DECISION
INTRODUCTION
These are applications for amnesty in terms of Section 18 of the Promotion of National Unity and Reconciliation Act No.34 of 1995 (" the Act") in respect of the assassination of Mr Chris Hani, a well-known and popular leader in the African National Congress ("ANC") and South African Communist Party ("SACP").
On Saturday morning, 10 April 1993, during the Easter weekend, Mr Hani was shot and killed in the driveway of his home at 2 Hakia Crescent, Dawn Park, Boksburg by the first Applicant, Janusz Walus. Walus had been reconnoitring the Hani-home for some time prior to the incident with a view to executing the plot to assassinate Mr Hani which was devised by himself and second Applicant, Clive Derby-Lewis.
On the morning in question Walus fortuitously noticed that Mr Hani was driving to the neighbourhood shopping centre without his usual security guards. Walus followed the vehicle. When he saw Mr Hani returning from the shop with a newspaper, Walus drove ahead to the Hani-home and awaited the return of Mr Hani.
After the latter got out of his vehicle in the driveway of his home, Walus approached him and fired several shots at him with a Z88 pistol. Mr Hani, who was unarmed, was fatally wounded and collapsed in the driveway. Walus went up to him and shot him, execution style, with two rounds behind the ear. Mr Hani died on the scene.
Walus was apprehended on the same day soon after the incident and was eventually charged for the murder together with Derby-Lewis and the latter's wife, Gaye Derby-Lewis. They were all tried in the Witwatersrand Local Division of the Supreme Court.
On 14 October 1993 both Applicants were convicted of the murder and charges relating to the unlawful possession of the murder weapon and ammunition. Mrs Derby-Lewis was acquitted.
Both Applicants received the death penalty and were awaiting execution when the death penalty was declared unconstitutional by the Constitutional Court. They were in custody awaiting to be re-sentenced when the applicants were heard.
Both Applicants and numerous other witnesses testified at the hearing which lasted for several weeks. In addition, a substantial volume of documents and exhibits as well as full written arguments were placed before us.
The application was strenuously opposed by the Hani family and the SACP.
In the result we have been confronted with a record of evidence, supporting documentation and exhibits running into thousands of pages which had to be carefully considered for purposes of this decision.
It is necessary to set out a summary of the evidence of the Applicants and Mrs Derby-Lewis. We accordingly proceed to deal with the testimony of each one of them in turn.
CLIVE DERBY-LEWIS
Derby-Lewis is a seasoned politician steeped in conservative politics who was very popular at the time of the incident in Afrikaner right-wing circles. He is an English-speaking South African with a distinguished military background. He was one of the founder members of the Conservative Party ("CP") in February 1982 and represented the party in Parliament during the period May 1987 to September 1989 and in the President's Council from September 1989 until the assassination. He was a confidante of the CP leader, Dr Andries Treurnicht and was an elected member of the National Council (Hoofraad) of the CP which consisted of 35 members representing the four provinces as well as the CP Members of Parliament. He was a senior member who has always been actively involved in the affairs of the CP.
There was growing dissatisfaction with the policy of reform adopted by the National Party ("NP") government in the 1980's which resulted in dramatic support for the CP, and the party becoming the official opposition in the 1987 elections. In view of the successes of the CP in the post-1987 bye-elections, it became clear that the CP was poised to win the next general election in which case the reforms adopted by the NP could be reversed.
The CP was committed to a policy of non-violence for so long as the democratic channels remained open to it. It, however, finally came to believe that the NP was betraying the country when the ANC and SACP were unbanned on 2 February 1990.
Pursuant to this step the CP held a mass meeting at the Voortrekker Monument, Pretoria, on 26 May 1990 where Dr Treurnicht was the main speaker. His message to his followers was that the Third Freedom Struggle had begun. At subsequent talks it was accepted that although democratic channels still remained open to the CP, its followers should prepare for war and arm themselves given the changed political situation. The fear of domination by the ANC/SACP alliance was the focal point of discussions and meetings of the CP.
The general congress of the CP held at Kimberley during August 1992 adopted the mobilisation plan to prepare the Afrikaner nation to fight for its freedom. Subsequently various meetings were held across the country to motivate CP followers to join the struggle. Derby-Lewis regarded this as preparation for war and actively participated in this process to stop the handing over of the country to the ANC/SACP alliance. He was involved in various conservative and right-wing organisations where he also advocated anti-ANC/SACP mobilisation.
