetzee's knowledge or having called the mission off, Mr Chairman, it must be remembered that Coetzee, Dirk Coetzee's knowledge of that is really at the very best hearsay of what somebody else told him. So I believe that or respectfully Mr Chairman, that whatever the difference is between Coetzee and Schoon is, is they lie on the periphery of this incident and not at it's core which was the same attitude adopted by the Committee who gave judgement in the Kondile matter.
MR JANSEN: Yes Mr Chairman, in fact yes, that's the correct position. It's just that yourself and Mr de Jager was on the original community and to the extent that there may have been some uncertainty as to ...[intervention]
CHAIRPERSON: Well can I indicate that my view is, for what it's worth, that you are right in saying that if the other Committee wishes to have regard to it they must reopen the hearing and call the evidence and allow you to deal with it then?
MR VISSER IN ARGUMENT: Mr Chairman, Visser on record, my attorney is on his way with some papers for you please. May I preface the handing up of the documents now being given to you, Mr Chairman, which is handed to you under the heading of written argument that I did this weekend without the assistance of a typist, Mr Chairman, which brings two consequences. One is I don't have a typist to blame for many spelling mistakes, a number mistakes you're going to find in it and secondly, I would ask you to condone as we go along, Mr Chairman, some very poor typing. In these heads I will draw your attention to them. I was quite abhorred yesterday when I read through them as to how many mistakes I did make, Mr Chairman.
Mr Chairman, first of all we would like to talk a little to you about the conflicts of the past and we want to do this, Mr Chairman, not because there's a single person in this room who is unaware that there were conflicts in the past and that there was a liberation struggle and who has a fair idea of what the parties stood for and what they fought for but rather, Mr Chairman, with respect, because it appears to us that what generated the interim constitution, the discussions at Kempton Park, the multi-party negotiation process, the Promotion of National Unity and Reconciliation Act as a consequence and more particularly Mr Chairman, the granting of amnesty and that is what we're busy with, as part and parcel of what happened and as a direct result of what happened during that conflict of the past.
What we are saying, Mr Chairman, is that it's not only the fact that there was a conflict, it is also the different perspectives of the different participants to that conflict which we believe are important insofar as they gave rise to the legislation that followed in the interim constitution as well as the TRC Act and consequently, Mr Chairman, by necessary implication must be of importance for you and your Committee when you consider whether amnesty should be granted in a particular matter or not.
Mr Chairman and what we have done is we have stated at page 4 and onwards and we would like to go through those with you. Our political, historical background which relates to the conflicts of the past and Mr Chairman, you will observe, I believe, that this is somewhat differently done than did my learned friend Mr Du Plessis and my learned friend, Mr Levine because what we have attempted to do, Mr Chairman, is to let parties speak for themselves and we were in the position to be able to do so because of the so called Armed Forces Hearings, Mr Chairman, where over a period of four days the Human Rights Violations Committee heard evidence in Cape Town from all these people, all these interested parties and what we've done Mr Chairman is we've made certain submissions and we have referred you to the actual words, the actual quotations from that record so that you don't have to or my learned friends don't have to be forced to go and find records. The words are here Mr Chairman for you to read.
We say in the first place, starting with paragraph 3, Mr Chairman, that in view of the fact - well at the top of the page, the first paragraph Mr Chairman, the TRC Act in fact provides in sub-section 20 that amnesty is to be granted in respect of acts, omissions or offences which were committed in the course of the conflicts of the past and insofar, Mr Chairman, as that therefore lays the foundation for amnesty to be granted, we say let us look at those conflicts of the past and we say, Mr Chairman, it is fundamental for a proper understanding of the meaning and the scope and the application of the Promotion of National Unity and Reconciliation Act and if you will allow us, Mr Chairman, we will briefly, for the sake of brevity refer to it as the TRC Act, be aware and to constantly remind oneself of the fact that this country experienced a conflict which spanned the better part of three decades and this conflict, Mr Chairman, in spite of some attempts by some people in certain circumstances and I'm not specifically referring to any one particular person at this time, in spite of attempts to negate this, Mr Chairman, it was a political war, there's no question about that. The concepts of inter alia human rights, political voting power, participation in the governing of the country, education, housing, quality of life, everything that goes and that went through with - that went with the conflict of the past was political based and politically driven, Mr Chairman.
"We were at pains to be even political, to be even political, sound political in our submission, to show how the politics is linked with the war itself."
"The ultimate objective of our war is political, is political freedom and liberation. Anybody not given political education nor training will basically be abandoned and criminal and he will not be in a position to justify his actions at the end of the day."
"The ANC put politics at the fore and it defined itself and it's army, uMkhonto weSizwe, as an instrument of a people in political motion. The barrel of the gun as one of the means and not the means least of all an end in itself."
"One of the dimensions which we believe is an important dimension to bear in mind is the fact that it was a civil war between citizens of this country where given the composition of the South African population, racial undertones played a role, there's no question about that."
"Our people took up arms against their fellow countrymen and women and when I say 'our people' here, I mean the whole nation. Whites took up arms against blacks, blacks took up arms against whites. The whole question of the saga of the border war and the counter to that showed that we were a nation at war with itself."
Top of page 8, Mr Chairman. In the evidence of Mr Abubaker Ismail in his Amnesty Application for inter alia the Church Street bomb, Mr Chairman, in that record and I give you the reference, he said this, he said:
"What the ANC intended was to make white people aware that the war was being waged inside our country would not only be waged in the black areas."
"What it meant was that the whites should come out of their comfort zone, they should no longer be able to enjoy the foods of apartheid and they should also feel the pain of what was going on, to have an understanding of the pain and suffering of the black people as well."
And then, Mr Chairman, there's an interesting part of the Church Street bomb, referring to the explosion at SASOL 1 and this was taken up by Commissioner Motata who was a member of that Committee, Mr Chairman, under the chairmanship of Justice Miller and I quote it for your information, Mr Chairman, I'm not going to read all of it but in the process of the cross-examination which flowed from the SASOL 1 and the presence of a black neighbourhood in Zandela which I refer to at page 8. Mr Ismail said something which didn't directly connect it to that but which I now want to mention to you because we will come back to that and that's at page 9, the last part of the quotation. Mr Ismail, Abubakar Ismail, MK name Rashied, said this, he said:
"You may think that the changes only came about at Kabwe, that is not so, that at all times military personnel from the time after Soweto, the conduct of the security forces at Soweto was despicable. Those were children that were butchered by the racist forces and in the war you strike at military personnel."
"Mr Visser: I'm suggesting to you Mr Ismail that quite clearly from this evidence there is only one inference to draw and that is when you thought that black lives might be at risk you were prepared to state under oath here that you would not have gone ahead with that attack but at the Church Street bomb, where there wasn't a black neighbourhood or settlement nearby, you didn't give it any consideration and I'm putting it to you it was a racially based attack by you and what's your answer to that?"
What is the relevance you will ask me for reading this to you Mr Chairman? The relevance is this, the Church Street bomb came after the incidents which you are dealing with here and there may well be criticism to say don't refer us to what came later, refer as to what was happening at the time and what we're saying Mr Chairman, is here from the head of special forces, special operations himself, he is telling you that the - and we will explain that a little on more clearly that the differentiation between hard and soft targets, the targeting of civilians, that had started before Kabwe in 1985, it had been going on for some time and Mr Chairman, we will attempt to show you that in fact from the ANC's point of view, that targeting had already commenced around 1980.
Mr Chairman, but I do go on. There in paragraph 7 at page 9, we address the issue, Mr Chairman, of the moral high ground which is often claimed by the one or the other party to the struggle, Mr Chairman, and we refer you to the late General Joubert in his evidence - I'm sorry, it's a different General Joubert, he is still alive, I'm sorry. I do apologise, in which he said:
"Each party guilty of violence found it's own justification for it. Any condemnation of this must be subjective or based on subjective moral considerations."
"Now let me emphasise again, we say that we do not apologise for the struggle itself, we did not say that we did not apologise for incidents or isolated incidents for a struggle itself as a whole, we don't apologise for it. We will never apologise for the struggle."
But Mr Chairman, it is unfortunately so and we have seen this on television, we have read about it in the press, that certain particularly political persons have made observations that for example the liberation movements, because they fought for a just cause in the sense of them wanting to rid South Africa of discrimination and apartheid, that the approach to their case, call it their amnesty application if you like, must be dealt with differently than that of the security forces. Now Mr Chairman, that's a very important issue which unfortunately has been in the press, we are not submitting that it has bedeviled the decisions of the Amnesty Committee, we want to just make the point very clearly and very strongly that there is no such test in the TRC Act, nor in the interim constitution and it is something which you, Mr Chairman, your Committee will certainly not regard as one way or the other a test for whether amnesty should be granted or not.
MR VISSER: Oh yes of course. Yes, thank you Mr Chairman. Yes clearly, yes that's the exactly - I appreciate that Mr Chairman. There must be quite a number of such mistakes, I do apologise but yes, of course, that's exactly the opposite and we have just on the 25th February, a few days ago Mr Chairman heard our Deputy President, Mr Thabo Mbeki, making noises again, Mr Chairman, in this regard and I've quoted it. Now we say Mr Chairman, that if you want to start arguing about that and you want to start asking people what they thought about that, it's quite easy to understand that policemen and women would have believed that theirs was the morally correct plight. After all, theirs was the duty to protect the citizens of the country against violence, intimidation, destruction of property and there's a beautiful passage, Mr Chairman, from the record of Kondile of General Erasmus which I've quoted Mr Chairman, at paragraph 11. He sets out his background and then he goes on, in the black lettering Mr Chairman
"Most people I came into contact with believed the policy, that's the policy of apartheid and supported it. The people from the South African Police in the execution of their duties as policemen and women had no reason whatsoever to criticise the policy of the Government, they were obliged to serve. They had to take the oath of loyalty, amongst other thing. I also experienced that very many statements were made overseas in support of the policy of the previous Government."
And then Mr Chairman, we are going to refer you, at the bottom of that page we already refer to the decision in the Amnesty Application of Mr Jack Cronje, Brigadier Jack Cronje, but if I may just hang a little bit back with that and just go on to the next page first of all and refer you to what Mr Adriaan Vlok has said and I'm going to only extract a few passages from that lengthy quotation, Mr Chairman. I have placed the words which I want to refer you to in black, Mr Chairman, they have been typed in bold. Mr Adriaan Vlok said this:
"For many years the insight of many people was in reality that there were only two possible political dispensations on the political table in South Africa and that was the policy of the National Party - Apartheid and the policy of the ANC/SACP Alliance and that was communism."
"Communism, marxism, was totally unacceptable to me and it was the same, surely, for the greater majority of the security community."
He refers to the fact that we had the support of the free world in our fight, in his fight he says, I say we and his fight against communism, the government's fight against communism and then he goes on at the bottom of that page, Mr Chairman, he says:
"We felt very strongly about this" I insert the word "for millions of Christians within this country this held the most terrible of implications. It is a tragic.." it should really be "mistake" not "fault" Mr Chairman, "of that time and is still made by some people today including a part of the media is that the international communist threat in this country was only a perceived onslaught. That is a mistake. If the TRC would also step into that trap of false propaganda, it would lead to the absence of appreciation for the essence of the fear which was in the hearts of millions of Christian believers, then we will also realise that we were fighting a just cause."
"and it had born bad fruits but no government under Apartheid ever threatened the freedom of religion"
"The ANC with it's international front organisations, you have COSATU and others, were the staunch troops of the communist which in that time were gaining power. We spelt it out for everyone that if it happened here it would be frightening. There would be violence.."
"..bloodshed and destruction and all freedom, especially freedom of religion and besides that it was clear to us that the ANC was caught in the claws of this dangerous enemy, this communism because the majority of their members were communists."
