Amnesty Hearings — Cape Town — 2000-11-19

UNKNOWN: 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?

UNKNOWN: 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.

UNKNOWN: 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.

UNKNOWN: Well that is lack of authority, we submit.  Then we go to paragraph 27.  Could I please ask you to strike out the word "all" and make it a capital "T" for 		"The applicants in relation to Omar failed to act within the course of.."
So it would read, paragraph 27:
"The applicants in relation to Omar"
instead of "all" there.  
"... failed to act within the course and scope of their duties as they breached their own internal rules which compelled them to ensure that information pertaining to the selection of target was properly verified and checked for the plan to eliminate the target was set in motion."
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.

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

MR VAN ECK: Thank you.

UNKNOWN: 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
"The applicants have failed to produce evidence to show that strongly held political beliefs motivate them to participate in the activities of a death squad.  The applicants have also failed to show that strongly held political beliefs motivated them to agree to participate in the conspiracy to assassinate Advocate Omar in particular."

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.

UNKNOWN: 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?

UNKNOWN: Then if they were ...(intervention)

CHAIRPERSON: Why must they be strongly held?

UNKNOWN: 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?

UNKNOWN: No, no, no, because ...(intervention)

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

UNKNOWN: 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.

UNKNOWN: 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)

UNKNOWN: 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.

UNKNOWN: They are not zealots.

CHAIRPERSON: Yes.

UNKNOWN: 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.

UNKNOWN: 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.