amntrans AMNESTY HEARING 1999-02-25 IDASA DEMOCRACY CENTRE, PRETORIA 4 MR DU PLESSIS IN ARGUMENT https://sabctrc.saha.org.za/hearing.php?id=53218&t=&tab=hearings https://sabctrc.saha.org.za/originals/amntrans/1999/9902220304_pre_990225pt.htm CHAIRPERSON MR DU PLESSIS IN ARGUMENT Thank you Mr Chairman. Mr Chairman I have presented you with two sets of Heads of Argument which are quite voluminous. MR BIZOS CHAIRPERSON MR BIZOS I only see that there are numerous passages in relation to evidence referred to there, to which we have not been privy hereto Mr Chairman. So that we reserve our right in that regard. MR DU PLESSIS Secondly, Mr Chairman, in various decisions of the Amnesty Committee you approached the matter in the way that you indicated that you will approach it, and we approach it on that basis too, Mr Chairman. The records have been on the Internet site for, I think, well over a year, or a year and a half now, in respect of the Cronje matter, and the Cosatu and Khotso House hearings have also been available on the Internet, and from the Truth Commission. ADV DE JAGER MR DU PLESSIS Mr Chairman, unless you indicate to me otherwise, perhaps because of your knowledge of some of the arguments in the Heads of Argument, I intend to deal with some of the arguments, not everything, with some of the arguments until you give me an indication that you do not want to hear me further on a specific point, Mr Chairman. That is the attitude I want to approach in this regard. CHAIRPERSON ...(indistinct) MR DU PLESSIS However, I want to point out to you certain aspects, and certain provisions in the Act, which I submit are important, and which one would have to constantly keep in, or take into account when you deal with this. CHAIRPERSON Did they act as members or supporters of a political party, or did they act as employees of the State? MR DU PLESSIS ADV DE JAGER Perhaps then an account should be sent for their travelling expenses, to their party. MR DU PLESSIS Well Mr Chairman, in the light of the evidence that was presented here, it was clear, and I refer in the Heads of Argument later to that Mr Chairman, in their evidence that they have at all relevant times been supporters of the National Party and that they acted to keep that party in power, and that that was, that they acted as such from a political perspective. CHAIRPERSON Who? MR DU PLESSIS Schoon and First, in the Schoon and First incidents. CHAIRPERSON You said something about all ...(indistinct) MR DU PLESSIS No, no I said the victims in the Schoon and First incidents. That would be Ruth First, Jeanette Schoon, and I will come to the argument in respect of Katryn Schoon. CHAIRPERSON You cannot say she was a member. MR DU PLESSIS "...It need not be related to a simple political uprising, disturbance or event, but it could also pertain to a war situation which existed between the South African Government on the one hand and the liberation movements on the other hand." And then F which refers to the so called proportionality test, this is important Mr Chairman. His lordship Mr van Dykhorst found that in that regard, something akin to a war situation has to be envisaged, and he found that it could never be that the killing of a political opponent would mera motu not be proportional to a political objective. So he found that the killing of a political opponent can under the circumstances be proportional to the political objective. ADV DE JAGER Would that not only apply if we ourselves could not interpret the present Act, if there is doubt about interpretation then we could go to sort of other sources in order to help us with the interpretation, but if the Act of itself is clear, and could be interpreted on the words of the Act? MR DU PLESSIS ADV DE JAGER MR DU PLESSIS CORNELIUS I might be able to assist, I acted for Barend Strydom - Cornelius, and it was a form of parole that was granted. MR DU PLESSIS "He further considered ..." ... the right hand part of the page: "He further considered that serious acts of indiscriminate violence against civilians or civilian property, unconnected with the administration of a state, could not have a sufficient direct relationship to the political objective being pursued. He also considered it proper to take into account the fact that in some cases the act in question was committed under orders or duress." Now that is important, Mr Chairman, for purposes of how one should deal with actions against civilians, and also included in that, people who got caught in the cross-fire, Mr Chairman, such as Katryn Schoon. MR DU PLESSIS ADV DE JAGER ...(indistinct) The test is one of balance of probabilities ...(indistinct) MR DU PLESSIS Yes, yes. Now Mr Chairman I intend now to deal with the specific requirements point for point, with reference to the evidence. I will try to be as short as possible. "It must be shown that he act was committed in the course of the conflicts of the past." Now Mr Chairman in my submission, this ...(intervention) CHAIRPERSON MR DU PLESSIS MR BIZOS MR DU PLESSIS Mr Chairman at least two of you were, in respect of all these applications. ADV DE JAGER MR BIZOS We can note that one Member of the Committee was not in the applications that are referred to. Is that correct, Mr Chairman? Because we will submit that that has certain consequences, as to whether the Committee can take cognisance of anything that was said in those hearings. MR DU PLESSIS ADV DE JAGER MR DU PLESSIS ADV DE JAGER MR DU PLESSIS Yes, Mr Chairman, yes, it was agreed with reference to the applicants concerned obviously, there is no doubt about that at all. There was agreement at all relevant times. And I think in these hearings as far as I am aware and concerned, that was the understanding amongst the applicants all the time, and I thought that was the understanding at this hearing up to this morning. I cannot for the life of me recall that Mr Bizos ever ...