Dr Treurnicht addressed another CP meeting at the Paardekraal Monument, Krugersdorp, on 10 October 1992 where he again engaged in war talk. This was also the general tenor of speeches by the CP leadership at the time. The message to take up arms was a common thread in all these speeches.
According to Derby-Lewis the armed struggle commenced at the beginning of 1992 when various bomb attacks were launched in the country. This resulted from the climate of violence created by the CP leadership and in particular the speeches during the second half of 1992 when it was stated that the democratic channels had been blocked and the CP was not bound to Parliamentary or normal party activities but will have to explore other means of ensuring the freedom of its people. This culminated in the implementation of the mobilisation plan on 26 March 1993.
In view of the NP government's attitude after its success in the March 1992 referendum, it was a foregone conclusion that the political reforms would result in the ANC/SACP alliance governing a unitary South Africa. The main fear was that Communist domination will plunge the country into misery and chaos resulting in the negation of the Afrikaner's culture, values and way of life. An ANC government would be dominated by communists with Chris Hani playing a central role. The CP regarded Mr Hani as enemy no.1 of the Afrikaner nation and the successor as President to Mr Mandela. The Afrikaner nation would be destroyed if Mr Hani took over control of the country.
It was against this background that Derby-Lewis and Walus plotted the assassination of Mr Hani. Their objective was to create a situation where the followers of Mr Hani would cause widespread mayhem in the wake of the assassination. This would create an opportunity for the security forces and right-wing to step in to restore order and take over the government of the country.
They never obtained the express authority of the CP for the assassination nor were they acting upon the instructions or orders of the CP. However, the general position of resistance adopted by the CP as expressed in the speeches and utterances of its leaders amounted to implied authority for the assassination. Derby-Lewis had engaged in a discussion with Dr Treurnicht who indicated that it would be justified to kill the anti-Christ in a situation of war. Dr Treurnicht died soon after the assassination and was succeeded by the deputy-leader Dr Ferdi Hartzenberg who appeared as a witness at the instance of Applicants.
Derby-Lewis also contended that his senior position in the CP gave him the necessary authority to take the decision to assassinate Mr Hani on behalf of the CP. In any event, the fact that he was never repudiated by the CP indicated that the party had condoned his conduct.
In the course of their discussions about the assassination, Derby-Lewis handed a list of names and addresses to Walus. The list emanated from Mrs Derby-Lewis who had it prepared for the purpose of exposing the luxurious lifestyle of those on the list, in newspaper articles she intended writing. The articles would have embarrassed those concerned because their lifestyles conflicted with the cause they stood for.
Derby-Lewis instructed Walus to number the names on the list in sequence of their enmity towards the CP. The list was not numbered for the purpose of eliminations and Mr Hani, number 3 on the list, was the only person identified for elimination. It was agreed that Mr Hani would be shot by Walus who would determine the logistics for executing the plan. Walus would reconnoitre the Hani home. Derby-Lewis would obtain an unlicensed firearm with a silencer to be used in the assassination.
During March 1993, Derby-Lewis obtained an unlicensed firearm from an old acquaintance, Faan Venter, and arranged through another friend, Keith Darrel, for a silencer to be fitted to the firearm in Cape Town.
On 6 April 1993 Walus had breakfast with Derby-Lewis and his wife. After breakfast Derby-Lewis handed the murder weapon, a Z88 pistol with a silencer and subsonic ammunition, to Walus. This was after Mrs Derby-Lewis had already left the house.
On 7 April 1993 Walus again called at Derby-Lewis' house to enquire about further ammunition which Derby-Lewis had to obtain for the Z88 pistol. Derby-Lewis had not yet managed to obtain the ammunition, but instructed Walus to proceed with the assassination leaving the detailed execution of the plan to Walus.
In the course of the morning on 10 April 1993, Walus telephoned Derby-Lewis to enquire about the promised ammunition. Later that morning Derby-Lewis and his wife paid a visit to Faan Venter when they heard the news of Mr Hani's assassination. Derby-Lewis was shocked since he had not planned to assassinate Mr Hani over the Easter weekend and had decided to postpone the assassination in order to give the matter further careful thought. Moreover, he had not yet furnished the ammunition to Walus. He therefore thought that other people were responsible for the assassination. He saw from media reports the next day that Walus had in fact killed Mr Hani. Derby-Lewis was arrested at home on 17 April 1993.
