CHAIRPERSON: Good morning everybody. We continue with the argument in this matter but before we do so, and I should have raised this yesterday, it's the last time that we convened in the previous venue. I've received two documents or bundles of documents. The one is an affidavit by Mr Luitingh, I don't know if everybody has got that? And then I've got another bundle called:

which contains a number of statements relating to the ELC. I don't know if everybody has got that? Does everybody have that? I wanted to make sure that everybody has got it and perhaps we should give them exhibit numbers.

MS COLERIDGE: Chairperson, our last exhibit number was P1 and P2 so we can mark that Q and R. If we could mark Wilsnagh and Van Wyk affidavit as Q ...(intervention)

CHAIRPERSON: And the other document?

MS COLERIDGE: From Dawood Adam.

CHAIRPERSON: From Dawood Adam?

CHAIRPERSON: As R.

CHAIRPERSON: As R. Thank you.

MR WESSELS: Mr Chairperson, may I just place on record that I've been instructed to appear on behalf of Mr Luitingh or represent him insofar as ...(intervention)

CHAIRPERSON: As his interests are concerned, yes. Thank you. Mr Bizos, when we adjourned yesterday you were about to deal with paragraph 21?

MR BIZOS: ...(inaudible)

CHAIRPERSON: Thank you.

MR BIZOS IN ARGUMENT: We ask the Committee to find that in participating in the ELC bombing, Van Zyl, Burger and Botha were mainly motivated by personal gain and we refer to Section 20(3)(1). Now I want to make a submission in relation to that sub-section, Mr Chairperson.

CHAIRPERSON: 20(3)(1)?

MR BIZOS: 23(i) - for personal gain. It's an exception to not include any act for personal gain. Now we would submit that those words have got to be given their ordinary meaning and that effect should be given to that meaning based upon the facts of this case. Now as far as the facts are concerned we set them out in paragraph 21.1 by saying that they failed to produce evidence of strongly held political beliefs which caused them to resort to violence and distinguish their position from the person who has the beliefs that were submitted yesterday is motivated

by strong beliefs however wrongly founded they may be, who gets something by the way as a pasella, so to speak. But here we have a situation where, say at 21.2 that all three joined the CCB mainly for the type of reasons which ordinarily motivate people to accept employment e.g. ...(indistinct) proposals, material gain etc. and what we would refer you to in relation to sub-paragraphs 2 and 3 where we say that all three derived financial benefits their role in the CCB far above that which would accrue to an ordinary soldier and I would like to give you the references there, Mr Chairperson, for 21.2 and 21.3. They are in B6, B26 and 108 for Van Zyl, Burger and Botha respectively. So the first one is for Van Zyl, the second one is for Burger and the third is for Botha of the references that I have given you.

CHAIRPERSON: Sorry, just while you're dealing with this. So your argument in this respect, taking a look at the top of the page is restricted to Van Zyl, Burger and Botha.

MR BIZOS: And Botha.

CHAIRPERSON: Not Maree?

MR BIZOS: No, Maree is not involved in it.

CHAIRPERSON: Yes, sorry.

MR BIZOS: And of course we go to 21.4. Financial bonuses were paid to members who carried out crimes on behalf of the CCB in order to motivate them to carry out acts of violence for reasons of personal gain and again we refer you to B129 and B159. B159 is of some importance. One would have expected an explanation what that R12 or R14 000 was about. Mr Chairperson, you remember that entry in the diary which nobody could explain? It's quite clear, names and sums of money, they received it. What for? And we submit that you will pose the question, why was (1) as an exemption for personal gain and how much must an objector show that a person got other than showing that not only did they receive large sums of money, thousands of rands in 1988 less the valued rands than today's? They were large sums of money, three times their salary on the entry in the diary. But there is also another important aspect. From the point of view of obtaining the objectives of the acts, we would submit that if this Committee grants amnesty to persons whose business it was to kill and the better the business the more money they got, doesn't the only - negate the idea of reconciliation? It actually brings about the very opposite effect. So this is not merely a submission which we make quite by the way, it's well-founded in fact, it is clearly provided as an exception in this sub-section. We submit that the applicants cannot escape its consequences, Mr Chairperson.

One can't imagine that they only had foreign mercenaries in mind when they said "for gain". It ...(intervention)

CHAIRPERSON: Yes, I also think they had in mind robbery as well, that sort of thing.

MR BIZOS: Well yes, whatever it was but one can even indicate that this may be an even clearer case than the case of robbery because in a case of robbery the act committed, except in rare circumstances, does not have a political objective in mind. I know that many people convicted of robbery are saying that we did it for the cause. There was even a case, not in this country, in another country that he was a robber and said no, no, no, he was committing lots of bank robberies in order to keep the police busy so that they wouldn't chase political - his comrades, that was his contribution to the struggle. So the circumstances must be taken not in isolation, it's not only this but it's coupled with the other unusual features that we have referred to and on top of that the gain.

The purity of their political belief is coloured and negative. Let us pose the question, Mr Chairperson and I think Mr van Zyl is the clearest example. Would Mr van Zyl have done any of this if it was not financially attractive to him and on the probabilities the answer must be a simple one. He wouldn't have done it and we only need his own evidence and his own undisputed behaviour that as soon as his business really got of the ground his patriotism came to an end and he became a successful man in the security business and he tell us in the Heads of Argument filed on his behalf how much good he has done the country.

And then if we turn to paragraph 1 on page 10, I would like to refer you in relation to support of that, of the misappropriation of the funds that were intended for the ELC. It's in paragraph 126 and here we have - it doesn't matter which of the two is to be believed. What we do know is that R12 000 was taken.

What patriotic fervour led one or both of them to do this and there is a conflict. They were both unsatisfactory witnesses. We remain with the one proven fact, admittedly proven fact that the R12 000 was not paid to Hardien. Because there are unsatisfactory witnesses the negative finding must be made against both of them that probably both of them received it without actually preferring Van Zyl as a witness to that of Burger.

Now in relation to - and I might as well deal with it before I deal with the conspiracy to assassinate Minister Dullah Omar and because we are going to rely on the evidence of Mr Barnard, I want to refer to the indignantly strong submissions made against Mr Barnard and his credibility. We would submit that the evidence of Barnard must be approached with grave caution, careful consideration, because when we deal with the evidence of accomplices, of course we have to warn ourselves against the danger of the ability of the accomplice to implicate people because he knows the facts, with the usual thing that in Kanana's case that Schreiner spoke about, we don't have to develop it.

But let us see what Mr Martini left out in his indignant attack about Mr Barnard. Firstly, Mr Barnard was chosen as a partner of Mr van Zyl's crime with Mr van Zyl knowing who Mr Barnard was and Mr van Zyl is not allergic to lying and I will give you a number of examples. Firstly, he lied when he said that he forgot to tell the CCB about ...(intervention)

MR LAX: He lied to the CCB.

MR BIZOS: He lied to the CCB when he says that he forgot to tell them about the Kombi and the printing press.

MR BIZOS: He failed ...(inaudible) his projects, he took the money. He took no steps to recover the money if in fact was paid to a mythical perpetrator. Again, what is the strength of his political motive if that is what he is prepared to do about the monies of the body which he joined. I would refer to paragraph B10 where you will find references to these matters, Mr Chairperson.

On the evidence he lied to his superiors about losing Barnard as an operative over a period of months. The evidence of Mr Burger in this regard is clear that Mr van Zyl made reports to him regularly and in none of these reports was the fact that he had employed Barnard mentioned.

Thirdly, he lied in his amnesty application when he said that he had paid Hardien to burn down the printing press. You will find that in B9. Ten years afterwards he tried to justify this in truth by substituting Hardien by Peaches, an inventive piece of evidence, knowing that Peaches is no longer alive.

While we're about it, Mr Chairperson, Mr van Zyl is a very good manipulator of fact. An honest man, when he came here, when he knew that Mr Hardien was an important witness on what happened at the training centre, would you not of expected him, Mr Chairperson, to say "I have taken Mr Hardien into my employ from March last year", coincidentally at a time when the preparation for the hearing of the applications for amnesty was being prepared that we were talking about dates? He was buying his loyalty. And it was "how can we trust anything that Hardien may say to corroborate Mr Van Zyl" and vice versa. He manipulated the truth in order to show that he is an honourable man who apologises for the wrongs done. It turns out from matters that he had to admit, published by Mr Evans and we refer you to B12, that he didn't apologise. In fact - in fact he said in 1990 that if he had his way he would have done exactly the same. He lied about the contents of what he said in his Section 29 statement. We refer you to B13, Mr Chairperson. Now you will recall how he vacillated on this. He says that "my Section 29 statements are correct". It was not a pleasant experience and we would all accept that it is not a pleasant experience to be detained under Section 29, even in its sanitised form that Mr van Zyl and the others had to suffer. But he says "I was never induced to tell an untruth, I have nothing that I really want to correct except one very minor point." But when in cross-examination by my learned colleague, he finds himself contradicting himself. He says "Oh, blame it on Section 29." He couldn't have it both ways. He was asked specifically if he told any untruths and he said no. He, for the reasons already advanced, lied and to be advanced, lied about the training centre and he lied about Omar.

With those introductory notes, we will want to turn to paragraph 22.

MR LAX: Sorry, Mr Bizos. What training centre? Do you mean the learning centre?

MR BIZOS: ...(inaudible)

MR LAX: Oh, sorry.

MR BIZOS: Sorry. What we say, Mr Chairperson, is that the Committee should find that Section 20(1)(c) has not been complied with and that we should take the following facts into consideration. Could I give you the references, Mr Chairperson? As a whole we would refer you to paragraphs A158.1 to 7. Sorry, could you put above that 1.5? 1.5, then 158.1 to .7 and B, paragraphs 391 to 396 where you will define the evidence discussed and also at A, 160.1 to 160.6 and on the strength of the analysis of that evidence in those paragraphs, we would ask you to make the following findings of fact, that Barnard was never tasked to monitor Omar but was instructed to kill Omar by Van Zyl and Van Zyl's evidence to the contrary is false, that Van Zyl handed to Barnard a Makarov pistol with a silencer to be used for assassination. In or about September 1989, Barnard on Van Zyl's instructions, entered the premises with a firearm and had the opportunity to shoot Adv. Omar but declined to do so. When Van Zyl was informed about the above he was angry and told Barnard that he should have shot Omar and the woman as well and that Barnard was paid R7000 by Van Zyl for his role in the attempted murder of Advocate.

May I ask you to make a new paragraph 22.6, Mr Chairperson, on page 11, that the probabilities on these issues strongly favour Barnard's version. May I just amplify that?

What was Peaches' mandate at the time? He had failed. And how does a high-profile killer do in the vicinity of the Omar home where a killing is to take place, sitting in a car watching the would be killer to do what and report? It becomes even more ridiculous when one has regard to the fact that he wasn't to watch Peaches only because he was not going to do the killing. Peaches was going to hire two other gangsters to do the killing and presumably Peaches would be watching them and Barnard would be watching Peaches. Well when he had, to his knowledge, at his disposal an experienced and ruthless killer Barnard, the temptation to use him and not partake in what is really a charade on his evidence, is so highly probable that whatever the demerits of Barnard may be on general grounds having regard to his most unsatisfactory past, the probabilities clearly favour Barnard's version.

The essence of it, even though it was by another court, but Mr Martini tries to wrongly use the finding in his favour. It was in fact found as a fact that Barnard attempted to kill Omar and Barnard was sentenced to ten years imprisonment on the basis of that finding, not that he was there merely to monitor the movements of - it is true that the learned judge was generous, which judges are when they are not compelled in order to reach the conclusion that they want to make strong findings against a witness before them who is an accomplice and who is seeking amnesty. That generosity in that regard should not be repeated by this Committee towards Mr van Zyl because at that trial Mr Barnard was in denial and the learned judge did not have the benefit of the evidence of Barnard that you have had in order to make, to round off on an additional and ...(indistinct) ground why his lordship Mr Justice Els was correct in finding Barnard guilty of attempting to murder Omar.

...(inaudible) Mr Chairperson, that generally speaking the State supports applications for indemnity under Section 20(4). Significantly the prosecution, it's a factor to be taken into consideration which in itself may have not been enough. The State there opposed the grant of amnesty - not amnesty, indemnity to Van Zyl because of it considered his evidence unsatisfactory. But that taken alone would have been and I say well it was what the judge thought and not what the State thought of its witness that really is material or more important, perhaps. But now that we have the evidence of Barnard that the learned judge was correct and that Van Zyl was in fact lying on this aspect, it is submitted that it may well be that even the indemnity may not serve Mr Van Zyl well if in fact it was obtained by false pretences. But anyway, this is not a matter for the Committee. What we do urge the Committee to find on the probabilities that Barnard was telling the truth and that Van Zyl was not.

We want to refer to paragraph 23 on page 11 and I would ask you to note that the matter is dealt with in detail in A162. This is paragraph 23. In 23.1 we say that Van Zyl was instructed to monitor Omar in order to establish whether he was a suitable target.

CHAIRPERSON: That was contained in the amnesty application, in the statement.

MR BIZOS: Yes.

CHAIRPERSON: Which differed from the evidence.

MR BIZOS: Which differed. Van Zyl in fact instructed to establish suitable method to assassinate Omar who had already been selected as a target. The information received about Omar could not be placed before a court and accordingly it was for this reason that the extra legal methods had to be resorted to.

Now in paragraph 24, Mr Chairperson, we submit that the applicant, besides Barnard, either falsely denied participation and/or falsely denied knowledge of certain further acts prepared by the CCB involving the actual assassination or the planned assassination of persons which with a similar profile to Omar, we will develop that argument. But may I ask you to merely note against paragraph 24, A92 to 108.

Perhaps this is a convenient stage for me to place on record, Mr Chairperson, Minister Omar or Dullah Omar's attitude and our instructions in relation to the matter of his attempted assassination, we are instructed to place on record the following, Mr Chairperson, that Mr Omar accepts without reservation that Mr Barnard made full disclosure in relation to the attempted killing of himself. He has publicly and wishes to repeat that he forgives Mr Barnard particularly as he, in Mr Omar's belief, has made full disclosure and he has instructed us not to oppose his application for amnesty on this ground of full disclosure. However, Mr Chairperson, as a person in public life he is concerned that it should not be viewed in the light that the is trying to influence the Committee in relation to either the decision as a whole or the other requirements which Mr Barnard has to satisfy in order to obtain amnesty. He has left it to our discretion to draw to the attention of the Committee aspects which may not entitle because he is after all part of a group and we cannot be selective in our submissions as to what is a proper finding before this Committee.

CHAIRPERSON: Like for instance you've dealt with personal gain aspect.

MR BIZOS: The personal gain and other matters, the equally apply to him and Mr Minister Omar is not, want to be perceived to be expressing views on matters which are not of his - within his province. I think that makes the position clear, Mr Chairperson. Thank you.

Then we deal with the question of absence of authority and we say no credible evidence has been produced to show that Verster was authorised by General Webb to instruct. In view of our other argument, Mr Chairperson, could I ask you to put employees in inverted commas because employees within the meaning of the section means something - if you could just put it in inverted commas, I don't want it to be suggested that we concede that even that has problems because we're going to refer you, there is in fact a contradiction between the definition section and the sub-section in section 20. But we will develop that argument that for the purposes of Section 20 on the facts of this case they are not employees, Mr Chairperson and we deal with it in paragraph A59. Have I given you the reference Mr Chairperson?

CHAIRPERSON: Sorry, this word "employees?"

MR BIZOS: In inverted commas, if you would please.

MR LAX: You say the reference was A59?

MR BIZOS: A59.

MR LAX: Thank you.

MR BIZOS: I'll repeat that, Mr Chairperson, because the microphone was not on. We submit that the argument on behalf of Mr van Zyl, that this regard of the in-house rules in relation to authority do not have an adverse effect is not well-founded.

MR LAX: Mr Bizos, in making the submission that the arguments that he disregarded the rules are not well-founded, are you doing that with specific reference to 26 or are you doing it as a general statement, this specific reference to a whole range of other breaches?

MR BIZOS: It's in relation to authority as to what had to be - the rules related to authority are not negotiable for the operative, particularly in relation to the identity of the target and other important aspects. It may be that there is some merit in "go and kill Omar" and the gun jams and you have a knife and you then stab the person. I don't know that that would be a breach of the authority but what Van Zyl said, "why didn't you kill the woman as well?", would it be completely beyond the authority? So that as to whether, certainly in relation to Webb denying that there was authority has very serious consequences in relation to Verster. We will deal with the bona fide belief of those under Verster and what the effect of it is going to be.

MR LAX: Yes, I was more interested in the matters of form rather than the matters of content. In other words, does it matter if his authority, if Van Zyl gets an order "kill Omar, make sure Omar is killed", does it matter how it is done and the fact that he might use Barnard, for example, or instead of Peaches or whatever. So it's that - that was the gist in Mr Martini's argument in that respect. There was a separate argument about Webb which is different.

MR BIZOS: The shooting was - or rather how it was carried out did not matter but the use of Barnard who had been specifically excluded cannot be ignored. It was a serious breach of the authority, of the internal rules. ...(inaudible) put to Barnard that: "I'm going to put to you that you could not have been instructed, because operatives of the CCB were not allowed to commit the act, they had to employ others in order not to expose the CCB". So that what we submit is that what the CCB considered non-negotiable rules, their breach should be considered as lack of authority.

MR LAX: Van Zyl did concede that under cross-examination that that was a serious breach involving himself personally for example.

So it would read, paragraph 27:

instead of "all" there.

And you find that in relation to Van Zyl in B364 and 365, in relation to Verster at B383 to 386. Then could I ask you please to change the heading 'Political Offence,' because this was intended as shorthand for an act committed or associated with a political objective. The political offence really, is only a part of it.

MR VAN ECK: Sorry, Mr Chairperson, just before Mr Bizos moves on. Regarding the last point in 27, he asked us to change the sentence to read the applicants in relation to Omar, then he gave certain references regarding Verster and Van Zyl. Could he give us the references regarding Burger and Basson as well because they're only applicants in relation to Omar, while we're at the point.

MR BIZOS: Well I haven't got it ...(indistinct), we'll have it in a very short while.

MR VAN ECK: Thank you.

MR BIZOS: Then what we say in paragraph 28, the Committee should find that the offence committed was not a political objective as contemplated in Section 20(1)(b) read with 20(3) In so doing the Committee we'll submit, should make the following findings and we say in paragraph 28.1:

CHAIRPERSON: I've just got one query on that. I have difficulty of the phrase "strongly held". I don't see why one's got to have strong political beliefs to fall into the ambit of that sub-section.

MR BIZOS: We used that word deliberately and we submit, with respect Mr Chairperson, that in order to commit murder, the gravity of the offence in some way should be commensurate with the strength of the belief that makes you capable of committing murder.

CHAIRPERSON: But what if their beliefs, their political beliefs were not strong?

MR BIZOS: Then if they were ...(intervention)

CHAIRPERSON: Why must they be strongly held?

MR BIZOS: Because if they were not strongly held beliefs and there's no evidence of strongly held beliefs, there must have been some other motive. A zealot in the biblical and general sense doesn't require money. A zealot doesn't weigh up the pros and cons.

CHAIRPERSON: But a soldier in the army doesn't have to have any political beliefs?

MR BIZOS: No, no, no, because ...(intervention)

CHAIRPERSON: He's acting under the orders but some of these people were.

MR BIZOS: But you see we must distinguish, we must distinguish between the rookie in the army who goes out in a platoon and acts as a sort of semi-automaton. He doesn't have to show any strongly held belief. He may even have regretted that he was drafted into this platoon or sent out to this particular mission.

CHAIRPERSON: Yes, against his will even.

