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TRC Final Report
Page Number (Original) 66
Paragraph Numbers 46 to 63
CHALLENGES TO AMNESTY DECISIONS
Clive Derby-Lewis and Janusz Walus: The killing of Chris Hani5 1
46. The facts, issues and legal arguments in this matter are reflected in the court’s decision in the above case, handed down on 15 December 2000. A summary of the main points and aspects of the review proceedings follows. It needs to be stressed that the source of this summary is the court record and judgment, and should in no way be interpreted as a comment by the Commission or the Committee on its own amnesty decision.
47. On 10 April 1993, Mr Janusz Walus shot and killed Mr Martin Thembisile Hani (aka Chris Hani) in the driveway of the latter’s residence in Dawn Park, Boks burg. Mr Walus was arrested on the same day, as were Mr Clive Derby-Lewis and his wife, Mrs Gabrielle (Gaye) Derby-Lewis. They were all charged in the Witwatersrand Local Division of the High Court with, amongst other things, the murder of Mr Hani. All three accused pleaded not guilty, but both Mr Derby-Lewis and Mr Walus were convicted of the murder of Mr Hani and the unlawful possession of the murder weapon (a Z88 pistol). Mr Derby-Lewis was also convicted of the unlawful possession of five rounds of ammunition. Mrs Derby-Lewis was acquitted of all charges against her.
48. On the 15 October 1993, both applicants were sentenced to death on the m u rder count. Both Derby-Lewis and Walus appealed to the Supreme Court of Appeal against their convictions and sentences; but their appeals were turned down in November 1995. The death penalty was, however, declared unconstitutional by the Constitutional Court on 6 June 1995.5 2 As a result, the applicants escaped the gallows and had to be re-sentenced by the trial court. On 14 November 2000, the court imposed sentences of life imprisonment on both Derby-Lewis and Walus.
49. In April 1996, the applicants applied for amnesty for the murder convictions and the unlawful possession of the murder weapon and, in the case of Derby-Lewis, the illegal possession of ammunition. The SACP and the family of Chris Hani strenuously opposed the applications for amnesty.
50. The applications for amnesty were considered by the Amnesty Committee, comprising Mr Justice Mall (as chair) and Judges Wilson, Ngoepe, Potgieter and Khampepe.
51. On 7 April 1999, the Committee refused the amnesty applications of both applicants. Subsequently, an application for a review of the Committee’s refusal was brought before a full bench of the High Court, Cape of Good Hope Provincial Division. The applications for a review were opposed by the chairperson of the Committee as well as the Hani family and the SACP.51 Clive John Derby-Lewis and Janusz Jakub Walus v The Chairman of the Committee on Amnesty of the Truth and Reconciliation Commission, his Lordship Mr Justice H Mall N. O. , The Honourable Chairman of the Tr u t h and Reconciliation Commission, the Right Reverend Archbishop Desmond Tutu , Ms Limpho Hani and The South African Communist Party : Case No. 12447/99 (Cape of Good Hope Provincial Division). 52 See S v Makwanyane and Another 1995 (3) SA 391 (CC).
52. Mr Clive Derby-Lewis was a founder member of the Conservative Party (CP) in February 1982. In 1987, he became the party’s spokesperson on economic affairs and represented the CP in Parliament between May 1987 and September 1989. He was an elected member of the CP’s General Council (the highest body of the party).
53. The CP regarded the unbanning of the ANC and SACP by former President FW de Klerk in February 1990 as a betrayal of the country. In May 1990, at a mass meeting of the CP at the Voortrekker Monument, Dr Andries Treurnicht, the leader of the CP, announced that the ‘third freedom struggle’ had begun. Derby-Lewis regarded this speech as a ‘call to arms for Afrikaners’ implying that, although diplomatic channels remained open to the CP, its followers should prepare for war and arm themselves accordingly. There was increasing fear within the CP of a National Party (NP) handover to an ANC/SACP government without a mandate from white voters. Various calls to arms led to the implementation of the CP mobilisation plan on 26 March 1993. This was seen as the only way of saving South Africa from plunging into misery and chaos should the ANC/SACP alliance take over the government of South Africa. As the leader of the SACP, Mr Chris Hani was re g a rded by the CP as the real threat to the future of South Africa. His leadership role and his past position as Chief of Staff of Umkhonto we Sizwe (MK) made him a prime military and political target. The CP regard e d him as ‘enemy number one’ of the Afrikaner nation and the likely successor as P resident to Mr Nelson Mandela.