At first, Derby-Lewis refused to co-operate with the police. It was only after he was detained in terms of Section 29 of the Internal Security Act, and due to prolonged interrogation and undue pressure, that he made certain statements to the police. He gave false information in the statements, notably about the list of names, in order to protect innocent people including his wife. He was also untruthful when he told the police that he last saw Walus in December 1992.
He also gave false information in his affidavit dated 29 October 1993 in support of the application to reopen his case in the criminal trial. He had done so because he believed that the political struggle was still continuing at that stage and that he had to explore every avenue to secure his release.
JANUSZ WALUS
Walus is a member of the CP and also a member of the Afrikaner Weerstands Beweging ("AWB") at the time of the incident. He was born in Poland and emigrated to South Africa in 1982 to escape the communist regime in Poland. He chose South Africa because he believed that the Afrikaner would never succumb to communism. He had a keen interest in South African politics and met Derby-Lewis and his wife in 1985. He participated in many CP activities with Derby-Lewis and formally joined the CP in 1985. He supported the party in Harrismith and Krugersdorp.
During the general election and by-elections in 1987 he gave material support to the party in the Free State and Transvaal. Walus met the AWB leader, Mr Eugene Terre'blanche in 1985 and subsequently joined the AWB. He attended various AWB meetings during 1985 and 1986 where he experienced the resistance towards the NP policies. There was a fear in AWB circles that the NP would hand over the country to communists.
He was given South African citizenship in 1988 and was able to vote in the 1989 elections. The NP gave voters the assurance before this election that the ANC or SACP will not be unbanned, but did exactly the opposite in February 1990 when these organisations were unbanned. It then also became clear to him that negotiations only involved the NP and ANC to the exclusion of opposition parties.
He also attended the Voortrekker Monument meeting in May 1990 where Dr Treurnicht indicated that the Third Freedom Struggle had begun. He was well acquainted with the South African history and knew that the previous freedom struggles were armed struggles. In subsequent discussions involving Derby-Lewis and other members of the CP and other right-wing organisations it was decided that even though the democratic channels were still open to the CP, its followers should prepare for war and arm themselves.
After the 1992 referendum, the NP government reneged on the undertaking to consult the electorate before any constitutional amendments are effected. It then became clear to the CP that the democratic channels were blocked. He feared that Mr Hani would take over the country as he was a popular leader in the SACP and saw himself being subjected to the Communist regime from which he had escaped in Poland. This made him apprehensive to the extent that " he vowed to do something to try and stop the handing over of his country to a Communist ruler". Walus then started having numerous detailed discussions with Derby-Lewis about solutions to the deteriorating political situation. Walus regarded Derby-Lewis as one of the policy makers of the CP and relied on Derby-Lewis to give direction. As a result of these discussions, Walus believed that the CP was engaged in a political struggle with the ANC/SACP alliance.
Walus went overseas at the end of 1992 and visited Derby-Lewis on his return in December 1992. They discussed the political situation and the view in CP circles that the struggle should be intensified. He visited Derby-Lewis again in February 1993 when they also discussed the political situation. During this visit Derby-Lewis handed the list of names to him. They decided that Mr Hani should be shot. They believed that by eliminating Mr Hani, a communist take-over of the country as well as the extermination of the Afrikaner nation, would be averted. Their objective was to create chaos and a right-wing take-over as testified to by Derby-Lewis.
After having undertaken to execute the order, Walus requested Derby-Lewis to furnish him with an unlicensed firearm. Walus had to reconnoitre the Hani-home and utilise false number plates when doing so. He reconnoitred the house on many occasions since early March 1993. He visited Derby-Lewis on 6 April 1993 and received the Z88 pistol with the silencer and subsonic ammunition. He visited Derby-Lewis again on 7 April 1993 in order to obtain more ammunition which Derby-Lewis had undertaken to get. This was not yet available and Walus enquired whether there was any change of plan. During this discussion it was mentioned that it would be a good idea if the assassination happened before the Easter weekend.
On 10 April 1993 Walus decided to reconnoitre the Hani-home after discovering that the gymnasium, which he intended to use, was closed due to the public holidays. After telephoning Derby-Lewis about the ammunition, which was not yet available, he bought ammunition for his licensed pistol. He loaded the Z88 pistol with this ammunition.
