Amnesty Hearings — Durban — 1999-09-29

CHAIRPERSON: Yes, certainly.

JUDGE PILLAY: Before you do so Mr Richard, how far have you got with that list of people that you represent?   I have the list, but as I explained to one of the TRC staff, as I spoke to various people on the list, I regrettably made all sorts of notes of what I discussed with them, I will print out a fresh note and I have given the person my undertaking that I will have a freshly printed out list tomorrow morning.

JUDGE PILLAY: While you are at it also, can you inform us what the basis of the opposition is?

MR RICHARD: I beg your pardon Judge, I did not ...

JUDGE PILLAY: Can you inform us as to what the basis of the opposition to the applications are?

MR RICHARD: As I outlined immediately before the tea adjournment, I had taken instructions and the basis is that firstly, there has not been full and complete disclosure, secondly that in the various incidents outlined in the applications ...

JUDGE PILLAY: Does that go for all the applicants?

MR RICHARD: Yes.   In the various incidents specified in the context, the applicants must be called upon to establish firstly the political objective and secondly proportionality of the act and in some instances, and I cannot at this point, without labouring through the record, say that in two of the incidents the question of motive is in dispute, but that in brief.

JUDGE PILLAY: Why are you unable to tell us in which instances those, that is the position?

MR RICHARD: Sorry Judge, I turned off the thing.  The reason for not doing it now is that - to get the list will get me a moment and then I shall do it.  In the matter of Mr and Mrs Klein, in those two, it is questioned whether the motive was because Mr Klein was at some stage a police reservist or whether there was some ulterior motive arising out of past contact between the applicant and the victim.   If the Committee will bear with me - then the other is item 14 on page 8 of Exhibit A, that is the escape of Gordon Webster from Edendale Hospital.  There I represent the Buthelezi family, the family of the deceased civilian that was killed as is alleged in the cross-fire.  One of the issues is whether the applicants acted so as to escape a friend, rather than from a political motive.   And then it will be dealt with under item 17, the dispute as I outlined yesterday is whether the incident outside the Parade Hotel was indeed a legitimate political attack as opposed to an attack motivated by some other reason besides the political purposes contemplated by the Act.  Those are the incidents.

JUDGE PILLAY: And what might that be?  What other motive might you have in mind?  To be quite fair, what are your instructions as to that possible motive?

MR RICHARD: My instructions and here I will be as delicate as I can, in outlining what they are, is that some of the victims and I stress not all of the victims, have an opinion, and I have been instructed to ascertain whether it was not racist as opposed to political.  Thank you.  May I proceed?

CHAIRPERSON: Yes, thank you, if you may proceed Mr Richard.

MR RICHARD: Thank you Mr Ismail.   As I outlined earlier, when we convened this morning, there are certain aspects relating to the figures and statistics that I have asked for further information, and I am waiting for my feedback on my request, so I will return to that later, so I will now return to where we started at page 53 of bundle A.  Do you have bundle A in front of you?

ABOOBAKER ISMAIL: Yes, I do.

JUDGE PILLAY: Is that A1?

MR RICHARD: I beg your pardon?

JUDGE PILLAY: Is that A1?

MR RICHARD: That is A1, the first bundle, A1.   On page 53 in answer to the question
"... if you were an officer, member or office bearer or supporter of any political organisation, body or liberation movement, state the name thereof",
 there you list three.   The African National Congress, MK and the South African Communist Party.  I would like it if you would kindly advise me what the - distinguish between being a member of MK is, as opposed to being a member of the ANC and what the consequences of that distinction is?

ABOOBAKER ISMAIL: Mr Chairperson, firstly all members of MK are or were regarded as members of the ANC, however MK was the armed wing of the ANC, not all members of the ANC were members of the armed wing.  I do not know if Mr Richard wishes me to now elaborate the objectives of MK, etc.  I don't think that is necessary, the documents that were submitted earlier, speak for themselves, they lay out what MK stood for, etc.

MR RICHARD: The second part of my question was what is the consequence of making the distinction as far as your answer to the question is?

CHAIRPERSON: Do you mean why did Mr Ismail distinguish between his membership of MK and ANC, in answering this particular question?

MR RICHARD: Correct.

ABOOBAKER ISMAIL: Basically to elaborate that I was a member of the ANC and of MK, of the armed wing of the ANC.  It does therefore not mean that you know, we don't see, we see them as separate organisations or that - rather the one was a subset of the other.  But as I elaborated, not everybody was a member of MK, not every member of the ANC was a member of MK and just to highlight that.

MR RICHARD: Would it be correct to infer from your answer that members of the ANC who weren't members of MK, might have amongst them a group with an opinion that did not support the armed struggle or the way the armed struggle was being carried on?

ABOOBAKER ISMAIL: Not that I am aware of.

JUDGE PILLAY: Mr Richard, it will be foolhardy to subscribe to a political organisation that supported the armed struggle, is that not so?  That is set out in the documentation provided to us in this hearing?

MR RICHARD: I am aware that it is set out, but the question has been answered, so I proceed.   Now, at pages 53 and 54, you also say that you were a member of the South African Communist Party and in the last three items under 7(b) you recount that you were the Zonal Co-ordinator of the SACP at the Funda Camp, a member of the SACP Regional Committee in Maputo and then in 1991 a member of the SACP Regional Committee in Lusaka.  Did the fact that you belonged to the Communist Party as well as the ANC, have any particular import or consequence in the situation?

ABOOBAKER ISMAIL: Which situation are we talking of?

MR RICHARD: The situation during the period covered by your application?

ABOOBAKER ISMAIL: I do not understand the importance of that question, I do not also see ...

CHAIRPERSON: Sorry, perhaps if you could rephrase it, I myself cannot quite get what you - relating to, because the applicant was a member of two political parties, he might have been getting higher up instructions from both sides, sometimes maybe conflicting or not?  I am not quite sure, if you could perhaps just rephrase it and then ...

MR RICHARD: Were you taking instructions from two different parties?

ABOOBAKER ISMAIL: Mr Chairperson, firstly we've got to recognise that when MK was formed, the SACP was very much part of its foundation.  There was no conflict of interest ever brought about with regards to MK activities, that members of the leadership of the ANC and the SACP were often the same, that they did not give conflicting instructions, nor was any conflict created as a result of the membership of these organisations.

MR RICHARD: And therefore it flows that the objectives of the communist movement were consistent at that time, with the objectives of MK and therefore the ANC?

ABOOBAKER ISMAIL: Yes, the SACP was on record as having said that they supported what the ANC stood for, and its fight for the liberation of the country.

JUDGE PILLAY: I think Mr Aboobaker, perhaps the question could be better answered and time saved.  In a military sense, did they agree with each other?  The SACP/ANC?