MR BIZOS: Yes. No, we are talking about these people. We are talking about these people who were in police jobs and for money they went over. The absence of a strong political belief ...(intervention)

CHAIRPERSON: Yes, sorry. When you're using that phrase you're using it peculiar to this particular matter, you're not ...(intervention)

MR BIZOS: We are discussing this case, that is why we believe that introducing examples of other situations like the askari. The askari may be between the devil and the deep blue sea. He may have to go to jail if he doesn't listen to his captors or - but we are dealing with these particular persons, that they are prepared to commit murder for allegedly political reasons when they have produced no evidence of a strong political belief which would induce that.

CHAIRPERSON: Yes, no I understand.

MR BIZOS: They are not zealots.

CHAIRPERSON: Yes.

MR BIZOS: They are not zealots, it may be the person who has killed lots of people in Koevoet may become psychopathic and may become a zealot and become a professional killer but there is non of that here. So that it's really the balancing of motive that is important. Balancing the facts in order to determine what was the real motive, that's really what we are saying.

CHAIRPERSON: Yes.

MR BIZOS: What I am reminded, Mr Chairperson, is that Section 20(3)...(indistinct) has within it a range of both subjective - I'm sorry you're looking at the requirements.

CHAIRPERSON: Yes.

MR BIZOS: They have within them a range of subjective and objective factors which taken together will determine whether the offence was one of a political objective being achieved and it is the weighing up in the particular situation of what was predominant in their mind, the mine of each individual participant. The strength of the political belief or the benefit and if we can take Van Zyl as an example, it's almost unarguable on his behalf, we would submit, that on his evidence and particularly on his conduct. 1988 was a year of high noon, so to speak, in the conflict and this person, close to his private business, he receives the gain that there was. In 1989, he joined in 1988. 1989 it's still high noon, some possibility it died down slightly. But how does the Committee find that (a) to (f) had been satisfied in order to find in his favour that this was an act committed with a political objective?

CHAIRPERSON: That's very closely linked to your personal gain argument.

MR BIZOS: Yes, the personal gain is a fact. The consequence of the fact ...(intervention)

CHAIRPERSON: Yes because then he took out the personal gain element and then it might be seen as an act associated with a political objective because there would be no other motive.

MR BIZOS: Yes, it's easier for a person, their could be no other motive.

CHAIRPERSON: Except anarchy or just ...(intervention)

MR BIZOS: He didn't go kill his neighbour, he didn't go and kill - he went and killed a prominent of the UDF or SWAPO or whatever it is. Why else would he have done it other than being a policeman or a soldier. Why else would he have done it? But when you ask that question, the answer on the probabilities and on the facts clearly emerge. There was another set of factors which having regard to his subsequent conduct and abandonment lends colour to his act and should persuade the Committee that it was not. It's only got to be stated in general terms, Mr Chairperson. We do have as lawyers and you as a judge and Members of the Committee have to analyse this. But the thing can be stated very, very simply. What sort of a person bargains for a bonus for killing and then seeks to get the benefit of an important piece of legislation to deprive the victims of the rights they have under the Act? It has only to be stated in that stark way in order - and what we submit, Mr Chairperson, is that we have heard the submissions about generosity but generosity must be at the expense of the express provisions of the Act and without having regard to the innermost feelings of the victims and their families in relation to what they have done.

MR LAX: Mr Bizos, when you use the word bargains, you're not suggesting that Van Zyl negotiated his bonus, you're saying it was part of what he had anticipated receiving?

MR BIZOS: It was part of the deal. It makes it worse, if anything.

MR LAX: But he didn't actually go out and say listen, I'm not going to do this unless I get my bonus?

MR BIZOS: No, no, no. No, no, no, things are done much subtly than that.

MR LAX: No, no, absolutely. I'm just avoiding any misconstruction.

MR BIZOS: No, no, one doesn't have to clothe that in the start quid pro quo but the effect of it is the same.

Of course there is another aspect, that we know that there was litigation for golden handshakes at the end of it and also relying on the contracts of which they had entered into. These contracts have not been produced and we will deal with the question of what information has to be put before you when we deal with the question of onus or the test that could be applied. If once we suggested this, once it's suggested that this was a motive, if they really wanted to persuade the Committee that this was merely a side show - or side show is not the word. It was not an important part of their terms of their contract, it was just an ordinary sort of thing, to sit him down, not much different to the ordinary officer in the army or the police force but of course we have been deprived of that, Mr Chairperson.

The scale of it may be inferred that Botha, who did not litigate, for R200 000 as a golden handshake, well he probably considered it bronze, but it may be inferred what his seniors must have got from R200 000, not a mean some. For what? For committing murder or agreeing to commit murder. On what they tell us what they were particularly inefficient but we will submit that they're doing themselves an injustice on the question as to whether they were efficient or not by not telling us about Webster and Lubowski and the other people that they were involved in.

If you have a look at paragraph 111, Mr Chairperson, in relation to Botha, you will see that he got R200 000 and the reference is B.

CHAIRPERSON: Botha, his blue plan wasn't a success.

MR BIZOS: His blue plan wasn't very successful, yes.

Now - well on his evidence neither his blue nor his red plan were very successful but he got R200 000 which is really five years salary. Five years salary, Mr Chairperson. What was that for? To keep his silence, to keep his loyalty, not to tell the world what he had done. What top executive gets five years salary? I'm informed by my learned friend who does a lot of labour work that he would have been entitled one week per year. So would have had one and a half weeks pay and they may even have taken the point on him that he only is entitled - not entitled to a part of a week, it has to be a completed week. So that that should be added on the scale on our submission as to whether these were employees or not, Mr Chairperson, or possibly contract workers. Have I given you the references for 28.2, Mr Chairperson?

CHAIRPERSON: No.

MR BIZOS: Yes, you will find that on A53.1 to 53.8 and A60 to 76 where the argument which we have delivered. Then Mr Chairperson, we have already argued 28.3. We could turn to paragraph 29, the conspiracy to assassinate Gavin Evans. We submit that they have not complied with this section. We say that in 29.1 Basson vastly stated his amnesty application that the pre-study was prepared by Van Zyl whereas in truth and in fact the pre-study was prepared by Burger and Basson. You will find that in A169.1, Mr Chairperson.

Paragraph 29.2, Burger failed to disclose in his application that he and Basson prepared the pre-study and instead falsely stated that the pre-study was prepared by Van Zyl. You will find that in the same paragraph, 169.1. Burger and Basson falsely stated in their amnesty applications that the evidence was monitored by the CCB in order to establish if he was involved in activities which undermined the security of the State. You will find that analysed in paragraph 169.2.

Paragraph 29.4, Burger and Basson falsely stated in their amnesty applications that the source of information about Evans was not to prepare to testify and accordingly extra-legal matters were resorted to and you will find that in 169.3.

Paragraph 29.5, Burger and Basson falsely stated that information about Evans' links to Grosskopf emerged during the monitoring of Evans and thereby falsely suggested that the decision to murder Evans had been influenced by reason of Evans' links to Grosskopf. You will find that on 169.4.

And in 29.6, Van Zyl also falsely claimed that the selection of Evans as a target for murder had been justified on the grounds of his links with Grosskopf and he thereby falsely associated evidence with the commission of acts of violence. You will find that in the record not in the argument. In record, page 716 where the Grosskopf connection is dealt with but please compare that with paragraph A169.4. See also the reference to Burger in that. It now emerges that the Grosskopf issue was after the attempt to kill Evans and it was when that information became known later that the project was resuscitated.

Now 29.7, Burger and Basson falsely stated that when Evans' address could not be established the project was terminated, 169.5 and in this regard the application of Maree is false almost in its entirety and this appears from A170.1 to 170.4 where Mr Maree in fact concedes that the whole thing was an untruth.

It was submitted, Mr Chairperson, that it matters not what you said in your application as long as you come here and tell the truth. There is a problem, there are two problems in relation to that submission. Firstly that their oath means nothing and you can change your mind about facts without even bothering to furnish an explanation as to how the whole syndrome of facts came to be falsely stated. I submit that that has consequences. If you bring an application and you lie in your affidavit, Mr Chairperson, ...(intervention)

CHAIRPERSON: That doesn't help the application.

MR BIZOS: That doesn't help the application and you, sitting as a judge, say well come with clean hands before you come and - come with clean hands if you want to ...(indistinct) from me. But what happens is that these brothers in arms, they have ever since the Harms Commission tried, albeit unsuccessfully, to lie and still remain in step with one another as far as they possibly could. For people to come with this sort of untruth and this sort of contradiction and say you've heard no argument as to how this line came to be given to you. You say well, you know, never mind about the details, just give us summaries, after all we've got enough to make an application for amnesty and if you don't give us amnesty you're going to be seen as unfriendly to our cause, whatever that may be. We submit that that is not what the Act requires and where you make an application which you do not know whether or not it is going to be opposed and they might have guessed but they didn't know. You have a duty to the court, as you know Mr Chairperson, in your judicial capacity, about the importance of making full disclosure of all relevant facts in ex parte applications.

Have I given you the references to 29.8 Mr Chairperson?

CHAIRPERSON: Yes.

MR BIZOS: Thank you. Now we go to 29.9. Verster failed to disclose the following in regard to the conspiracy. The killers were flown to Johannesburg to kill Evans. Instead he falsely stated in his amnesty application that the plan never progressed beyond the preparatory stages. Please look at bundle A190 paragraph 1.1. That is bundle and not the argument, Mr Chairperson. The bundle A you will recall is the applications. Bundle A page 190 paragraph 1.1 and compare that with the evidence of Van Zyl. I haven't got a readily available reference to Van Zyl but we will find it, Mr Chairperson, that the would be killers got to Johannesburg and they were sent out in order to do the killing but a small mercy intervened, the inefficiency led to a wrong address being given to them which probably saved his life. I will in a short while give you the reference to Van Zyl's evidence.

29.9(ii) - I'm reminded Mr Chairperson that that reference is also a reference to Van Zyl's application in bundle A, that is the application for amnesty. We'll give you the page because he there incorporates a paragraph of his statement and we'll give you that reference.

But could I just proceed to 29.9.2? That his interest in the project was renewed when the information was received in August 1989, that Evans had met Grosskopf in Lusaka and we ask you to see paragraph B414, we're now back in the argument. This is the evidence of Basson. Verster does not deal with this Mr Chairperson, the evidence emerged after he had left these proceedings. That may be a reason why our learned friend Mr Wessels did not deal with it but it stands, Mr Chairperson.

Then on the question of absence of authority, no credible evidence has been produced, we submit, to show that General Webb authorised Verster and Verster has accordingly not satisfied the requirements set out in 20.2.(b). The reference to that is on A59 and it's a similar submission to the one that we made in relation to Omar, Mr Chairperson. Could I ask you to add - not a new paragraph if you like, it's 30.2. C28.1 and C28.2 Supra and Motate supply the argument in relation to Evans. That is, we submit that in relation to proportionality and motive the case of Evans is an ...(indistinct) for refusal because, Mr Chairperson, this was first of all they didn't know which Evans, there were two brothers. The one more prominent in the End Conscription Campaign and the other, they were going to kill the wrong one and for the motivation, the rather bizarre answers given by Maree in cross-examination by my learned friend Mr Kahanovitz of Basson in B167.

Then we deal with the failure to fully, frankly and honestly disclose all relevant facts, Mr Chairperson, this is in relation still to the findings or facts that we ask you to make.

We submit that the Committee should find that all the applicants failed to make full, frank and honest disclosure of all relevant facts and that this was so both in relation to the offences for which amnesty was sought and offences committed members of the CCB for which amnesty was not sought. We will develop this argument fully, Mr Chairperson. The Committee should find that full, frank and honest disclosure of all relevant facts means full disclosure of all relevant facts required by the Committee in order to apply its mind to the criteria set out in Section 20(3). The Committee should find that by failing to testify about involvement in other similar crimes or by giving untruthful testimony about involvement in other similar crimes committed by the CCB during the period 1988/1989 the applicants have failed to properly disclose evidence required in making of a determination in terms of Section 20(3). That the Committee should find that evidence pertaining to the commission of other similar crimes committed by the CCB during the period 1988 to 1989 are relevant facts for the purposes Section 20(1)(c). The Committee should find that all the applicants have either given false testimony or refused to answer questions about their involvement in other similar crimes committed by the CCB during 1988 and 1989.

And then acts committed by members of the Security Forces, the Committee should find that the applicants besides Webb have failed to show that they committed these acts as members of the class of persons referred to in 22B.

And then in paragraph 37, Mr Chairperson, the witness indemnify, provisions were contained. This is the argument, Mr Chairperson, on relevance. The witness indemnity provisions which were contained in 1917 and 1955, Criminal Procedure Acts required the accomplice to fully answer to the satisfaction to the court or Magistrate or such lawful questions as are put to him under examination. In ...(indistinct) 1939 AD1 at 4 it was held that there were fully in this context, certainly imports the idea that the answer must be frank and honest. Full or fully are the same, so that must be frank?

MR LAX: I think it's quite clear from when the full disclosure also implies frank and honest and besides complete.

MR BIZOS: Yes. Section 204/97 of the Criminal Procedure Act was subsequently amended to provide for giving of frank and honest answers as a prerequisite for indemnity from prosecution. It is submitted that the context in Section 20(1)(c) of the TRC Act, the words full disclosure must clearly mean what is required of the applicant as full, honest and frank disclosure of all relevant facts. In Mohammed versus Attorney General of Natal, 1998, one South African Criminal Report 73 N held that while Section 204 allows for a co-perpetrator to be discharged from prosecution as a quid pro quo for his testimony, the granting of such discharge is subject to the proviso that the court finds that the witness made a completely clean break of it (at page 79). To make good his side of the bargain he must be an exemplary witness if his evidence be that of an accomplice is to serve its intended purpose. And we refer to the ...(indistinct), responded to an argument relating to legitimate expectation of a Section 204 witness, the court in Mohammed suggested that the court should not necessarily be going out of its way to assist persons who stands to gain the substantial indulgence of the discharge from prosecution by merely performing the duties to be expected of an ordinary citizen, that is assisting the court by telling it all he knows about the commission of the offence. We will come to the question of what is meant by Act or offence and I'm going to refer you, Mr Chairperson, particularly what we had in mind and may I just in parenthesis say what has come to my notice recently, that Basson, Walter Basson, the one who is facing charges in Pretoria, you correctly anticipated in one of the questions that you put, Mr Chairperson, was that there is an overall conspiracy with which he is charged with and that is manufacturing noxious substances for the purposes of killing people and entering into a conspiracy in relation to that. That is a charge but further charges, either in addition or in the alternative it is that the substance was used to kill Chikane, to kill Omar, to kill so and so and so and so. So that in criminal law and it is clear in the text books, you have a choice where acts are committed in furtherance of the conspiracy, to charge one act as one count, the conspiracy as the crime and to use the evidence in relation to the others to prove the commission of the conspiracy so that this idea that we only have to speak of the act and I submit that whoever stated that murder you only have to show the cause of death, who did it and what his corpse may have looked like afterwards is not an applicable sort of reasoning for the circumstances that we are dealing with here. I thought I would mention that in passing, that we are not indulging in fanciful, novelle thinking in saying that if you had a conspiracy to murder, everything that you may have done is admissible to find out what you have done and for the purposes of amnesty is admissible once you have admitted what you had done because that is no longer an issue. But where the Act requires what your motive was, whether it was proportional or not and what the circumstances were, then you are not confined merely to the particular Act. We'll say something more as the argument progresses.

And paragraph 39, in the context of amnesty hearings it is submitted that even stronger policy reasons exist to require high degree of frankness and honesty from the applicants. Successful amnesty applications not only obtain criminal indemnity but civil indemnity as well. The Constitutional Court in AZAPO and Others vs President of the Republic of South Africa 1996 SA671 (Constitutional Court) laid great stress on the fact that the legislation in question takes away the rights of victims to insist on prosecution for the criminal conduct perpetrated against them and all their families. Mohammed, the Deputy President, put it in the following way in that Judgment at paragraph 16:

And they give factious excuses that because the offences took place outside. So what? The Act says committed within or outside the country. But don't let me preempt the argument that we're going to - is contained here. What would the Constitutional Court Judgment on which our learned friends so readily rely on those portions which are in their favour say in answer to the requirement that would set the minds and souls of the victims either to themselves or to their loved ones if they fail to do what is clearly anticipated. In paragraph 41:

Then we deal, Mr Chairperson, with the question of onus. I want to make a submission to the credit of my learned friends, that they are driven, with respect, to submit that they only have to prove what may reasonably be true because they know that on the facts they cannot possibly persuade the Committee that there is any probability of truth in the versions that have been put before this Committee and I submit both the interpretation rules authority and common sense. We lead this Committee to approach the facts in making findings of fact as proof by examining the probabilities. There is no other way. What are you going to find for the benefit of the victims? Oh, we find as a fact that Mr Verster possibly told the truth, reasonably possibly told the truth that he had authority from - to kill your husband from Mr ...(indistinct). Possibly, possibly, that's all he has to show, a possibility. Or any of the other important findings of fact. Is that what you are here for? That would be, the confusion arises because a very important distinction is not borne in mind. This is not and adversary although it may appear so judging by the behaviour of some of us, including myself. This is not an adversary but an inquisitorial procedure. In any inquisitorial procedure there are no questions of onus. An inquisitorial procedure you are not saying oh, the onus is on you, finish your case, now you have the right to rebut or there may be some issues that the onus is on you, now you start leading evidence. This is an inquisitorial procedure. The Committee is there, its counsel is there and you seek assistance which may sometimes be described as obstruction in order to find out what the truth is. That's what an inquisitorial procedure is about and this is what that procedure is and I would have of you, Mr Chairperson, to ignore the emphasis that we place on administrative reviews and that sort of thing. You have a responsibility in terms of the statute to find out the truth without fear or favour. Let there be a review if they want to, it's completely irrelevant to what we are doing here.

Yes, I'm reminded to illustrate this point, Mr Chairperson, in relation of the possibility. What will this Committee's finding look like? It is reasonably possible that Mr Verster told the truth. But on the other hand it's reasonably possible that General Webb told the truth. So, what function have you performed?

CHAIRPERSON: You take it on a scale. I mean you could have a whole lot of possibilities on the one side without ...(intervention)

MR BIZOS: That are not weighable against one another, against each other.

Could I ask you to go back, Mr Chairperson, to 29.9.1 on page 15. I promised you to some references to Van Zyl. 29.9.1. All the details are in bundle B, that is the applications for amnesty - no, the Section 29 affidavit, yes. Bundle B at 28 to 29, paragraphs 44 to 46 of that document.

CHAIRPERSON: Yes, thank you.

MR BIZOS: Now Mr Chairperson, if we could turn to page 21, the meaning of "is satisfied" in Section 20(1). This is where I suggest that you file the additional argument, Mr Chairperson.

CHAIRPERSON: The addendum?

MR BIZOS: The addendum. Has everyone got a copy, Mr Chairperson? Yes?

CHAIRPERSON: Does everyone have a copy of the addendum that was handed out yesterday? I think so, yes.

MR BIZOS: What we're saying in that addendum, Mr Chairperson, is perhaps that should be 21A of the ...(inaudible).

CHAIRPERSON: Yes, 21A through to D.

MR BIZOS: If the material available, Mr Chairperson, the evidence, demonstrates the absence of full disclosure or fails to demonstrate the presence of an offence with a political objective, the Committee cannot be satisfied that Section 20(1)(b) and (c) have been complied with. Whether there has been full disclosure or whether a political offence or an Act with a political objective has been committed, are clearly matters capable of objective determination by reference to the evidence in the application of the legal principles. The making of findings of fact that are essential to this process. These findings of fact must obviously be based on the evidence. Sufficient evidence must be produced by the applicants to satisfy the Committee that the factors referred to in Section 20(1) exist. Where there is evidence to support such a finding must be decided on a balance of probabilities. We would pose a question, on what other basis might a tribunal which has heard evidence under oath an listened to extensive cross-examination, come to make a conclusion. What lower standard of truth could possibly apply? The words of "satisfy" can never in themselves connote that either the owners or the civil standard has been dispenses with. There are plethora of decisions dealing with statute which provide that the court or tribunal will only be satisfied whether something has been proven on a balance of probabilities. It can hardly be that an Act which provides for exoneration from crimes as serious as the preparation of gross human rights violations, perpetration of human rights violations.