At the Hani-home Walus saw someone getting into a vehicle which he followed. He ascertained that it was Mr Hani and noticed that there were no bodyguards with Mr Hani. Mr Hani drove to the local shopping centre where he went inside and later returned with a newspaper. Walus decided that it was an ideal opportunity to execute the order and he drove to the Hani-home where he awaited Mr Hani's return. After Mr Hani pulled into the driveway, Walus approached him and fired two shots at him. After Mr Hani had fallen down, Walus shot him twice behind the ear at close range. Walus left the scene in his vehicle. He was stopped by the police soon after the incident and was found in possession of the Z88 pistol, whereafter he was arrested.
During his detention Walus was at first not prepared to give any statements to the police. After prolonged interrogation and due to the fact that he was given alcohol by the police, he started co-operating with them. He was also misled into believing that some members of the interrogation team were members of right-wing political organisations who had infiltrated the security police. Walus also disputed the contents of certain statements which the police alleged he made while in detention and which form part of the record. He denied having said certain of the things ascribed to him in these statements and indicated that the police amended the statements to suit their own purposes. The notes which the police allegedly made of the interrogations are similarly tainted and incomplete because it does not reflect large portions of the interrogations.
GAYE DERBY-LEWIS
Her testimony concerning her role prior to the assassination largely coincides with that of her husband. She had not been involved in the plot to kill Mr Hani and was totally unaware of the plans discussed between the Applicants. The list of names which was found in the possession of Walus, was prepared at her instance by a journalist friend, Mr Arthur Kemp. She intended to use the list to write a series of newspaper articles to expose the luxurious lifestyles of those identified on the list. This would have embarrassed them because it would expose their "gravy train" lifestyle, which was at odds with the cause they represented. She also left the list in the Cape Town office of Dr Hartzenberg for him to use in his speeches in Parliament. This was never done and the list was returned to her. She was unaware of the fact that her husband had given the list to Walus.
She confirmed having had breakfast with her husband and Walus at her home on 6 April 1993, but left while her husband and Walus were still having a discussion.
She heard the news about Mr Hani's assassination while she and her husband visited Mr Faan Venter on 10 April 1993. She was arrested on 21 April 1993 and placed under section 29 detention. She was subsequently charged and acquitted. She gave false testimony at the trial concerning the question whether her husband had told her on 12 April 1993 that he had given the list to Walus.
A great deal of her testimony was devoted to her detention and treatment at the hands of the police.
She had written a number of statements which she also signed. She personally typed out one of the hand-written statements to help the police sergeant who was charged with doing the typing. She was unduly influenced to make these statements which were not freely and voluntarily made for the following reasons:
1. She was not warned in terms of the Judges Rules. However, under cross-examination on behalf of the police officers she conceded the possibility that she was warned;
2. she was denied access to a legal representative and was at times falsely told that her attorney was on his way;
3. she was threatened with section 29 detention;
4. she was badly treated by Captain Deetlefs who was insulting towards her and threatened her with long term imprisonment. She had a personal fear of Deetlefs.
She conceded under cross-examination that those parts of the video recording of the questioning which was put to her, reflected her conversation with Deetlefs as quite civilised. It also showed her fully participating in the discussion. She indicated that Deetlefs threatened her during parts of the conversation that was not on the tape. She confirmed that she praised the police and indicated that she would like to join the police force, but said this was meant as a joke. She did not recall having said that she would not co-operate with the UN people, although this appears on the video recording.
She confirmed that Deetlefs' attitude did not at any stage lead to her telling an untruth neither did he compel her to tell any untruths. She "stuck to her guns" and spoke the truth;
she complained that Deetlefs was intoxicated;
6. sleep deprivation contributed towards her writing false statements. When she was referred to the video recording where she says she had slept for 12 hours, she conceded that sleep deprivation can be excluded as having played a role in what she did on 24 April 1993 when she signed some of the statements;
7. Mr De Waal made her change her statement and write various untruths. He would come to her after she had written a statement and inform her that Colonel Van Niekerk was not happy with what she had written. She would then amend her statement accordingly. Under cross-examination she conceded that De Waal was reasonably civil towards her. On most occasions when he questioned her, there was a female police officer present. He helped her to get some personal items and to attend to other personal matters. On one occasion she told De Waal that she does not wish to make a pointing out, which he accepted.