(intervention) ADV DE JAGER MR DU PLESSIS GAP BETWEEN TAPES MR DU PLESSIS ADV DE JAGER MR DU PLESSIS CHAIRPERSON MR DU PLESSIS CHAIRPERSON MR DU PLESSIS During cross-examination. CHAIRPERSON Or in chief. MR DU PLESSIS CHAIRPERSON Yes but these page references were not put. MR DU PLESSIS No, not specifically, Mr Chairman. CHAIRPERSON MR DU PLESSIS CHAIRPERSON "Gillian Slovo confirms it was war." And you say, then you say: "General van der Merwe confirms it was war." And you say, then you say, MR DU PLESSIS "...the evidence throughout the hearings in respect of all the applications," ... and that should be previous applications. "indicates clearly that the South African government and the National Party was engaged with the liberation movements in a low intensity war. The evidence of Mr Vlok in particular, as well as the evidence of General van der Merwe should be regarded in support of the applications of all applicants." ADV DE JAGER MR DU PLESSIS CHAIRPERSON MR DU PLESSIS Correct Mr Chairman. And I say ...(intervention) CHAIRPERSON MR BIZOS CHAIRPERSON MR BIZOS Well then what are they doing here? CHAIRPERSON "the liberation movements were engaged in war." and then say: "see Cronje hearings." MR BIZOS CHAIRPERSON MR BIZOS CHAIRPERSON Where the Committee has accepted evidence and said so in its decisions, ...(intervention) MR BIZOS Were the applicants in this case given an opportunity in those decisions to make submissions. CHAIRPERSON If they wish to contest it they can. Do you contest that there was a state of war, Mr Bizos? MR BIZOS CHAIRPERSON MR DU PLESSIS Well, Mr Chairman, this evidence was placed before you. These passages refer specifically to the evidence ...(intervention) CHAIRPERSON But refer us to the evidence, refer us to what Mr Raven said about them. ADV DE JAGER CHAIRPERSON MR BIZOS Was Mr Raven present when Mr Cronje gave evidence, Mr Chairman? CHAIRPERSON MR BIZOS MR VISSER "The applicant applied for amnesty in respect of eleven incidents set out in schedules 1 to 11 in his application. Before dealing with the separate incidents it will be necessary to deal with the background. This matter has to be considered in the light of the evidence given by General Johan van der Merwe, the former Commissioner of South African police, during this hearing, and the evidence given by the former Minister of Law and Order, Mr Adriaan Vlok, in a later hearing, of his application for amnesty number 4399/96" May I just complete what I want to read to you: "In so doing, the Committee is aware that the applicants did not have the opportunity to listen to the evidence of Mr Vlok or to cross-examine him. The Committee does not, however, intend to us his evidence to the detriment of the applicants. Both van der Merwe and Vlok gave evidence of a general nature explaining circumstances under which members of the police worked during the time of political turmoil in the country. And also how they might have understood their instructions in the light thereof. Almost all policemen giving evidence before the Amnesty Committee refer to their background, and at the end of their testimony expressed regret for what they had done. This may be very relevant in an ordinary criminal hearing when extenuating factors are considered, but these factors or any other factors relating to morality that may lend colour to a defence, does not in terms of Act 34 of 1995 render one offence more justified than another. There are not requirements or relevant factors to be considered in the granting of amnesty or refusing thereof." "They may, however be - There may however" ... it should be there. "There may however be factors that could contribute to reconciliation and a better understanding of the conflicts of the past, and for this reason the Committee allowed the evidence to be led. It may shorten future proceedings if the evidence," ... and this refers, if I may interrupt myself, to the evidence of Vlok and van der Merwe. "could be summarised in this decision and simply be referred to in future without the necessity of repeating in all future hearings." Clearly the evidence: "Almost all policemen appearing before us joined the police force," And I would ask you, Mr Chairman, to make a ruling in line with the decision which has already been given by the full original Committee of the Amnesty Committee and to say that my learned friend Mr Bizos is not entitled to compel us to reopen the matter and to give all the evidence which we have incorporated by specific reference in our evidence, Mr Chairman. CHAIRPERSON There they say they will set out, do they then set out the ...? MR VISSER ADV DE JAGER MR VISSER CHAIRPERSON MR BIZOS Let me, in case it is thought Mr Chairman that we are merely being technical in the matter, let me say that it is a matter of some importance for us, Mr Chairman. If my learned friends want to rely on the evidence of Mr van der Merwe, Mr Chairman, and they make us, they make copies of the evidence of Mr van der Merwe and ask that it should be incorporated in this, we would object to it Mr Chairman, and I will give you reasons, Mr Chairman, why ...