"Mr Chairman, with the testimony that I have offered here, I would like to ask who would hand over the Government to them? That is the choice we had, I was not going to do that and I saw it as my duty to protect the country against this communist enemy. I prevented this and although I am sorry because of all the irregular.."
"..unlawful acts and misdeeds that were committed in the name of apartheid, I accept moral and political responsibility for it, but I am thankful that our country was saved from a communist government. It should come as no surprise when the ANC tried to rewrite history by pretending that Russian and Chinese Communist expansion never happened in Angola and Mozambique where today there are no economies worth speaking about. The reason why fathers, brothers and uncles went quiet into the South African Defence Force was to keep that as far as possible away from home. And they succeeded, had it not been for that, Hector Petersen might be alive today but the chances are that he would be hobbling around on one leg having lost the other when he stepped on a land mine in Soweto. This struggle against the unacceptable ideology, also for the free Western world was without doubt a just cause and it was a just war. That was my conviction."
And Mr Chairman at the end of the day we make this submission. There's very little merit in trying to argue who fought the just cause because frankly it can play no role in whether you're going to award amnesty to a member of the security forces or to a member of any liberation struggle or not because it is not a test, it is not a requirement prescribed by any of the legislation in terms of which this Committee functions and what we say, Mr Chairman, is that at the end of the day it might rather bedevil what the Act really has in mind and that is the promotion of national unity and reconciliation.
Mr Chairman, we go on at page 17 where I make these submissions and then Mr Chairman, paragraph 16. One of the essential elements of this conflict, Mr Chairman, was that it was apart from the fact that it was a civil war of South African citizens fighting against each other, it was a bitter conflict. There was no mercy asked nor given. As the war unfolded, members of the South African Police in particular, experienced an ever increasing departure from their normal duties of conventional policing. It became to be expected of policemen and women to act as soldiers in a conventional war situation and that, Mr Chairman, to boot, without the benefit of martial law and General van der Merwe said this on a few occasions, Mr Chairman, inter alia in Exhibit P46, that conflict and the violence of the past took on various forms and covered wide ranging scenarios which included combating guerilla wars in both Namibia and Zimbabwe and we'll come back to that Mr Chairman, as well as acts of terror, sabotage, killings and acts of mass mobilisation and mob violence within the borders of the R.S.A. Members of the South African Police were employed and utilised with regard to all these terrains and accordingly, over a period of time and if I may interrupt myself, Mr Chairman, this is a very importance sentence which follows. The training and operational deployment of the South African Police had of necessity to be adapted accordingly. This ultimately was to lead to the natural consequence of the bringing about of drastic changes in the outlook approach and training of that which previously had formed the foundation of an acceptable policing culture in a normal society. Among other things, the principles of minimum - should read force, not violence, Mr Chairman - of minimum force and the bringing of perpetrators before criminal courts was to be seriously effected and even eroded. This state of affairs appertained especially to the utilisation of counter-insurgency tactics in a guerrilla war which in many an instance revolved around that which would normally apply in a conventional war.
And Mr Chairman, you've heard during these hearings about the process of the police to which they are really - that really should be their function, court procedural actions, was seriously eroded, we've heard evidence about that, Mr Chairman and you've heard that from General Coetzee who referred you to amendments of the 1912 Police Act where that Act spoke nothing about internal security and how he told you how the introduction, the new Section 5 of the Police Act later of internal security brought the security police in particular falls square within the cadre of political warfare and not court directed work.
We say, Mr Chairman, that we must guard, paragraph 1, we must guard against allowing ourselves to forget because it is important for us to forget, while this process is still going on, it is important not to forget certain things that happened and it's very easy, Mr Chairman, that people would like to think things that are uncomfortable and which one does not like to remember, it's easy that one thinks those things away but until this amnesty process is over with, Mr Chairman, unfortunately we cannot allow ourselves to forget.
"It was a bloody situation, it is a bloody mess on the battlefield. I think you have to be very clear in this regard but if the Commission or the South African people do not understand that war means bloodshed, means killing, means death, then I do not understand how we are going to clarify that."
"At the end of the day I think it should be apparent that you are able to say now yes, there was a war, yes people died, yes people were killed and then we fought a war in the best way we knew how."
"So it was the point of departure from the government of the day that for all practical purposes we were in a war situation and that the enemy had to be defeated at all costs. The armed struggle went through several phases. At the beginning MK and other organisations concentrated on sabotage of State buildings and other assets. The Soweto uprising in 1976 placed them in the forefront of the SACP/ANC Alliance involved youth in it's revolutionary struggle. With the foundation of the United Democratic Front in 1983 a new phase was entered. Many organisations joined the UDF and although it could never be determined exactly to what extent the SACP Alliance governed the UDF, there was a very close cooperation. A large portion of the black community followed the UDF and the South African Council of Churches also played an important role. Under the guidance of the UDF resistance to the government and the government institution increased sharply. This was followed by civil disobedience in order to make the country ungovernable. In 1985 the SACP held a conference in Zambia .."
"..where it was decided that the difference between hard and soft targets no longer applied. Violence increased and many civilians, woman and children were wounded or killed. The SACP, UDF and other bodies followed the same aims, tried their best to make the country ungovernable and to alienate the black community from the police"
"Large scale intimidation was used to try and prevent the SAP from operating efficiently. The notorious necklace method which is even more cruel than anything the Nazis did was used to kill many people who were seen to be collaborators. The police were regarded as hard targets which could be killed at will, more and more people became victims of violence. People in the black townships lived in fear of their lives. To counter this attack by the SACP alliance, the former government used all forces at it's disposal and combined these under the State Security Council."
"It is therefore not only the task of the members of the security forces to examine themselves ...[inaudible]
industry. Our finances and banking were done by bankers who even gave us covert credit cards for covert operations. Our chaplains prayed of victory and our universities educated us in war. Our propaganda was carried by the media and our political masters were voted back into power time after time with ever increasing majorities. This war situation, Mr Chairman, what would otherwise clearly be regarded as illegal must have and did according to the evidence of many acquire a legitimacy and a legality in the minds of members of the security forces. In addition, some of them in the few instances which we've come across, Mr Chairman, no doubt your Committee and yourself will come across in future read instructions or approval into words and conduct of such commanders and leaders which were not necessarily intended and you will recall the evidence of Adrian Vlok in this regard, Mr Chairman. He said from information which is now being made available it appears that there are possibly matters in which I became unconsciously involved, or for which I must take co-responsibility indirectly and I'm referring here to the illegal acts committed by certain policemen who committed acts based on certain reasonable assumptions, according to their evidence, presumptions seen from their perspective of what I said or did and you will recall, Mr Chairman, there was after the COSATU bombing and the Khotso House bombing there were meetings, there were medals as was again in the London bomb the case, medals were distributed, they were congratulated and that kind of thing and policemen who had no knowledge of those incidents, hear this and they may have thought said Adriaan Vlok that this was a carte blanche, to act illegally and such, Mr Chairman, was the problems which were experienced during the conflict of the past."
We come to the bottom of page 21, Mr Chairman, and where we referred to the issue of elimination, take out, remove from society and the like and we just want to make this one point. The only real relevance of those expressions, Mr Chairman, whether they were ever intended by the State President, by members of cabinet, by the State Security Council, by other members of other security organisations in the country as meaning kill or whatever, is not really what the point is. The issue here is what people thought was meant and I think you yourself, Mr Chairman, has expressed that thought forcefully during one of the hearings. It's of course what people in the lower ranks thought they heard these people saying when they talk about eliminate, or take out, or whatever the case may be and one must remember the people of the lower ranks very seldom were privy to the - were very seldom privy to what the background of discussions for example in cabinet or at the State Security Council had been.
"The Committee is of opinion, after hearing all the evidence about the total onslaught, the words used to convey instructions or suggestions to counter it, the tacit condonation of certain illegal methods and the subsequent praise and decorations extended, that the ordinary lower rank policemen bona fide believed that any act, even illegal ones, could be carried out if the purpose was to frustrate the revolution and to keep the government in power."
Mr Chairman, another aspect which is of great importance when you listen to the evidence of members of the security force particularly the police, you find at page 22 at the top, and that is that security legislation which prevailed was insufficient to empower the security forces to deal with the onslaught effectively. That very fact, Mr Chairman, gave rise to a consequence that some members of the security forces found themselves inevitably in situations where the only solution to the situation or to the problems that arose lay outside the ambit of the law and Van der Merwe says:
"I've also said that if the previous government would be honest and added to that, if circumstances allowed that, they had to apply martial law. We were almost busy with a civil war. If we look at the civil disobedience on a wide level and organisations when they were all united by the United Democratic Front, it could not have been able to combat that effectively through legislation. That is why the government used other methods apart form constitutional solution. It was not possible to contain this whole situation through security legislation and to handle this situation .."
"..that people became aware of the situation and they decided that against this background and where these words, the use of the phrases such as eliminate etcetera also played a role and other factors to be able to contain the situation. Other methods and actions had to be used and that is why we used harsher actions."
Mr Chairman, it would be a pity if the much maligned armchair approach attitude would be adopted. We have unfortunately seen some signs of it, some signs and this again is what we tried to address a little earlier, that people tend to forget things that are unpleasant and probably that is the explanation for that but the fact of the matter is, Mr Chairman, that there was a war going on and there was no mercy asked or given and situations arose which needed immediately to be taken care of, not on the side only of the security forces, by all the fighting parties, Mr Chairman.
"In the cruel struggle for survival, it was often the case that there was no mercy shown and unacceptable things were done and mistakes made. I also made mistakes and I'm sorry that my fellow South Africans had to suffer in the process as a result of my actions and I'd like to offer my unqualified and sincere apology to those people."
"The state of circumstances from which an event proceeded can never be placed before the eye of the critic exactly as it lay before the eye of the person acting because above all, it is almost impossible that the knowledge of the result should not have an effect on the judgement passed on the events which preceded it."
"That while we are sitting here and listening to each other in turn, the situation was not the same there. Nobody was there to listen to anybody, to explain 'you see now, I'm going to attack a church and these are the reasons'. There is no such thing in a war."
"We are not discounting the possibility of mistakes having happened and mistakes have happened and we acknowledge that these mistakes have happened."
"If we are going to stand here and be pretentious about our operations and pretend that we have not committed any mistakes then we will be fooling you."
"We say that we do not apologise for the struggle itself, we did not say that, we did not apologise for incidents or isolated incidents. For the struggle itself as a whole we don't apologise for it but we have expressed that there have been mistakes and for those mistakes anybody who is human would look upon those mistakes as a human failing and we regret it."
Mr Chairman, we come now at page 25 to the issue which you raised at a certain point in time. It really doesn't form part of my present applications, there were no gross human rights involved although per definition the attempted murder on the late Mr Marius Schoon by the wording of the Act in it's definition involves gross human rights but I think your question was directed at me more, Mr Chairman, from the point of view of Katryn Schoon and for as much as it may be of assistance, Mr Chairman, I have included some passages here and later on in the written argument which may be of assistance to you.
Mr Chairman, the whole issue of civilians, innocent bystanders, members of the public is a matter which has been addressed at various times. We say, Mr Chairman, it was inevitable too, that in this kind of war situation, innocent bystanders would become effected. The ANC/SACP Alliance in fact adopted a resolution for purposes of it's war strategy and tactics in which the killing and injuring of civilians was stated to be acceptable and I must add there under certain circumstances and I refer here, Mr Chairman, to the further submission and responses by the ANC dated 12th May and I'm not going to read that Mr Chairman, but I come to the next paragraph.
MR VISSER: I'm on page 25, dealing with innocent bystanders, Mr Chairman. And then what I also won't read to you, Mr Chairman or perhaps I should, is Mr Maharaj's statement at pages 10 to 11 during the Armed Forces Hearing. He was referring to Kabwe again, Mr Chairman, he said this?
"Kabwe made the second point that in the intensification of the struggle, until then, we had always sought to avoid an operation which had a likelihood of leading to injury or death of a civilian be that civilian white or black. Kabwe acknowledged that that rigid condition would have to be relaxed."