All that is required is that the applicant must cross the low threshold of convincing the Committee to make a finding as vague as the one to the effect. The pros in favour of amnesty outweigh the cons and we quote the case of Johannesburg Local Road Transportation vs D. Morton Transport Limited 761887 A at 9048. Obtaining amnesty surely cannot be as easy as obtaining a road transportation permit. As the AZAPO decision makes clear, the whole truth is required and the whole truth we would respectfully submit can hardly be established by reference to some standard of proof, lower than proof on a balance of probabilities.

Our learned friend, Mr Wessels, submits that the objects of the Act may be satisfied by a victim being given the perpetrators assurance that this is what I reasonably may have done. It is submitted that this interpretation cannot satisfy the finding in the AZAPO matter regarding the purpose of the Act.

And then we quote the shorter Oxford Dictionary on the historical principles which defines the verb "satisfied" to mean the following:

The word "satisfy" in rule 22.4, dealing with summary Judgment, Mr Chairperson, according to ...(indistinct) Thompson J, in Afrikaans ...(indistinct) Beperk - it should be a versus there, Mr Chairperson, vs Neeser 1948, 2295 SA297 means Mr van Zyl for the plaintiff has in argument me a number of grounds which tend to show that the strong probability is against the defendant's ...(indistinct). Under rule 22l.4, it is for the defendant to satisfy the court that he has a bona fide defence to the action. It is true the authorities show that this is not a heavy onus. "Satisfy" does not mean prove. I take to satisfy to mean, therefore, that the court must feel that there is a fair probability that the defendant's defence is a good one. At any rate that is bona fide. My prima facie impression with all the facts is that it is the impression on the probabilities and the facts, is that it is a made up defence. But I do not find that and merely say that it is the impression which all the facts make on my mind. May I draw your attention to the fact, Mr Chairperson, that the word "satisfy" there is in a rule dealing with summary Judgment, a Judgment which is not necessarily a find Judgment by the way. You can pay the money in ...(intervention)

CHAIRPERSON: Yes, it can be converted.

MR BIZOS: It can be converted into a suspense in judgement but you're paying the money into the Clerk of the Court and entering into a defence. But even there the judge says "satisfy" is that you must show on a reasonable probability that you have a bona fide defence. How much are ...(indistinct).

And then also if I may turn to the Judgment quoted by my learned friend Mr Wessels and his Heads of Argument. I submit, Mr Chairperson, that will take and satisfy, in one of the meanings of satisfy there is no conflict between the Afrikaans and the English. And we all know the rule, that if you can find a common meaning. I know that satisfy means less than, than proven, but if you can find, can mean if you can give a common meaning then you choose the common meaning of the two. The rule is clear. "Oortuig" means to persuade, to prove, satisfy. In one of it's meanings means to prove and insofar as the case quoted by Mr Wessels, in relation to the meaning of the English word to satisfy in that Judgment, the learned Judge must have had, with respect, a more elementary dictionary than an authoritative one as to the meaning of the word satisfy. I can assure you that I copied this verbatim from the two volume dictionary that I have referred. So that that is not authority, Mr Chairperson, for finding a meaning of the word "satisfy", less than here.

MR WESSELS: Sorry, while Mr Bizos and his junior are talking, may I just interrupt for one moment? On the meaning of summary Judgment and procedure, with respect Mr Bizos is incorrect that it's provisional. It's provisional sentence where a Judgment is provisionally granted. Once summary Judgment is granted, it's a final Judgment, it's for leave to - you get leave to defend the matter on an affidavit or by just paying in an amount of money that is becoming available.

CHAIRPERSON: Yes, then you defend it on the ...(intervention)

MR BIZOS: Yes, I confused it. You can pay in the money before the Judgment is given, yes. I'm indebted to my learned friend for drawing attention to it but even for the payment of a sum of money, a probability is required.

CHAIRPERSON: But the rule 22.4 does use the word satisfy.

MR BIZOS: It uses the word satisfy.

CHAIRPERSON: Would this be a convenient time to take the tea adjournment? We'll take the short tea adjournment now. Thank you.

MR BIZOS: I will go on on page 22 with paragraph 45, Mr Chairperson.

CHAIRPERSON: Yes.

MR BIZOS: That we submit that in order for the Committee to be satisfied that Section 20(1)(c) has been complied with. The Committee must be satisfied that the applicant has been able to show on a balance of probabilities that he has told the truth concerning the relevant facts and we have already done that in the addendum. I merely wish to state, Mr Chairperson, in general terms, that the claim by our learned friends in relation to a benevolent and liberal interpretation of the constitution. These are general terms, of the purposeful interpretation. Yes, as generalities they are correct but in relation to the specifics as to what interpretation must be given to the words or phrases in the Act, they should not be interpreted in order to deprive the constitutional rights that the victims have and that they should not be interpreted in a manner in which the effect is that on somehow or other principle grant amnesty if they've come here and they have told you some sort of a story. That is not a proper interpretation of the constitution and it's not a proper interpretation of the Act.

I want to go on to paragraph 46, Mr Chairperson. The applicants claim that they acted as members of the Security Forces of the State within the meaning of Section 20(2)(b). The evidence, however, is clear that the CCB was created and structured so as to ensure that the CCB employees were neither members of the Security Forces nor employees of the State. It is true that the CCB was State funded but so too are many other bodies whose employees are not employees of the State. Now I want to deal with the interpretation of the Act in support of this Mr Chairperson and if we have a look at B:

Now quite correctly, your attention was drawn as to what is meant by Security Forces in the definition section. It says"

But now, 22B speaks about employees or members in the Security Forces. The word that we have to look for is whether there were employees or members and what we say is that on the facts they were neither. On the facts they were neither. We do not want to elevate this into a point of law, Mr Chairperson, that it is clear that they are not entitled to amnesty on this basis only. But we submit that it must be taken into consideration that they were not employees or members in the ordinary sense of the word.

CHAIRPERSON: ...(inaudible) part time agent?

MR BIZOS: ...(inaudible) had used the expression only of security service.

CHAIRPERSON: Forces.

MR BIZOS: Forces. Then you go to the definition. But here they speak only about employees or members. They don't say Security Forces as defined, they expressly choose the two and leave the other one out and it's never been their case that they were agents. In their forms they described themselves as members of the Security Forces but their terms and conditions of employment do not bear that out so that the definition doesn't help one. But be that as it may it is not the main ground of opposition, we merely say that it is a factor to be taken into consideration.

MR LAX: Mr Bizos, just to deal with the word "organ" in that definition's clause, could it not be argued that the CCB is an organ of the South African Defence Force?

MR BIZOS: Yes.

MR LAX: Therefore they would be a member of that organ?

MR BIZOS: But if we have a look - I can only submit this and I must concede that because of the what may be described as unfortunate drafting, putting the definition in as it is, that difficulties are created because you can't really use the definition in a proper term, in a proper way by - you have a definition and then you use employee and member. Why? It should have said the Security Forces as defined or something like that. So there is this difficulty. I don't know what one makes of it, no.

MR LAX: This statute is full of these anomalies. It's one of the problems we've had working with it over the years but that doesn't help you or us.

CHAIRPERSON: Because the agents also brought in (3)(e), when you've got to determine whether an act associated with a political objective, there it allows for an agent.

MR BIZOS: Well, Mr Chairperson, don't let us press this because of the difficulties because we believe that we have sufficient grounds on non-controversial interpretations of the section. But we thought that we would - this does not detract from our argument that predominance of the motive was not that of an ordinary member of the Security Force or an employee or agent. I don't intend reading, Mr Chairperson, the section until the next heading which is on page 32, proportionality and with your leave I would ask my learned friend, Mr Kahanovitz to continue with the argument and I'll take over once my throat has recovered. That's not the only reason, it's his work admittedly.

CHAIRPERSON: Thank you. Mr Kahanovitz?

MR KAHANOVITZ IN ARGUMENT: Thank you, Chairperson.

The argument here is at two levels. The first relates to, well we say is an important matter of general principle and that is the circumstances under which it might ever be proportional to target civilian politicians for murder.

The second level relates then to proportionality in relation to the particular individual. In other words, if you are against us and even if you were to find that sufficient is here being led to justify the proportionality of targeting civilian, certain classes of civilian politicians for assassination, then we would say well, then let's look at the proportionality in relation to particular individuals and shortly there must then be a difference between a Gavin Evans and a Dullah Omar and a bunch of kids who go to a meeting in a hall in Athlone.

Now we start of in paragraph 61 saying that we refer to the well known Constitutional Court decision in Makwanane about proportionality and we submit that inherent in the notion of proportionality is whether the desired ends could reasonably be achieved through other means less damaging. This is of considerable significance in the context. That test is of considerable significance in the context of this case because you will recall that the applicants were cross-examined at some length on this issue and we say that there's no reason why that test should not equally apply to the concept of proportionality. Within the context of the TRC Act it's difficult to perceive of any other real meaning that can be attached to proportionality.

Moving then to page 33, paragraph 62. We say that the test must be premised on the understanding that the CCB was there to act on behalf of the State to maximally disrupt the enemy. Now you will recall, starting off with the cross-examination of Joe Verster, that we got involved in this issue and what was put up really by the applicants was an argument which tended to suggest that this Committee must assess the CCB on the premise that they are some sort of hermetically sealed unit separate and apart from the State and that you can't really ask them what other machinery was available to the State as a whole to take steps against people like Omar or Evans.

CHAIRPERSON: Yes, I think it came out several occasions, they just didn't want to refer to the Police, matters to the Police because that might blow their cover and that sort of thing.

MR KAHANOVITZ: We submit that that is not an acceptable argument from a matter of first principles. The CCB itself says "we were acting for the benefit of the State". They can't then come and say yes, but you can't ask us to justify why we didn't make use of other mechanisms that were available to the State to maximally disrupt the enemy. It's inconceivable that you can come along and say by definition we only resort to unlawful methods, so don't ask us to ever justify why it is that we did not make use of lawful methods that were available to us. You can't begin to get involved in testing the proportionality of anybody's conduct on the basis of that hypothesis as your commencement point of your argument.

So we submit and we say you can obviously take notice of the fact that in 1989 the State had had at its disposal a vast array of legal and non-violent resources. Prosecuting its enemies was one, but even were one to move in the realms of having to take action on the basis of intelligence which cannot stand up in court, the applicants have the greatest of difficulty in justifying their methods. The events dealt with in these proceedings occurred during the state of emergency. The State was able to indefinitely detain, without trial, it's enemies. This fate befell several thousands of people, some of whom were held for more than a year. We say excepting for the sake of argument that Evans et al were the enemies of the State, to assess the proportionality of the State's response, one must proceed from the premise that the State was in a position to have indefinitely detained all of these people without trial and had it done so it cannot be doubted that such conduct would have severely disrupted the State's enemies.

We say prima facie the objectives of the CCB and the State are thereby able to be achieved through means less damaging than murder and bombing.

CHAIRPERSON: Just before you proceed, if I could ask a question?

MR KAHANOVITZ: Please interrupt me whenever.

CHAIRPERSON: If you take a look at Section 20(3)(f), the following criteria:

Okay, here we're talking about - I'm talking now in respect of the conspiracy to murder matters, Omar and Evans matters only, not the ELC. The relationship between the offence and the political objective pursued. Now this gets back to what I raised before about - does one not need to look at the actual physical result of the offence because the offence here is conspiracy to murder. It's incomplete, it's complete in a sense, but incomplete in the sense that the murder wasn't actually committed. So now the offence we've got to look at referred to in (3) is conspiracy and the political objective? Well, it's a step away from the political objective. The political objective can only be attained if the conspiracy was carried out and the murder performed. So therefore, can proportionality and I'm asking this as a question, apply at all in respect of an offence such as conspiracy which is just a state of mind basically?

MR KAHANOVITZ: Yes. There are a number of submissions there. Firstly, obviously you are not entitled to disregard (f) because it is one of a basket of factors that are obviously statutorily obliged to take into account. The wording of the section is of some importance. It says in relation to the objective pursued which is something entirely different to the objective attained and I would submit that that phraseology is not used by mistake because one is correct in suggesting that with the conspiracy which is in fact - never goes further than the conspiracy. Well, ipso facto, there wouldn't be a test of proportionality to be applied because as my learned friend argued, nothing ever happened. But that's not what the section says because if you were to take that argument as logical conclusion, it would then imply that in all conspiracies, proportionality never comes to be assessed and we submit that that would do offence to the language of the section itself. You will also recall that - and again, I do not have any text books or references here, but my recollection is that if you are found guilty of the crime of conspiracy, you may in fact be sentenced to the same sentence that you would be entitled to.

CHAIRPERSON: You're correct there. It actually does say that although in practice it very seldom happens but certainly the court would have the power to do that.

MR KAHANOVITZ: But what that does tell you about society's perception of conspiracies is that from a moral blameworthiness perspective, the fact of the conspiracy is judged by equal terms to the fact of the completed crime and where you are dealing with a set of factors that relate to the moral culpability of a person who has been engaged in the offence with the view to determining the proportionality of their response, surely one would have to take into account the factors such as - well you could only take into account what it was that they were seeking to achieve in the same way that you would in a criminal case involving conspiracy. Yes, my learned senior also points out that insofar as Omar is concerned, our submission is that it's an attempt and it's not a ...(intervention)

CHAIRPERSON: It's not beyond just the ...(intervention)

MR KAHANOVITZ: Yes, although I would assume on my learned friend's argument, once again, even with an attempt, they would suggest that the Committee disregard proportionality because the attempt never succeeded. So - and one can also think of a different scenario where I planned to blow the Kewtown Youth but instead I blow up the members of the soccer team. What you're going to be assessing in terms of (f) and I'm pretty sure this is what applicants on those facts would say, look at the objective that I was seeking to pursue, do not look at the objective which I in fact obtained because if you had to then take that argument to its full conclusion and say only look at what was attained, well then you would say if, due to genuine error, members of the soccer team were blown up by mistake, people in those circumstances would never be able to obtain amnesty because we only adjudicate from the perspective of what in fact happened, not what you in fact intended to do. So the test must relate to your intention.

MR LAX: With regard to Evans, that's exactly what might have happened. If they'd killed him, they would have killed the wrong Evans.

MR KAHANOVITZ: I would suggest that had that happened, one would have seen a set of amnesty applications setting out in great detail why Michael Evans was targeted and not Gavin Evans but be that as it may.

Now we've looked at a number of decisions from other countries concerning the law of extradition, the law of asylum, in regard to the circumstances under which the murder of a civilian might ever be construed as being proportional to the objective pursued. Now might I ask you to please just read what is here stated together with what is contained at paragraphs 53.1 to 53.8 of the Heads because what - if maybe I could just turn there briefly, what we've tracked there is some attempt to look at the themes which emerge in literature concerning the circumstances under which the targeting of civilians might ever be justified and one starts off from the understanding that in almost all the foreign literature where you're dealing with people who say my response was proportional, I committed a common law offence but the political nature of that offence outweighs its common law nature. They say I was in opposition to the government, I was forced to resort to such steps because these were the only means by which I could effect political change in the country in which the crime is being committed.

Then if you look at the cases. When people come and say that, the courts looked long and hard. What we say in paragraph 53.2 to see whether the proportionality of the crime to the alleged goal is such that the political element of the crime outweighs its common law character and those cases, I should just mention in passing, they draw a distinction between crimes which are per se political and others, like treason and so on and so forth. But as soon as you move into this sphere of murder, what we say at the top of page 27 is that people who commit such crimes and here I would obviously include conspiracy to murder, have a hard road to hoe. The tendency is not the brand such crimes as political unless the claimant can show that the regime against whom the offence was directed is repressive and offers no scope for change by peaceful and non-violent means, therefore I was forced into the situation where I had to resort to murder.

Then we submit and I think this is of considerable significance in the context of this matter, crimes committed by governments for political reasons, fall into a different category. We say it is difficult to comprehend how as a matter of international and comparative law serious common law crimes committed by government agents against private citizens might be viewed as being proportional and thus capable of being branded as political crimes.

I say as a matter of international comparative law because I recognise that in the context ...(intervention)

CHAIRPERSON: You can't extradite a government so the principle is an ...(indistinct) that would apply to government.

MR KAHANOVITZ: No, but what you can have is someone who operated as part of a death squad on behalf of a South American government that was in power but is no longer in power and then the new regime attempts to extradite that person say from Canada. He comes along and he says "I was part of the death squad operating on behalf of the government." The question there which immediately asked is why does a government which has the courts and the law of the land and the detention without trial at its disposal, why is it forced to make use of you to go out and assassinate people. Now what we say is, it would be of the greatest of difficulty that anybody in a foreign court would succeed in preventing extradition on that premise but we recognise that quite obviously in the context of this Act, Committees do recognise that exceptional circumstances might exist where somebody can come along and actually prove to you that even though they were an agent of the government for some or other reason, it became proportional to resort to the commission of murder and what we say later on, we say notionally we presume somebody could produce such evidence. We have difficulty in conceiving of it but you don't need to get bogged down in the circumstances under which someone might notionally produce such evidence. No ...(inaudible)

...(inaudible) heard any evidence which goes to show why the government of South Africa in 1989 with all the means at its disposal became obliged to target civilian politicians for assassination. We submit that the applicants do not begin to convince you that their conduct was proportional to the need that the State had to take steps against its enemy.

And 53.5, I've already made that point. Moving over to page 28, 53.6, we say that even soldiers who have killed innocent civilians while engaged in fire fights with armed enemy insurgents faced problems in justifying their actions and that's the situation where I open fire on the enemy who I believed to be there but there were civilians there at the time and I shot them at the same time. Notionally, you could come along and say well, for reasons x, y and z, the killing of a civilian in those circumstances is proportional. Once again, with the greatest of difficulty, but it is conceivable. CHAIRPERSON: Often assisted by the giving the orders to shoot and that sort of ...(intervention)

MR KAHANOVITZ: That might be part of, yes.

CHAIRPERSON: ...(inaudible) on proportionality.

MR KAHANOVITZ: And that's also, it's a good example again of why we say the proportionality of the response of the Generals and the foot soldiers has to be assessed differently in relation to the factors in Section 20(3) because each persons motive in that context may be different and their reasons for why they participated. We say we have not been able to trace any case where an attack mounted by soldiers and directed against unarmed civilians has been used as a basis to claim that these actions should be recognized in law as constituting political offences. In other words, there's obviously a distinction between what some people euphemistically refer to as collateral damage, that is caused to civilians while you are in fact attacking an armed enemy and a situation where you directly target civilians and what we say when we go back to the other section in the Heads is we can't really perceive of a situation where somebody would attempt to come and justify that in the context certainly of a declared war situation never mind an undeclared war situation because it is directly against the terms of the Geneva Convention and that would probably explain why nobody would get up, has attempted to get up in a court of law and say this, it is proportional to murder civilians.

CHAIRPERSON: Also, when you talk about civilians and I don't know if it's correct at all, but we keep on hearing that the term innocent civilians, you know, you might have a situation where you've got a so-called innocent civilian is a person who you don't even know what that person's political views are and you might have a situation where you've got some sort of riot taking place which is politically charged. I don't know if you talk about civilians whether one can justifiably distinguish between civilians on that basis?

MR KAHANOVITZ: I suppose the only consequence of that distinction is that obviously insofar as it would ever be possible to justify such conduct as being proportional, it would obviously be far more difficult to justify bombing a village of people who have absolutely no connection whatsoever with the war to a situation where you might target.

CHAIRPERSON: Yes.