(intervention) CHAIRPERSON MR BIZOS May I just finish my submission in relation ...(intervention) CHAIRPERSON No Mr Bizos. I am adjourning now. COMMITTEE ADJOURNS ON RESUMPTION CHAIRPERSON Mr Bizos was endeavouring to make submissions to us in the hope that the parties might reach an amicable agreement on an issue which appeared to us to be not of any great importance. Has any such agreement been reached? MR BIZOS No, Mr Chairman, but there are certain facts which have emerged, which I think we would want to place on record for a proper decision to be made. Firstly Mr Chairman, we were informed that Mr Levine who is acting for Mr Williams, is not relying on any of these passages that are enumerated in the, from Vlok, van der Merwe, or Cronje, or the Khotso House matter, or any of the passages that are referred to in this. As far as Mr Visser is concerned, he has a lesser requirement, but I think that it would be better if he speaks for himself rather than my paraphrasing the, his position, Mr Chairman. MR DU PLESSIS He said: "Yes I have" You said: "Do you agree with it?" He said: "Yes" And that was an end to the matter. MR DU PLESSIS Yes, he said he agrees with the evidence in broad terms, Mr Chairman. That was his evidence. CHAIRPERSON Yes, and we took the matter no further because we understood this was dealing only with the general background. MR DU PLESSIS Yes, it does. CHAIRPERSON But the evidence was not made available, it was not put to him, it was not put in in evidence. It is not before us. MR DU PLESSIS But it was at all relevant times accepted that there was no dispute with this, Mr Chairman. CHAIRPERSON Have you read Gone With the Wind? MR DU PLESSIS CHAIRPERSON MR DU PLESSIS Yes, and that for instance, Mr Chairman, that the Security Police were brought in generally under the impression that because of certain unlawful actions they were tacitly authorised to act in the way they wanted to ...(intervention) CHAIRPERSON Yes, and it's all argument. MR DU PLESSIS Those are all the things that I want to refer to. CHAIRPERSON No you need to refer to Cronje, or van der Merwe, and I think I should correct myself, when I said that I thought there was booklet of van der Merwe, I think it was submission he made. It was not a record of his evidence, it was submission made by him. MR VISSER CHAIRPERSON But ...(intervention) ADV DE JAGER But they were incorporated in your applications here. CHAIRPERSON You mentioned them in your applications. MR VISSER That is correct. MR DU PLESSIS Mr Chairman, for instance, let me give you another example. The question about the order, with General Coetzee and the question in the First and Schoon incident, if the order had come to Brigadier Goosen from anywhere else or not, there was a lot of cross-examination of Brigadier Coetzee on that point, on the question could it perhaps, on probabilities, have come from higher up. There was evidence that it could have been. Mr Williamson testified that it could have been. Now I want to argue before this Committee that the probabilities go further than that, because we have examples of that. ...(intervention) CHAIRPERSON Mr du Plessis, if you are going to rely on factual evidence to argue, then I think you should have asked far more questions of your witness Raven then a general question, had he read it and did he agree with it. MR DU PLESSIS Mr Chairman with respect, I, we have been in a position where we have been given an indication by the Committee that a lot of the evidence that we wanted to present, we could simply ask a question, do you confirm what is stated in this affidavit, and then he confirms it. We were pressed for time ...(intervention) CHAIRPERSON That is not when you are going to then raise what I understand to be extremely controversial points on that. Is it controversial Mr Bizos? MR BIZOS I asked whether ...(indistinct) and I put two or three questions that such as your lordship put to me, surely you can admit that. But I said does it go further? And the answer was, yes, without my having been given any de, or any substantial detail of what it is that he wants me to admit Mr Chairman. MR DU PLESSIS Mr Chairman it relates, for instance, to ...(intervention) ADV DE JAGER MR DU PLESSIS ADV DE JAGER MR DU PLESSIS I would appreciate that. ADV DE JAGER MR DU PLESSIS MR DU PLESSIS "Certain submissions made by General van der Merwe, evidence by Brigadier Jack Cronje, you also heard evidence by Mr Craig Williams, do you agree with ..." well it says there: "... his evidence, pertaining to the political objectives", but ...(intervention) CHAIRPERSON But those are submissions, not the evidence. MR DU PLESSIS It says evidence by Brigadier Jack Cronje. It states there evidence. CHAIRPERSON "I again refer the Commission to he submissions of General Johan van der Merwe and the Generals in front of the Human Rights Violation Committee as well as those submissions made by Brigadier Jack Cronje." MR DU PLESSIS "The submissions of General Johan van der Merwe and the Generals in front of the Human Rights Violation Committee, as well as those submissions made by Brigadier Jack Cronje. It is now clear from all the evidence in front of this Commission." ...