"The president then was simply saying that the strategy of people's war would rest on the concept of an uprising by the people and that our role as the armed formation was to enhance that capacity. So that was how the issue was posed, whether that necessarily leads to a blurring is a debatable question because what we were saying was that the regime had even located it's armed forces within highly dense, whether commercial areas or residential areas .."
"..And if we had sought to get to grips with the regimes forces necessarily, we had to accept that at times civilians would be caught up."
"The key ingredients of the South African war therefore, I would say is violence, the military side of it, the mass action side of it, the terror of it. The terror aimed at non-combatants became a very important ingredient."
"The war had a clear military character which escalated up to the point that violence on all sides had grown enormously and that the actions by everyone impacted on helpless people. In the name of politics, Mr Chairman, thousands of South Africans who were members or were not members or even supporters of a one or the other side became effected and their lives became effected and in many cases shattered. In the result, Mr Chairman, whether one wishes to lay the blame at the door of whosoever one believes to have been the guilty party, doesn't really help Mr Chairman. The sad truth is that a great majority of people, the greater majority of South Africans were never aware of what was really going on. For this we say Mr Chairman, the blame should lie at the door of those who withheld information from the South African public, the whole of the South African public or even indoctrinated the public by issuing false information which was either incomplete, incorrect or both. Had the people of South Africa known earlier of the true facts that was going on around them and which are only now coming to light, Mr Chairman, and have come to light during the hearings of the Gross Violations of Human Rights Committee, one wonders how many lives might have been saved and how much sooner and quite possibly with less bloodshed, political change might have taken place."
"Most of the acts of brutality and torture which have taken place have occurred during an era in which neither the laws which permitted the incarceration of persons or the investigation of crimes nor the methods and the culture which informed such investigations were easily open to public investigation, verification and correction. Much of what transpired in this shameful period is shrouded in secrecy and is not easily capable of objective demonstration and truth. Secrecy and authoritarianism have concealed the truth in little crevices of obscurity in our history. Records are not easily accessible. Witnesses are often unknown, dead, unavailable or unwilling."
Mr Chairman, I think we've made the point. In paragraph 28 I just want to refer you to, before I go onto the next point, of what Adriaan Vlok said in this regard, Mr Chairman, before the hearing of the Human Rights Violation Committee in Johannesburg on the 14th October he said:
"At the end of the conflict of the past, where we stand now, just as in the case of the other war situations in history, I believe that the only lasting remains are the victims. We are all victims of the conflict of the past, victims gain very little consolation from the fact that the one side had the higher moral ground than the other. All that remains is the loss and the sorrow. I know that the psychological pain which the war caused will remain with some people to the day of their death and I would like to request a great deal of sympathy be shown by the Commission to all those people."
Mr Chairman, without any doubt, without any doubt, the policy of apartheid, implementation thereof, everything that flowed from it, that was associated with it, based on a superiority of one portion of a social structure above that of another must inevitably cause a divide and that, Mr Chairman, we address in paragraph 29 at page 28 and this is so important, Mr Chairman, to realise that the war inevitably caused a deep divide between the different peoples of South Africa. Many felt that they had been treated unjustly and with good reason. Others were simply ignorant of the true facts and perspectives which gave rise to the conflict, yet others believed that what they did was correct and justified. For many participants in the war it was obvious that there would be no military victory for either side. It was similarly clear that a political solution was the only solution which afforded the prospect of a lasting peace in this country and again I refer to Adrian Vlok, Mr Chairman:
"Although security directed actions and the so called good government components were successful in the main. It became clear that the finding of a political solution was not progressing satisfactorily."
"While the South African Police tried to maintain law and order and tried to protect life and property and while the negotiation attempts proceeded, we were regarded by the broader community as a result of indoctrination as the enemy."
"It is my honest and sincere conviction that the politicians of the day by the mid '80's had already realised, as I did, that the revolutionary onslaught could not be averted simply by means of legal or security actions and that the only real hope for peace was a negotiated political peace. During this time the security fraternity by means of certain statements of General Magnus Malan and myself, exerted a lot of pressure for breakthroughs in a negotiating process. Those are on record, I'm not going to refer you to those, Mr Chairman. Now, it is precisely with reference to this divide that the interim constitution, Mr Chairman, was agreed by the parties at the multi-party negotiating process as the instrument to set in motion to effect a lasting peace and what the parties at that negotiations realised, with respect Mr Chairman, and it's quite clear from the reading of the interim constitution, is that peace would not come without reconciliation and reconciliation would not be sufficient unless it was a national reconciliation."
That is at the bottom of page 29, Mr Chairman. I then go over to page 30. Now Mr Chairman, you have heard from the applicants for whom we appear as often as we brought applications before you, what is stated from page 30 onwards. These political considerations, we submit Mr Chairman, cannot be argued, they are not contentious, they are extracts from the writings of the ANC/SACP and we deal with them not because they were the only liberation movement, Mr Chairman, but because they were by far the most important and biggest liberation movement and Mr Chairman, we presented the evidence of witness after witness to you in order to show that their conduct, their act, omission or offence was associated with a political objective because of this background.
Now Mr Chairman, we have not received a judgement, a decision by any Amnesty Committee which tells us that the Amnesty Committee either agrees or disagrees with that evidence in which we again repeat from now onwards in my written argument and we would like to request this Committee, Mr Chairman, to seriously consider, thinking about giving a decision in this regard because, Mr Chairman, if one there's one thing that will save time in future, it will be such a decision. We say this is very important, Mr Chairman, we want to take you through it. I see it's three minutes to one. Perhaps if - that's if my watch is correct - perhaps before we start there, Mr Chairman, you want to take the adjournment?
MR VISSER IN ARGUMENT: (continues) May it please the Committee. Mr Chairman, before the luncheon adjournment I had just reached page 30 and Mr Chairman, by way of introduction, of course the important aspect of the - the important military aspect of the struggle of the past, of the conflicts of the past concern, as it has to, the policies, strategies and tactics of the fighting forces on all sides.
We deal first of all, Mr Chairman, with that of the ANC/SACP Alliance. Again, Mr Chairman, not because we single them out for any particular reason, but again because that alliance was the most important opponent of the security forces during the struggle and that is not to say that the PAC and AZAPO and others did not play an important role.
Mr Chairman, the position and perhaps this quotation shouldn't be here, it should be at page 54, but I read it because it is here. The situation as far as the security forces were concerned, Mr Chairman, was expressed by Mr Vlok at page 30 in paragraph 33 where he said:
"We did not start the war in South Africa, we just participated in it. It had to be said that the actions of the South African forces were in reaction to the attacks that were launched at the government by the revolutionaries."
Now having said that, Mr Chairman, I don't want to enter into a political argument as to whether or not Mr Vlok should have made provision in his statement to say 'or we may have precipitated it', that's not the point I'm trying to convey to you, the point is here that the security forces largely, particularly initially, acted in reaction. Later as you have heard in ...[intervention]
ADV DE JAGER: Is it really of any concern at present for coming to an amnesty conclusion, who started it, who entered at what stage? Mr Jansen made a submission this morning that we have no discretion to say this was should I say a better point of view or this one is the real guilty one, that one is not the guilty one or whatever or this is a fair war and the other one not? Once it's accepted that there was a struggle, a low intensity war whatever, a conflict of the past, does it matter who started it, who entered it?
MR VISSER: No, not at all, Mr Chairman and Commissioner de Jager is quite correct. I must have expressed myself poorly because what I'm dealing here with was that the security forces from a point of view of their acts, omissions and offences, whether those acts, omissions or offences were in fact associated with a political objective is based largely, Mr Chairman, I submit, on the fact that they acted reactionary. Later, I was just about to say Mr Chairman, later that changed. You've heard in amnesty applications that the word proactive was bandied about, that the security forces started acted pro-actively. So we're just making one point here, Mr Chairman, and really it's not all that important at this stage, I certainly don't want to go off too far afield, off the beaten track but as far as the political objective is concerned, regarding members of the security forces, you will often see, as we've heard in this particular hearings, Mr Chairman, that their reactions were not precipitable but were in reaction to, but be that as it may, Mr Chairman, can I go on with paragraph 34? Mr Chairman, I'm going to go through this very briefly. What we're saying here is by way of a synopsis, if you like, this is what the ANC/SACP policy was about, there was a declared objective, Mr Chairman. We say in paragraph 35
"That the alliance wished or wanted to overthrow the South African government by violent means through a people's war"
And having come back, I believe it was from Vietnam, Mr Chairman, they introduced the so called four pillars of the struggle, the four pillars of the struggle Mr Chairman which we have heard a lot about.
At page 31 we deal with the recruitment and military training of combatants Mr Chairman, the establishment and operation of safe houses, DLB's, arms smuggling, the mobilisation of the masses, armed action and attacks. All of those of necessity formed part of the attack, the method of the fighting of the war on the part of the liberation forces because that was the hand they were dealt, that it couldn't have been different, Mr Chairman. I'm not saying this by way of criticism, it's simply that was the hand they were dealt.
The people's war, Mr Chairman, was defined as a war in which the entire nation is engaged. But we know, Mr Chairman, it was largely and it was unfortunately so perhaps because of the policy of apartheid, it was really Blacks against Whites as we've heard Mr Mlambo has said:
"The entire nation is engaged, uMkhonto weSizwe, the people's army, workers, the rural masses, women, intellectuals, the religious community selectively in groups or as organised individuals who use all forms of revolutionary warfare, armed or non-combat, legal and illegal means to attack and destroy all symbols, structures and organs of the apartheid power including all those who manned them."
The ANC/SACP alliance strategies and tacts included rendering the country ungovernable, Mr Chairman, in pursuance of that objective we know murder, arson, intimidation, damage to property were the order of the day. Collaborators were identified as legitimate targets, Mr Chairman. The people, particularly black people, who supported the Homelands Policy of the previous government came in for particular attention. Black members of local councils and management boards suffered the same fate, Mr Chairman. In Black suburbs, no go areas were created where the police could not enter to do policing the night particularly, Mr Chairman. Rent and municipal and other boycotts were important tools in order to create an ungovernability, Mr Chairman. Black politicians were legitimate targets.
MR VISSER: Mr Chairman, I wouldn't be a bit surprised if they were, I certainly am not - I'm not aware of any evidence on record that was the position but I would have no difficulty agreeing with you if you told me that they were.
Now Mr Chairman, the members of the security forces I say at page 33 considered it and they were told in fact that it was their duty to fight against the ...[indistinct], actions, programmes and initiatives, Mr Chairman, which were aimed at achieving their stated objectives. The applicants mostly grew up in conservative environments and against this background and according to their beliefs and upbringing, that was imprinted upon their minds through the media and political rhetoric of the time, they were firmly convinced that those actions which were engaged in as policemen, were later correct, were correct, justifiable and in accordance with their duties and within their expressed or implied authority and Mr Chairman, we are fortunate at this stage that to some extent the original Amnesty Committee has now paved the way for a general acceptance, Mr Chairman, of this submission which I've made here.
My attorney tells me it's page 2, Mr Chairman. May I be allowed a moment just to find it? Yes, at page 2 Mr Chairman, it's not divided into paragraphs, it's one, two, three, four, five, six, seven, eight, nine, ten lines down, in the Cronje judgement or decision, Mr Chairman. It says, the Amnesty Committee says:
"It may shorten future proceedings if the evidence could be summarised in this decision and simply be referred to in future without the necessity of repeating it all at future hearings. Almost all policemen appearing before us joined the police force after the National Party became the government of South Africa in 1948 and implemented the apartheid policy. They were brought up under this doctrine which was supported by school and all Afrikaans churches. There was rarely any voice in the circles they moved in condemning the policy. On the contrary, the churches proclaimed the policy to be in accordance with the scriptures and even acted against preachers like the Reverend Beyers Naude who spoke out against it. As policemen they were indoctrinated to defend the policy and the Government of the day, even with their lives should it be necessary. The accepted the legally enforced environment as the accepted and acceptable social structure of the country."