MR KAHANOVITZ: It might have been a march of trade unionists who are not carrying any weapons.

CHAIRPERSON: But who in one or other way are damaging shops or whatever. I mean the sort of situation contemplated in B, for example, while you're looking a F.

MR KAHANOVITZ: B seems to cater directly for the kind of example that you've referred to. But that's also a useful example of - there must obviously as far as context is concerned, there must obviously be a distinction between the in the heat of the moment I by accident shot a civilian versus cold and calculated and preplanned murder of civilians.

MR LAX: You see, the difference is obviously this. The one goes to the object pursued and the one goes to the context which are two quite different considerations but I was just saying, picture a young troupe in an urban unconventional squad faced with a bunch of rioting people, who gets a command "take out person X" and misses him and hits a civilian, in the context. In that situation you've got very a different object to be pursued than in this instance here and then really that's the thrust of the issue, isn't it?

MR KAHANOVITZ: If I might then return to page 34 of the Heads in the middle of the page where I really made the point that all we have heard here is that the CCB did not believe in using non-violent methods and we respectfully submit that one cannot satisfy the test of proportionality by merely saying without further ado that because we only believe in the use of violent and unlawful methods, these were the only methods available to us and we say that this is really what the applicant's version boils down to say. The conclusion that we must draw from the modus operandi and its interaction or the lack thereof with other State apparatus is the following.

CHAIRPERSON: Sorry, just before you proceed, Mr Kahanovitz, when you talking about the applicants, are you making any distinction at all between top management Verster, Burger and so-called foot soldiers Van Zyl and others or not?

MR KAHANOVITZ: It's obviously for an evidential point of view it could be said that there's a difference in relation to the nature of the evidence that each person would be entitled to be in a position to produce on these issues. In one sense it may be with the exception of general - let me deal with it this way, in relation to the suggestion of orders, we don't accept that we're at all dealing here with the "I am the private in the Defence Force who is merely a cog in the machine, I do not have any discretion whatsoever, I do not know why I was given these orders". It's clear from what you have heard that there was, to a greater or lesser degree, participation by all people involved in a particular project on the selection of the target and the modus operandi that would be employed.

MR LAX: Obviously Botha in relation to the ELC is more in the nature of a foot soldier than anyone else.

MR KAHANOVITZ: Not necessarily because what form of compulsion is under to obey?

MR LAX: Yes, that is so but he wasn't part of the planning, he was called in at the last minute, went along simply to do a very specific job.

MR KAHANOVITZ: Except even in the case of Botha, my submission would be, even after he says all of that, one would expect him to come along to explain to you, I agreed to get involved in these things for the following reasons. I regarded it, I personally regarded it, the assassination of civilian politicians in the UDF or whatever as being a proportional response because of this, that and the other. He is not a mere cog in some huge military machine. He is not obliged to obey orders, he has a choice, he gets called in, he is a suspended employee. They ask him, will you go to Cape Town to let off a bomb? In fact, in his particular case not only does he not question what he is to do because he says he is actually very happy to have been asked to do that. Now certain of the criteria in sub-section 23(?) clearly call on the Committee to have regard to the subjective state of mind of the individual and clearly he must apply his mind - well, one would have expected that at some or other stage in this process the individual involved must apply their mind to the question of this in the first place of agreeing to such acts in general, in the second place agreeing to commit a specific act and in both cases they are quite able to come along here and say these are my reasons, this is why I say what I did was proportional to the objective pursued. But it appears to have been taken for granted in these proceedings that acts of this nature are acceptable and therefore it is not necessary to justify them. Although maybe I should note the following. Those applicants who lied in their amnesty applications where they said that police intervention wasn't possible because the informer's evidence couldn't be used in a court of law. The reason that those falsehoods were inserted into those applications is because the applicants were alive to justify the proportionality of their conduct and then only became exposed under cross-examination that that was a subsequent fabrication.

Then we stress at the top of page 35 the haphazard nature of the way this process worked. We say if you were so unlucky to have ended up on the CCB's targets lists, you would suffer at best a broken window and at worst death. The same activist with the same political profile could however have been detained by the security police for exactly the same reasons as he might be killed by the CCB and that would go to show that the CCB was their response to the political uprising, was in the very nature of what they were doing,disproportional.

CHAIRPERSON: Yes because we heard an application the other day, Mr Bizos was there, where they dealt with political opponents by harassing them, putting oil on their flower beds and throwing paint on their cars ...(intervention)

MR LAX: Paint remover.

CHAIRPERSON: Paint remover on their cars, that sort of thing, rather than killing them and then it was stated there that the objective was to harass them to such an extent that they'll leave the country and go away from the country by nipping at their heels, sometimes for ten years they harassed a person. Throwing stones on their roof at night, that sort of thing. I think in the one, we didn't deal with it there but in the documentation, putting laxatives in their coffee, you know, that type of act.

MR KAHANOVITZ: Now, well I think all one can say about where there is prima facie a grain of irrationality to the methods employed and the reason why they were pursued, that gives you even more reason to expect that the operatives who were involved would come along and at least endeavour to produce some cogent evidence to persuade you as to why their conduct was justifiable although one can understand why one would wish to avoid doing that because what evidence are you actually really going to come an produce, where you're going to explain why you as the government regarded it as justifiable in those circumstances to resort to murder.

We say even if you look at the laws of war, it's clear from the laws of war that in any armed conflict the rights of the parties to the conflict the rights of the parties to the conflict to choose methods of warfare is not unlimited and what that means is once again. The applicants lay great stress on this undeclared war situation in South Africa and they say you mustn't take an armchair approach and this, that and the other was happening. The point I wish to make is a matter of international law, even if there had been a full blown war going on in this country with tanks and troops and aeroplanes, it doesn't mean that the rules of the game get thrown out and then you can just start shooting, whichever civilians you choose to shoot. There is inherent in the laws of war is the concept of proportionality and the protocols of the Geneva Convention were partly introduced to say that in terms, say in a war situation we do not accept. Just maybe to read in paragraph 67.2:

And 67.3:

Then paragraph 70 page 36 we refer to an American decision cited in the federal supplement ...(intervention)

MR LAX: Sorry, before you go there, my understanding of the protocols is that they did apply to these undeclared guerilla war situations. In other words the additional protocols to the Geneva Convention were specifically introduced with the changing nature of warfare in mind and I know South Africa didn't sign them but certainly the ANC signed them and international - as I understand it, an international regime of human rights law regarded them as being applicable to the scenario that prevailed in South Africa at the time.

MR KAHANOVITZ: I don't have a copy of the AZAPO decision here but I think there is a footnote in that case that says certainly as far as the convention itself was concerned and this was litigated before in other matters, it was never accepted as a rule of law in South Africa, for whatever reason and my submission is not one that is really, for purposes of my submission, it is in fact irrelevant whether it was or wasn't accepted as a rule of law in South Africa. The point is to test, as I put at the top of page 36, we say these are some assistance in assessing some of the circumstances under which it might ever be proportional, even in a situation of war for a unit of the army to murder civilians who do not take a direct part in hostilities. That is the bottom line. These are accepted international norms whether for reasons of some or other historical anomaly they were never given force of law in South Africa at that time either because it was not regarded as a declared war situation insofar as that may be relevant or because the parties refused - on or more of the parties refused to become signatories, that is of no great consequence.

I then refer to the Mogmoet case where the court held that an act punishable even in the context of a declared war or in the heat of open military conflict cannot fall within the political offence exception. Attacking civilians was, the court held, in breach of notions of civilized strife and thus not a political offence.

I then refer to a case from the - that citation should be IRL not - it appears to be 1R1. IRL - Irish Law Reports. No, sorry now I'm getting mixed up if it's IRL or ILR. Sorry, the citation would be ILRM 385. That was the only case that I was able to trace that dealt with the murder of people with political profile but who were not involved in armed conflict.

CHAIRPERSON: I'm just thinking that comes through my head now, I'd just like you to deal with it. We've been dealing with, as you know, thousands, hundreds of applications and many of them have concerned - I'm just using this as an example of let's say the APLA policies particularly during 1993, the year of the Great Storm, where any white person was regarded as an acceptable target and people were in fact killed who weren't involved in politics, just ordinary people but that killing by their operatives was entirely in line with the policy of their organisation and they have been granted amnesty, haven't been confronted with an argument that you've been putting up now but what do you say, they're all wrong?

MR KAHANOVITZ: No, I'm not saying that they're all wrong. I just want to ...(intervention)

CHAIRPERSON: This is the sort of thing that we're faced with now and that has in fact happened and not on one occasion but on many, many occasions.

MR KAHANOVITZ: Well, maybe it's unfortunate that those issues were not properly canvassed and argued in some of those cases. In either event, we believe that those sorts of cases are distinguishable in that as I've already pointed out, there is quite obviously a difference between dealing with governments and people who aren't in government. I don't know what was said in those cases but notionally one can imagine people coming along and saying because of who I was and where I had come from and what it was that we did, this kind of conduct perpetrated by us was proportional. I think it's dangerous though, I think as my learned friend Mr Bizos has said, we know that there is no law of precedent that applies here. To try to endeavour to marry what happens in the decisions of the various Committees might not be an enviable part.

CHAIRPERSON: I think also what you've raised, it wasn't the stated policy of the government to kill civilians.

MR KAHANOVITZ: Yes, well at the time they denied it vehemently.

CHAIRPERSON: Yes.

MR KAHANOVITZ: I also recall that in the ...(intervention)

CHAIRPERSON: With that particular example it was and then the operatives they were being involving themselves in the furtherance of the objectives and aims of their movement by doing exactly that.

MR KAHANOVITZ: Sorry, I'm not sure I get the point?

CHAIRPERSON: APLA, when they were - when an operative killed a white civilian who wasn't involved in active politics, he was furthering the aims and objectives of his political organisation, stated aims and objectives that was known to all. But that's not the case with a State employee or member, he's not pursuing the stated objectives of the government to kill civilians.

MR KAHANOVITZ: It's appears to be part of the reason for Joe Verster's bitterness is that he says it probably was but when push came to shove they would never admit to that and they dumped me. We will never - from what we've heard in these proceedings we don't know what the truth of the matter is. I don't think we have any - certainly no evidence is being led here to support the notion that it was part of government stated objectives. If anything, Mr Verster's evidence would tend to suggest that even if it was, the government certainly never admitted it.

MR LAX: What about the applicant's argument that we should accept this because that's what the Truth Commission found in any event in relation to its general findings on the CCB and that was part of State's policies?

MR KAHANOVITZ: I'm not aware of what the evidential status is of the TRC Committee's findings here. I think that would be extremely dangerous for this Committee to rely on various paragraphs in...(intervention)

MR LAX: No, we're not in any way obliged to accept those findings, but I'm saying what is - that's one of the arguments the applicants are using. If certainly, if I've read the Heads correctly, is that in line with that finding of the Commission, they say that that finding in a sense corroborates some of their ...(inaudible).

MR KAHANOVITZ: There are two answers to that. Firstly, it's not tested evidence here, no one was ever given the opportunity to test that evidence. One would have expected then, particularly in the light of Verster's evidence, which suggests at this juncture between the CCB and the government itself on what the government stated policies were. If they wanted this Committee to believe that it was in truth and in fact government stated policy to get involved in this sort of thing, one would have expected them to either call or subpoena someone higher up that ladder and to give all of us an opportunity to test that proposition. We haven't been able to test the proposition, I don't see how the Committee can make a finding of fact. If we were to take that further and we say well, let's then look in the Committee's report and see what the - not the Committee, the Commission's Report, let's see what the Commission found about who the CCB probably murdered. I assume my learned friends will not have you accept as proven facts what is contained in that report because if you had to do that it would have a rather serious impact on the applications.

CHAIRPERSON: We can't do that, we can't go through the report and accept that as evidence.

MR KAHANOVITZ: Yes. Now page 37 paragraph 71, we've already dealt with that point. 72, what we submit is that we would have thought that the General and the Colonel might have sought to explain the circumstances under which the army forming death squads to murder civilian politicians might be reviewed as a proportional response to the threat posed by such civilians to the State. They have not done so. It almost appears to have been assumed to be axiomatic on the part of certain of the witnesses that at some or other particular stage in South Africa's history the natural thing that one might have expected the State to do was to get involved in this sort of activity and therefore it's not really necessary to deal with this issue in any depth.

We say also that what is obvious from the evidence but was not admitted by the CCB leadership, is that region six of the CCB was obviously not created to kill or arrest actual terrorists operating within South Africa's borders. Enough State agencies already existed for that purpose. Region six was created at the point that the State intended to expand its ability to kill and intimidate persons who were not part of its traditional enemy, the exiled organisations and the military structures and that is why, certainly as far as the incidents which you have been told about as far as they are concerned, we have been talking about the End Conscription Campaign, JODAC, UDF, UDF affiliates like the Kewtown Youth. We can infer that from what we've heard here but nobody has come along to you to explain to you as a Committee, our philosophy at that time was to kill these people for these reasons and it was justified and proportional.

Then paragraph 75 page 38, we submit that in order to promote that objective, ex-policemen known for their character defects and criminal propensities were hired and that it was a stroke of good fortune that they were only fully active within the country's borders for less than one year. I think there was some suggestion in argument also yesterday about - they never knew before they got involved what it was they were going to get involved in therefore how can you make an assessment of their political motivation for becoming involved in the CCB, if I understood the argument.

CHAIRPERSON: But to this end, ex-policemen known for their character defects and criminal propensities - that certainly applies with regard to Barnard, he was a convicted murderer etc but what about somebody like Van Zyl, I mean he was a policeman and we haven't got any evidence as to his ...(intervention)

MR VAN ECK: Mr Chairperson, may I for the same price ask that my learned friend address Burger here as well, the case of Burger, because there's a plural used there, policeman clearly doesn't refer to Barnard only. I would like him, if possible, to justify that remark regarding Burger and Maree specifically and this states that they known obviously at the time when they were drafted into the CCB for their character defects and criminal propensities and he must then please explain this remark.

MR KAHANOVITZ: In fact that was in part just paraphrasing a line from the - it was either in the Harms or the Stegman decision but both of those decisions, not only in relation to Barnard. Barnard obviously loomed large, but one of the things that they were looking at is what kind of people did the CCB try to recruit to carry out its activities and let's just pause for a moment to consider their own evidence. If you are Joe Verster and you want to ask people to join an organisation that is going to carry out these activities and by the time they know enough about what it is you are going to do, you can hardly afford to have them leave because they are in a position to expose you. You're going to make pretty sure that in hiring them that you know that they're the kind of people that are likely to be willing to do what you ask them to do. Barnard and Burger got together and Burger knew his men in Brixton, who were all in trouble, at round about the same time, for something connected to certain murders that had been carried out by other members of the Brixton and Robbery Unit. It cannot seriously be suggested that if I'm going to hire someone and ask them to come and carry out crimes on my behalf and I'm going to hire policemen to do that, I'm not going to be hiring policemen who I think are fine upstanding, honest and righteous citizens. It would be an exercise in futility.

MR COETZEE: Mr Commissioner, I don't know whether Mr Kahanovitz just made a mispronunciation there, I think he was meaning Mr Verster and Burger came together, not Barnard and Burger.

CHAIRPERSON: Thank you, Mr ...(inaudible).

MR KAHANOVITZ: We quote ...(indistinct), I don't think it's necessary to read that out. Then dealing with motive - are you going to deal with that? Alright.

MR BIZOS IN FURTHER ARGUMENT: Mr Chairperson, before dealing with motive, may I revert to one of the questions that you put to my learned friend and that is the people that have got amnesty for very serious crimes, the Amy Biehl, St James' Church and let me deal with the Amy Biehl case which was often quoted if they could get amnesty why can't we get it? They lose sight of a number of legal and factual matters that distinguish the cases, particularly in relation to proportionality which is really a value judgement and the values of people depend to their age and intelligence, their education, their religious beliefs and the whole situation which leads us to have certain values, particularly in relation to proportionality. To equate the acts of youngsters on the street, embittered by years of discrimination against them, lacking in proper facilities in their education and being bombarded by slogans of "one settler, one bullet" and acting on the spur of the moment that night when they see a young, white woman and they attack her and they kill her, applying those facts to the requirements in relation to motive, in relation to circumstance, in relation to proportionality, is one set of facts and that decision can - you're not called upon to say whether that is correct or not. I don't want to make a submission whether the decision is correct or not but the motive, the facts, the circumstances, the background of the individuals is quite different. I deal with the Amy Biehl case because it has been raised in other proceedings and I had occasion to read the Judgment and the distinguishing factors are so far, so important, that one Committee properly applying the criteria from ...(indistinct) comes to a conclusion, it doesn't mean that that decision can have any influence upon the decision of persons of the circumstances and the motivation that they're applying for amnesty here. And if we take the other cases where I might, if we go and read the decisions it may be a different fact is stated.

Mr Chairperson, on page 39, the question of motive. I don't want to read out the paragraph.

CHAIRPERSON: Yes, we'll read them ourselves. We've read them, I can assure you we'll read them again after having heard the argument.

MR BIZOS: ...(inaudible) only because he happens to dislike the target's political views. The political views he holds are in his - not his main or real reason for agreeing to kill and what we say in 80 is that the mere fact that the person holds strong political views also does not and in itself properly explain a political motive to agree to participate in killings. It is insufficient to say that I was a good Afrikaner and supporter of the National Party. This may explain why you agreed to vote for the National Party in an election but it provides a totally inadequate explanation for why a human being might agree to carry out murders on behalf of the State.

The applicants have not really sought to explain what events in their lives or strongly held political beliefs brought them to the point where they were willing to agree to kill the class or classes of persons who were targeted by the CCB. An inference that we can draw from the behaviour of certain of the applicants is that they were probably psychopaths of a type and I don't want to enter into a medical, but it takes a certain amount of psychopathy to become a member of a group whose main objective is killing people. But this is not a political condition, one would have expected evidence to the effect that the applicants personally believed that the people connected to the End Conscription Campaign deserved for reasons a, b and c to be killed.

Mr Chairperson, there is another ...(indistinct) difficulty here and it straddles motive and proportionality, credibility and full disclosure and that is this, that none of the applicants was prepared to unequivocally say in any particular case "the buck stops with me, I made the decision either to propose or to confirm a death warrant". They're prevaricated. May I remind you of the difficulties that we and members of the Committee had to get them to agree that they had a discretion whether to do it or not. We couldn't get an answer and it was only as a result of giving out of the way examples. If I recall, a seven year old child, if you were asked to do that, were you prepared to do it in order to get a concession that there was a principle of discretion and once in terms of the Act from 3(a) to (f), they have to give evidence in order to satisfy and a satisfactory basis what their motive was, what the circumstances were, what the special objective was and whether or not it was proportional. To pass the buck the way they all did here from the lowest to the highest is evidence of the fact that they were not bona fide, that they merely entered into this situation where killing is our business, don't ask us any questions about it.

And what we say in 83 that we are not dealing simply the case of a uniformed soldier who agrees to shoot Nazis because they have declared war on France or bombed our home town. The facts here for some people who agreed to murder civilians who had espoused different political views to the government of the day. We have not heard any applicants explain the following, why they personally believed that murdering civilians were morally or politically justified, what strongly held political beliefs or life experiences motivated them to join a death squad which targeted anti-apartheid activists?

CHAIRPERSON: On this question of - and I understand your argument about members of the Police joining ...

CHAIRPERSON: What is the situation or is there any difference between Basson for instance, who was a military man the whole time and probably, I don't know, we don't know under exactly what circumstances he became involved in the CCB but it was probably when it was formed on an order, or just a transfer, or whatever and ...(intervention)

MR WESSELS: Sorry Mr Chairman, may I just say that there's specific evidence on record in that regard. He was in fact asked by Verster to come and see and he was then told that he was going to be transferred to the CCB ...(intervention)

CHAIRPERSON: Yes, so his is a different situation. He's a military man, gets a senior officer saying: "Look we've got a new unit", he can hardly sit down and start negotiating, taking into account the ...