(intervention) CHAIRPERSON Where are you reading from? MR DU PLESSIS Page 1864 Mr Chairman. CHAIRPERSON Not from the application? MR DU PLESSIS No, no, the evidence of the record. The record Mr Chairman. ADV DE JAGER 1864? MR DU PLESSIS 1864 of the record, Mr Chairman. ADV DE JAGER That one deals with the political objectives. MR DU PLESSIS Yes. And then it says "... and you were also told in broad terms what the evidence of Mr Adriaan Vlok was. "I was." "Do you agree with that?" "I do" ADV DE JAGER "Do you agree in broad terms with the evidence of Mr Vlok?" "I ordered this" ... or whatever. His evidence was: "I agree in broad terms with what Vlok said. ADV DE JAGER Go as far as that? MR DU PLESSIS Yes, yes. ADV DE JAGER ...(indistinct) in broad ...(indistinct) MR DU PLESSIS ADV DE JAGER MR DU PLESSIS ADV DE JAGER MR DU PLESSIS Yes. ADV DE JAGER MR DU PLESSIS ADV DE JAGER MR DU PLESSIS Yes. ADV DE JAGER MR DU PLESSIS Mr Chairman that is why I do not understand why Mr Bizos wants to oppose this. I do not understand, I have said that I am willing to, I have already drawn his attention to the specific passages. He can come back and say he disputes specific passages. ADV DE JAGER MR DU PLESSIS ADV DE JAGER MR DU PLESSIS ADV DE JAGER MR DU PLESSIS ADV DE JAGER MR DU PLESSIS But it really ... NO SOUND ADV DE JAGER Wasn't it dealt with in effect, it dealt with by the witnesses here? MR DU PLESSIS So the point is, I want to present you with argument that on the probabilities, as Mr Williamson has testified during my cross-examination as well, that order came from higher up than simply Brigadier Goosen who decided he was going to act in a frolic of his own. ADV DE JAGER MR DU PLESSIS ADV DE JAGER MR DU PLESSIS ADV DE JAGER MR DU PLESSIS ADV DE JAGER MR DU PLESSIS ADV DE JAGER Acted on the order of Williamson. MR DU PLESSIS No, or Mr Chairman, was unreasonable under the circumstances, because it was an illegal order. And in terms of 22F, it was unreasonable for him to have thought that this order could ever have been a justified order. And then you say my client ...(intervention) ADV DE JAGER MR DU PLESSIS ADV DE JAGER MR DU PLESSIS CHAIRPERSON What worries me most, Mr du Plessis, is that the passage you have referred to us, as your authority, you say "I do." There is no mention whatsoever of him confirming or agreeing with the evidence of Cronje. MR DU PLESSIS "You refer there to certain submissions made by General Johan van der Merwe, evidence by Brigadier Jack Cronje. You have also heard the evidence by Mr Craig Williamson. Do you agree with his evidence pertaining to the political objectives?" "I do." CHAIRPERSON MR DU PLESSIS No, but that's why ...(intervention) CHAIRPERSON Pertaining to the ...(intervention) MR DU PLESSIS "... his evidence", CHAIRPERSON MR DU PLESSIS Mr Chairman, I hear what you say, and I will take note of this in future applications, and with respect, Mr Chairman, I will then not be led by indications pertaining to the length of the evidence, and present it the way I think I should. MR SIBANYONI Mr du Plessis, before saying that we are not prepared to give you an opportunity to recall, are you asking to recall those witnesses? MR DU PLESSIS In the light of the views expressed by the Members of the Committee, Mr Chairman, that is my only alternative. CHAIRPERSON But there is no evidence before us on this. You now say you want - On this issue you want to now reopen the whole case, on the fact that there was, what is it you say in your Heads? You say that there was a low intensity war between the South African Government, the National Party, and the liberation movements. MR DU PLESSIS MR VISSER MR DU PLESSIS "Mr Vlok testified that the climate was created that the Security Forces could act illegally and no questions were ever asked, or reports required, of illegal actions." The point is that not just in this incident, but in a lot, in lots of other incidents, the same situation prevailed. No questions were asked. Then paragraph ...(intervention) CHAIRPERSON MR DU PLESSIS CHAIRPERSON MR DU PLESSIS CHAIRPERSON You can rely on the submissions made, as you can on others, as has been our practice throughout. ADV DE JAGER It can be handed in like this ...(intervention) CHAIRPERSON MR DU PLESSIS CHAIRPERSON MR DU PLESSIS Yes, so I will have to call, to put to Mr Raven, this was the evidence that Mr Vlok testified about at the Khotso/Cosatu House hearing, that is what he said, what is your comment on that? CHAIRPERSON Yes. And if he says I accept it, I believe it, that was the position, he has then given that evidence. MR DU PLESSIS CHAIRPERSON You can do that at the conclusion of argument, because it may well be, when argument is concluded, you find that the question is totally irrelevant. MR DU PLESSIS As it pleases you, Mr Chairman. MR LEVINE And I think, Mr Chairman, with great respect, that if those guidelines are at variance with what is now being suggested, then there requires to be a definitive ruling on the matter, because whatever that ruling is, what has happened in the past impacts upon those judgment in the past, and may very well affect the manner in which these proceedings are going to be conducted in the future. CHAIRPERSON MR VISSER CHAIRPERSON ...