Mrs Derby-Lewis saw her personal doctor in April 1993 some days after Deetlefs had concluded his interrogation of her. Although only the district surgeon was present, she failed to inform her doctor about her maltreatment or of the fact that she was compelled to make false statements. When she was asked under cross-examination to explain the meaning of the words "I am sure it is going to be used in court", which she uses on the video, she declined to do so. She testified that she really does not know what these words meant, because she used them while she was under section 29 detention.
ISSUES
In our view the principal issues to be decided in this matter are the following:
1. Were Applicants acting "on behalf of or in support of the CP" bona fide in furtherance of a political struggle by the CP against the ANC/SACP alliance as required by Section 20 (2)(a) of the Act?
2.1 Were Applicants acting as employees or members of the CP in the course and scope of their duties and within the scope of their express or implied authority bona fide in furtherance of a political struggle with the ANC/SACP alliance as required by Section 20 (2)(d) of the Act?
2.2 Did Applicants believe on reasonable grounds that they were acting in the course and scope of their duties and within the scope of their express or implied authority as required Section 20 (2)(f) of the Act?
3. Did the Applicants make a full disclosure of all relevant facts as required by Section 20 (1)(c) of the Act with specific reference to:
3.1 the purpose for which the list of names was compiled;
3.2 the purpose for which names were prioritised on the list;
3.3 the purpose for which the Z88 pistol was obtained and fitted with a silencer;
3.4 whether Walus was acting upon orders from Derby-Lewis in assassinating Mr Hani;
3.5 the role played by Mrs Derby-Lewis in the killing and whether she had advance knowledge of the assassination?
Various other issues have been raised in argument on behalf of the parties. We have carefully considered all of these matters. However, in view of the conclusion which we have reached on the abovementioned issues, we do not regard it necessary to decide any of the other issues raised in argument.
In this regard it should be pointed out that a great deal of time was devoted to two further issues, namely the weight to be attached to statements which Derby-Lewis and Walus made while in detention and the question of a wider conspiracy to kill Mr Hani. Although we are not persuaded that the Applicants' versions detract from the weight of the said statements, we have assessed the evidence of the Applicants without having regard to these statements. The matter of the statements made by Mrs Derby-Lewis is dealt with below.
Furthermore, although there are compelling arguments in favour of the conclusions that there was a wider conspiracy to kill Mr Hani, we find that the evidence does not conclusively establish this fact.
We accordingly proceed to deal with each of the above issues in turn.
REQUIREMENTS OF SECTION 20(2)(a)
It is common cause that the Applicants were not acting on the express authority or orders of the CP which party they purported to represent in assassinating Mr Hani. The CP has never adopted, propagated or espoused a policy of violence or the assassination of political opponents.
Various newspaper reports immediately after the assassination evidence the CP leadership's disapproval of the incident and their rejection of murder as a political tool. The arrest of Mrs Derby-Lewis came as a shock to them. They had already earlier denied that Walus was a listed CP member. In fact, during a television interview on 20 April 1993, the acting leader of the CP, Dr Hartzenberg, unequivocally distanced the CP from violence and reiterated the commitment of the CP to non-violent democratic means of pursuing its aims. He expressly denied that the statements made by CP leaders amounted to tacit approval of violence or that the CP ever planned violence on an offensive basis. The CP was rather looking at means of defending its followers against the violence that was taking place.
In his testimony Dr Hartzenberg also denied that the objective which Applicants pursued, namely to cause chaos and revolution in the country, formed part of CP policy. He further stated that it was not CP policy to eliminate opposition political leaders.
It is therefore clear that the CP was never aware of the planning of the assassination and only became aware thereof after the event. It never approved, ratified or condoned the assassination. In an apparent concession of this fact, Applicants submit in their written argument that it is not a legal requirement that the CP should have been aware of or expressly approved the assassination. It is merely required that the CP should have benefited from the assassination. Applicants rely on the decision in S v Moloi & Another 1987 (1) SA 196 (A) as authority for these propositions.
Applicants also rely on the dictionary definition of the Afrikaans term "ten behoewe van" which is the equivalent of the term "on behalf of" used in section 20(2)(a). According to such definition the term means "tot voordeel van" (to the benefit of). Applicants failed to specify what benefit allegedly accrued to the CP pursuant to the assassination. On the contrary the evidence before us does not bear testimony to any benefit having accrued to the CP.