MR BIZOS: Well an officer is told, he's an officer and a gentleman and he's ordered to go and become a member of a murder squad and he doesn't raise any difficulties and he says: "Yes, I'll do it.". What is the difference in fact between him and, he could have said: "I will go, Mr Verster I do not accept this, I will go to the leader of the army and I'm going to say that I am not going to do this. I will go to the Minister and I will say". It's no answer to say well but he probably knew that the Head of the Army and the Minister may have sent him to some outpost or other as a result. There are no easy excuses. There's a difference between if he was asked as a member of the Special Forces to commit an unlawful act, well that would have been a matter to be decided under those facts, but he applies for amnesty, to be judged as a member of the CCB and his joining makes him not much different and the same applies to Verster. The only person that can have possibly benefited from this is Webb because he kept his, he was really a nominal Head of ...(intervention)

CHAIRPERSON: Also he was Head of Special Ops which was a far bigger operation, this was just a part of it.

MR BIZOS: He was an ex officio Chairman, who was supposed to rubber stamp, but on some of the evidence he wasn't asked to rubber stamp so I don't think that, I would submit that Basson doesn't really escape the criticism.

Then we've already made the paragraph 85. I don't want to read it. There was no political zeal. We've already canvassed that. We'll go to the next matter, Mr Chairman and you may find some inspiration on the writer of the anonymous slogan t-shirt.

CHAIRPERSON: It's like airline food as well, also an oxymoron, n-o.

MR BIZOS: Yes, especially if you do it as regularly as you do it. Now this is on the basis on which they operate. The ground level operatives would be asked to justify the truth of an allegation made about the victims. Being unable to do so, the Committee would be told that this information was sent upstairs somewhere, where it was verified. Verster and Webb were asked to justify the truth of the allegations relied on, to justify decisions to eliminate, would tell us that we must ask people at the ground level where they obtained this information. Whenever the ground level operative denied that he was a source of the so-called intelligence, the Committee were then told that the information must have come via the intelligence system. This evidential ping-pong match, I would submit, had the end result that the truth or otherwise of the allegations made about the victims, could never be tested. It is submitted that the applicants should not be allowed to derive the benefit of the doubt which results from this process. It is the applicants who are seeking amnesty. They had made certain claims about the victims in order to justify their own decisions. If the applicants claim that the CCB decided to eliminate Omar or members of the Q-Town Youth because the CCB had evidence that these people were terrorists, or because they had evidence of Gavin Evans's links with Grosskopf, then insofar as the victims dispute these allegations, it is the applicant who must produce evidence to support their allegations. The Committee, it is respectfully submitted, cannot make findings in favour of the applicants on the basis of "evidence", which amounts to no more than the applicants saying: "I can't justify what I say, you can't test the truth of what I say, but someone out there would probably justify what I have to say, but I can't tell you who."

The effect of this is rather bizarre, Mr Chair, because we have heard some very quaint reasons for killing, that Adv Omar was counselling the leading terrorism case. Now once it is given, it is a fact of which apparently was considered of relevance. Who was it, who are we to judge for that Judgment? Was that enough? He was Chairman of Lawyer for Human Rights, which he wasn't. In fact the Chairman of the Lawyer for Human Rights at the time was, if I remember correctly, George Brodie and before that Mr Justice Kriegler, when he was still a member of the Bar. Now were they potential victims? It had a Council of eight originally, some of them leading members of the Bar who are now judges on the Constitutional Court and Senior counsel in the United Kingdom and elsewhere, were they victims? Who - what responsibility was there? And in relation to motive and in relation to circumstance and in relation to proportionality, they do not square up, Mr Chairman.

Then we want to deal on page 46 with the next question, which we deal with. We quote Gen Webb's evidence:

R30 000 000, international tentacles, provincial responsibilities of Co-ordinators and the Chairman of the CCB tells us that's all I was consulted about. Now if we are to believe that, then if we believe that then we can believe anything, but he's not alone. Section 20(2) provides that:

MR LAX: That must obviously be a mistake, it should be 20(3).

CHAIRPERSON: Yes.

ON RESUMPTION

MR BIZOS: Crimes planned or executed by the CCB outside the borders of the RSA in the period 98 or 99 and crimes planned or executed by the CCB within the Borders of the RSA in the same period. The applicants have, with their own evidence, made it abundantly clear that the Committee has not been placed in a position to have regard to the full conspectus of facts relevant to the assessment of the factors listed in 20(3) Mr Chairman. We have noted context is one, as we have noted, context is one of the considerations referred to in the Act. Context surely concerns the overall activities of the CCB. These activities were the context in which the offences for which amnesties are sought, were planned and executed. The applicants have acknowledged this in a way in which the applications have been drafted. All that - they have decided only to disclose those facts pertaining to context which happened to suite their version. The context that suites their version, Mr Chairman to give us the mechanics of how things were done, and that sort of thing. The Act also refers to proportionality. Proportionality involves comparison, as far as for example the applications of Verster and Webb are concerned, it will certainly impact on the Committee's assessment of the proportionality of their conduct, were the Committee to know that for example, there was undisclosed evidence which showed the following, that apart from a few minor incidents, these applicants disclose they were in addition and at the same time responsible for the death of ten or twenty or fifty or a hundred other people and which explained why those other victims were targeted, which explained whether the victims were targeted as military targets or civilian targets, were they UDF or ANC or ECC or NUSAS, or AZAPO, so that we can see what the parameters of this conspiracy were. It is submitted that it cannot be seriously suggested that the fact that Webb and Verster authorised the poisoning of water holes at refugee camps, is irrelevant to an assessment of their entitlement to amnesty.

The relevance and importance of evidence concerned in the full extent of the conspiracy, is emphasised by the Applicant's own testimony. Verster's evidence was that the CCB activities were mainly outside the RSA. He also said that Region 6's activities were only a drop on the CCB's activities. We know that there were ten regions, the CCB 89 budget was approximately R30 000 000, that the CCB had between 170 and 200 projects of which half were offensive in nature. It is also no argument to say that only South African operations were relevant to these proceedings, because Region 6 only operated in the Republic. The evidence is that Region 6 was also being used externally and Basson's evidence is quoted. In fact Maree has almost exclusively been working outside the Republic and Basson, the Region 6 Co-ordinator, was involved in various operations in South Africa, Maree's quote.

CHAIRPERSON: Mr Bizos, I don't think it necessary to read the whole thing because we're going to be running out of time because there's also Mr Hockey and then the replies.

MR BIZOS: Yes, Mr Chairman.

CHAIRPERSON: We've read it but if you could just perhaps stress the points you want to.

MR BIZOS: Let me take 99 and 100 as read, except in 100 they might very well face prosecution on the fourth last line of the second paragraph, very well face prosecution, but for these applications they might well.

Let us take the Rosskam incident for which no amnesty has been applied, but nevertheless we've had evidence. They stole the money, there's a relevant factor that they were in it for the money. Is that irrelevant? And if that is admissible, why what happened in relation to Webster? The general motives of what their activities in relation to the South West African situation was about Lubowski and we agree, Mr Chairman, that with respect, there have to be some limitations, but what we asked questions about were in relation to a limited period were a small number of the 170 odd projects and in respect of which one of the applicants made very relevant notes in his diary. If we are to get the - how could they refuse if one of their main operatives makes notes in a diary in the course and scope of his employment, how can they refuse being parties to this conspiracy, how can they refuse to answer questions about Webster, about Lubowski, about all the other people whose names appear in that diary? I'm sorry Webster doesn't appear, not refer to Lubowski by name, but by clear inference Mr Chairman, as my learned friend showed during the cross-examination. And also, if they were - once they claim that they were merely monitoring him whilst he was in Johannesburg, why can't we ask searching questions and why can't they answer honestly what it is that they did in relation to it? To merely say well because it was outside and because we chose not to apply for amnesty, this is the end of it. Yes, Mr Chairman, that they couldn't get amnesty for things outside, we have indicated what applications for amnesty have been made, but on the question of relevance, Mr Chairman, the relevance is to be found in the Judgment of Motoung, which we refer to in page 55. If you do things as a gang in furtherance of a conspiracy, you cannot say that what the gang did is irrelevant in relation to motive, circumstance. We have - Then we deal with the credibility of witnesses Mr Chairman. This really deals in detail ...(intervention)

CHAIRPERSON: I've just got one question on the credibility of witnesses, perhaps just before lunch. Somewhere in the argument, correct me if I'm wrong, it was said that the applicants were not credible witnesses and the evidence of Verster should not be accepted and the same applying to Webb. Now on the point of whether or not authority was given in respect of the Omar and Evans operations, Verster said Webb gave him authority, Webb says: "I didn't give authority". That's all that we have. We haven't got any other evidence to suggest whether or not authority was given. You've got to look to those two sets of evidence. Now you've argued that we must find that Verster had no authority.

MR BIZOS: He has not proved it.

CHAIRPERSON: Yes.

MR BIZOS: But he has not proved that he had authority.

CHAIRPERSON: So now you want us - I just want to get your argument, you say that he must have ...(intervention)

MR BIZOS: I can understand and I have a submission to make. You have two mutually destructive versions.

CHAIRPERSON: Yes.

MR BIZOS: There are some probabilities for the one version and some probabilities for the other, but I submit that they can cancel themselves out. Firstly that there is something to be said in favour of General Webb that Verster hi-jacked - there was some evidence to support that.

CHAIRPERSON: Ja, I think Mr Barnard was one of the proponents of that saying that ...(intervention)

MR BIZOS: Ja, but having observed him in the witness box, it's not an unfair comment to make on the overall, but on the other hand you have Webb to say that: "The only thing that I did during my stewardship is to authorise hurriedly and get a bomb for the purpose or a trigger for the purpose in one incident only" which is highly improbable in the circumstances and they both refused to answer questions. Under those circumstances you can believe neither the one nor the other. Verster has applied for amnesty. There is no credible evidence that he had the authority in accordance with the rules. The suggestion made in argument that even if he didn't have the authority, he believed he had the authority is negative and we will give you a reference, if we haven't already done so, but he has actually said that he went and got authority. It is quite bizarre to speculate that he thought he may have implied authority when he himself says: "I went and got actual authority". It's a complete nonsensical ... So that we believe, or rather we submit that the proper finding in relation to that is that Webster has not, Webb has not applied for amnesty. There are unsatisfactory features in his evidence, but on the question of whether he gave authority and not to Verster, we find that there is no credible evidence that he had authority from Webb and refuse the application for Verster on that and the other grounds.

CHAIRPERSON: Yes, thank you. I think that this might be a convenient time to take the lunch adjournment. We've only got this afternoon left, I don't know how much longer you're going to be Mr Bizos, because there's Mr Hockey and then some reply. I don't know, Ms Coleridge are you going to be making submissions?

MR BIZOS: What I would suggest Mr Chairman, that we do an audit during the lunch hour and we'll say well - you do not have to assure us that you will study it because it's quite clear that you have been through our argument.

CHAIRPERSON: Yes, we've been through it and we'll be going through it again.

MR BIZOS: And have, with respect, a grasp of, judging by your questions that have been asked, so that it isn't - we will not be able to complain that we were cut short. Let us try and finish this afternoon, but we would like an audit during the lunch hour so that we can come back at what time we shall resume and say we want to draw special attention to this, that and the other.

CHAIRPERSON: Yes and then maybe if you could also talk with Mr Hockey and get some idea of how long Mr Hockey wants as well. ...(intervention)

MR BIZOS: Yes, so we'll leave some time for reply in order to finish it Mr Chairman.

CHAIRPERSON: Yes.

MR BIZOS: A suggestion has been made which we have rejected. We want to complete this matter, Mr Chairman, we don't want written Heads of Argument that we will have to look at, to be submitted by anybody in reply. We must finish this.

CHAIRPERSON: Yes, thank you.

MR LAX: Sorry, then Mr Bizos ...(indistinct - mike not on)

CHAIRPERSON: Yes, this is what we're ...

MR BIZOS: No we will not take more than ten minutes this afternoon.

MR LAX: Ten minutes?

CHAIRPERSON: It's on record Mr Bizos.

CHAIRPERSON: Mr Bizos.

MR BIZOS: Thank you Mr Chairman. Some concluding remarks Mr Chairman, ...(indistinct) what we have said, but some concluding remarks in which the validity of our arguments come to test. You will recall the evidence of Kalla Botha that he was asked by Barnard to help him kill Webster. You heard the evidence of Kalla Botha that he did help him to kill Mr Webster. You heard the evidence of both that they got R15 000, they shared it, one third, two thirds. Now that evidence is uncontradicted. We know that Kalla Botha got R200 000 after that event, so that he was a member of the CCB at the time. That's also a fact that easily can be found to be true. He, Kalla Botha and Barnard say that they did it on the instructions of Verster and the gentleman whose affidavit was handed in later. Now what I have related is important in a number of respects which negatives the validity of the arguments that have been advanced by learned friends in relation to relevance and relation to the importance of the conduct of this ...(indistinct)

Now can it be said that it is irrelevant that Botha admits to a crime of murder, Barnard may have had all sorts of motives for implicating Verster but can it be suggested that Kalla Botha is lying about that? I submit that we will find this a fact that he is not lying about that because of the high degree of improbability that a person admits to committing murder, if he hadn't in fact done it. Having regard to the other acts that Kalla Botha had admitted to doing for the CCB, the question arises, where did the R15 000 come from, other than the CCB? The probabilities are that Barnard and Kalla Botha don't murder people for nothing. On the probabilities they must have believed that they got R15 000. They say that they got it from the CCB through ...(indistinct.) What is the evidence against it? An affidavit which doesn't carry the weight of viva voce evidence with an opportunity to cross-examine. Therefore you will find as a fact that that is correct. Is it irrelevant and shouldn't you really concern yourself about it? Obviously it is relevant. Let us ask, why is it relevant? Kalla Botha got another R5 000. Barnard got R10 000. Does that impinge upon Kalla Botha's application that he got another R5 000 from Barnard and he didn't disclose it in his application? How can it be irrelevant? Let us now move from the particular ...(indistinct) it's irrelevant. How many other similar incidents were there? You will not know because they refuse to answer questions. My learned friend, Mr Wessels, an experienced Senior counsel, doesn't call his client to ...(indistinct). What inference are you to draw? He cross-examines Botha and calls him all sorts of names under the sun - Barnard, calls him all sorts of names under the sun, justified, but on the point on issue, really we merely have a denial put in cross-examination. One would have thought that his client would have wanted to come here speedily in order to subject himself to examination that this is not so. Now it illustrates - that incident illustrates the validity of our submission that where acts are committed in furtherance of a conspiracy, relevance is not to be confined to the particular acts which they chose to ask for amnesty for and we must close our eyes and ears and block our minds in relation to other matters in relation to which there is some evidence that there was - that they were committed, or may have been committed in furtherance of that conspiracy. It's very important on the probabilities, if they were prepared to kill Webster, Omar, Gavin Evans, why not Lubowski, why not poison wells, why not the other things that the diary suggests as projects? What were these projects? Why don't they speak on the outside matters like the jail break in Zimbabwe? All these are relevant factors and the authorities are clear, Mr Chairman, that where there is direct evidence in relation to a point and it is not so fanciful and hallucinatory that it can be discarded without asking any questions and that evidence is not rebutted, then it strengthens - the cases are well known, that's Smith versus Smith in the South West African decision. It's quoted with approval. It's the SARFU case in the Constitutional Court and it goes even further to say that professionally you are not entitled to say to a person that you he or she is lying without calling the available evidence in order to contradict it. I know or we know, and I'm sure that the Committee knows, that the applicants have taken up an attitude that we will not answer before the Harms Commission, we will not answer in the Webster Inquest and we will not answer here on a number of spurious grounds, including legal advice and what I want to say very briefly about that, that if you're going to use legal advice, there are certain prerequisites which you have, to identify the counsel, you've got to give evidence as to what the facts were that you put before the counsel and put the reasons of the counsel that you have consulted in order that the Court may examine. None of this has happened.

We submit that the evidence of Barnard is but a glimpse of what we would have heard if the applicants were going to be honest and forthcoming and spoke the truth. We submit that they have not and that it was a conscious decision and insofar as it is necessary, and we submit that it is, they must pay the price of having their applications dismissed.

Mr Chairman, we have avoided to use the word onus, or burden or persuasion to ...(indistinct), we have done so deliberately because labels do not really help, but what we do submit is that the words of the Section are clear, you must be satisfied and that's all you have to say, with respect. We are satisfied that there are no facts which have been placed before us to satisfy us that this is what has happened and there is good authority for that proposition.

Mr Chairman, true to my promise, we will not say anything more.

CHAIRPERSON: Thank you Mr Bizos. Sorry there's just one point on clarity, it hasn't been said specifically. With regard to Mr Barnard and the Omar incident, is it then application opposed by the victims in respect of no political objective and/or personal gain?

MR BIZOS: Sorry, in relation to Barnard?

CHAIRPERSON: yes.

MR BIZOS: Full disclosure.

CHAIRPERSON: Well full disclosure you said, but is the application opposed.

MR BIZOS: But we say that we leave it to the Committee as to whether or not he has satisfied ...

CHAIRPERSON: With regard to the other criteria.

MR BIZOS: Bearing in mind the argument ...(indistinct - speaking simultaneously) because it's part and parcel, CHAIRPERSON: Yes.

MR BIZOS: They can't be separated and in some instances ...

CHAIRPERSON: Okay thank you.

MR BIZOS: to a lesser or greater extent.

CHAIRPERSON: Thank you. Than you Mr Bizos, Mr Kahanovitz. Mr Hockey.

MR HOCKEY IN ARGUMENT: Thank you Mr Chairman. May I just start off by saying that I associate myself with the arguments raised in their Heads and with the oral argument of Adv Bizos and Adv Kahanovitz insofar as the legal aspects and the facts and the application of the facts to the law is concerned. Mr Chairperson, I raise, in the first part of my Heads I also addressed the issue of the interpretation or the test that should be applied and to what extent that should be liberal or restrictive and I quote extensively from the AZAPO Judgment. The first quote in paragraph - I'm not going to read it out, deals with the reason why, the rationale behind the whole question of truth, especially for the victims. Obviously the rights of the victims are that they want full disclosure and because the rationale behind this is because they want to put closure to certain chapters in their lives.

If the Committee will bear with me, I do want to quote two passages from the AZAPO Judgment which sums up the position that I adopt. The first one is under paragraph 5 of page 4 of my Heads, where Judge Mohammed says in paragraph 9 of the AZAPO Judgment:

An amnesty to the wrongdoer effectively obliterates such rights. The other quote from the Judgment is found on page 5 of my Heads, Mr Chairperson, where the Judge says in paragraph 32:

I make, I quote from the AZAPO Judgment to make the point that any interpretation should not be at the expense of meeting the requirements of the Act. My submission is that there are certain jurisdictional facts that have to be met and one of those, which obviously there are conditions present to the granting of amnesty and in my particular Heads I concentrate on the aspect of full disclosure. I stand by other grounds or other jurisdictional facts which it's contended have not been met, raised by Advocates Bizos and Kahanovitz.

Mr Chairperson, I'm just going to very briefly refer to the facts in consideration of the question whether the requisite jurisdictional facts are in fact present here and whether it is therefore incumbent on the Committee to grant amnesty to the applicants. It should be borne in mind of course that I represent the victims of the ELC only and I only address the applications in respect of that bombing.

CHAIRPERSON: And I see from your Heads that you're also addressing on behalf of Mr Williams.

MR HOCKEY: That's right. Sorry, I should have said that right from the start. I just made the point that I did, before completion of these Heads, have the opportunity and the benefit of perusing the Heads as prepared by Adv Kahanovitz and Bizos, so I am not going to go into the same detail, or even, I was going to expand on some of the ball points that I make but those references and expansion were already made, so I don't find it necessary to repeat all those.