(indistinct) MR VISSER CHAIRPERSON UU2? MR VISSER No, no, VV, Mr Chairman. UU if I remember correctly was the application form. CHAIRPERSON UU2 is an affidavit. MR VISSER Then he goes on, Mr Chairman, and says: "Evidence of former Minister Adriaan Vlok regarding the Khotso and Cosatu House incidents, evidence of General Johannes van der Merwe ..." ... in the same applications. "... my own evidence before the Amnesty Committee regarding the Cosatu House incident." MR VISSER "Mr Taylor you have taken note of the contents of certain exhibits which served before this Committee, Exhibits P45, P46, P47, and you wish the contents of those exhibits to be incorporated in your application. "That is correct." "And you make common cause with that evidence, and you also asked for the evidence to be incorporated in your evidence here?" "That is correct." CHAIRPERSON So that again, the passage you have - as I understood it, it is the general sense of what they said, not specific incidents. MR VISSER CHAIRPERSON MR VISSER But if I may just conclude Mr Chairman ...(intervention) CHAIRPERSON And as I said earlier Mr Visser, had there been some consultation between counsel, as is normally the practice, it appears to me the whole of this could have been avoided and we could have avoided wasting most of today. MR VISSER CHAIRPERSON And we have never, have we, allowed details evidence from other matters to be ...(intervention) MR VISSER CHAIRPERSON MR VISSER MR BIZOS May I just respond to a rhetorical question by Member of the Committee, Mr de Jager? We do not contend, and we do not put in issue, that there was a violent conflict in the past. There is a legal presumption to that effect, preventing us from doing it. The postscript of the interim constitution and the preamble to the Act under which you are, we are operating, that is not our case Mr de Jager. CHAIRPERSON ...(indistinct) go a bit further and admit that a climate was created where the Security Forces believed they could act illegally and no questions were ever asked or reports required of such actions. MR BIZOS CHAIRPERSON You agree to that? MR BIZOS Yes, Mr Chairman. CHAIRPERSON MR BIZOS But this does not ...(intervention) CHAIRPERSON MR BIZOS This is why ...(intervention) CHAIRPERSON MR BIZOS Yes, Mr Chairman this is why I asked for the admissions of fact to be formulated, which ...(intervention) CHAIRPERSON MR BIZOS No, and he has sufficient evidence ...(intervention). CHAIRPERSON MR BIZOS CHAIRPERSON MR BIZOS MR DU PLESSIS CHAIRPERSON Are you prepared to continue with your argument without referring to these, and if Mr Bizos contest them you can then raise the questions. MR DU PLESSIS CHAIRPERSON A ruling on what, Mr du Plessis, the admissibility of facts set out in evidence elsewhere, that have not been referred to in evidence? MR DU PLESSIS CHAIRPERSON COMMITTEE ADJOURNS ON RESUMPTION R U L I N G CHAIRPERSON We are of the view that where a witness is asked in general terms whether he has read the evidence given by some other party, at other proceedings, reference can thereafter be made to the general tenor of that evidence and any general submissions that person made in the course of his evidence. We are, however, of the view, that no reference can be made in the sense that it becomes admissible as evidence, of any specific passage contained in that evidence. If it is desired to make use of such passage the evidence should either be made available, and the witness being questions should be referred to that passage, or he should be specifically questioned about the passage and as to whether he agrees with what was said there. In the present case, that was not done. We are accordingly of the view that the only reference that can be made to the evidence which he said he agreed with, was as to the general tenor of the evidence. MR DU PLESSIS IN ARGUMENT (Cont) ADV DE JAGER You said Mr Botha. Oh, Mr Pik Botha? MR DU PLESSIS ADV DE JAGER MR DU PLESSIS ADV DE JAGER ...(indistinct) was representing ...? MR DU PLESSIS ADV DE JAGER ...(indistinct) MR BIZOS ADV DE JAGER Was Mr Penzhorn informed of the argument, that we will start argument on this? MS PATEL ADV DE JAGER MS PATEL MR DU PLESSIS Then 68.4 refers to the Cronje hearings, please ignore that, and also 68.5, as well as 68.6. Then I refer to certain documents, in which, Mr Chairman, which are referred to in the Heads of Argument, and in which documents there is extensive reference to the counter-revolutionary strategy. This is part of the argument and obviously not part of the evidence. CHAIRPERSON Paragraph 70? MR DU PLESSIS ...(gap between tapes) CHAIRPERSON MR DU PLESSIS About Trevits Mr Chairman? CHAIRPERSON Yes. MR DU PLESSIS CHAIRPERSON I think it was. It was fairly widely known. MR VISSER And of course there was a whole day of evidence before the TRC, which is of course on the, Human Rights Violations Committee, which is also on record. MR DU PLESSIS MR BIZOS MR DU PLESSIS ADV DE JAGER Here you refer to Cosatu/Khotso House hearing, record so and so. "This was reluctantly conceded by General Coetzee and supported by Williamson." MR DU PLESSIS ADV DE JAGER MR DU PLESSIS ADV DE JAGER MR DU PLESSIS ADV DE JAGER MR DU PLESSIS Obviously, Mr Chairman, yes. Obviously. CHAIRPERSON MR DU PLESSIS CHAIRPERSON Nobody ever told me. MR DU PLESSIS CHAIRPERSON And eliminate had one meaning and one meaning only. MR DU PLESSIS Now Mr Chairman, I have said that the ...(intervention) MR BIZOS CHAIRPERSON MR DU PLESSIS Mr Chairman 86.13, you can ignore. Then 86.14, I just refer to the fact that Mr Williamson testified that the Generals knew about their actions. 86.16 is a repetition again. 86.17, you can ignore. 