So Mr Chairman, we then deal with target selection of the ANC MK and we deal with that simply from the angle of relevance to view the conduct of the security - in the light in which we say, Mr Chairman, the conduct of the members of the security forces should be considered, for example the London bomb. By way of argument, Mr Chairman, I submit that if it hadn't been for the target selection and the policies of the ANC, it may well have been that an attack on a building in London would have been so grossly out of proportion, Mr Chairman, that it couldn't be countenanced and that is, Mr Chairman, why this chapter which I've got in here is important in our submission and Mr Chairman, I'm not going to belabour it. At page 34 I'm just going to lift out some references. It is here, Mr Chairman.
I refer first of all to the fact of the evidence of Abubaker Ismail and his handing up of the ANC statements, Mr Chairman and as Exhibits A, A1 and A2, 2.1 and 2.2 and those documents now serve as exhibits before these Committees, Mr Chairman.
The target selection, we say, changed over the years. First of all it started with government and particularly economic targets. Later the target selection was extended to include members of the security forces as well as their families and possessions. Government stooges collaborated and informers, ...[indistinct] these structures and farmers.
Mr Chairman, we refer to Seshaba of January 1979 where it was quite blatantly stated how the ANC dealt with informers etcetera. I'm not going to read it, it's there for you to read. The statement of Chris Hani, Mr Chairman, and Joe Modise.
Those who refused to join the struggle also came in for the same treatment, Mr Chairman and we heard in the Cosatu House incident about those three unfortunate dissidents who did not wish to participate in the Railway Strike and what happened to them, referring to the judgements of the Appellate Division in which the facts were stated in a chilling fashion, Mr Chairman.
The distinction I say, at page 36 at the top, between hard and soft targets, there's a history connected to that, Mr Chairman. I previously referred you to the Kabwe Conference of 1985. At the Kabwe Conference in 1985 it was stated that - the Conference stated that the distinction was going to be eroded, was going to disappear. We know in fact that before then it had already started, we know that from Mr Abubaker Ismail who said that and from incidents that we know about, Mr Chairman. I refer to the extracts upon which we rely for the submissions which we made at page 36 and that is from the evidence of Mr Abubaker Ismail.
And we go over the page, Mr Chairman. We say that we know that although it was professed by the ANC and again at the Kabwe Conference it was restated that innocent people, civilians would not be targeted, we know that in fact this is what happened. We refer to the Wimpy Bar attacks at paragraph 59, the MacGoo's Bar attack, Amanzamtoti bomb, again the Church Street bomb and others, Mr Chairman and we can say, Mr Chairman, again we refer at page 38 to the issue of the supremacy of the politics over the military activity that we've referred to before. It also is relevant here, Mr Chairman.
We go on to page 39 where we say in paragraph 64 doubtlessly, Mr Chairman, that we must know that the question or the issue of civilian targets was discussed by the ANC in 1985 at the Kabwe Conference was because of attacks which had already at that time taken place and that is why we submit, Mr Chairman, it became a discussion point.
And then there were references to people caught in the crossfire and there was a reference to when there was a military target to be attacked that you could not be put off merely by the fact that soft targets would come in the way and that in terms of the new strategy was adopted, that was regarded as legitimate and perhaps, Mr Chairman, to some extent, again it's not really my affair, because I don't act for a person, for any applicant in that regard, but again that may be the situation in the case of young Katryn Schoon, that it was the same view which people on the other side took that there had to, of necessity, there had to be casualties of innocent people.
We refer, Mr Chairman, at page 40 to what Mr Oliver Tambo said and we refer to the record of the Armed Forces Hearing what Mr Mac Maharaj says, we have already given you some of the evidence of Mr Maharaj. He there explains what he under the decision of the Kabwe Conference, Mr Chairman, and the same goes for page 67. We repeat for your convenience, Mr Chairman, the statement by Mr Ismail that the changes already came about before Kabwe and that's at page 41 and it's quite clear that he was honest and correct with that evidence.
Now Mr Chairman, as far as this issue and I'm going to skip quite a number of pages, this issue of hard and soft targets are concerned. May I just add, Mr Chairman, I don't skip pages because we believe that they are unimportant, but it's merely to save time, Mr Chairman and they are there to read, we don't reject those pages.
At page 44, Mr Chairman, the ANC's statement stated that it was during the mid 1980's that certain attacks on targets with no apparent connection to the Apartheid State took place. In some cases these attacks were the result of the grey area which had been a result of anger and/or misunderstanding of ANC policy. The ANC took action to assert policy with regard to the avoidance of civilian targets which had in some cases become confused with the need to intensify the struggle at all costs and I might add, Mr Chairman, to take the struggle into the White areas. So that, Mr Chairman, in fairness to the ANC must be regarded as an explanation of why since 1988 there have been civilian targets targeted by members of the ANC and I place that before you in fairness to the ANC.
In 1987, Mr Chairman, this is late in the day but in 1987, this is also at page 44, it appears from the statement of the TRC - of the ANC to the TRC of August 1996 that MK commanders were instructed by Mr O R Tambo and the National Executive Committee to go to all forward areas and as far as possible also meet with units operating inside the country, to reassert ANC policy with regard to the avoidance of purely civilian targets. Failure to comply with these orders would be considered violations of policy and action would be taken against offenders. Mr Chairman, the quotations are there for you to read it you're interested.
After the Kabwe Conference at page 45 is really just a summary, Mr Chairman. Special Operations we have included, Mr Chairman, because the ANC has felt very strongly about the differentiation of the conduct and actions taken by MK members as opposed to the, what was called, the better organised conduct of special operatives under special operations.
Mr Chairman, very briefly, special operations were conducted out of Maputo, the head of special operations was the president, Mr O R Tambo himself, Mr Slovo and Rashied, Abubaker Ismail. Abubaker Ismail chose the targets and selected the operatives to execute the orders. They were, Mr Chairman, the special operations were - and this is not on paper, I'm just giving it to you as background, Mr Chairman, they were responsible for SASOL 1 and 2 attacks, they were responsible for the Church Street bomb, they were responsible for the Magistrate's Court bomb in Randfontein or Krugersdorp it was, Krugersdorp, Johannesburg bomb, the Drill Hall attack, Mr Chairman, of the South African Defence Force in Johannesburg and others. ...[inaudbile]
...[inaudible] As far as special operations are concerned, Mr Chairman, one would thus have expected that there would have been far more care exercised at choosing targets and yet at page 46, Mr Chairman, we hear in the evidence in chief of Mr Abubaker Ismail while his counsel, Mr Trengove S.C. leads him the following:
"Mr Ismail, you don't for a moment deny that it was appreciated all along that civilian casualties would be all but inevitable in this incident?"
Page 47 I give you more reference to being caught in the crossfire, in paragraph 72, Mr Chairman. At page 48 I have included for your interest because of the fact that from time to time a debate - there is a debate on whether an act which can be regarded as a terrorist act should be regarded as an act proportional to any objective that a person might have, a political objective that a person might legitimately have. I've given you the references, Mr Chairman. At the end of the day I think General Stadler summarises the matter.
MR VISSER: 48 deals with terrorism and callous attacks on unarmed civilians, Mr Chairman and I'm saying, we refer there for example to an article by a certain gentleman by the name of Jama at page 48 and what he has to say about terrorists, Mr Chairman, but I want to refer your attention to page 50 where General Stadler in the other side of the story makes it quite clear that according to Steven Sigala in his book, "Invincible Armies" that definition and I'm referring to paragraph 76 in the middle of that page, is the most acceptable one and the important part here, Mr Chairman, is that the threat or the use of violence for political purposes by individuals or groups wherein such actions are intended to shock or intimidate a target group wider than the immediate victims and why I mention this, Mr Chairman, is just for the record to make it quite clear that we certainly don't argue that if an act is a so called terrorist act, it means that there can never be amnesty obtained for it in terms of the legislation. Now so for as far as that may be relevant, now or later, we are now on record as having stated that.
Mr Chairman, if I then may turn at page 54 to the views and the attitudes as expressed in the policy, strategy and tactics of the South African Government and I say /National Party because Mr Chairman, however one may want to argue about this, there is no gainsaying the fact that since 1948, the Government was the Nationalist Party and the Nationalist Party was the Government and really, Mr Chairman, to draw today, to attempt to draw a distinction between the Government per sť as the State as something divorced from the National Party was really in complete control of that Government, Mr Chairman, we say is not a reasonable - there's not a reasonable inference to draw or explanation to give.
ADV DE JAGER: But Mr Visser, if you say they've acted on behalf of the Nationalist Party, would that - can that really be the position when they were aware of the fact, for instance going to London, that the State, the Government is paying for the air tickets? It's all public money being spent, it's not the Nationalist Party sending them over, it's not the Nationalist Party paying for their air fees. Could you then still say that you can't distinguish whether they were acting on behalf of the Government or acting on behalf of a party?
MR VISSER: Let's just think about this in practical terms, Mr Chairman, assuming you're one of those people and you're now told to go to London, who would be the government who is giving you the instruction? Would it be a member of the opposition party that has been able to do this? What are the probabilities here, Mr Chairman, with great respect?
CHAIRPERSON: Say it isn't doing their job as a policeman, but something for the Nationalist Party, they are paid through the police force, their passports are issued through the police force, the explosive comes from the police force, they are told by senior officers in the police force to go and do it. They come back and get recognition from the police force. Now how can you suddenly say oh, but that was done for the Nationalist Party?
MR VISSER: We say Mr Chairman ...[indistinct] quite clearly. What they did and one after the other of the applicants that you have heard have told you that what they did was to keep the Government - the Nationalist Party in the cushions of the Government and again here, Mr Chairman, we would submit with great respect that it would be shortsighted to think that these policemen didn't do what they did on behalf of the Nationalist Party/Government.
"The Committee is of the opinion after hearing all the evidence about the total onslaught, the word used to convey instructions or suggestions to counter it, the tacit condonation of certain illegal methods and the subsequent praise and decorations extended that the ordinary lower rank policeman bona fide believed that any act, even illegal ones, could be carried out if the purpose was to frustrate the revolution and to keep the Government in power."
CHAIRPERSON: Mr Visser, we have been told that some of these people are still in the police force. Should we make a finding that they have no loyalty to the Government, they only have a loyalty to the Nationalist Party, is that what you're telling us?
MR VISSER: I'm not saying that at all, I'm not even suggesting it, Mr Chairman, what I'm saying is that you heard evidence that at the time of the conflicts of the past that some of these officers said to you that what they did, they did to keep the Nationalist Party in the cushions, in the cushions of Government and I'm taking it no further than that, Mr Chairman, with respect.
The policy and strategy of the Government, Mr Chairman, was to seek out their opponents and their was a war rhetoric that evolved, Mr Chairman, phrases of revolutionary onslaught and terrorist and eliminate and we've heard enough about that. All of that was applied by the Government to counter the revolutionary onslaught. In fact, Mr Chairman, and we say at paragraph 84:
"Actions speak louder than words. The Government instituted, expanded and controlled a vast network of security structures in order to counter the revolutionary onslaught. Operational structures were created and developed where both overt and covert operations were considered, planned and launched."
"These operations included intelligence gathering as well as actions aimed at utilising the intelligence concerned. These type of operations sometimes comprised hot pursuit and/or cross border operations which were directed at foreign trained terrorists. Their fellow travellers, bases, underground structures, logistical support and material infrastructures as well as training and accommodation facilities. The operational structures, Mr Chairman, referred to were from time to time necessary utilised in the proactive fashion. In cases where structures concerned, their personnel agents, informers were faced with the gravest physical danger as a result of a leakage of information or the activities of traitors. These were often life and death situations of a very real nature and in order to protect both lives and property it was decided in some instances to strike first and get in the first body blow. Logical instruments, Mr Chairman, available to the Government to resist the onslaught were the Defence Force and the South African Police."
