Amnesty Hearings — Cape Town — 2000-11-19

UNKNOWN: 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?

UNKNOWN: 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?

UNKNOWN: 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.

UNKNOWN: 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.

UNKNOWN: 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.