86.18, 19, and 20, Mr Chairman, you can ignore for practical purposes. And that is really the conclusion of this part of the argument, Mr Chairman: "It is clear from the evidence in the applications of all applicants, as well as the individual evidence, that they perceived the conflicts in which they were involved in as a war, which necessitated and called for counter-revolutionary strategies outside the normal criminal system and legal system. The conclusion to the abovementioned must inevitably be that a low intensity guerilla war was fought between the liberations movements and the South African government. The actions of the applicants should therefore be perceived in the light of the fact that abnormal circumstances existed. That the people involved in the struggle on both sides were engaged in a war. And that the actions should be understood and regarded in the light of a war situation. It is submitted that the actions of the applicants cannot be ex post facto regarded in the same category as normal crimes in a peaceful situation." ADV DE JAGER MR DU PLESSIS "There is no justification for distinguishing between attacks on military and civilian targets. The incidental to component, like the incidents test as a whole must be applied in an objective, non-judgemental manner. It is for revolutionaries, not the Courts, to determine what tactics may help further their chances of changing the government." "It is submitted that the applicants at all relevant times acted bona fide in the furtherance of such of the political struggle. This was clear in respect of each and every application of the applicants. A clear distinction was drawn by the applicants between actions simply and purely as employees of the state, and their actions for and on behalf of the National Party of which they were the military wing. Their actions all fell under the latter." ADV DE JAGER MR DU PLESSIS "No person who has been granted amnesty in respect of an act shall be criminally or civilly liable." CHAIRPERSON I take it that occasionally they did do their job as policemen? MR DU PLESSIS CHAIRPERSON MR DU PLESSIS Yes but he was as, he was a part of the Security Police. CHAIRPERSON Yes, but he also carried out other duties, technical duties, for the Security Police. MR DU PLESSIS Now 120.4, Mr Chairman. Evidence about trade unions involvements in strikes, unrest, intimidation, sabotage and terror acts, were given by Mr Williamson. The Schoons were deeply involved with the ANC and taught terrorists English. Now I make that point, Mr Chairman. Maybe that goes a bit too far and maybe that was not a hundred percent the evidence. You will recall that there was a newspaper article introduced. It was in cross-examination, but it was denied by the witnesses, so that statement is really not correct, Mr Chairman. They taught people who supported the NPLA, Mr Chairman, and in some circles, one, people would argue that, in the light of that, that statement is correct. But in any event, they had a history of supporting the struggle and were in Lubango, the regional command of the ANC, which supported SWAPO and FAPLA. It was the main air base and the headquarters of the Cubans, in that area, Mr Chairman. The headquarters of the Cubans, it should include there, in that area. Now, Mr Chairman, other evidence which have appeared and which were elicited from witnesses in the past few days, as well as Mr Schoon, ...(intervention) ADV DE JAGER In that same paragraph "They had a history of supporting the struggle and were in Lubango the regional command of the ANC." MR DU PLESSIS CHAIRPERSON MR DU PLESSIS Now Mr Chairman, in respect of this point, I have to refer you to the evidence, paragraph 120.4.1: "The objective was to fight the liberation movements." And then 120.5: "Ruth First was always regarded as a freedom fighter and a supporter of the liberation. She was involved with the ANC in Maputo." CHAIRPERSON Finished with the Schoons now? MR DU PLESSIS Yes Mr Chairman. CHAIRPERSON What about their two children? MR DU PLESSIS CHAIRPERSON MR DU PLESSIS CHAIRPERSON What about 20(3)(f)? MR DU PLESSIS Yes, yes that is the only ... GAP BETWEEN TAPES MR DU PLESSIS ADV DE JAGER MR DU PLESSIS ADV DE JAGER Would it have been necessary to insert 20.2(b) "the supporter or the person", if everything was considered to be directed against an organisation? MR DU PLESSIS Not necessarily, Mr Chairman, but in respect of a letter bomb - May I take an example which makes a difference? Here you have a situation where a letter bomb is sent to a specific person, but it is foreseen, obviously, and one cannot get away from that, that that letter is going to a specific place and that other people who may also be involved with the liberation movements may also be injured in that operation. On the other hand, if you have a situation where a person goes to assassinate a specific person, a specific person, without an intention to, or without the possibility of anybody else to be affected thereby, Mr Chairman, that would be the normal situation where you would say that was directed against a member or a supporter of the liberation movement. But where, here, a letter bomb is sent to a target, which may end up in a different scenario than is foreseen by the person who sends the bomb, Mr Chairman, but it hits a specific place where operations are conducted from, from that liberation movement, it can be, can fall under both. CHAIRPERSON MR DU PLESSIS CHAIRPERSON And he did not know that there were children involved. MR DU PLESSIS ADV DE JAGER MR DU PLESSIS "she would not ..." That should be: "she would have been a target" Mr Chairman. "She was a potential activist. Her involvement appears from statements in