Mr Commissioner the point that I tried to make throughout the Heads, I want to conclude that at the end of the day if this Commission finds, or it the Committee finds that there was in fact an intention to kill, then all those who applied for amnesty in respect of the ELC bombing should not be granted amnesty because in effect it would mean that there are no bona fides in their application and that they then obviously didn't make full disclosure as required by the Act.

I just make a very brief point that - well maybe I should just say that I agree with the whole aspect of personal gain. If the motive was personal gain, then obviously they won't qualify for amnesty. I make the point in paragraph 12 of my Heads that from the applications and the testimony, the applicants seek to persuade the Committee that they believe the following:

One, that the Q-Town Youth Movement was involved in acts of terror, amongst others that they planted and caused to be detonated, bombs at the Athlone Post Office and the Athlone Magistrates Court, that the Q-Town Youth Movement was planning the disruption of the then up-coming tri-cameral elections by amongst other starting a big fire in Khayelitsha, three, that the QYM had secret meetings at the ELC to plan such deeds of terror and fourthly, that the Q-Town Youth ...(no further recording)

They then go on to say that the reason why the bomb, or that they decided to bomb the Early Learning Centre was to frighten the Q-Town Youth Movement, to give the impression to the public that it was the Q-Town Youth Movement's bomb that exploded. They tried to persuade the Committee that no-one was to be killed or injured and that they merely, besides wanting to frighten of course, they wanted to destroy the venue where the secret meetings took place and through these actions, that they would maximally disrupt the Q-Town youth, who obviously they regarded as part of the enemy.

I submit in paragraph 14 that this line of argument is highly improbable and that it should be rejected as false for the following reasons: That the ...(indistinct) purpose of the CCB was to maximally disrupt the enemy. That the Q-Town Youth Movement was - if the Q-Town Youth Movement was involved in terror, it is highly unlikely that by placing a bomb in the venue that they used and caused it to be detonated after they've met, that this would frighten them and stop them from acting the deeds that they are alleged to be involved with. My submission is further that it would have been quite easy for the Q-Town Youth Movement, if they were the people that the applicants wanted to make them out to be, then they could simply have used another venue and the question which remains is why the police were not drawn in, if they had all this information about the Q-Town Youth, that they were terrorists, that they were planting bombs, why the police were not even informed about this, to follow up with further investigation.

It was also the evidence of the applicant van Zyl that they were in possession of some damning evidence in the form of a letter written by one of the members of the Q-Town Youth and the question remains why this was not handed over to the police for further prosecution. I pose the question also why a sum of R30 000 was paid just to frighten this group of terrorists and by destroying a building, as opposed to a sum of R2 500 that was going to be paid for each of the killers or the intended killers, assassins of Adv Dullah Omar. There are many other factors that I can raise.

I was going to expand but I'll venture to say that all these facts and circumstances clearly indicate that there was in fact an intention to kill and I expand. If one looks at - I'd also venture to say that it has in fact, if one takes into consideration the evidence of the applicants themselves and that of Mr Oesman Alexander, I would venture to say that it has been proven beyond a reasonable doubt that there was in fact an intention to kill, although that is not any test by any nature that I would want to put forth.

In paragraph 19 I make the point that there's clear evidence from Oesman Alexander that there were cars in the parking lot and de facto there were people in the building when the bomb was detonated. It is quite clear from the evidence that the lights must have been switched on and that van Zyl and Botha must have seen, that they must have been aware that there were people in the building. Hardien knew that there were people from the, who were going to attend a soccer meeting inside the building, but there's no regard that's been given to that.

CHAIRPERSON: Mr Hockey, what do you say about the locked doors, the hall being locked? Do you say anything about that? Because that was raised in the argument by the applicants. There's a statement in ...

MR HOCKEY: Yes, by one of these people.

CHAIRPERSON: By one of these people saying that the hall was locked and then that was raised in the argument. Do you have anything to say?

MR HOCKEY: Can much be made of that Mr Chairman with respect? I submit not. As far as the Members of the Cape Youth Congress is concerned, they obviously wouldn't have had knowledge of that because they were meeting in the board room.

CHAIRPERSON: My understanding was that the soccer people were going to meet there.

MR HOCKEY: In the hall, yes. Yes, one of them, if I remember correctly, one of them said that they didn't go inside the hall.

CHAIRPERSON: They were sort of in the ...

MR HOCKEY: They were in the foyer.

CHAIRPERSON: In the entrance hall there.

MR HOCKEY: They were congregating in the foyer because the hall was locked. Ja, I submit that not much can be made of that. It's also quite clear from the evidence, Mr Chairperson, that it could have been easy for Hardien, for example, to go and check a second time whether there were still people in the building if the intention was not to kill or injure anybody.

The evidence is also, from Oesman Alexander and I must admit, it's uncontested evidence of the exhibit of ... (indistinct) Adam that one of the members that attended the Cape Youth Congress meeting, did in fact park a car at the back and left it there overnight, she did not want to take the car away that evening, because there were some pamphlets.

CHAIRPERSON: She was distressed and upset at the bombing. The car was left.

MR HOCKEY: Yes and there were some CYCO pamphlets in the car and she therefore left the vehicle there overnight. My submission is that's an important aspect, because if van Zyl and Botha are correct, then they would have seen that vehicle there. They say they were - they parked about 42 paces from the building at the back of the building, besides the car of this particular member of the Cape Youth Congress, the evidence is also that there were three other vehicles in that parking area. So even in that respect, there wasn't full disclosure. The evidence of van Zyl and Botha was that there were no cars parked. The indications are there that they must have known that there were people inside the building, with respect, Mr Chairperson.

Just in conclusion, I again make the point that it's condition precedent for full disclosure to be made and if there's an absence of such full disclosure of the true facts, of the whole truth and nothing but the truth, then amnesty should be denied and it's my submission that there was no such disclosure and in respect of the applicants for the Early Learning Centre, or the bombing of the Early Learning Centre, I submit that no amnesty should be granted. Thank you Mr Chairperson.

CHAIRPERSON: Thank you Mr Hockey. Do you have any submissions to make, Ms Coleridge?

MS COLERIDGE: Chairperson I have no further submissions to make. I think all the issues have been dealt with extensively and I abide with the decision of the Committee.

CHAIRPERSON: Thank you. Mr Wessels, do you have any reply that you'd like to make?

MR WESSELS: Yes, thank you Mr Chairman.

MR WESSELS IN REPLY: Mr Chairman having listened to what my learned friend Mr Bizos said, it appears to me that the basic point of disagreement between myself and him on the law, relates to the test to be applied in regard to what satisfies me. Now I've submitted to you that it can mean no more than the version should be reasonably, possibly be true. Now Mr Bizos said that they were careful in not using the word onus, but the submission, Mr Chairman, that won't help him because the decision that is to be made is, as they've argued, is there a requirement that an applicant must prove on the civil standard of probabilities, that he's made full disclosure. Now whether that can be called the onus or not, doesn't matter. The argument is, there must be proof on the balance of probabilities, the civil standard of a full disclosure.

Now Mr Chairman, if that had been the position, then one would firstly have expected the Legislature to have stated that in Section 20 and it would have been very easy for him to have said an applicant must prove that he has made full disclosure. That's all he needed to have said, but he didn't say that and he didn't say that presumably with a - for a particular reason and the Legislature, it's been criticised for drafting this particular Act and criticised in many respects for that, but perhaps he must receive credit for this particular section because it was probably anticipated that to require proof would result in insurmountable difficulties for this whole amnesty process.

If the test was one to prove on reasonable probabilities, the civil standard, you would get to the situation that an applicant had to comply with the law as was stated as long ago as 1938 in the case of Gamey vs the National Employer General Insurance Company where it was stated that the court should look at the probabilities. If he cannot find on the probabilities, it goes on to the credibility and the person on whom the onus rests, may then satisfy a court that the version, that his version is true and correct in every respect. Not that it is satisfactory, but that absolute reliance can be placed on that version and if one applies that test again to applicants in amnesty proceedings, it would result in severe difficulties.

Then you would have the position, as Mr Bizos has now argued, that I should have called Mr Verster in rebuttal of the evidence of Barnard on the Webster issue. Mr Chairman, that would have resulted in all the issues that ...(indistinct) has said that should have been explored, all these different acts that had been done by Verster over the years, totally unrelated to these particular acts, should also be dealt with, because it would also form part of the facts that need to be assessed to assess his credibility. Then you would have the difficulty, Mr Chairman, with respect, that your decision during the course of the evidence of Mr Verster, has now resulted in evidence, in Mr Verster not dealing with those sort of aspects because you had ruled that evidence of specific acts are not relevant in these proceedings and he needn't answer questions on that issue, in particular, Lubowski, Webster and even the foetus matter. Now having ruled that, how can it be expected of Mr Verster to now come in rebuttal of Mr Barnard's evidence and deal with Webster? Now we're starting a new issue, a new inquiry, an inquiry that will take many months to complete, that is just but one aspect of it. There may have been 100 more events that had taken place outside the borders of this country, that also had to be explored, where do you draw the line? Does he have to come and only explain his conduct where a person was killed, or does it become necessary for him to explain how he travelled without a licence in Botswana in pursuing a political target? It becomes an impossible matter to deal with.

Let's forget about Mr Verster, let's, just to illustrate the illogical consequences that will flow, let's take Mr Barnard. Mr Barnard has to then comply with the same test. Mr Barnard applied for amnesty on a number of matters. Mr Barnard has to satisfy the Committee on the same basis that he has now made a full disclosure on the balance of probabilities on all issues where he has been involved in. The procedure that he's adopted here, doesn't make provision for that sort of thing. The procedure here does not require of an applicant to remain present after he has given evidence, or to have a legal representative to remain here and to place everything in dispute and deal with all issues as if the matter is heard in a court of law. It could well have been that after Mr Verster had given his evidence, he could have left, I could have left and the matter then proceeds. That happens, I take it, in many applications. It's not always that there are legal representation that remain present.

MR LAX: Sorry, I don't know of a single instance where lawyers have left the hearing, but that's just my own experience.

MR WESSELS: No that may be so that it didn't happen like that, but it doesn't have to be that they should remain present and carry on as if it is a trial and dispute all matters. It now becomes a relevant point. Can Mr Barnard be believed in everything he says? Now what does one use to test Mr Barnard's evidence? I have now been instructed on behalf of Mr Luitingh's has filed an affidavit wherein he says Mr Barnard is lying. Is Mr Luitingh to be believed and Mr Barnard's evidence rejected because someone else has now come and said something different to him? Has Mr Barnard discharged the onus to show on the probabilities that his version is true and Mr Luitingh's version is not true? It becomes an impossible situation if you apply the test as if there's an onus or proof to be required on the balance of probabilities, as argued by Mr Bizos.

The difficulty with Mr Barnard's evidence is further, he has given a version which in many respects is probably nonsense. For instance the so-called nails attached to the bomb, where van Zyl told him there were four kilograms of nails attached to the bomb. That was his evidence initially and it is my submission he heard about this nail business here because it was raised in cross-examination I think by Mr Bizos, there was some speculation in that regard. Mr Barnard latched onto that to get back at Mr van Zyl for putting him away for ten years, but then not long after he gave this ridiculous version, it struck him that if that sticks, his "bloedbroer" Kalla Botha is now going to be in trouble because Kalla Botha was the one who planted the bomb. Then he changed that very opportunistically to say no, but he spoke to Botha about that and Botha told him that Slang van Zyl is talking nonsense, the instruction from Gen Webb was that nobody was to be injured. Botha repudiated that version in his evidence. It's probably clear that Barnard can't be believed on that issue, so if he can't be believed on that particular issues, how has he then now discharged the onus as set out in Ganey where a court must be able to place absolute reliance on the credibility of a witness in the absence of probabilities, because in my submission the probabilities are equal, it's black and white, how can you say the one is correct and the other one not?

Mr Chairman, these are just illustrations of the minefield, if I may use that word, that you will find yourself in if the Legislature intended the test to be proof on a balance of probabilities.

There are many aspects of criticism against Mr Barnard. It's not relevant or necessary for me to deal with that. It was put to him in his cross-examination and one may ask, but why did I cross-examine him extensively if it wasn't relevant and it wasn't relevant in these proceedings and I cross-examined him purely to get on record his version so that anyone else who reads the record afterwards can make up his mind as to whether there should follow any further proceedings in regard to Webster or not, but strictly speaking, all his evidence about Webster, is irrelevant for the purposes of this Committee.

Mr Chairman, applying that, the procedure that is here, is according to my learned friend Mr Bizos, an inquisitorial procedure, he says that doesn't carry an onus, but at the same time he suggests that there must be proof on a balance of probabilities. Now that's a contradiction in terms, you cannot have that.

Mr Chairman, applied to the dispute between Verster and Webb, we have the versions, Mr Bizos says both these witnesses are unreliable, but he wants Webb to be believed in regard to authority. Now with submission, you can't have your cake and eat it as well.

CHAIRPERSON: Unless I misunderstood it, my understanding was that neither Webb nor Verster could be believed, could evidence be accepted because of their lack of credibility and that we should adopt the approach that it has not been proved by Verster that he had authority, not that we should rely on that portion of Webb to find that there was authority.

MR WESSELS: Yes, no but he wanted to rely on the portion of his unreliable witness to defeat Verster's application. MR LAX: No, he's not saying that.

CHAIRPERSON: No, no, what he's saying is we shouldn't accept Webb's evidence even that there was no authority because he's an unreliable witness, we should find that, and also because Verster is an unreliable witness, we should find that it has not been proved that he has authority.

MR WESSELS: Oh, alright.

CHAIRPERSON: That was the authority.

MR WESSELS: Then I misunderstood him. So then he says Verster in himself hasn't proved that he had authority but leave Webb out, he's not using Webb, in that process.

CHAIRPERSON: Because he's not a ...

MR WESSELS: Well Mr Chairman, with respect, then it becomes simpler for me. On what basis can you say that Verster, on his own version, is lying about the authority? The probabilities are in favour of that never mind any credibility aspects. The probabilities are the CCB was there to act against the perceived enemies in a violent way. The evidence was that there was money obtained, that there was a weapon obtained, through the system. The evidence was that that was a type of permission that would have been granted, had it been asked for. The probabilities are that Verster would have done that, because there is no reason why he would not have obtained the permission if it was something that he would have received. It is something that had to go through the system, that if he didn't get the permission there could have been repercussions at a later stage, so there is nothing at all to disprove or even cast doubt on Verster's version that he had the permission. The only criticism against his evidence was that because you didn't tell the truth or you wouldn't forthcoming at the time of the Harms Commission, now ten years later when you say you had permission, that shouldn't be accepted. In my submission, that cannot be upheld in any way.

MR LAX: Sorry, what repercussions are you referring to?

MR WESSELS: If he had used money or made money available from the budget without the necessary authority and had obtained a weapon without the necessary authority, it would have, he would have acted outside his mandate and there would have been impropriety in regard to at least the money that could have caused difficulties with Treasury and in that regard there could have been repercussions against him. He didn't have authority to just spend money willy nilly as he wanted to. There was a certain system in place.

MR LAX: But if it was a project just for monitoring Omar, there wouldn't have been a problem, he could have given the authority himself.

MR WESSELS: Yes, but if he, one would assume that if you spend money on monitoring only, it would be far less than paying money to an agent to commit a murder, so it would have still been inappropriate spending of money.

MR LAX: No, I hear you.

MR WESSELS: The uncontroverted evidence of Verster and everybody else that gave evidence about how the CCB operated at the time, was that Verster was fanatical about procedure, security and all those sort of things. Why would he not get the authority when it would have been the easiest thing in the world for him to get it? It doesn't make sense. So on the probabilities, it's clear that his version in that regard should be accepted.

Mr Chairman, Mr Lax asked me to give some indication of portions in the record that may indicate that there could have been a mistake or misunderstanding between Verster and Webb in this regard. I have some references, some are oblique, some are more direct. May I just give them to you? Page 128, 130, 137, 140, 142, 143, 168 to 169, 191, 214, 216, 412, 476 to 477, 499 and 502.

Mr Chairman in regard to the test, the words "full, frank and honest disclosure" that are used by Mr Bizos and Mr Kahanovitz in their Heads of Argument and particularly on page 16, but one must ask oneself, why did the Legislature use the words "full and frank" - sorry frank and honest in Section 204 of the Criminal Procedure Act, but not those words in Section 20 and the answer is that what the Legislature was wanting, was a disclosure of the deed for which amnesty is being applied for. It had accepted that applicants may not be good witnesses, that they may lie about other matters, but those weren't relevant factors as far as the purposes of the legislature in this particular Act is concerned. The Legislature wanted facts to come in the open in regard to what happened to people, that a disclosure must be made so that those people would know, the victims would know what had happened to their dear ones, themselves and how it happened that that happened. They're not interested in the credibility of a witness and the rest of his life. The emphasis is on a particular act and that particular act is the one for which amnesty is applied for.

MR LAX: Mr Wessels, my difficulty with that proposition is that you're dealing with a situation where there was a whole range of incidents for which amnesty would be applied for, which the Legislature knew had been denied in the past and in fact lied about. It was fully aware of that, and how could it then anticipate that all that would be required was for the same liars to come back and simply say the barest possible version, it doesn't make sense to me.

MR WESSELS: With respect, in regard to the act itself, there must be full disclosure of that particular act and the relevant facts pertaining to that act like who did what, who gave what instruction, how was it executed and facts pertaining to the act itself.

MR LAX: And the inquiries referred to in 23 as well.

MR WESSELS: Yes.

MR LAX: Okay, well that's okay because that goes much further than what I'm hearing you say.

MR WESSELS: Insofar as those aspects in Section 20 are concerned, in 20(3), there has to be full disclosure, but it doesn't go beyond that and there could be many other factors arising during a hearing that don't strictly fall within the ambit of 20(3) and the Legislature doesn't deem it necessary for a witness to be a truthful witness and an honest witness and a frank witness regarding all those other aspects, as long as he makes full disclosure and full disclosure in regard to the issues mentioned in 20(3) would be an honest and a frank disclosure, but it's limited to those aspects only, it is not a wide general full disclosure of everything in your life.

MR LAX: Now I understand you. It's fine.

MR WESSELS: Thank you. It doesn't apply in the Evans and Omar matters because there was no bad result. Proportionality is a slippery fish that comes into play when there is a result and it's a value judgement. If for instance in the bomb incident, the motive was and the instruction was to kill a minor supporter of the ANC and a massive car bomb was planted one Sunday afternoon at the soccer match where there are 40, 50 000 people, merely to eliminate that particular person, that's where the proportionality ...(indistinct) will become relevant or if you have, if you know that a certain person will be on an aeroplane, a boeing and you plant a bomb on the boeing and the whole boeing comes down, that's where proportionality becomes a relevant factor. It's only in the extreme cases where you can apply it because it's a relative concept. It becomes impossible to apply in the usual cases, or in this particular case where the bomb is planted and a building is destroyed, it's not a relevant factor in these circumstances and the Commission will know much better than what I do, how it had been applied in the past where people had been killed on the other side of the political spectrum for sometimes less than good reason, nevertheless amnesty has been granted. So in my submission, proportionality in these cases that are before you now, is not really a material factor that should take too much of your time.

Now it's been suggested here that in other cases where amnesty had been granted that probably could have been granted wrongly because the proper principles of proportionality hadn't been taken into account by the Committee.

Mr Chairman, let me emphasise, if I read the Act, there's a Committee that deals with amnesty. It has been altered and there are many Committees now dealing with that, but in law there's one Committee that makes decisions on amnesty and although the principles of precedent don't apply, this is an administrative process and the principles of fairness demand that a Committee will be consistent in its application of the principles. Now as we say about the umpires in cricket games, they can be wrong as wrong as they're consistently wrong.