To a lesser extent National Intelligence, but Mr Chairman, I will confine myself to those and of those two, Mr Chairman, we now deal with the role and the prospectus of policemen during the struggle. We say Mr Chairman, the SADF did not really have a large role to play in opposing the struggle and we say, Mr Chairman, that this is so by the very definition of what a South African Defence - what a defence force is supposed to be, Mr Chairman, and that is a force in the defence, to be used in the defence of the sovereignty of a country and the protection of the integrity of it's borders.
"The SADF could consequently not be fully and effectively deployed within the country to act against it's own citizens. Soldiers had no authority to arrest, search, detain or to investigate offenders and offences. They had no training in court directed procedures."
Now, Mr Chairman, the brunt clearly of the offence of the Government against the revolutionary onslaught had to be borne by the security branch of the South African Police as borne out by the Aid Memoir which was handed in here, Mr Chairman, and we quote for you the relevant extract. In paragraph 91 and 92, I've just been informed by my attorney that the Police Act is not Act 8 of 1957 but indeed Act 8 of 1958 and - 7 of '58, I'm sorry, Mr Chairman. I've got the two figures swopped around it seems. 7 of '58 and we refer here to the issue of internal security, paragraph 92, at the evidence of General Coetzee in these hearings about that.
"In their efforts in complying with the obligation to maintain internal security, this brought the police fall square into the area of politics."
Mr Chairman, insofar as the conflict which we are talking about was a political conflict and we were at pains to try and point that out to you. A war of ideologies we say in paragraph 93, Mr Chairman.
Now policemen were wearing two hats as it were. On the one hand they had to maintain law and order and act in protection of society and it's property and on the other they found themselves in the position where they had to act against the very same society when it appeared that those members of the society may have been members of liberation movements or supporters of liberation movements and who were advancing the policies and strategies of the liberation movement.
"The paradox which arose was that the security branch policemen were expected to uphold the law and also successfully suppress the revolutionary onslaught in a war situation which led in some cases ..."
Mr Chairman, paragraph 96, we deal with a very important aspect of the mental make up of members of the security forces. You again heard Mr Taylor inter alia in these hearings giving evidence about that and that is the fact that many of the policemen were sent out across the borders to the Caprivi Strip, Southern Angola and to Zimbabwe to fight alongside other forces there. You heard Mr Taylor telling you that he was in Rhodesia and more than - I believe it was three tours of duty and Mr Chairman, General van der Merwe also alluded to this very fact as to how those experiences where policemen were literally expected to act as soldiers, where they participated in seek and destroy missions where there was no question of court directed procedures, how that would have effected their mental make up and you heard on more than one occasion and again in this hearing you heard from Mr Taylor how it effected him and some of his colleagues, Mr Chairman and of course the problem here was when you came back from "the bush" having been on seek and destroy missions for two years or so, you now had to adapt to normal society, you now had to face the same enemy, as it were, but this time you have to now deal with him in terms of procedures, in terms of what you are authorised to do and in terms of court directed actions and the adaption was not easy and some policemen never could make the adaption, we have heard, Mr Chairman. Now that summarises that, Mr Chairman.
He said "Yes." Well, legitimate is alright Mr Chairman, as long as it doesn't mean legal and that's a simple differentiation which I think my learned friend Mr Levine also wanted to tell you and that's the point. The point is they were simply targets, they were targets expected to be targets because of the situation and it takes it no further than that. The conduct, the act or offence or omission concerning that particular target which follows later, Mr Chairman, must be considered on it's own merits and the magical word of including legitimate into it doesn't make a legal ...[intervention]
MR VISSER: Yes precisely, Mr Chairman and I think where the confusion perhaps arose was from applications by members of the ANC for example Mr Abubaker Ismail because the basis of those applications were the following. They said this was the strategy and policy and target selection of the ANC. Whatever that was, was a legitimate target and "I was entitled to attack that target because in terms of my policy that was a legitimate target" thereby again not meaning to say that they didn't perform an illegal act or an offence but I think that perhaps Mr Chairman, with respect, is what caused some of the confusion but to make it absolutely clear, obviously the people who apply for amnesty before you are people who committed an act, omission or offence and nothing less than that, Mr Chairman.
Mr Chairman also the balance of these paragraphs under this heading really speak for themselves Mr Chairman, I'm not going to labour through all of them. We spoke about the war situation again and the position which the members found themselves on page 107, 108, 109, 110, it goes on, Mr Chairman, and then by paragraph 113 onwards we refer to another matter which is an important one in our ...[intervention]
MR VISSER: Well I try to do better now Mr Chairman. Paragraph 113 we speak of the pressures to which members of the security forces were subjected. Mr Chairman, you might remember how important that was stated to be by a number of high officers. One can just imagine that the lower ranking officers, the pressures must have been far greater if the generals were to come before you and to be believed when they told you that they were under pressure from the system, from the ministers, from everybody to "normalise the situation" and General van der Merwe actually says that in Exhibit P46, we refer to that in paragraph 114
"The South African Police were subjected to enormous pressure to try and stabilise the situation by, amongst other things, arresting and detaining activists who played a significant role in the unrest or charging them and bringing them before the court."
Vlok said that he considered himself guilty of exerting pressure by using language which could have created the impression that members of the police were expected to act illegally against the enemy. He said that he has no doubt that in certain circumstances during public speeches and interviews with the press and on television, such terms were probably understood to mean that the government was set upon finding and killing the opponents of the South African regime and this sentiment was echoed by Mr Taylor in these hearings.
It is understanding, according to General van der Merwe, that in this situation of the war, the pressures and all the other issues which we have tried to point out, Mr Chairman, the distinction between what was legal and what was illegal and what was expected and what was not expected, became a grey area for members of the security branch.
And he stated Mr Chairman, paragraph 116, that he understands how members of the police who were involved with this political war could well bona fide have considered that what they did, they did for the South African Government and that they did so because they believed that they were authorised to do so.
Paragraph - oh something has fallen out here, Mr Chairman. Paragraph 116, at the end thereof, could you scratch, strike out the words "as an" and perhaps just insert there "because they believed that they were authorised." I'm sorry, Mr Chairman. Because they believed that they were so authorised.
Mr Chairman, the last paragraph was 118 and that's the last word on this issue, to make the submission that supporters of the liberation movements who apply for amnesties before the Amnesty Committee, tell the Amnesty Committee that what they did, they did in the execution of what was the policy of the liberation movement for which they fought and which they supported and we say, Mr Chairman, that the situation of members of the security forces is no different, there is no difference.
Mr Chairman, we have finished with the historical background, tried to put some kind of perception or perspective on the war. We now go over Mr Chairman to how the politicians in this country have dealt with that issue which has brought us inter alia to where we are today. We deal with the statutory legal issues Mr Chairman. I first of all refer to the post-amble of the interim constitution and Mr Chairman, I would ask you to bear with me, to read it to you, because as I will point out as we go along. Everything really originates here. The post-amble stated:
"This constitution provides a historic bridge between the past of deeply divided society characterised by strife, conflict, untold suffering and injustice and a future founded on the recognition of human rights, democracy and peaceful co-existence and development opportunity for all South Africans, irrespective of colour, race, class, belief or sex. The pursuit of national unity, the well being of all South African citizens and peace require reconciliation between the people of South Africa and the reconstruction of society. The adoption of this constitution lays the secure foundation for the people of South Africa to transcend the divisions and strife of the past which generated gross violations of human rights. The transgression of humanitarian principles in violent conflicts and a legacy of hatred, fear, guilt and revenge. These can now be addressed on the basis that there is a need for understanding but not for vengeance, a need for reparation but not for retaliation, a need for Ubuntu but not for victimisation."
"In order to advance such reconciliation and reconstruction amnesty shall be granted in respect of acts, omissions or offences associated with political objectives and committed in the course of the conflicts of the past. To this end, parliament under this constitution shall adopt a law.."
"..determining a firm cut-off date which shall be a date after 8 October 1990 and before 6 December 1993 and providing for the mechanisms, criteria and procedures including tribunals, if any, through which such amnesty shall be dealt with at the time after the law has been passed.
"With this constitution, these commitments, we the people of South Africa open a new chapter in the history of our country."
And we say, Mr Chairman, that it is quite clear in our submission that it was the firm intention of the parties at the multi-party negotiation process and the parties who contributed to the writing of the interim constitution that a historic bridge was to be built, Mr Chairman, to traverse the deep divide which existed between and we have quoted that and we say, Mr Chairman, that the Amnesty Committee is perhaps the most important instrument to build that bridge because the question of amnesty is emphasised and emphasised again and again throughout the legislation which deal with the strife of the past and with National Unity and Reconciliation in the future.
Now, Mr Chairman, we again refer to the AZAPO case and I'm not going to read the quotation but it is so well expressed that it is worthwhile reading it over and over, the judgement by his Lordship Justice Mahomed in regard to the amnesty process.
Mr Chairman, I go over the page to page 68, speaks for itself and then, Mr Chairman, we come to page 69 in paragraph 3.1 and paragraph 4(c). Mr Chairman, I have listened this morning to my learned friend Mr Jansen when he submitted to you submissions in regard to whether the Amnesty Committee has a discretion or not. There is also some other considerations which are equally important and I now wish to attempt to address those.
The first point here, Mr Chairman, is what the legislature considered the functions of the Amnesty Committee or Amnesty Committees then should be and we say, Mr Chairman, that from Section 3.1 and 4(c) there's already an indication and that is this. 3.1 says, it refers to the objectives of the Commission and it says:
(i) The objectives of the Commission shall be to promote national unity and reconciliation in the spirit of understanding which transcends the conflicts and divisions of the past by (a) - we've left out (b) - facilitating the granting of amnesty to persons who make full disclosure of all relevant facts."
Full disclosure, Mr Chairman, is the one requirement of all relevant facts relating to acts associated with a political objective and to comply - one must just add during the course of the struggle of the past and you would have all the elements there. But the words, Mr Chairman, which we want to extenuate is facilitating the granting of amnesty.
"The functions of the Commission shall be to achieve it's objectives and to that end the Commission shall facilitate and promote the granting of amnesty in respect with acts associated with political objectives etc. etc. receiving from persons who make a full disclosure of all the relevant facts relating to such acts, applications, for the granting of amnesty in respect of such acts and" ...[intervention]
MR VISSER: Well, Mr Chairman, with respect we don't agree with that. This is our submission. Our submission is first of all that there's nothing in the Act that restricts facilitating to what has now been put to me. What is more is that there are clear indications that it means much more than just ...[intervention]
ADV DE JAGER: No, I agree with that but does it mean we should lean over to grant amnesty giving a more - I can't express myself clearly here but can it be said that we should be more lenient towards granting amnesty than having a balanced approach?
MR VISSER: Well Mr Chairman, I'm not saying that you shouldn't have a balanced approach but certainly that you should lean towards granting amnesty, there's no question about that. There's not question about it. Listen to the Afrikaans wording, Mr Chairman, of Section 4
"The functions of the Commission and it's objectives are to achieve such objectives and for this purpose the Commission, the granting of amnesty must be facilitated and promoted."
CHAIRPERSON: Isn't this that they must cooperate with the applicants, give the applicants all the advice and assistance they can and then they transmit their applications to the Committee who decide them? There is no suggestion that the Committee should facilitate and promote.
MR VISSER: Yes. Well Mr Chairman, my submission is precisely that. The Amnesty Committee should, in the words of the Concise Oxford Dictionary make it easy and in the actual words of the Act itself, to promote the granting of amnesty.
CHAIRPERSON: Commission and then pass on the application to the Amnesty Committee. There is a juristic person to be known as the Truth and Reconciliation Commission. The Amnesty Committee is not part of that Commission?