cross-examination. She was a well known speaker. She was a member of the SACP." And then last Mr Chairman, I have really already dealt with Jeanette and Marius Schoon. I just gave, give further references there to their involvement. And I make the point against that Raven did not know what they were doing in Angola and he did not know who the bombs were sent to. ADV DE JAGER Section 20(2), trying to indicate who could be candidates applying for amnesty. MR DU PLESSIS Yes. ADV DE JAGER MR DU PLESSIS Yes. NO SOUND ADV DE JAGER ... describing categories of people who could be applicants in an application. MR DU PLESSIS Yes, Mr Chairman, and as I understand the Act, the Act was written in such a way that the liberation movement members would fall under (a), and the Security Forces would fall under (b). And that was one of the main criticisms of this Act, that (b) made it much for difficult for the Security Force members to get amnesty because there were additional points that they had to prove, such as the question if they acted within the scope of their express or implied authority. ADV DE JAGER MR DU PLESSIS Yes. NO SOUND ADV DE JAGER NO SOUND ADV DE JAGER ...(indistinct) dealing with the motive at all. MR DU PLESSIS "If the applicants acted in the course and scope of their duties, and within the scope of their express or implied orders." This all, these points I make, Mr Chairman, to justify the fact that Mr Raven had reasonable grounds to believe that he was acting within the course and scope of his duties. CHAIRPERSON MR DU PLESSIS ADV DE JAGER MR DU PLESSIS ADV DE JAGER MR DU PLESSIS ADV DE JAGER MR DU PLESSIS CHAIRPERSON Well the example my colleague gave you, the State President would have believed he had the authority. MR DU PLESSIS Yes sir. CHAIRPERSON MR DU PLESSIS ADV DE JAGER MR DU PLESSIS As it pleases you. It will become relevant in other matters again, Mr Chairman. So, the point in any event, Mr Chairman, in this matter, from the point of Mr Raven, he succeeds in proving that he falls under both. He did receive and order, and in any case he had reasonable grounds to believe that what he did was authorised. MR VISSER MR DU PLESSIS CHAIRPERSON MR DU PLESSIS I can take you through it Mr Chairman. MR VISSER Where are we now? MR DU PLESSIS CHAIRPERSON But they would never have applied their minds to the Geneva Convention or anything under it, would they? MR DU PLESSIS No. CHAIRPERSON They were just ordinary policemen who believed that they were carrying on a war here. MR DU PLESSIS ADV DE JAGER MR DU PLESSIS No. NO SOUND ADV DE JAGER MR DU PLESSIS ADV DE JAGER MR DU PLESSIS Yes. ADV DE JAGER ...(indistinct) MR DU PLESSIS Mr Chairman maybe I must read to you the conclusion of all this. CHAIRPERSON MR DU PLESSIS CHAIRPERSON MR DU PLESSIS "In the light of the abovementioned, it is therefore submitted that the applicants could not have questioned the orders given to them, together with the tacit ratification of their actions as having been lawful in an international context. CHAIRPERSON MR DU PLESSIS CHAIRPERSON ...(indistinct) more, he knew the South African government was operating across the border. Finished. And then when they told him to do it he believed it was part of the same policy. MR DU PLESSIS "The question to be asked is if any reasonable Security Policeman in the position of the applicants would have accepted that the orders referred to in the evidence were legal and legitimate orders. From the evidence it is clear that the authorities allowed the Security Police to act in the way they did, and the existence of a hit list was even authorised by Trevits, and the preceding organisation, which was part of the national security system. It can therefore be accepted that the applicants were always brought under the impression that any orders given to them revolutionary strategies. The evidence also indicates that they believed that this was so. This belief was fortified by similar previous actions." CHAIRPERSON MR BIZOS ...(indistinct) bundle four. CHAIRPERSON So you have a copy of it Mr Bizos. MR BIZOS The reference is to the evidence. MR DU PLESSIS The evidence was a repetition of the submissions. NO SOUND MR BIZOS MR DU PLESSIS Mr Chairman I was waiting for you to give me an indication. CHAIRPERSON Right, carry on. MR DU PLESSIS ... GAP BETWEEN TAPES ADV DE JAGER MR DU PLESSIS ADV DE JAGER No, the only thing is I think it was irrelevant in the sense whether you are guilty or not guilty, whether you should be punished or not. MR DU PLESSIS But Mr ...(intervention) ADV DE JAGER ...(indistinct) connection with any amnesty applications. MR DU PLESSIS CHAIRPERSON ...(indistinct) MR DU PLESSIS Pardon Mr Chairman? Can I proceed? The evidence of all the applicants was that they supported the National Party, wanted to keep the National Party in power, wanted to uphold apartheid, and wanted to fight communism. That should be taken into account, Mr Chairman, that was their motive. They acted against the liberation movements. They were politically motivated in each and every instance. This is a subjective test, and has to be applied on a subjective basis. And then I refer to the Steyn amnesty application where this principle was the overriding principle when the decision was made. The same goes for the Cronje judgment, Mr Chairman. What also has to be taken into account under this heading is the fact that the applicants were subjected to severe propaganda in terms of which they believed that they acted to uphold apartheid, acted for the National Party, acted against communism, and had to act against the liberation movements at all costs. ADV DE JAGER MR DU PLESSIS Yes, Mr Chairman, that was the point, the dispute, the point of dispute in the Rafolo decision, or one of the points, which was dealt with by his lordship Mr Justice van Dykhorst. So you cannot just say you have to relate the act to a political uprising as is stated here, a disturbance or a specific event or, it says, or in reaction thereto. This must be interpreted very widely to also apply to the, as you have correctly stated, the ongoing war situation which was prevalent throughout the mid-1980's, at least in 1982 and 1984, the dates we are talking of in respect of these incidents. 