Amnesty Hearings — Cape Town — 2000-11-18

MR MARTINI: Well if it's false, let it be false.  It's not ...(indistinct) involved in the armed struggle, what I'm suggesting there is the ANC was involved in the armed struggle.
	Now that takes me to another issue ...(intervention)

GEORGE BIZOS: Mr Chairman, I want clarity.  Couldn't we just delete that sentence and then please put whatever sentence he wants in and then see whether it accords with the truth or not?

MR MARTINI: Chairperson, I'm not getting involved in debates with Mr Bizos.  Another issue, Chairperson ...(intervention)

CHAIRPERSON: But I think he's raised a point in which it's alleged Mr Bizos has put something on record, which is disputed and the way it's read, the way it's written and from what you've said, it's clearly ambiguous.  Because the way I read it as it stands here is that Mr Bizos conceded that Minister Omar was a high-ranking member of the ANC and also that he was involved in the armed struggle against the State.

MR MARTINI: No, it wasn't.

CHAIRPERSON: That's my reading of it.

MR MARTINI: Well I read it that the ANC who were involved in the armed struggle.  That is how it should read.  The reference to the armed struggle is to the ANC.  Now that's clear, there's never been any evidence ...(intervention)

MR LAX: Ja, but it's not clear, that's why we've asked you about it.  That's why Mr Bizos asked you about it.

MR MARTINI: Well if it's offended Mr Bizos, I apologise, but what was intended to be conveyed there was a high-ranking member of the ANC and who, reference being the ANC, were involved in an armed struggle.  Certainly Mr Bizos has never test ...(intervention)

GEORGE BIZOS: ...(inaudible - no microphone) Omar was a high-ranking member of the ANC, at the time that Mr Martini's client tried to kill him, Mr Chairman.

MR MARTINI: Well then it could have been - I'll try and look for the reference, as far as I can recall it was ANC, it could have been UDF, but we'll look for it.  But I don't want to delay time and I'll look for it.  But what I want to clear up, that's not a major issue ...(intervention)

GEORGE BIZOS: ...(inaudible - no microphone)

MR MARTINI: Yes, correct.  But what I would want to clear up is that it's not intended to say there that Mr Omar was involved, that Mr Bizos conceded Mr Omar was involved in the armed struggle.  I'm trying to refer to the ANC, who were involved in the armed struggle, and that's common cause that the ANC were involved in the armed struggle.

CHAIRPERSON: "of the ANC, which organisation was involved".

MR MARTINI: Yes, for want of better words.
	And another issue Chairperson, which I would like to clarify as well is page 33 ...(intervention)

GEORGE BIZOS: Mr Chairman, ...(inaudible) I think that Mr Martini's capable of understanding what I am saying and ...(inaudible).  What I want to repeat is that it would appear to me that Mr Martini is capable of understanding what the one thing means and what another thing means.  I will leave it at that, except to say that the statement is false, Mr Chairman.

MR MARTINI: ...(indistinct) to correct it, to satisfy Mr Bizos, and if it is incorrect, I tend - it might be an error, that it should have been the UDF, then it should be: "was a high-ranking member of the UDF".  And today I put there, you see it's got a - I'm referring to the armed struggle, to the ANC, because Mr Omar quite clearly from his position today, is in the ANC.

MR LAX: But the question is, was the UDF involved in the armed struggle?

MR MARTINI: No, so we can put ...(sound cut off)

GEORGE BIZOS: To get the record correct.

MR MARTINI: ...(indistinct - no microphone)	Another error, Chairperson, page 33 ...(indistinct - no microphone) this was confirmed by Mr Alexander, I want to make it very clear that this witness in the forthcoming elections ...(inaudible).  It's a new sentence:  "This was confirmed by Mr Alexander".  This should in fact refer to the forthcoming elections.  So if you want to add on a longer sentence, it would say:  "The disruption of the forthcoming elections was confirmed by Mr Alexander".  In other words, Chairperson, I do not want it to be taken that Mr Alexander confirmed that the Kewtown Youth Movement were involved in bombings.  There was evidence but it wasn't his confirmation.
	And another issue that I needed to clarify as well in my Heads, which actually deals with the Tutu incident, but just to correct it, the evidence wasn't of Region 6, I've raised this earlier in argument, it's Region 9.  Region 7 I think I referred to in here, it should be Region 9, Chairperson.  Page 29, I think it would be, yes the last sentence there Chairperson, if we can make this amendment, to Region 9 and just to make it clear I want to add in the words "and possibly Mr Luitingh could also have told".  So that in my mind I appreciate, I understand what I'm saying there, but others might read it differently.  Region is incorrect, that's an error, that should have been 9.  "Mr Luitingh could have told", Chairperson.  Thank you, Chairperson.

CHAIRPERSON: I see it's gone past our lunch hour, I had no idea, sorry.

MR LAX: Can I just ask one thing, it relates to your argument at page 47, I'm sorry, at page 47 of your Heads.  It starts at point 15.4.11, page 46 and it goes over the page.  I just want sure what you were saying there.  Are you in essence saying that this wasn't an offence?

MR MARTINI: No, it was dealing with the order.  Mr Lax, if you recall Mr Bizos raised issues to say that an order could never have been lawful and at one stage Mr van Zyl actually conceded, he said it's possible.  The deed may be unlawful.  "It is submitted in criminal law if an accused bona fide believed ...(indistinct) order to be law, ...(indistinct) absence".  What I'm saying is that if Mr van Zyl believed by the fact that they instruct him to kill, was lawful, it negates culpability, unlawfulness.  That's what I'm saying.

MR LAX: Yes, but if that is so, then he hasn't committed any offence.  That's what I'm asking.

MR MARTINI: Yes, but it goes to the lawfulness of the order, if the order was lawful.  So in his mind if he believed the order was lawful when factually it is - as Mr Bizos put it to him, you can never contend that an order to kill Mr Omar would be a lawful order.  And I think he conceded to that.  But in the context of receiving the order being authorised, in his mind he doesn't believe it to be unlawful, because he's authorised from the Defence Force to go ...(intervention)

MR LAX: Yes, that's precisely my point.  If he doesn't believe he's done anything unlawful because he acted on a lawful order, why has he applied for amnesty?

MR MARTINI: Well lawfulness touches back to the political issues, Mr Lax.

MR LAX: No, it doesn't, if he thinks he's committed an act or a delict, but that was lawful ...(intervention)

CHAIRPERSON: But surely one must bring subjectivity and objectivity, I mean it's not a defence in a criminal case.  A good defence in law for a person to say: "I thought the order was lawful, therefore I'm innocent"?

MR MARTINI: Correct, Chairperson, subjectively.

CHAIRPERSON: Yes, it's not a defence.

MR MARTINI: That deals with - I'm not suggesting it's an offence, I'm saying it could be akin to that situation, but subjectively.  Not objectively tested, but subjectively in Mr van Zyl's mind.  Thank you, Chairperson.

CHAIRPERSON: Yes, thank you.  Sorry for the delay, we'll take the lunch adjournment now and if we could start at half past two.  Thank you.
COMMITTEE ADJOURNS
ON RESUMPTION

CHAIRPERSON: Thank you.  Who is going to be arguing now?