MR VISSER: Mr Chairman, I take your argument and I'm thinking as to why I should say it's wrong and I haven't found a reason to say it's wrong. It seems that your argument must be correct and that I'm taking it too far as Commissioner de Jager was at pains to try and point out to me earlier. "Commission shall facilitate." Mr Chairman, I don't want to waste your time, may I step off this point? If I have further submissions to make in this regard I'll make them later but if you would allow me to think about this for a moment? I believe that Mr de Jager may very well be correct and as supported by yourself, Mr Chairman.
I can then continue, we can then go over the page, page 71, Mr Chairman. I may just say by the by with reference to the AZAPO case, paragraph 137, that if our argument is correct that the persons and the class of persons whom we've referred to in paragraph - or rather in Section 3 and 4, the Amnesty Committee does not have a discretion, Mr Chairman, then the word "may" in the AZAPO case at page 685 of the report should have read "must" or "shall". That is in paragraph 20 of the AZAPO judgement, the Amnesty Committee, it now says may grant amnesty in respect of the relevant offence and the same, Mr Chairman, that in terms of the Act as the Amnesty Committee shall grant amnesty in respect of the relevant offence only if the perpetrator of a misdeed makes a full disclosure of all relevant facts, Mr Chairman and it is found that his act was an act associated with a political objective. Those are the two requirements, Mr Chairman.
"The result at all levels is a difficult, sensitive, perhaps even agonizing balancing act between the need for justice to victims of the past abuse and the need for reconciliation and rapid transition into a new future between encouragement to wrong doers to help in the discovery of the truth and the need for reparations for the victims of that truth between a correction of the old and a creation of the new."
Mr Chairman at page 73 we deal - well it starts at the bottom of 72, paragraph 138, we start dealing with the Act and the requirements of the Act and Section 21 it states that the Amnesty Committee must be satisfied that the application complies with the requirements of the Act and Mr Chairman, in paragraph 141 we, similar to my learned friend, Mr du Plessis, submit to you that that must refer to the formal requirements and nothing else.
Then Mr Chairman in sub-section 20, sub (i) the Act provides that the Committee must be satisfied that the act, omission or offence to which the application relates as an act associated with a political objective committed in the course of the conflicts of the past, in accordance with the provisions of sub-sections (ii) and (iii) and Mr Chairman, the act associated with a political objective as defined as an act or omission which constitute an offence or a delict which has to accord with the criteria stated in sub-section (iii). I leave aside the fact that the Act requires an offence to be an offence but be that as it may the scheme of what the
Act is saying is pretty clear, it says the act, omission or offence must be something for which you could be found guilty and sent to jail because otherwise there's no point in applying for amnesty, I think that's really the point, Mr Chairman and that act must be associated with a political objective and which was advised plan, directed, commanded, ordered or committed within the Republic or outside the Republic of South Africa during the stated period, Mr Chairman.
Now Mr Chairman, Mr de Jager, if I may turn to page 75, I submit that Mr de Jager was correct in characterising Section 22, Sub (ii) as the section dealing with classes of applicants because it can do nothing else but that and the clear wording of the sub-sections of Section 22 show that and the first issue, Mr Chairman, and we have discussed that issue a little earlier on. My learned friend Mr Jansen has referred to it in his heads and yourself and Mr de Jager has come out in opposition to my suggestion to you that the Government must be equated to the National Party and vice versa.
Now we deal with that, Mr Chairman, at page 75. I say again, Mr Chairman, that you may very well be right, it's an aspect which I haven't given - your propositions which you put to me, I haven't given sufficient consideration, I certainly undertake to do say and come back to you on that issue if needs be. What we do in the meantime in to leave this for your consideration to say in paragraph 161 that:
"It is submitted that both members and supporters of liberation movements as well as members of the security forces who acted in support of the Government, (The National Party) as supporters in their own right of the National Party and it's policies, fall within the provisions of sub-section 22(a)."
Now I know that I may be wrong with this and I repeat that, Mr Chairman. This submission finds support we say, Mr Chairman, in the wording of the sub-section which speaks of members of supporters of a political movement against the State, former State or another political organisation ...[intervention].
ADV DE JAGER: If that's the position, isn't that the answer? If it forms members of a political organisation acting against the State. Now you'll have the members of the Nationalist Party acting as the State against the State, against themselves?
ADV DE JAGER: Yes certainly it's possible, Mr Chairman, we know it didn't happen, we know that the organisations that they spoke about here were the liberation movements who acted against the State, we know that but the point here is this, Mr Chairman, perhaps in answer to Mr de Jager's question. What is a clear indication that members of the security forces and other employees of the State who acted against the - must fall under 22(a) is the fact that 22(a) specifies acts against liberation movements and who else acted against the liberation movements? We know it's the security forces.
MR VISSER: That is so Mr Chairman, that is so, that is why we submit, any person who convinces you that he act qua-security force members, qua-employee of the State, qua-simple supporter or member of the National Party against the liberation movement should fall under 22(a) and that's our submission.
CHAIRPERSON: That is if he thinks he is acting for the Nationalist Party? I'm prepared to doubt, Mr Visser, that had you asked any of these policemen when they were doing something at the time they'd have said "Oh, I 'm doing it for the Nationalist Party". They would have said I am doing it for the Government.
We say, Mr Chairman, in 163 that from what has been stated here in that it is apparent that the supporters of the ANC/SACP Alliance were from the viewpoint of the South African Government instrumental in the advancing, aiding and abetting the revolution and it was the policy of the Government to resist that revolution so it was directed at the liberation movements as Section 22(a) says. The policy to resist that revolution was enforced by the National Party which was the publicly known political organisation of which the applicant was a supporter. Mr Chairman there is a grant for arguing that, with respect. It is consequently submitted that all acts, omissions or offences perpetrated by the applicants now that's the one that you disagree with me so far, Mr Chairman, I leave that in your discretion to decide about and I mean discretion, Mr Chairman, because that's one of the issues, I'll tell you just now that you have a discretion on, is to decide on evidence etcetera, obviously you have such a discretion.
Mr Chairman, applicants in terms of Section 22(b) you've heard a lot of it, I'm going to rehash what my learned friend Mr Du Plessis and others have told you except that at page 78 I want to address to you, Mr Chairman, something which has been touched upon and that is the inherent paradox contained in sub-section 22(b). My learned friend Mr Jansen has referred you to it this morning.
We are saying, Mr Chairman, that Section 20 sub (ii) sub (b) in itself contains a paradox. The notion of acting within the course and scope of your duties and within the boundaries of your authority conflicts head on with the notion of committing an act or omission which is also an offence or a delict. Simply put, no statutory provisions provided authority for any member of a security force or employee of the State to have acted unlawfully.
Now this has created a lot of difficulty to a number of members of Amnesty Committees. We can recall on more than one occasion, Mr Chairman, as I'm sure you will, that a member of a Committee would put to a witness "but what Act authorised you to go and murder somebody?" It is an inherent paradox and as my learned friend, Mr Jansen, has submitted and suggested to you, I agree Mr Chairman, one must find a viable, a modus vivendi of interpretation of this Act and what we are going to suggest is the only suggestion we can make and that is, Mr Chairman, in the next paragraph. The answer to the paragraph may lie - to the paradox may lie in the distinction between the legal considerations applicable to vicarious liability in civil law as opposed to the situation envisaged in the TRC Act. It is submitted that the phrase "in the course and scope of his or her duties and within the scope of his or her express or implied authority" mean no more than to indicate that a member of the security forces or an employee of the State has locus standi to apply for amnesty for that which was done by him while he was actually acting physically as such. In other words, he wasn't at home going off on a frolic of his own, he was at the time acting as a policeman or an employee of the State. We submit it means no more than that.
And then secondly, Mr Chairman, more particularly, we say in 171 this would apply to all acts, omissions and offences which were related to his duty as a policeman and that that is the authority which 22(b) speaks about and the Afrikaans actually makes it quite clear:
Mr Chairman, it's just been pointed out to me, one can argue that the Committee, the Amnesty Committee has already accepted that principle. You will recall that you yourself whilst in the amnesty application of General Gerhard Erasmus and his evidence was that he and he alone, after discussions with Nic van Rensburg and Du Plessis gave an order for Mr Kondile to be eliminated. He told you that nobody else from higher up gave him an order or authorised it, he took it upon himself and that is what happened. Now the argument must be, Mr Chairman, that you've accepted, you've accepted that in terms of 22(b) he must have been entitled to consider that he was "authorised" or "acting as a policeman" by giving him the amnesty, which you did and we submit, Mr Chairman, it must be the correct view to take.
Now 22(f) Mr Chairman, you've heard a lot of them, not hard principles, you've heard what my learned friend Mr du Plessis has told you, we agree in principle with what he has stated, we state basically the same thing perhaps using different words, Mr Chairman but the point of the fact is that what 22(f) pre-supposes is that the act, omission or offence is actually not an act, omission or offence committed in the duties or within the authority as expressed by (b) but where there's a bona fide belief that it was and thereby Section 22(f) creates a transformation of something which does not appear to be the position, to become the position Mr Chairman, I can't think of a better way to put it. It makes a reality -no, the other way around, it takes a reality of something which is not so and says that if you bona fide believe it is so, we will accept that it is and as you pointed out it probably was your consideration in the case of General Erasmus.
Mr Chairman, the paragraphs 178, 179, you can strike out 180, Mr Chairman, I don't quite understand what I tried to say there. Paragraph 181, 182 might be interesting from an academic point of view but is really not terribly germane to your enquiries at the present moment and with respect, Mr Chairman, I think you can ignore from 177 up to - I'm sorry not 177, 178 up to paragraph 183.
We simply say Mr Chairman, paragraph 183, the submission I've just made, Section 22(f) is based upon the supposition that the person was an objective fact not acting in the course and scope of his or her duties and within the scope of his or her express or implied authority. It was clearly the intention of the lawmaker to cater for that person who bona fide believed that he was so acting to obtain amnesty.
"If the orders or not so manifestly illegal that the soldier must or ought to have known them to be so and if the soldier honestly believes that he is doing his duty in obeying them."
That again touches on the issue of legitimate target and legitimacy of the action, Mr Chairman and we've already made our submission to you about that. Mr Justice van Dyk Horst actually sums it up in the words, quite adequately in the words, had legitimacy been the test, the guidelines would have stayed at that explicitly.
Mr Chairman, a very important aspect in our submission you will find at page 84 under the heading "Other Statutory Progressions". Now sub-section (iv) of Section 20 of the Act, of the TRC Act, provides:
Now Section 28 of the TRC Act repeals the following three Acts, Mr Chairman: The Indemnity Act 1990, The Indemnity Amendment Act of 1992 and The Further Indemnity Act of 1992" you'll find them at page 85, tabulated there, Mr Chairman, under paragraph 192.
I have quoted certain extracts from those Acts for your benefit, Mr Chairman in order to show that the wording of those Acts allowed of at least as lenient an approach to the granting of amnesty or indemnity as it was there as does the present TRC Act. But in fact, Mr Chairman, it is our submission that those Acts had more stringent requirements, more notably for example as far as the political object was concerned because it stated, Mr Chairman, the Indemnity Act 35/1990, I refer to it on page 193, I leave out words, paragraph 193 and I say the last paragraph in that little paragraph of a quotation:
"for the sake of reconciliation and for the finding of peaceful solutions, it has now become necessary from time to time to grant temporary immunity or permanent indemnity against arrest, prosecution, detention and legal processes to such persons."
"Act with a political object means any act or omission which has been advised, directed, commanded, ordered or performed with a view to the achievement of a political object or for the promotion or combating of an object" etc. etc.