The objectors submitted in their written argument that the words "on behalf of" in the context of Section 20(2)(a) are used in the narrow sense as referring to someone who is mandated or authorised to act by the organisation. Any other interpretation, but in particular the wider meaning contended for by Applicants, will lead to absurd results. They illustrate such absurdity by referring to the example of bank robbers claiming to be acting on behalf of a liberation movement because their actions were crippling the economy and thus benefited the struggle of the liberation movement.
The objectors submitted that in any event the wider meaning does not assist Applicants since the CP did not approve of the assassination either before or after the act. The CP in fact condemned the assassination. The objectors pointed out that even the Moloi-judgment makes it clear that the action taken must fall within the ambit of the policy, objectives or modus operandi of the beneficiary organisation. In the Moloi-case the accused disseminated cassette tapes which, in view of their contents, manifestly benefited the ANC. The court found that under such circumstances the dissemination was on behalf of the ANC in spite of the fact that the ANC did not participate in the dissemination. This was the case because the dissemination of cassettes fell within the ambit of the methods employed by the ANC to achieve its objectives. Applicants thus failed to show that their actions benefited the CP or that the assassination was in the interest of the CP.
In our view there is considerable force in the submissions of the objectors. We do not, however, deem it necessary to finally decide all of the issues referred to above. Suffice to say that subsection 20(2)(a) does not cover perpetrators who act contrary to the stated policies of the organisation which they purport to represent. It follows that we are not satisfied that Applicants acted on behalf of or in support of the CP in assassinating Mr Hani. Accordingly the applications do not comply with the requirements of section 20(2)(a).
It needs to be pointed out that the Applicants clearly subjectively believed that they were acting against a political opponent. This belief is supported by the objective facts, in particular the fact that Mr Hani was regarded as such by the CP and the right-wing. This is a relevant factor in an application for amnesty as appears from section 20(3)(d) of the Act. It is, however, not sufficient on its own to render the application successful.
In addition, the application has, inter alia, to comply with the abovementioned requirements of section 20(2)(a) in order to succeed.
REQUIREMENTS OF SECTION 20(2)(d)
It is clear that Applicants were not acting within the course and scope of their duties or on express authority from the CP in assassinating Mr Hani. The clear evidence of Dr Hartzenberg negated any claim that the public utterances of the CP leadership constituted implied authority for the assassination. It would in any event be futile for Applicants to rely on such a claim, given the fact that they were both active CP members acquainted with the party structures and constitution as well as the policy of non-violence. Derby-Lewis in particular was part of the CP leadership and national decision-making structure and cannot reasonably rely on the utterances of his colleagues for the inference that Applicants had implied authority from the CP for the assassination. His discussions with Dr Treurnicht about killing the anti-Christ could hardly amount to authority or instructions to commit the assassination. To his knowledge, Dr Treurnicht had no power in terms of their constitution to bind the CP without the necessary mandate, especially in such a radical undertaking as the assassination of a high profile political opponent.
In any event, the inference is unfounded that the public speeches and statements relied upon by Applicants amount to a call for armed struggle or violence. These were no more than predictions or warnings that the CP may adopt violence in the future.
The instances of random explosions and acts of violence referred to by Applicants do not support their argument. None of these acts were committed by or on behalf of the CP. Mr Koos Botha was repudiated by the CP during October 1992 for causing an explosion at the Hillview School. The basis of this repudiation was that the speeches of Dr Treurnicht could not be interpreted as a call for violence.
We are accordingly satisfied that Applicants were not acting within the scope of any implied authority from the CP in assassinating Mr Hani. The applications accordingly fail to comply with the requirements of section 20(2)(d).
REQUIREMENTS OF SECTION 20 (2)(f)
Apart from the oblique reference to the anti-Christ in a discussion with Dr Treurnicht, Applicants have failed to discuss their intended actions with any other figure of authority or structure within the CP even though on Derby-Lewis' own version Dr Treurnicht was his close confidante and he had a close relationship with Dr Hartzenberg. The CP publicly repudiated Koos Botha for his violent, unlawful actions some months before the incident, clearly re-stating the policy of non-violence. In this process the CP expressly placed a contrary interpretation on the speeches of Dr Treurnicht, to the interpretation relied upon by Applicants.