CHAIRPERSON: We keep hearing that. It doesn't matter how bad they are as long as they're consistent.

MR WESSELS: If you stick to that principle, people will be satisfied and ...(indistinct) some people will be satisfied and I urge you to be then consistently wrong in your approach.

Thank you very much, Mr Chairman, those are my submissions.

CHAIRPERSON: Thank you Mr Wessels.

ADV BIZOS: May I just give you two references? I submit with respect that my learned friend would say that you had ruled in a particular way, had obviously not taken into account that your main ruling in the matter Mr Chairman, is to be found at the bottom of page 64, to the top of 65. They who did not rule that anything was inadmissible ...(intervention)

CHAIRPERSON: 65 to 66.

ADV BIZOS: The top of 66 yes. The bottom on 64 to the top of 66. What you did say is that you didn't know about the CCB and you would have to be informed, that you would not make a general ruling, but that you would deal with specific questions. That is the main ruling. There is another ruling to which a specific objection was upheld by, made by Mr Wessels which appears on page 107 and 108 in which three cases were mentioned, that you will not be making findings in relation to those three matters by way of example, but what you did say in your original statement was that when objections were made, we would deal with it.

Now what I want to say is that when the evidence of Mr Barnard was led, there was no objection to its evidence being received because instead he was cross-examined at some length if I remember correctly and there is no ruling that you could not or would not take that into account. That's all I wish to say Mr Chairman and not argue it any further.

CHAIRPERSON: Thank you Mr Bizos. Mr Martini, do you have anything to say?

MR MARTINI IN REPLY: I agree with Mr Wessels on the issue of consistency. It was an issue I was going to raise, but I support that view. Chairperson, I got the impression that the issue of whether the applicant, in our instance, was not a member of the Security Forces seems to be abandoned, but just briefly on that issues, insofar as its not the section, the definition of Security Forces in the Act read with Section (2)(b) make it clear that the applicant does fall within that category of person who's entitled to qualify for amnesty.

Chairperson, just on an issue, I'm trying to get through these voluminous replies as quick as I can, Chairperson, on a issue raised by Mr Bizos, a broad submission that they make that none of the applicants should get amnesty, because they haven't made a full disclosure of other facts and hence on that alone they should fail, I submit there's no basis for that. Two bases, on the strict reading of the Act, it must be full disclosure relating to the acts for which the particular applicant applies for amnesty because the applicants, Chairperson, are not asking for blanket amnesty. If you grant amnesty, they're not saying I'm indemnified for killing Mr X, Y and Z or blowing up building X, Y and Z which I never asked for amnesty for. If such evidence exists the Attorney-General will prosecute and likewise, it cannot be expected by the victims to say well because you haven't and there's no evidence to say that you killed X, Y and Z, there's no such evidence, or that you blew up building X, Y and Z, he mustn't give him amnesty, it would be grossly unfair. In any event, there's not a bit of evidence to suggest for example Mr van Zyl, to suggest he killed Mr Y. There's been evidence led on Mr Lubowski, Mr van Zyl's answer to that was: "I monitored it."

Chairperson, on the next issue of personal gain, Mr Bizos suggested that on personal gain the applicants should all fail. Now with respect Chairperson there's no basis for that argument. The applicants, in this case in the case of Mr van Zyl, the evidence is clear, he does say that it was a career move, it was a better salary package and he wanted to remain in Johannesburg instead of going to Pietermaritzburg, but at the time there is no evidence that when Mr van Zyl agreed to take on, to make this career move, that he was aware of what his new job was going to entail. If you remember they went on a course for 6 months and then they were dormant for some time and only after the course did they really understand what was going to take place within this organisation, so it wasn't, Mr van Zyl did not enter the CCB because he thought, "I'm going out to kill people, because that's what I want to do". It can never be argued that way. And on the personal gain issue, the evidence of Mr van Zyl, Chairperson, which I didn't touch in argument was Mr Bizos makes it sound as if, well I'll confine myself to Mr van Zyl, but it applies for all the applicants, would get a production bonus if they killed somebody or a project went well, that was not the evidence. One of the packages was they'd get a production bonus. Now if you remember the evidence, in June 1989 Mr van Zyl gets one production bonus only of, I think it was two and a half or three thousand rand. Now at that stage none of these projects had even been carried out. July is the first time we have some movement on the Minister Omar issue, where Barnard was according to van Zyl, sent down to monitor, but no attempt was made to kill Minister Omar that day, so Mr van Zyl was certainly not rewarded for attempting to kill Minister Omar, blowing up the Early Learning Centre in a bonus or otherwise.

MR LAX: Sorry, Mr Martini, there was, to be fair to your client, also evidence that the production bonuses were in fact to compensate them for a whole wack of allowances that they lost in the police. Mr Verster gave that evidence far more correctly.

MR MARTINI: ...(indistinct - mike not on)

MR LAX: No, no, it was medical aids and other things they would have been entitled to and S&T's and things of that description that they lost as a result of moving across to a private organisation.

MR MARTINI: I'm indebted. I don't recall that evidence, but I'm indebted to you.

MR LAX: It was words to that effect, I'm quite sure about it, but the detail we can pick up later if it's relevant.

MR KAHANOVITZ: Mr Chairman, might I just clarify. The evidence was - there were two classes of bonuses, there was the bonuses for that purpose and there was a second class of bonus, in relation to particular projects that were successfully completed.

MR MARTINI: Well Chairperson, from Mr van Zyl's evidence, certainly I don't understand his evidence to have been that he got a bonus for a project that he completed. Because Mr van Zyl's evidence, he received one bonus, I think of R2 500 or

R3 000 in June '89, and by then a project hadn't been completed. So there's no basis to argue that ...(intervention)

CHAIRPERSON: Well we don't know what a project is, because there was the blue and the red projects, he might have got it in respect of setting up his business efficiently, or whatever.

MR MARTINI: Whatever, Chairperson, I'm just addressing the issue of insofar as for the project of killing or blowing up. If it was for the blue plan, I mean it can never be suggested that hence it was for gain ...

MR LAX: ... objectives, specifically with regard to that diary entry in the sum of R7 000-odd rand.

MR MARTINI: Chairperson, I'll deal with that, before I deal with that, before I forget, one of the issues, it has also been suggested that Mr van Zyl got a flourishing business. That was not the case. Mr van Zyl's testimony was his business was breaking even. I think it was making R3 000. Mr van Zyl's evidence was also and this must be borne in mind, it's also been raised that there was litigation and packages were obtained. Mr van Zyl resigned and his undisputed evidence was he never got any package. He returned the BMW, he returned the shredder, he returned everything to the CCB and I raised that in my Heads that through his efforts he does admit that his business has become lucrative, but that's his own efforts, he never received a lucrative business when he resigned and he never received a retrenchment package or any useful, as I've heard, I don't recall the evidence but Mr Botha having received R200 000, Mr van Zyl there's no evidence that he got paid anything when he resigned.

On the R7 000 issue Chairperson, if you recall Mr van Zyl's evidence was that he had received R15 000 for the Omar project, he had disbursed R5 000, two and a half thousand to two of the original hired assassins. He then paid Mr Barnard and he conceded that Mr Barnard, you know he wasn't entitled to use Mr Barnard. He paid Mr Barnard R7 000. Mr Barnard himself says that - Mr van Zyl says he paid Mr Barnard R7 000 to recover his "onkostes", his disbursements. Mr Barnard himself says in evidence, I think under cross-examination of Mr Bizos, that the R7 000 was to cover his air fares and hotels, not that he was paid a fee to kill anybody and then Chairperson, link that to the - what Mr van Zyl then says is he had then left with R3 000 from the Omar project. In the ELC project he says the budget was authorised for R30 000, he received R25 000 from Mr Burger, he paid R18 000 ...(intervention)

MR LAX: Sorry, all of this doesn't add up for this simple reason that that is a very specific amount of R7 000 and some change together with a list of other amounts, in a particular diary entry that they're referring to, which remains...

CHAIRPERSON: It's a different R7 000.

MR LAX: It's a completely different R7 000, it's not the bits and pieces that he described making up in order to "break even", whatever that might mean. It's a completely different amount. If you like I'll ...(no sound)

MR MARTINI: Well I would appreciate that because the only R7 000 I'm aware of is, the discrepancy arose and this is the first time I hear this, I haven't even heard it, I haven't read it in the Heads and I haven't heard it in the argument. The R7 000 was - why did Mr Hardien only get R18 000?

CHAIRPERSON: Yes, we know about that.

MR MARTINI: Now that was minus 7 which he added back to the 3 from the Omar project and handed back the R10 000 in total to one called Nick, which if you recall the evidence, was the new Co-ordinator. That's on that issue. I ...(indistinct) I've got Bundle J, Chairperson. If I may carry on on another point, just to get back to the proportionality issues as well, Chairperson, one of the issues Mr Bizos raised was, and I say there's no validity in that argument applicable to Mr van Zyl. It might have application to maybe Mr Verster the General, why did Mr van Zyl, why didn't they consider other options? That was, with respect, not their function. Their function was, if you recall the hierarchy of how the CCB operated, was go out and do a pre-study for the elimination of Mr Omar, not come back and tell us if we can't, instead of eliminating him, what else can we do to him, with respect and at the end of the day Chairperson, you will recall that that decision to eliminate after all the pre-studies, could be stopped, one need not have gone ahead with that plan, so possibly that argument may have some relevance, given the structure of the CCB, to Gen Verster. If there is any relevance in that argument, the only person who could have made those assessments would have been at the higher levels. To suggest Mr van Zyl's function was not to go and verify the information, the undisputed evidence was it went, the information was sent through to the Co-ordinator who had his own links because of the secrecy of the organisation, to Trevits, Military Intelligence and all sorts of other information, so it could never have been expected of the foot soldier to now say: "Well, I've received a mandate to put a bomb in the ELC, but I'm going there tonight and you know what, I'm going to throw paint over it instead." It wasn't his function. He was not authorised first of all to throw paint, he was authorised to blow up the hall, he was authorised, on Mr van Zyl's evidence, to monitor Minister Omar. So with respect, that argument cannot have application to the foot soldiers, as I've put it.

MR LAX: Where it did have application and Van Zyl I recall specifically questioning him about this, conceded this aspect was that in determining the nature of the project and the "voorstudie", he would have been required to have a discretion to consider what alternatives to use and it was in that context that he chose particular actions, so that's the extent. I accept your argument that yes, that would have gone up and they may have changed it, etc., etc., and that once it came back, he didn't have as much discretion in the matter, but it's at that point of choosing what is an appropriate action to recommend as part of the "voorstudie" that the discretion comes into it.

MR MARTINI: Well with Minister Omar, he was told eliminate. He could have either eliminated Mr Omar by planting a car bomb, have him stabbed, but later the plan was changed to poison, but the act, as I recall Mr van Zyl's evidence in the ELC, I'm not sure that Mr van Zyl, I might be mistaken in my recollection of this evidence, actually suggested: "We blow up the hall", but be that as it may, insofar as proportionality might be relevant Chairperson, you heard my argument which I submit in these circumstances of these applications where nothing really serious occurred, tragic, fortunately. Proportionality has no relevance, but insofar as the Committee might find it is relevant, bearing in mind that these are only criteria to be taken into account, in a war situation, one's got to judge it in a war situation that South Africa was in at the time and Rafolla's case lends some assistance to the Committee in how to apply these principles. I submit that's the only authority we've really found on a legal authority of how to attempt to apply these principles.

Chairperson getting back ...(intervention)

CHAIRPERSON: ...(indistinct)

MR KAHANOVITZ: The page references are, the record at page 2281 and the diary entry at the 30th of May. Maybe I can just hand my copy to Mr Martini. Bottom left hand corner and the question that's put to Mr van Zyl is why is he getting R9 547, sorry that's put to Basson, is why was van Zyl paid R9 547 when his salary was approximately R3 500.

...(indistinct - mike not on)

MR MARTINI: Page 153 of the diary. Now down bottom left. No, May.

CHAIRPERSON: Then we see it says: "Le Roux 954736" and then what Mr Kahanovitz read out ...(indistinct - mike not on)

MR MARTINI: But I've answered it, Mr van Zyl would have got a production bonus in about June 1989, now this is May. ...(no sound coming through)

MR LAX: This is what I had in mind.

MR MARTINI: Well this Mr Lax, I answered was Mr van Zyl's evidence was he got a production bonus in June.

MR LAX: I heard you.

MR MARTINI: Be that as it may, Chairperson, let's get on to the next point. Barnard's evidence. Chairperson, I dealt with that extensively. Just one issue, Chairperson you raised yesterday and you recall the point about the issue of the gun in the ceiling, which I debated that whole issue, the improbability. Chairperson, what's also significant, I forgot to refer yesterday, if you have reference to Barnard's evidence and in particular, I think it was under cross-examination, what is significant on the third occasion when he says he went down to Cape Town and he was meant to shoot on that occasion, he says he stayed in the Woodstock Inn, not the Inn on the Square. Now his previous evidence was at both occasions he stayed at the Inn on the Square and he left the Makarov in the ceiling and he uses the words, and I submit the reason why he uses the word in cross-examination, he says every time he goes back to Cape Town, he says: "Amazingly", now why does he use that word? Because it's a fabrication. It's really amazing that one would find the Makarov in the ceiling after months. He himself uses that word. Page 2677, Chairperson: "... once again obtained the vehicle and the firearm which amazingly had remained in the same place". Why does he himself use such a word and if I can find the reference of the hotel he stayed in - Mr Chairman, please bear with me, I had found it. Chairperson it is there, I'm not sure if it was under cross, or ...

CHAIRPERSON: ...(indistinct - mike not on)

MR MARTINI: The third time he stayed at the Woodstock Inn and it deals with the evidence at the time where he says he had stayed out all night and he watched the TV and he saw Lubowski had been killed and he phoned van Zyl and said: "Come and see me the next morning" and he was staying at the Woodstock Inn. I have - Chairperson I actually had found it and I flagged it. Oh, the R7 000 of Barnard appears at page 2681 of the record where he says:

CHAIRPERSON: What page is that?

MR MARTINI: 2681 Chairperson. Chairperson, just while we're dealing with Mr Barnard, his evidence, it was raised by his counsel yesterday, what is significant about his evidence-in-chief - oh I have found it Chairperson, where he stayed at the Woodstock. Well, we can look at page 2675, he says:

so we can assume that evidence - and the second occasion, Inn on the Square. Then if you got to page 2678 Chairperson, that's where it flows from the third incident where he actually went out and he says he saw somebody, he observed Mr Omar and that he couldn't shoot him because he was accompanied by a female, we don't know a wife, or just a female and at page 2678:

he's talking about van Zyl,

So now he's staying at the Woodstock. Nowhere in this evidence does he tell us how he retrieved the gun on the third occasion. Now what is also significant of Mr Barnard's evidence is the way he has testified, nowhere in this evidence will you find that Mr Barnard says Mr van Zyl instructed him to kill Minister Omar. His counsel raised it. All - he uses the words, he says he met van Zyl, he says: "I was requested..." We don't know by whom. Assumptions can be made that its from van Zyl but one would expect if this man is being honest, to sit down and say to this Committee: "I met on that date, van Zyl told me to do this, he wanted me to kill" and if you analyse his evidence, he then says he travels with Peaches and van Zyl to Minister Omar's house, this is after the alleged handing over of the Makarov and he says:

That's in his own mind and he repeats that in cross-examination by Mr Bizos. Nowhere - Mr Bizos asked him the question, he doesn't answer, he just says: "I knew I was tasked with the murder". Now why is that important, Chairperson? It's very important because I submit that's a total fabrication. What has Mr Barnard done? Mr Barnard has led the evidence clearly of monitoring, because it ties in, he's been there, he's been monitoring and he adds in the words: "and I was to kill him". That's how he's altered his version.

Now also of importance is notwithstanding my submission yesterday as to why Mr Barnard's evidence should not be accepted, how does the Committee deal with the following problem? Mr Barnard in his application to the Committee files an under oath statement setting out the deeds for which he applies for amnesty and the grounds and he supports Mr van Zyl 100%. He in fact refers to Mr van Zyl's application and to the paragraphs and confirms them. Now the victims would want the Committee to find well, he's changed his mind, ignore that application he made to the Committee for amnesty, where he does a complete about turn, so the relevance of that in assisting the Committee is simply another factor as to why you have to reject ...(indistinct). There's not one bit of evidence, Chairperson, which corroborates Mr Barnard's testimony, so leaving aside my arguments of whatever the man might be and why you shouldn't believe him, for those reasons, on his own evidence, the way it was presented, on his own contradiction, he shouldn't be accepted, his evidence should never be accepted and cannot be accepted, it's my submission.

Chairperson just, I would like to put on record, we have been pressurised in replying. I've made notes opposite every page on Mr Bizos's answers and I'm finding it extremely difficult to deal with all these issues in the short time that we do have and I don't really know how to deal with this problem unless we be afforded the opportunity to reply to these Heads. Chairperson, this is an important matter. It's an important matter for the applicant, who I represent, I'm not speaking for the other applicants, they have their own legal representatives. I'm not here able to judge as to whether this Committee is satisfied with answers they received or argument raised. We got these Heads, I certainly got them in the afternoon, on Wednesday. I've had basically a day which its taken me to make my notes, but I could go on for another four hours, going through point by point, unless the Committee feels ...(intervention)

CHAIRPERSON: If you want to respond then in writing, when could you do it by? We don't want to be unduly delayed because we're getting very close to the end of our process.

MR MARTINI: I appreciate that Chairperson. The only reason I raised it, you know I wouldn't want a long time, is Mr Bizos ...(intervention)

CHAIRPERSON: It would clearly only be in response.

MR MARTINI: No, only in response.

CHAIRPERSON: We don't want new issues and then have to give somebody else a ...

MR MARTINI: No, no, no, Chairperson, it would only be to deal more comprehensively with this, a reply to not even I would say Bundle B, I mean they do ask that Bundle B be referred to in Bundle A, where they highlight various parts of evidence, which is quite an enormous task. Now it is difficult, not to raise new issues, but to reply to let's call it Bundle A.

CHAIRPERSON: Yes, we know that normally there's a chance to reply to any argument and we also know that you haven't been given a great deal of time to do that and that you prepared your Heads before seeing the others, so we don't want anyone to leave here feeling that they've been prejudiced in any way, so if you want to submit written replies - do you have any problem with that? As long as it can be done reasonably quickly and as long as it's restricted to a reply.

MR MARTINI: Chairperson, I think Ms Coleridge will agree, I filed my Heads rather early, I think on the 1st of November. It's not my intention to delay it's just to ensure ...

CHAIRPERSON: No, no, that ...

MR MARTINI: And I appreciate only to reply to let's call it Bundle A. I don't think Bundle B needs a reply because that deals mainly with evidence and that can be incorporated because Mr Bizos has also given us references now to Bundle B, but the reason why I raise it now is before lunch Mr Bizos did raise and said there's been a suggestion that a written reply be handed in and you opposed it, but I certainly do not, I'm not trying to be difficult with the Committee, but appreciate the difficulty I think every applicant has here trying to rush through this.

CHAIRPERSON: Yes, we wouldn't have, subject to what Mr Bizos or Mr Hockey might say, but our intention was to give you an opportunity to reply.

MR MARTINI: Sure Chairperson.

CHAIRPERSON: And a reasonable opportunity to reply. We thought maybe these two days, that we would have had sufficient time, it's turned out that there hasn't been, so we don't want anybody to leave here feeling he's been prejudiced, he hasn't been given a proper opportunity, etc, etc, so if you want to reply by the end of the month, can you do that?

MR MARTINI: Sure Chairperson. Chairperson ...(intervention)

CHAIRPERSON: ...(indistinct - mike not on)

MS COLERIDGE: Chairperson, I just want to place one factor on record that we all agreed on a date for the submitting of these heads and it was the 16th and Mr Kahanovitz was in time with his Heads. I just want to, just to clarify that he said he got it late and then just to courier it the next day, which everybody received, it was same day service, but I just want to place that on record that it was, it wasn't as if it was late, he had, it's just we all agreed on those dates.