MR VISSER: It's the same as saying that an offence must also be an offence. This is the kind of legislation we're dealing with here, Mr Chairman, but if you look past that the point that is made here, Mr Chairman, is that it is not simply an act associated objectively with a political objective, a person who wants to be an applicant in terms of this act, as to go further, he's got to say "I had that object" should read "objective" but I take your point, yes. I take your point, Mr Chairman.
So for the rest, Mr Chairman, page 86, 87 and 88 I've given you the quotations perhaps in order if you really wanted to look at it, to save you the time of going to find it, Mr Chairman, I would like to draw your attention from paragraph 196 onwards now, Mr Chairman, at page 88. It says:
"In terms of the 1990 Indemnity Act and the 1992 Further Indemnity Act a large number of persons received either permanent indemnity or temporary immunity."
Now Mr Chairman, what follows now is hearsay, this is what we've been informed, is what we've been told. We don't know whether it's so or not and if it is, if this is wrong you must tell me so. We have a problem though because we don't have access to this document which we referred to as the Indemnity List and what we are informed, Mr Chairman, is that the Amnesty Committee is in possession of a full list of persons who received pardons, indemnities or immunities in terms of those previous acts. This list is divided into four parts we're also told Mr Chairman and is dated 17 May 1996. The document originated from the Office for Indemnity, Immunity and Pardon of the Department of Justice. This document we say, we refer to for the sake of brevity as the Indemnity List and reference is going to be made, Mr Chairman, and that's why we mention this to some of the examples showing for what offences indemnity or immunity or pardons have been granted. Now Mr Chairman, I don't know whether you've had sight of this list, we haven't, we have been told about it, we've been ...[intervention]
MR VISSER: Our problem is that access to the document has been denied to us in the sense that we are not allowed to copy the document or to distribute any part of it, Mr Chairman. We have been given from this office of Indemnity, Immunity and Pardon specific authority to tell you what we tell you at page - giving you some examples, Mr Chairman, at page 97 in paragraph 205 and nothing more.
Well, Mr Chairman, apparently unknown to me, it seems to me that we now might have authority in fact to give you that document, I wasn't aware of that. My attorney just tells me that there have been discussions with a certain Mr Piet Kleynhans from this office and he is the person who told my attorney that he has given you that document and apparently there will not be a problem if we made the document available. I wasn't aware of that.
MR VISSER: I certainly haven't either, I don't know whether we have it now, Mr Chairman. What I have is what you find at page 205 and that's all I'm interested in, I want to take it no further than that.
Now it would seem to me, Mr Chairman, with respect, that what you find at page 89 doesn't seem to fit in here and I'm trying to work out how that - because this deals with a discretion, Mr Chairman, the words "may grant". Let me read it to you:
"The provisions of the Indemnity Act 35 of 1990 were considered by Van Dyk Horst Jay versus State President. Van Dyk Horst Jay held that the State President was in terms of the Indemnity Act 35 of 1990 endowed with the discretion as to whether to allow indemnity or to refuse it."
"The exercise by the State President of that discretion could only be attacked on review, said Justice Van Dyk Horst, on the normal grounds of review, he did not apply his mind, he did not act bona fide or did not act within the confides of the powers conferred upon him, he acted ultra vires, in other words."
Now Mr Chairman, the exercise of the State President's discretion could not be fettered or curtailed by guidelines, perhaps if you will strike out the word either, Mr Chairman, published in the Government Gazette, those were the guidelines, Mr Chairman, which featured in the Rapollo Case R2625 of 7 November 1990 and Justice van Dyk Horst stated that his, that is the State President's powers, are determined by statute and could not be limited except by the legislature and that is at page 693 to 694 of the judgement.
"Accordingly, it could not be accepted that once an applicant's actions fell within the guidelines, the State President had no discretion to refuse to grant indemnity or immunity."
Now that is Rapollo's case, 694. In other words, what Justice Van Dyk Horst said it doesn't matter whether he complied with the guidelines as set out in the Government Gazette, it didn't fetter the State President's discretion.
MR VISSER: Oh I see, I see, well I haven't got a typist to blame, perhaps I can blame my computer which I don't understand anyway, Mr Chairman. This is an automatic paragraph numbering and frankly it's totally out of my control, I'm sorry about that. If you hadn't mentioned it I wouldn't have noticed it. Thank you for mentioning that. Mr Chairman, it's one of those weird and wonderful modern things where you tell the computer to number the paragraphs automatically and this is what it does. Thank you Mr Sibanyoni.
MR VISSER: Mr Chairman, all that I can say in my own defence it was very late at night on Saturday when this happened. I do apologise for the shoddiness of these things, I really apologise to my learned friends as well about this.
MR BIZOS: May I suggest a solution if I've understood the problem? That we change 204, 205 right up to 209 as 188.8.131.52.4.5 and then it will be in place, Mr Chairman. Have I understood the position correctly?
MR VISSER: Yes that's a good idea, Mr Chairman, because you can't do it to the second because that runs through presumably to the end of the document so the first 194 etc. will be 194.1 to 195.1 and 196.1 until we come to where the duplication is, yes.
MR VISSER: It really doesn't matter, Mr Chairman, it's at 194 at page 90. 194 at page 90. The last point is of particular relevance to the exercise of the powers, duties and functions we say, Mr Chairman, of the Amnesty Committee. We submit that such relevance appears from the following.
The Indemnity Act 35 of 1990, the so called guidelines were published in the Government Notice by the State President in terms of the authority granted to him by Section 3 of the Act which we've quoted to you earlier. Parliament, we say, with full knowledge of that state of affairs at the time including the interpretations of Van Dyk Horst Jay, promulgated the TRC Act in which the guidelines were incorporated into the strategy itself, sub-section 3, giving the guidelines the status of legislation, Mr Chairman, legislative effect and that brings us to discretions at page 90. Perhaps, Mr Chairman, if you will strike out the words "in addition" in that paragraph. It should start:
"Parliament chose not to grant the Amnesty Committee any discretion in the matter of applications for amnesty" and I say "apart from the interpretations mentioned above relating to a possible discretion, to apply certain criteria to the acts of a particular application in order to determine whether an act, omission or offence can be said to have been associated with a political objective."
The issue of "shall", Mr Chairman, applies after you've gone through the process of discovering whether or not it is an act associated with a political objective. Once you've decided in the exercise of your discretion, whether that discretion is an objective or a subjective one is not now relevant. Once you've decided that, then you don't have a discretion but to grant amnesty. That's my submission.
"The submission regarding the absence of a discretion is supported by the plain meaning of the words 'of the TRC Act in Section 20 which provides that if the Amnesty Committee is satisfied that the application complies with the requirements of the Act, that the act, omission or offence to which the application relates is an act associated with a political objective.."
"..committed in the course of the conflicts of the past in accordance with the provisions of sub-sections 2 and 3 and that the applicant has made a full disclosure, it shall grant amnesty."
Now you may ask me, Mr Chairman, is it not exercising a discretion to determine whether a man has made a full disclosure? We say, Mr Chairman and there's authority for the proposition that there is a difference between establishing facts, the existence or the absence of facts and the exercise of a discretion. Clearly, sometimes, the exercise of a discretion can play a role in the establishment of facts but normally they're separate, those two issues are separate and what we're saying, Mr Chairman, is that establishing whether a man has made full disclosure is a matter of approach in which evidentially rules apply and not discretions, by and large and I'm not going to talk about far fetched exceptions, I'm talking about the rule.
So, Mr Chairman, if you're with me with that in that regard it means this in plain English. Once you are satisfied that the formal rules have been complied with, that the act, omission or - that there is an act, omission or offence, I should have added. Secondly, that that act, omission or offence is associated with a political objective committed during the conflicts of the past in accordance with provisions of sub-sections 2 and 3 and the applicant has made a full disclosure, Mr Chairman, you have no discretion. That's a simple, plain, straightforward word of the Act and we say, Mr Chairman, it makes sense because that is exactly what the preamble - the post-amble of the interim constitution says in precisely those words, the Amnesty Committee shall grant amnesty etc. etc. So the TRC Act is simply an extension of the intention expressed in the interim constitution.
And we say then, Mr Chairman, in paragraph 197 at page 91, the plain meaning of the words of Section 20 is that once the prerequisites mentioned have been met, the Amnesty Committee does not possess of any discretion to refuse amnesty and perhaps, Mr Chairman, if I may I ask you, I see there are words "for whatever reason". I don't want to embark on academic arguments as to whether there might be, would you just strike out those words? It's not necessary for purposes of my argument.
Mr Chairman, if one is a historian, one could become very interested in dealing with Section 48 and the question of sub-section 3, the criteria applied in sub-section 3 because it has reference of course to the Groote Schuur Minute which again in turn has reference to the Pretoria Minute. There are various steps, if I may call it that, along the path of democracy in this country which are relevant really but not particularly relevant pertaining to the present applications and Mr Chairman, perhaps more from a historian's point of view, they may be of interest but certainly at this state it is not necessary for me to belabour those points and to refer you to every single bit of authority which may be relevant hereto.
Mr Chairman in paragraph 201, page 92, I mention this because I believe my learned friend, Mr du Plessis, might have made mention of this, to state our agreement that it has been stated in the Groote Schuur Minute that there is no generally accepted definition of political offence or political prisoner in international law but that it was generally accepted that the principles develop in the field of extraditional law are relevant in distinguishing between political offences and common crimes. The only point about this, Mr Chairman, is that argument has been advanced to you, I don't want to rehash it, but certainly it seems that argument is correct regarding the tests to be applied in regard to political offences.
It is submitted that certain similarities in the criteria stated as guidelines for the Indemnity Committee in the Indemnity Act 35 of 1990 correspond with the criteria stated in sub-section 2, sub-section 3. In fact, Mr Chairman, they're pretty much the same, there's very little difference and I refer again to Rapollo's case, Mr Chairman, where this had been dissected and investigated and at page 93 and 94, Mr Chairman, we give you the benefit of a quotation from over the page to 95 to 96 of Justice Van Dyk Horst. It is important, Mr Chairman, it will take too long for me to read it to you, it speaks for itself and it is in fact in our submission in line with the arguments presented to you by my learned friend Mr du Plessis and in support thereof.
Mr Chairman, very briefly, would you indulge me in referring you at page 97 to this Indemnity List and just to invite you, Mr Chairman, to read this at your own good time. I will just lift some of them out for your attention. For example in paragraph 205 at page 97 there's a person, Chalker Indemnity List 5 who received indemnity for killing of people believed to be witches and arson. There's a Mr Gumede, M A Gumede, murder of ...[intervention]
MR BIZOS: Mr Chairman, I'm sorry to interrupt but the way I have understood the ruling that we should not make references to other matters or cases. This is even one step further removed. We are given a list of cases from what some inference is going to be drawn. I am assuming that none of the Members of the Committee were on the one of the three eminent judges that formed the sub-committee to give wise advice to the President. I certainly know nothing about it, Mr Chairman and on what basis those decisions were made. There were decisions which were not made on a judicial capacity but executive discretion, Mr Chairman, so I do not know, with the greatest respect on what basis this has been offered to you or what purpose it's relevance, it's admissibility or what assistance it may be to you?
CHAIRPERSON: As I understand it and I'd rather with you, Mr Bizos, that the purpose of this is to show the criteria that we used which we have to apply our mind to. The criteria that we used, those persons applying the Indemnity Act and in terms of our Act we shall follow that criteria.
CHAIRPERSON: As I understand it, we're just been given these names on the basis that we should then go and dig them up and find out what the criteria were. I hope we're going to be told what they are because I don't know where we'll ever find these. You see I gather they are still all in Pretoria.