In the circumstances and for the reasons already stated above in dealing with section 20(2)(d), we are not satisfied that Applicants had any reasonable grounds for believing that they were acting within the course and scope of their duties or within the scope of their express or implied authority. The applications therefore do not fulfil the requirements of section 20(2)(f).
FULL DISCLOSURE
Applicants are obliged by section 20(1)(c) to make a full disclosure of all relevant facts in order to qualify for amnesty. In our view this requirement has to be decided with reference to the issues set out below:
1. PURPOSE OF THE LIST OF NAMES
On Applicants' version the list of names was prepared for innocuous reasons by Mrs Derby-Lewis and it quite fortuitously landed up with Derby-Lewis who decided to use the list for a totally different reason. Mrs Derby-Lewis had journalistic purposes in mind when she had the list prepared. She intended writing articles on the "gravy train" lifestyles of those mentioned in the list. She also left the list on the desk in Dr Hartzenberg's parliamentary office in Cape Town for him to use in his speeches in parliament. He never made use of the list and it was returned to Mrs Derby-Lewis. She in turn was not aware that Derby-Lewis had taken the list. Derby-Lewis testified that he had handed the list to Walus after it was decided to assassinate Mr Hani. The list contained the necessary information concerning the address of Mr Hani which could be used by Walus in attending to the logistics of executing the assassination, for example, to reconnoitre the Hani-home.
The alleged reason why Mrs Derby-Lewis required the addresses of the persons on the list, is doubtful. The explanation that she needed the addresses to arrange interviews, makes little sense in view of her concession that there was no likelihood of Mr Hani giving her an interview in his home. Other persons on the list, notably fellow journalists, could be visited at their offices or simply telephoned to arrange interviews without the need of first obtaining their home addresses. Her reasons for wanting to interview some persons on the list was also wholly unconvincing. In spite of these unsatisfactory factors, the likelihood remains that Mrs Derby-Lewis could have initially prepared the list for journalistic purposes and that the list was subsequently used by Applicants for a different and nefarious purpose.
Most significantly, the data on the list include descriptions of physical attributes of certain of the homes on the list, particularly security features. This fact is difficult to reconcile with the alleged innocuous purpose of the list.
We are, however, satisfied that insofar as the Applicants are concerned, the names constituted a hit list which was to be used for executing a plan of assassinations. Their evidence that the list was to assist them to communicate confidentially, is wholly unconvincing. We accordingly find that Applicants' version is untrue in this regard.
2. PRIORITISING NAMES ON THE LIST
It is common cause that the names on the list were numbered. President Mandela is number 1 on the list, followed by the late Mr Joe Slovo in the second place and Mr Hani in the third place. In explaining the purpose of the numbering, Applicants testified that Walus numbered the names on the list in priority of their enemy towards the CP.
In another breath Derby-Lewis explained that the numbering serve as some kind of code reference to the person concerned for purposes of confidential telephonic conversations between the Applicants. All of these explanations for the numbering were in line with Applicants' strenuous denial that there was a plan to assassinate more persons than just Mr Hani.
In our view the Applicants' explanation in this regard is false. No useful purpose could have been served by numbering those on the list in order of their enmity towards the CP. On their version Applicants had planned to take action against Mr Hani. There was accordingly no reason to prioritise the enmity of anybody else as alleged. The explanation that the numbers would serve as a code, was equally absurd. There was only one target for attack. This was known to both Applicants. There is no need for a numbered list to confidentially discuss such a target. There is, moreover, no reason to have a list with a number of other addresses if only one person is to be attacked.
The false explanation in this regard, reinforces the above finding that the list was compiled as a hit list with the intended victims prioritised as indicated on the list. Walus also reconnoitred the home of President Mandela who was identified as the first target on the hit list. This conduct is consistent with a plan to attack more persons than just Mr Hani; which in turn fits perfectly into the Applicants' plan to create maximum chaos and mayhem in the country. In fact, Derby-Lewis indicated in his testimony that if Mr Hani's death did not have this effect, other targets would have to be found. Even Walus indicated under cross-examination that if the police had asked him whether other people on the list besides Mr Hani were also in danger of being attacked, he would have answered that maybe the attack on Mr Hani was just the beginning.