20(3)(d). That is the next point that has to be considered when dealing with if an act was associated with a political objective, and that is the object or objective of the act. And in particular if the act was directed at a political opponent, or state property or personnel, or against private property or individuals. Now Mr Chairman, it is this particular paragraph which caused Professor Norgaardt in South West Africa to come to the conclusion that acts, indiscriminate actions against civilians, should exclude amnesty, and that would be an argument for instance, in respect of the Church Street bomb. That an indiscriminate such act directed against individuals and not necessarily political opponents, would fall under this, or not fall, sorry, not fall under this. The object or objective of the act, Mr Chairman, must be directed at a political opponent. And then Mr Chairman ...(intervention) CHAIRPERSON But was it? Sending letter bombs through the post, is that safeguarding civilians and innocents? MR DU PLESSIS CHAIRPERSON MR DU PLESSIS CHAIRPERSON MR DU PLESSIS ADV DE JAGER MR DU PLESSIS In my submission, Mr Chairman, if we look at the case of Brian Mitchell, it is, to a certain extent, similar to this case, because at the end of the day innocent people were killed in that operation, because the wrong place was eventually targeted. The intention of the perpetrators, Captain Mitchell, was a political intention. He wanted to kill certain people, and they went to the wrong place, and they killed the wrong people. However, he received amnesty. Now in this situation, it is more or less the same Mr Chairman. In every kind of operation things can go wrong, people can come in the way, or things can go totally wrong in the sense that civilians may be killed in the process. And this is one of those incidents, Mr Chairman. CHAIRPERSON MR DU PLESSIS Yes. CHAIRPERSON MR DU PLESSIS Then Section 20(3)(e). I have dealt with this in detail Mr Chairman. The requirement is whether the act was committed in the execution of an order of, or on behalf of, or with the approval, it goes wider than Section 20.2.B Or with the approval of the organisation, institution, liberation movement or body of which the person who committed the act was a member. And Mr Chairman, it is also important to have regard to what Mr Justice van Dykhorst said about this requirement. He said: "It had nothing to do with the legality of the order." CHAIRPERSON ...(indistinct) MR LEVINE Mr Chairman, between thirty and thirty five minutes. CHAIRPERSON MR LEVINE Thank you Mr Chairman. MACHINE SWITCHED OFF MR DU PLESSIS "As regards the relationship of proportionality between the offences and the political objective pursued, the Committee held the view that in no civilised society could or would the killing of a political opponent be accepted or justified to further political ends." That was the Committee whose decision was taken on review Mr Chairman, over which Mr Justice van Dykhorst had to make a decision. Then his lordship said the following: "This is correct, but in my respectful view is not a relevant consideration. In our warped world what is frowned upon if done to a single individual becomes the stuff of sagas if in wartime when whole armies are wiped out. For the purposes of this guideline something akin to a war situation has to be envisaged." Mr Chairman, in respect ...(intervention) CHAIRPERSON MR DU PLESSIS ADV DE JAGER MR DU PLESSIS "Proportionality is a flexible principle which takes into account the balance between the military objective on the one hand and the loss of civilian lives therewith on the other hand." "Proportionality is to be regarded as an aspect of self defence which can justify actions taken in self defence against an armed attack. In this regard it is clear that the overriding motive and the targets were the adults as well the liberation movements and members of the liberation movements. It was planned in such a way that civilians and innocents would not be killed, and it turned out that civilians were killed. The overall evil of the act can therefore be balanced by the good it was perceived to have achieved." CHAIRPERSON MR DU PLESSIS CHAIRPERSON One has reference to all of them and then tries to evaluate them. MR DU PLESSIS CHAIRPERSON ...(indistinct) must have reference to all of them. MR DU PLESSIS You have to have reference to all of them Mr Chairman. But if you ...(intervention) CHAIRPERSON And then you make a decision. MR DU PLESSIS Yes. CHAIRPERSON You might not comply with two of them, yet you still decide. MR DU PLESSIS CHAIRPERSON MR SIBANYONI MR DU PLESSIS CHAIRPERSON There were two envelopes. MR DU PLESSIS Thank you Mr Chairman. CHAIRPERSON COMMITTEE ADJOURNS