TRC Final Report

Volume 6

Section 1

Chapter 4

Subsection 7

The decision of the court

74. The full bench of the High Court decided that the questions to be decided were whether there was any merit in the applicants’ main points of argument. The court considered all the evidence that had been presented before the Committee, as well as the arguments by all the parties, and analysed the various provisions of section 20 of the Act in considerable detail. The court’s main findings were as follows:

75. The court held that the established principles of interpretation should be applied in interpreting the provisions of section 20. Legislative purpose, as opposed to legislative intent, was only one of the principles to be applied. The court should not adopt a purely benevolent or a purely restrictive interpret a t i o n .

76. The fact that other amnesty committees had interpreted or applied section 20 in an incorrect way could not create a legitimate expectation that such an error, either of law or of fact, would be perpetuated by the court.

77. In respect of Section 20(2)(a), the court held that the applicants did not act on behalf of the CP, but that they had embarked on a terrorist foray of their own. Although the applicants said that they held the subjective belief that their conduct would advance the cause of their party, the court held that it should assess objectively whether it was reasonable for them to hold such a belief. The court concluded that the Committee had correctly rejected the applicants’ contention that they fell within the ambit of this section.

78. In respect of section 20(2)(d), the Committee had correctly held that the applicants had not acted in the course and scope of their duties as members of the CP as required by this section of the Act, as assassination had never been one of Derby-Lewis’ duties as a senior member of the CP. It followed that Derby-Lewis could not have shared a nonexistent duty with Walus; nor could he have delegated part of it to Walus. It also followed that assassination never formed part of Walus’ duties.

79. In respect of section 20(2)(f), Derby-Lewis did not act, and could not have had any reasonable grounds for believing that he was acting, in the course and scope of his duties and within the scope of his authority in assassinating Hani. He was a senior ranking member of the CP, a parliamentarian and a serving member of the President ’s Council.

80. Walus was, however, in a different position, as he was a rank-and-file member who was entitled to assume that Derby-Lewis had authority to speak on behalf of the party. Walus could have made a case for such a proposition and this could have led to a closer evaluation of his (Walus’) beliefs and the reasonableness of them. This was not, however, the case that he had made. Walus had stated in his original application that ‘he had acted alone in the planning and commission of the deed’. Under cross-examination, he said that this was not true. He later amended his amnesty application to incorporate Derby-Lewis as his accomplice, insisting that this was the truth. Walus’ version was that he believed that he had been assigned the assassination plan as an order from Derby-Lewis, given as a result of his senior position within the CP or as part of his duties as a member of the party. The court found that this claim lacked objective credibility, and therefore Walus also did not meet the requirements of this section.

81. With regard to relevance and full disclosure, the evidence of the applicants in respect of the main issues (namely the purpose of obtaining the pistol and silencer, the purpose of the list of names and the prioritising of the names on the list) was generally improbable, contradictory and lacked candour. The Committee was correct in rejecting the applicants’ evidence in these respects as being false and was, there fore, entitled to find that the applicants had failed to make full disclosure of all relevant facts as required by section 20(1)(c) of the Act.

82. In the result, the full bench dismissed the application with costs. Both Derby-Lewis and Walus subsequently brought an application before the same court for leave to appeal to the Supreme Court of Appeal. The court refused leave to appeal on the grounds that the applicants had failed to show that there were any reasonable prospects of success on appeal or that another court could come to a diff e rent conclusion on the same facts.

83. On 31 May 2001, the applicants filed a petition to the Chief Justice seeking leave to appeal. The petition was refused. The applicants have now exhausted all their available remedies in law.