54. Against this background, Derby-Lewis and Walus started to plan the assassination of Hani in about February 1993. Their objective was to create a situation in which the radicals who supported Hani would cause widespread chaos and mayhem in the wake of his death. Because the NP would not be able to take effective control, this situation would unite right-wing leaders. They would then be able to combine with the security forces and, by ‘stepping in’, trigger a ‘counter- revolution’ and take over the government of the country.
55. Despite the above, the evidence reflected that the CP did not espouse a policy of violence nor the killing of political opponents. It was also common cause that neither Derby-Lewis nor Walus had received any direct or indirect order fro m anyone in the top structure of the CP to assassinate Hani. Equally plain was the fact that the plan to assassinate Hani was not shared with anyone else. Nevertheless, Derby-Lewis contended that, by virtue of his senior position in the C P, he had the necessary authority in the prevailing circumstances to take the decision to assassinate Hani on behalf of the CP.
56. Derby-Lewis handed Walus a list of names and addresses he had obtained from his wife, a journalist. Walus numbered these names on the list. This was done at a time when Derby-Lewis and Walus had ‘started talking about the identification of targets’. Derby-Lewis insisted that they discussed only one target, namely Hani, who had been number three on the list.
57. It was agreed that Walus would carry out the shooting after a certain amount of surveillance had been carried out. During March 1993, Derby-Lewis claimed that he had obtained a Z88 pistol and silencer. This was ostensibly for self-defence purposes, while the silencer was primarily to allow him to practice at home without disturbing the neighbours. It was intended to provide some element of surprise if he were to be attacked at his home by either MK or the Azanian People ’s Liberation Army (APLA).
58. Walus had requested an ‘untraceable weapon with a silencer’ for the purpose of the assassination.
59. On 6 April 1993, Derby-Lewis handed Walus the pistol and a few rounds of subsonic (silencer) ammunition. On 7 and 10 April, Walus requested further subsonic ammunition. On the morning of 10 April, Derby-Lewis informed Walus that he had made arrangements for further ammunition. No discussion about killing Hani took place on that particular day. The shooting of Hani came as a shock to Derby-Lewis because he had wanted to postpone the assassination plan for a variety of reasons .
60. Although Walus’ evidence largely coincided with that of Derby-Lewis, Walus indicated that Derby-Lewis had mentioned to him that before the Easter weekend would be a bad time to assassinate Hani.
61. On 10 April 1993 (the day before Easter), Walus decided to reconnoitre the Hani residence. After contacting Derby-Lewis about more subsonic ammunition and being told that it was not yet available, he loaded the unlicensed Z88 pistol with his own ammunition.
6 2 . On arriving at the Hani residence, Walus noticed Hani driving off in his vehicle without his usual bodyguards. He decided that this was the ‘best occasion’ to execute the assassination and waited for him to return. When Hani got out of his vehicle in the driveway to his house, Walus approached him and fired two shots at him. After he had fallen, Walus shot him twice at close range behind the ear. He left the scene in his vehicle and was arrested a short while later.
63. Walus insisted that he had killed Hani on the instruction of Derby-Lewis and the C P. He had never expressly asked Derby-Lewis whether the CP had authorised the assassination, as it was ‘obvious’ to him that it had. However, Walus conceded that, had it come to his attention prior to April 1993 that the CP had not changed its policy from non-violence to violence, he would not have proceeded with the murd e r.