CHAIRPERSON: Yes, because you know everybody will agree that the Heads from the victims are very comprehensive and contain a large amount of information and points, the sort of thing that's difficult to respond to in a couple of days.

MR MARTINI: Chairperson, I don't know why everyone takes me the wrong way. I'm not accusing...

CHAIRPERSON: No, we're not at all, no we accept what you say. So if you want to ...

MR MARTINI: They've done comprehensive ...

CHAIRPERSON: This would apply to all the applicants. If you want to submit, if you feel you haven't got enough time, written Heads, but by the end of the month. That would be the 1st of December, that Friday. I think it's the 1st of December.

MR MARTINI: Because Chairperson, what I've tried to do is sketchily go over points, but in a rush and I would afford my colleagues the opportunity now if we'd be entitled, to possibly even only do replies to the issues that we felt we haven't replied to today. To have the opportunity ...(indistinct - speaking simultaneously)

CHAIRPERSON: But as long as it's a reply and not new arguments that we all know have to ...

MR MARTINI: No, Chair, I accept that. It's not the intention to delay these proceedings at all and if possible even before November, but they might even be limited to issues we haven't canvassed. Thank you Chairperson.

CHAIRPERSON: Yes. This applies to you as well Mr Wessels, although you've finished your answer.

MR WESSELS: Thank you, I'm unlikely to make ....

CHAIRPERSON: Yes, Mr du Plessis.

MR P DU PLESSIS: Mr Chairman, I'm not going to repeat the legal argument put forward by my learned friend Mr Wessels. I associate myself with the legal argument put forward. At this stage I've got nothing further to add. If something comes up I will consider my client's position to file further Heads.

MR P DU PLESSIS: May I request at this stage that I be excused from these proceedings, because I have to leave for the airport?

MR MARTINI: Chairperson, sorry, may I also be excused? I also have a plane. Chairperson, don't get me wrong, if there's no need to reply, I will not file a further reply. Thank you Chairperson.

CHAIRPERSON: Thank you Mr Martini for you ...(indistinct - mike not on).

MR MARTINI: Thank you Chairperson. Thank you Mr Lax, Mr Sibanyoni.

CHAIRPERSON: ...(indistinct - mike not on)

UNIDENTIFIED SPEAKER: I would appreciate if I can discuss it with my preceding counsel, Mr van Eck, so we would also ...

CHAIRPERSON: Take opportunity of submitting a written reply by the 1st. Mr du Plessis.

MR H DU PLESSIS IN REPLY: Thank you Mr Chairman, just one or two points quickly, but I will also make use on the same basis as Mr Martini of the opportunity to do it in writing. Just two or three points I want to make here and that is Mr Bizos quite correctly pointed out this was an inquisitorial procedure, no one has to prove anything and he came here to assist the Committee. My problem is that what has happened here in view of the Heads of Argument of the victims, is that we have been led up the garden part to a certain extent in a trial by ambush situation because what has happened here is that it's been pointed out in the Heads of Argument that a couple of points, a couple of the requisites as set out in the Act, are now being attacked in the sense that it is said that the applicants didn't prove that and I'm referring here specifically to for instance the political motives of the applicants. It was never disputed in cross-examination. The context of the deeds, that is the struggle of the past or the conflicts of the past, as it is referred to in the Act, the CCB structure as part of the SADF, the CCB policies as set out in evidence by the applicants, that's just very briefly and I submit that firstly, I'll in any event make the submission that although these aspects were not attacked in cross-examination by the representatives for the victims, I would in any even submit that the Commission has got sufficient evidence by the applicants themselves in this regard. I'm referring specifically to Botha, to Burger and Basson here, I wish to point out that and I have found the places in the record where they said that when they joined the CCB, they did not know what exactly was going to be required of them as far as Maree is concerned. It's 2467 of the record. As far as Burger is concerned, it is 1775, that is Burger and the other one I'll give you now, it is 2467, Mr Chair.

Now furthermore, I just wish to submit that we also have the evidence of Gen Webb. Now Gen Webb was the Chairman, he was a General in the South African Defence Force. He was questioned by myself on behalf of specifically Burger, Maree and Basson in this regard and his evidence is to be found in the record. I'm not going to refer to that obviously in detail now, but the fact of the matter is that it was never disputed with Gen Webb or in any event not seriously at all, that there was no such policy of the CCB to destabilise the enemies maximally, etc, and it could involve murder and that he could approve it and in fact that is his evidence on page 1431. His evidence specifically was that he could have proved murder, but only if he got authorisation again from higher up, but it is abundantly clear that at least in the South African Defence Force, there was a policy to destabilise the enemies of the country by committing crimes against them. Now as far as my clients are concerned, they were faced, when they entered the CCB, with a completed structure. Basson was in the Defence Force all his mature life. He was transferred into the CCB. He was then told that he was going to operate in foreign countries and in fact he did operate in foreign countries only until the CCB was created as Region 6 internally and I submit, as far as Burger and Maree are concerned, it is clear from the record that they didn't know exactly what they were in for at the stage when they joined up and I have given the references, so I will submit that my learned friend for the victims argument that the applicants didn't prove these aspects is totally devoid of any truth. We have all the evidence here. We have referred, in questioning Gen Webb and Verster, who were the Commanding Officers of all my clients, we've referred in detail to the Truth and Reconciliation Commission report and there was no objection from my learned friends and it was confirmed by Verster. How can it now be said that my clients didn't prove that there was such a policy in the Defence Force and in the CCB specifically? And that also goes as far as the struggle of the past is concerned and the reason why I'm referring to that is obviously because it's a requirement or one of the aspects the Committee must take into consideration when it comes to motive and context, for instance, it must be taken into consideration. This was confirmed by Verster. It was ...

MR BIZOS: ...(indistinct - mike not on)

CHAIRPERSON: Yes, certainly Mr Bizos.

MR BIZOS: ...(indistinct - mike not on)

CHAIRPERSON: And I'd like to thank you as well for your assistance in this matter. Thank you.

MR WESSELS: ...(indistinct)

CHAIRPERSON: Yes and Mr Wessels likewise. Thank you for all your assistance in this matter.

MR H DU PLESSIS: Thank you Mr Chairman. I'm nearly finished. So my submission is that this evidence contained in the Truth and Reconciliation Commission report as well as the evidence given by Webb and Verster, should be taken into consideration. It was mentioned here, I think by Mr Chairman yourself, who placed Burger in the upper managerial echelons of the CCB. I wish to submit that that is not quite correct. He was not allowed to go to Headquarters to associate himself with any of the other regional.

CHAIRPERSON: Probably more correct to say middle management.

MR H DU PLESSIS: Yes, he was the Manager of no more than three operatives and one of them was suspended most of the time, so he didn't have much to manage, but in any even, I think the point is made there.

Then the last point I wish to canvass, perhaps just very briefly, is reliance is placed on the evidence of Botha and Barnard, for instance and also Gen Webb, where it is said by my learned friends for the victims, that Webb's evidence, or the fact that Webb didn't apply for amnesty, is an indication that he didn't give authorisation for Omar and Evans for instance, but in his evidence where I referred to the record, it is very clear that his own evidence is that he couldn't give such authorisation without going higher up, so if he did give, for instance, if he did give authorisation, it wouldn't have been lawful in that sense, because he wouldn't have the authority to do so. Now they wish to rely on Webb's evidence in that regard, but when it comes to other aspects, then for instance they say that rely on Botha's evidence, but he also didn't apply for amnesty, but they say in his case you should accept his evidence that he did commit the Webster murder as an order from the CCB, or Verster specifically because he didn't apply, one of the aspects is he didn't apply for amnesty. There's no consistent argument in this and I submit that in relying on Barnard and Botha's evidence, and I'm referring as far as my applicants are concerned, for instance, to the fact that Barnard said that there were nails attached to the bombs and that van Zyl said to him that the whole purpose was to kill people etc and I'm making the submission that in asking this Committee to accept the evidence for instance of Barnard, is not intellectually honest and I will go as far as to say that it would boil down to prostituting the case of the victims if that is done and I will immediately rush to say that I'm not saying that Barnard's evidence should be rejected, or Botha's evidence should be rejected, but you should be very, very careful in accepting evidence of co-conspirators and virtually co-accused, the authority there is very clear and I submit that their evidence could be taken into consideration individually as far as their own cases are concerned, but there would be no inference, or the Committee would not be able to make any inference of any value against any of the other applicants as far as Botha and Barnard for instance are concerned.

And then the very last point I wish to make is this, regarding the proportionality aspect. My learned friend Mr Kahanovitz made an excellent study of the International Law on this point and he spent about 20 or 30 pages in the Heads of Argument specifically on this point. My submission is what has to be kept in mind here is we're not working here with International Law, we're working with this specific Act 34 of 1995. This is a unique Act, this is a unique procedure and it does not really, or it isn't really helpful to refer to International Law, as Mr Kahanovitz did here and it was for instance said here, or there was a reference made to the Amy Biel matter and the St James Church and said how come these people were granted amnesty if one has a look at the proportionality aspect of their cases and I submit it is actually very simple, Mr Chairman. The fact of the matter is that it is only required that the act be associated with a political objective. It is not required that the applicants must prove Section 20(3)(a), (b), (c), (d), (e), (f) as part of their case, that they must comply with each of those points. The only reason why a reference is made to 20(3) (a) to (f) is those are factors which would indicate political motive, so for instance if one has a look at the Amy Biel case, it would be clear from the evidence in that case that the motive was political, the context would be clear, the riots which took place, the slogans, the brainwashing which took place of these kids in the struggle against the whites, etc., so the motive of those people, the political motive ...

CHAIRPERSON: Objective, I think you're talking about, the political objective.

MR H DU PLESSIS: Ja, the political objective, would already appear from those factors mentioned in 20(3)(a), (b), (c), we wouldn't even need to get to there, but the value of (f), that is the proportionality aspect, would be for instance if one say referred to the St James Church incident. If for instance the facts were that these people came into the Church, killed a lot of people, stole R500 from the collection monies and their excuse was: "We were going to take this R500, we didn't rob these people, this was political. We came here to steal the collection money, R500, we were going to donate it to the ANC." Obviously then the proportionality aspect would indicate that there was a political objective, so that is the value. I'm not saying that in this case the proportionality aspect is of no value at all, but I'm saying that it is not a requirement which has to be proved by the applicants and in conclusion I say that the political objectives and the political motives of the applicants are clearly shown already by the fact that they were employed by the CCB, that they were in fact attacking people of political position like Omar or Evans, that they were acting, even if all the information they received about the ELC was false, they bona fide believed that they were attacking political opponents and what is also very important obviously is the context in which these acts were committed and that is why I'm again emphasising what pages 30, 31, 32 of my Heads of Argument, because that is exactly what I say here, that one should weigh these factors against each other and that the value or the importance of Section 20(3)(f) actually diminishes to a large extent if one has a look at the full background of this case, the motives of the applicants, the context, the fact, very specifically that they were employed by the SADF in the CCB, a covert organisation, specifically aimed at combatting the enemy and we've heard the evidence of Verster, we've heard the evidence of the General, that's the evidence on record and that is the evidence this Committee should act on.

I'm not going to canvass any other points right now. I will do so in writing, if necessary. Thank you Mr Chairman.

CHAIRPERSON: Thank you Mr du Plessis. Mr Coetzee, do you have any reply that you'd like to make?

MR COETZEE: Mr Chairman, I do have a couple of aspects.

MR COETZEE IN REPLY: First of all regarding the credibility of the evidence of Mr Barnard, the problem that I have with Mr Martini's argument regarding the firearm, or where the firearm was obtained from and all, is that that evidence was led, he heard that evidence, he did not dispute it in cross-examination, to now come and to take some piece of evidence which does not necessarily have a basis because it stands out, it most likely easily be placed in context if he was properly cross-examined thereupon.

CHAIRPERSON: Yes, that was - Mr Martini essentially chose not to cross-examine.

MR COETZEE: Yes.

CHAIRPERSON: I think the reason, I don't know if it was the reason, but the reason given was, in argument, was that it was such a bad track record ...(indistinct- speaking simultaneously) therefore be a waste of time. It's a risk that one takes when one elects not to cross-examine.

MR COETZEE: Yes and now to criticise - Yes and also with regard to the order to shoot Omar, my respectful submission that it is very clear from the context of which the evidence was given that the instruction was: "Go and kill Omar" and in this regard as well, if Mr Martini wants to suggest that Mr Barnard is lying to implicate Mr or to discredit Mr van Zyl, certainly if that was the intention, he could have said: "I got the order in threefold, signed by the General", if he wanted to lie to discredit Mr van Zyl, certainly he would not have then carefully avoided saying: "I got an instruction from Mr Omar".

CHAIRPERSON: I think also if you take a look at Mr Barnard's evidence as it stands, even if there's no evidence directly, "Here is the gun, I hereby instruct you to go and shoot Adv Omar", the fact, there's also evidence from Mr Barnard that when he told him that he didn't shoot anyone, he got very upset, he got very upset about that.

MR COETZEE: With respect, that's what I thought is that it's clear from the context that he alleges that he got an instruction. If I then can just shortly refer to proportionality, Mr Commissioner, the problem is who was to assess at that stage whether or not an act was the right thing to do or was proposed in the right context, because at that stage this Act was not there, the people did not have necessarily a barometer to make that kind of value assessment at that stage and then again we must see where Mr Barnard ...(intervention)

CHAIRPERSON: I think the whole question of proportionality is an objective - look most of the people who appear before the Committee as applicants don't know what proportionality is, let alone ...

MR COETZEE: Yes, Mr Commissioner, that's what I'm getting at. For the foot soldier or the person as Mr Barnard was at that stage, an operative or an agent who was sent out to kill, for him there was no position to assess the situation, he had to go out and the words come to mind, even from my own military service, when we were so often told when we questioned is: "Yours is not to question why, yours is just to do and die", that is exactly what it was. I mean that is what he had to do and that was his order, there was a line of command which he could not question and he could not assess the suitability of a target.

The second aspect here is for personal gain. Now it can never be the intention of the Act and I don't think that was professed by any person to include ordinary remuneration that a person would obtain in his line of work, if that can be so construed, but then one must, one cannot criticise if there was a package deal. If it was a good package, if it was proper remuneration, if it was a good salary that he would obtain, certainly he cannot now be criticised therefore because obviously that depends on the resources. The Government had money, they did pay the people, they knew they had to use the people to do dirty work, so they remunerated them on a proper basis, but to say that he did what he did for the money and that for the money alone, would not be fair because with great respect, Mr Barnard has testified as to his association with the political views of the Government and he has also said that that was also his personal belief, that it was a justifiable action in terms of the current struggle that was at that stage in the country. So with great respect, to say that it was done for personal gain would not be correct. So he got bonuses, so he got paid, this moral dilemma is really not the question of this tribunal to say whether or not it's morally wrong or right to accept payment for work for your country. That is great and excellent patriotism is not one of the criteria the Honourable Commission has to look at.

Now my respectful submission that that specific sub-section is in the Act to refer more particularly to a person who acts as a mercenary, who has absolutely, who has no compassion for the views or the moral views of the instructor, it doesn't matter on which one of the parties on the line give him instruction to go and kill. "Sir, I give you R100 000, go and kill this person". He comes to this person to kill him, he says: "No, but I'll give you R200 000, go and kill your instructor". That is, with great respect, what this sub-section refers to, is to the blatant - to exclude blatant mercenaries from now coming under the banner of the indemnity that this Act will give them and this is basically what I want to ....

MR KAHANOVITZ: Might I just draw two things to your attention, one in relation to Mr Martini filing the subsequent Heads. If I can make the prognosis as to what you're likely to find in there and maybe set out an in principle objection in advance. If what Mr Martini's going to do is go trawling through the evidence of Mr Barnard with a view to saying: "Here are the following contradictions, all of which I could have put to this witness, but I never did", then we object in advance to the Committee being called upon to make a finding on the basis of ex post facto cross-examination by a lawyer by reference to a record in relation to a version that was never put. That can't ever be the basis on which one makes a finding.

CHAIRPERSON: Yes, look, we're fully aware of the fact and in fact I must say we were a little bit surprised that there was no cross-examination because we all know why there is cross-examination and what the effects of not joining issue are and we are aware of that and we won't allow cross-examination to come in ...

MR KAHANOVITZ: I think there was a perfect example there, I don't know what exactly the record says, but if you put to the witness: "When you said the Holiday Inn" and he said: "No, I didn't mean the Holiday Inn, I made a mistake, I meant the Inn on the Square", well that could normally be where the issue might end.

CHAIRPERSON: He's of course entitled to analyse.

MR KAHANOVITZ: He can do that, but most of what I heard him argue here and yesterday, they all sounded like wonderful points for cross-examination, but they weren't put. If I can also just give you one case reference, just in relation to this issue of look at Amy Biel, look at this, compare this, compare that, Gerber vs Kommissie vir Waarheid en Versoening, yes, it is reported that ...

CHAIRPERSON: ...(indistinct - mike not on)

MR KAHANOVITZ: 1998 Volume 2 SA 559 Transvaal Provincial Division. The Provincial Division there said in terms the applicant walked in there and said: "I'm white, I did this and that" and he waved around some other finding from some other Amnesty Committee and he said: "On the basis of the parity principle they should have found in my favour" and the Court held that those principles did not apply to the workings of this Committee. Similarly, Mr Wessels must be wrong in law if he suggests that an administrative body which is consistently made, which has consistently incorrectly applied the law, assuming that to be the case, that it must continue to do so, it can't possibly be so.

My attorney just wishes to say something.

MR S KAHANOVITZ: Mr Chair, just one last aspect. As the attorney of record in this, who has been working extensively with the Commission's staff, we just want to place on record our appreciation to them for really an extraordinary amount of work day and night and weekend and all that they've actually put into this. It's made our task easier.

CHAIRPERSON: Thank you very much Mr Kahanovitz for that. Mr Coetzee.

MR COETZEE: Mr Commissioner, there was just one aspect which I can just, before it slips my mind, which I wish to refer to regarding proportionality which, I see I made a note but I didn't mention it. It is that the question was raised, where does the buck stop and that was - Mr Barnard, when he gave his evidence he was quite bitter about that, that he felt that the politicians and the Generals did not come to take responsibility for what they have done and what they have created here and with great respect, they are the only people who can objectively indicate to this Commission where the proportionality comes from.

CHAIRPERSON: I think Mr Kahanovitz when he was dealing with proportionality, conceded that persons acting under orders, if somebody is acting under orders, that does have an effect on the inquiry relating to proportionality, but then he stressed the point that these particular applicants, including Mr Barnard, had the opportunity of election, to say: "Well look, no I'm not", they weren't in the same situation as the soldier in some sort of regiment in the Defence Force.

MR COETZEE: Just, with great respect, also on the other hand, they used that as one of the criteria on which they do oppose his being granted amnesty, that as well as personal gain, of course. I just wanted to say that and I also want to thank the Commission for all the assistance here.

CHAIRPERSON: Well that then brings us to the end of the hearings in this matter. All that remains, as we've heard, is the submission maybe of extra reply in writing and then of course the decision in this matter. I don't know when that decision will come out but we are very near the end of our life, it shouldn't be too far away, because I personally would like to get my desk clean as soon as possible. I've informed my own Court that I shall be back on duties next term, so it will be in the not too distant future. I would like at this stage to thank everybody involved, the legal representatives, for their assistance in this matter. I'd like to sincerely thank the staff who had to work this weekend, I know that it's a great intrusion on everybody to give up their weekend and we've actually spent many hours here this weekend. I'd like to thank them all for that, without exception and thank you very much. We shall then adjourn this matter.

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