MR BIZOS: I am submitting that not only are you not expected to go and do that, not are we not expected to do that, but that it would be improper to do that, to go to and administrative executive procedure, to look for guidance as to how it was applied in a situation where a judicial procedure has been adopted in the Act in which you are applying isn't proper but I don't want to ...[intervention]
MR BIZOS: Yes, Mr Chairman, we will deal with it in our argument that those criteria were not statutory criteria. They do have substantial similarity but what you are being asked to do is that you have been given a list of how those criteria have apparently been applied. Now you don't know the facts, no hearing was - one of the points that emerges from Rapollo's case that there was no adi ulterim parti, it looks on the face of it that some of them were a quid pro quo, I'll give you McBride if you give me Strydom type of thing. Is that what you're going to look at Mr Chairman and is that how you're being called upon to make a decision in this case?
CHAIRPERSON: No, I think what we're being referred to these, Mr Bizos, to support the argument contained at page 100 and paragraph 206 in continuing. It should be easier to obtain amnesty from the indemnity and we look at the indemnity and say well those people should get amnesty, everybody should. That I think is the argument, Mr Bizos.
MR VISSER: Thank you, Mr Chairman. Just in answer to my learned friend, you have stated our position quite correctly. Second, Mr Chairman, there's nothing improper in laying documents before you which as far as we're concerned is nothing other than an official document and thirdly, Mr Chairman, these names have been published, this information has been published because it had to, in terms of the Act, in the Government Gazette or a notice of a Government Gazette, so with all due respect there's no reason in the world why anybody couldn't refer to them, Mr Chairman and it is precisely what the Act enjoins you to do, it says you shall have regard to the criteria as applied in other Acts. That's what we're talking about, Mr Chairman, so with respect, my learned friend, I heard his argument but it is not well founded, Mr Chairman. You can look through this list, Mr Chairman, this is only an extract, there are names and lists and lists of names, Mr Chairman but murder of suspected murderer, murder, robbery and arson, person believed to be witches, escape from custody ...[intervention]
ADV DE JAGER: Mr Visser, the trouble is indemnity granted for arson, so I must presume it was political arson but I don't know the facts. It might have been if I've heard the facts I could have differed from members of that committee. In the end I've got to decide on the facts before me and I can't take as an example or can't help me actually in deciding on the facts before me to be referred to other results where I didn't have the facts?
MR VISSER: I hear what you say, Mr Chairman, the question is now what do we do with Section 20, sub-section 4? It tells you to have regard to how the criteria of those Acts have been applied. How do you do that because we don't have those facts?
"In applying the criteria contemplated in sub-section 3 the Committee shall take into account the criteria applied."
Yes, yes. Not how it was applied, the criteria applied, yes okay. " In the Acts repealed by Section 48." I take your point. If you don't know what the facts are you really can't adjudicate upon the result, Mr Chairman, but what we are submitting is that there are certain clear indications. If you read through the short summaries that makes it quite clear that it was pretty easy to obtain indemnity, pardon, etcetera, Mr Chairman and all what we're saying is that Act says you mustn't make it more difficult for applicants who appeared before you.
MR VISSER: We say in paragraph 206 at page 100, Mr Chairman, that it appears that indemnity, immunity and pardon in terms of the previous indemnity legislation was obtained with relative ease. Certainly the requirements that the act had to be performed with a political objective escaped serious scrutiny. This was done probably because it was considered necessary for the promotion of peaceful constitutional resolutions in South Africa, there were 1990 Indemnity Act and in order to promote reconciliation with peaceful solution in the Further Indemnity Act of 1992. We submit, Mr Chairman, that the reference to sub-section 24 of the TRC Act, to those repealed Acts implies that the criteria for amnesty in terms of the TRC Act should not be more difficult than those which were required by those Acts because otherwise what's the point in referring on to it?
CHAIRPERSON: This merely sets out the facts. Presumably the Committee or the person deciding it had carefully considered whether the act was performed for the political objective. How can you say the requirement escaped serious scrutiny. There's nothing to indicate that. What we have here is merely a list, a very abbreviated list of the act committed?
MR VISSER: Yes, well Mr Chairman, you know what you put to me, Mr Chairman, I must just make the last submission to say that it's difficult to see how killing a person because you thought he was a witch could ever have a political motive in terms of those Acts but I leave it there, Mr Chairman. I leave it there, we've made that point.
Mr Chairman, my learned friend, Mr Jansen, may have been someone else spoke to you about onus of proof - no, I'm sorry, Mr du Plessis submitted to you that there is an onus of truth and it's an onus of truth, the normal civil onus of balance of probabilities. Mr Chairman, we want to submit to the Committee that there is no such onus, where the Act enjoins you to enquire in order to become satisfied. We say, Mr Chairman, that this is an important point because it is important to apply equal standard in regard to all amnesty applications.
We refer first of all, Mr Chairman, in that regard for that principles to Sekretaris vs Binnelandse Inkomste vs Lourens which sets out the ideal of equal standard being applicable, Mr Chairman, in administrative proceedings.
In Section 20 of the Act, says if the Amnesty Committee is satisfied and the question which arises, Mr Chairman, is whether that provision was meant to cast an onus of proof upon an applicant for amnesty before you and we say, Mr Chairman, if it does, one must enquire as to what that onus should be. We say at page 102, Mr Chairman, with respect, that in our submission no onus can be inferred from the provisions of the TRC Act nor was any intended. It is submitted that the wording of the provision excludes the requirement of an onus, the requirement is that the Committee must be satisfied not that the applicants for amnesty must satisfy the Committee and I will refer you to authority in a moment. In plain words, Mr Chairman, if the legislature wanted the applicant to satisfy you it would have said so and it didn't.
ADV DE JAGER: Isn't it the same sort of test, isn't it the same sort of test, isn't it that's been applied in bail applications? You should be satisfied that it would be in the interest of justice or it would be against the interest of justice to grant bail? There was a string of cases about onuses in bail applications after the - well in recent years.
MR VISSER: Yes. Mr Chairman, may I read to you what some of the authorities say in that regard? First is Botha, Botha's case is 102 where Lordship Justice van der Heever said this or maybe Mrs Leah van Heever, Justice Leah van Heever. Leah van Heever.
"If the legislature had intended in Section 103(i) to place an onus on an accused where none had existed before under the common law, one would have expected it to express such intention in clear and unambiguous language. This is not being done. While situations 2, 3 and 4 require that the court be satisfied with regard to matters referred to in Section 1131, is silent on who, if anyone, is to satisfy the court and what the standards of satisfaction is required. It does not specifically place any onus on an accused."
"The aforegoing considerations lead inexorably to the conclusion that Section 1131 does not burden an accused with an onus and that the phrase is satisfied, cannot be taken to mean if proved by the accused to the satisfaction of the court. In my view all four situations and this is in Section 1131 are premised on reasonable doubt.
MR BIZOS: That is correct. It's a procedural matter and that it's a procedural matter, in fact that the whole judgement does deal with the situation. In the moves of court you can have a condonation if you satisfy the court, not that you prove on a matter or on a - beyond - you merely have to satisfy the court that is ...[indistinct]
MR VISSER: Yes, well Mr Chairman, may I try to conclude this part of the argument? At page 104 I refer you to David Morton Transport case which deals with the question of onus of proof before the local Road Tranportation Board and the National Transport Commission. I continue dealing with satisfied "oortuig", Mr Chairman I refer you in particular at page 105 to State vs Makola, running over the page, Mr Chairman and I want to conclude by saying simply this. Whether or not, whether or not an applicant before you is held to bear an onus, really Mr Chairman, doesn't matter to us all that much. We have put this before you because it occurred to us that there might be an argument along these lines that might be correct. At the end of the day you will have to be satisfied on such proof as will entitle you to act in a particular way as the act prescribes that you should act. Whether you want to call that proof beyond a reasonable doubt, proof on a balance of probabilities, just being satisfied with something less than proof on a balance of probabilities, with great respect, Mr Chairman. The thing to do is to remember that you must do what the Act enjoins you to do and we submit that just being satisfied is something less, perhaps substantially less even than a proof on a balance of probabilities. Being satisfied, Mr Chairman and let me read it to you. Makola says this. Judgement by Lichtenstein acting and Strydom J at 769, it's at page 105
"It is clear I think that the concept "oortuig to wees", to be convinced, of necessity includes the concept "ontevrede te wees", to be satisfied, but the converse is not true. For a person who is merely "tevrede", satisfied, about a certain fact need certainly not also to be "oortuig", convinced, about it. This applies with even greater force to a satisfaction in contra-distinction to conviction"
the sign text which uses the word "oortuig" amounts quite apart from being the only legally permissable way of interpreting the forcept "verskil" between the word "satisfied" and "oortuig" by virtue of Section 65 of Act 32 of 1961 also to the application of the proper cannon of construction and it has the effect of restricting as opposed to wider interpretation. I respectfully agree with the presiding judicial officer" etcetera, etcetera.
"The very use of the word expression satisfies signifies an absence, we say Mr Chairman, of an onus of proof"
And we refer you to Nessius case where again Lichtenstein and Strydom J J said satisfy does not mean prove. I take satisfy to mean therefore that the court must feel that there is a fair probability that, a fair probability that the accused is a person who habitually commits offences and that the community at large should be protected against him, etcetera, etcetera. A fair probability that, is not in my submission the same as proof on a balance of probability, Mr Chairman.
MR VISSER: That a certain set of circumstances either exist or don't exist. A witness goes into the witness box before you, Mr Chairman, and he says I was a member of the security forces on such and such a day. I did this, I did it as a result of an order handed down to me, I went and I blew up a building in London and I came back. With respect, the question here is simply this. Is there an onus on him to prove that on a balance of probability or does the Act say the Amnesty Committee must be satisfied that this is in fact what happened, doesn't matter for example whether the applicant himself goes into the witness box, for example that's one of the things that this Act doesn't require, is for an applicant to go into the witness box himself, for example. He can give that evidence, he can place that evidence before you in a hearing by virtue of vive voce evidence of somebody else as long as at the end of the day the Committee is satisfied, Mr Chairman, with respect. Normally and of course that is so, it will always be so, normally with the trained legal minds that we are all in this room we will think in terms of a balance of probabilities, naturally, Mr Chairman, I'm not trying to argue that away. Not at all but Mr Chairman, these are the issues which do appear to arise from a reading of the Act and we felt that it is our obligation to place them before you. At the end of the day we are quite happy, Mr Chairman, as I already said to you in Gore and Motsomai's case, if you apply a standard of proof of balance of probabilities there can be no problem about it. Others of my colleagues might disagree with me but certainly, Mr Chairman, that is the standard which would probably be the correct standard to apply.
Mr Chairman, we deal at page 110 with the formal application. We have mentioned this before to you, this is just a repetition of that argument with reference to M G Holmes' cases, this is National Transport Commission, which makes it quite clear and we give an extract of that report at page 113, Mr Chairman, which makes it quite clear that the application is that situation where the applicant goes into the witness box or his application is moved in a court of law before a judicial enquiry or whatever the case may be and not before that. The piece of paper, Form 1, is not the application in that sense, Mr Chairman and that is Judge Price's judgement in M G Holmes' case. No that it's relevant here in particular, Mr Chairman, with respect, it didn't come up here but there have been matters in which and extraordinary importance had been placed on the wording and the application form itself and as to what was stated there and what wasn't stated there but fortunately we have not been subjected to that kind of cross-examination in this particular hearing.
Mr Chairman, we refer to some of the decisions as did my learned friends of the Amnesty Committee. Certainly we agree with the general approach of the Amnesty Committee thus far in those decisions which we've received. It appears to us, Mr Chairman, with respect, if we may be allowed to say so that the Amnesty Committee has shown itself to have an open mind on the issue and to understand and have a very clear comprehension of what the Act expects of it to do and with respect Mr Chairman, we express the hope that the applications in future will be dealt with on similar bases.
CHAIRPERSON: We had agreed I think you will remember that last week I think Mr Levine told us that he had certain appointments for consultations after, depending on his having left here at four o'clock so if you don't think you can finish in the next 5 minutes rather than go onto something new, we'll take the adjournment now. Half past nine tomorrow morning suit you gentlemen? Earlier or half past nine?