3. PURPOSE FOR OBTAINING THE PISTOL AND SILENCER
Derby-Lewis indicated in his application that he obtained the murder weapon, a Z88 pistol, in order to stockpile weapons and to protect his family. The silencer was fitted so that he could use the gun to practice at home without disturbing his neighbours. The silencer would also give him a strategic advantage during an attack upon his home. Derby-Lewis thus contended that the original reason for obtaining the firearm was unrelated to the subsequent assassination of Mr Hani. It was purely fortuitous that he was in possession of an unlicensed firearm fitted with a silencer, when Walus was looking for an appropriate murder weapon to execute the assassination.
We have no hesitation in rejecting Derby-Lewis' evidence in this regard. His explanation for fitting a silencer to the unlicensed firearm is inherently improbable and his explanation of the reason for obtaining the firearm is clearly false. It is particularly significant that he obtained a weapon which is perfectly suited for the purposes of the assassination relatively shortly before the incident and at about the time when Applicants agreed that Mr Hani should be shot. The Z88 pistol was clearly obtained for the express purpose of assassinating Mr Hani.
4. DID WALUS ACT ON ORDERS FROM DERBY-LEWIS?
Walus initially stated in his application that he acted alone in planning and executing the assassination. At a subsequent stage the application was amended to indicate that Walus acted on the instructions of Derby-Lewis but that they jointly planned the assassination. It is abundantly clear from the record that Walus was not acting as a mere functionary. He had clear understanding of the political situation and was active in right-wing politics. He was clearly actuated by his personal desire to stop the communists from taking over the country. He participated fully in political discussions and in hatching the plot to assassinate Mr Hani. He was under no duress or coercion and executed the plan as he deemed fit. In fact, Derby-Lewis indicated that he was taken by surprise by the timing of the assassination and that he actually needed some more time to consider the planned attack upon Mr Hani.
In any event, Walus' own testimony is contradictory on the issue of orders and is also contradicted by the testimony of Derby-Lewis to the effect that Applicants were acting as co-conspirators who had jointly taken the decision to assassinate Mr Hani.
As an active CP member, Walus would have been aware that the party has constitutionally established decision-making structures and that Derby-Lewis had no power to order him to commit murder, particularly in view of the CP's policy of non-violence. There is no suggestion that he was ever previously ordered by the CP to commit any unlawful acts, let alone commit murder. He, moreover, failed to raise the alleged order to assassinate Mr Hani with any person in authority or with any governing structure in the CP.
In the circumstances we are satisfied that Walus was a co-conspirator and that he was not merely acting on orders from Derby-Lewis. We accordingly reject the argument raised in this regard on behalf of Walus and the attempts in the latter's testimony to make out such a case. In our view this was an afterthought and was resorted to in an attempt to enhance Walus' chances of receiving amnesty by curing deficiencies in the original application and to bring the application within the ambit of the provisions of the Act, particularly section 20(3)(e).
5. THE ROLE OF MRS DERBY-LEWIS
A great deal of time was devoted at the hearing to debating the role of Mrs Derby-Lewis in the assassination of Mr Hani.
For the reasons already stated, we have found that the list of names prepared by Mrs Derby-Lewis was a hit list. She took the sole initiative in getting a journalist friend, Mr Arthur Kemp, to obtain the information recorded on the list, which was a condensed version of a longer list furnished to him by Mrs Derby-Lewis. Her explanation that she needed the list to write "gravy train" articles and was unaware of the fact that it was used in Applicants' plans to assassinate Mr Hani, is questionable. The contents of some of her section 29 statements tend to indicate that she was indeed aware of these plans. There are, however, differences between the video tape interviews and some of the written notes produced by the police during her detention. Serious criticism was also levelled at the police by Applicants' legal representatives, in regard to their treatment of Mrs Derby-Lewis during detention, in particular her prolonged interrogation.
In view of the decision we have come to in regard to this application, we do not regard it as strictly necessary to finally decide the issue concerning the role of Mrs Derby-Lewis, and accordingly decline to do so.
6. FINDING
For the reasons set out above, we find that Applicants have failed to make a full disclosure in respect of any of the relevant and material issues set out above, save for the role of Mrs Derby-Lewis which has been dealt with as already indicated above.
CONCLUSION
In all the circumstances, we are not satisfied that the applicants comply with the requirements of the Act, in particular the provisions of section 20(2)(a) thereof. The Applicants have, moreover failed to make a full disclosure as set out above.
The applications are accordingly
REFUSED: .
SIGNED ON THE 7TH APRIL 1999.
