Amnesty Hearings — Port Elizabeth — UNKNOWN

UNKNOWN: Thank you Mr Chairman for the opportunity to address you.   The application of Mr J.J.O.Beneke will be dealt with in argument on the basis of the legal requirements set out in the promotion of the National Unity and Reconciliation Act Number 54 of 1995.
      An applicant has to satisfy the Committee in terms of Section 2120 sub-section 1 that:
(i) 	the application complies with the requirement of the Act.
(ii) 	the Act, omission or offence to which the application 	relates is associated with a political objective and was 	committed in the course  of the conflicts of the past in 	accordance with the provision of sub-sections 2 and 3.
(iii) 	the applicant has made a full disclosure of all relevant 	facts.
	For purposes of determining whether an act is associated with a political objective the sections in Section 20 sub-sections 2 should be taken into account.   To determine whether an act is associated with a political objective, the factors as set out in Section 20, sub-section 3 should be taken into account.
      Now I want to pause here, and I want to refer you to page 13D of the paginated documents.   That is the application of Daniel Petrus Siebert 13D.   It's about a third from the top.
"During August/September 1977 I was part of the special investigative team who had to deal with the interrogation of Peter Jones and Steve Biko, in order to determine or investigate their part in the reigning unrest in the Eastern Cape, particularly in Port Elizabeth."
      Going a little bit further down.   
"This interrogation or investigation started with interrogation of Peter Jones with regard to the generation of unrest and public violence in the black townships of Port Elizabeth and particularly, with regard to the involvement with regard to the drafting and distribution of a pamphlet in these various townships. These pamphlets encouraged the people living in the townships to take mass action against the racist Government of the day.   Students and workers were encouraged or incited to show their solidarity with the liberation struggle."
During this interrogation of Peter Jones and the subsequent interrogation of other detainees, everything indicated that Steve Biko had been responsible for the initiating and drafting of the mentioned pamphlet.   During this period of time there had been instructions from Government circles and police headquarters that every possible action should be taken to inhibit the spiral of violence, and that drastic action should be taken against activists and leaders in the Black Power movement".
      And then again in the middle of 13E.   
"Members of the Security Branch, at this time, because of the countrywide unrest, were under tremendous pressure to effectively and speedily question the detainees to bring the unrest under control".
      What I want to say to you by this, is interrogation of Mr Steve Biko had in fact not only been related to the fact that he did not obey his banning order, the fact that he moved beyond a certain area, the reason for the interrogation in fact stretched far more broadly.   It was not only because of the statutory misdemeanour.   In was in fact of the relevant security legislation, and this is also the legislation in terms of which he had been detained.   The intention with the interrogation was in fact far wider.   It related to his part in the distribution of the pamphlet and his part in the unrest of that time.   I will also return to this at a later point.   
However, Mr Erasmus, the intention was to take action against Steve Biko in terms of Criminal Law.   There are two possible such acts that could be taken.  
	Firstly; the mere misdemeanour, the fact that he acted against his banning order, that he stepped outside of an area to which he had been inhibited.   That would have been a such a misdemeanour, but there was another part to the interrogation of Steve Biko, namely; his participation in the distribution of the pamphlet, and his part in the unrest.
      You will also see this on page 13.   On page 13E you will see that the intention of the interrogation was to determine his involvement in the continuing violence and unrest in the Eastern Cape, as well as the distribution of the mentioned pamphlet, and in the last place to determine what the intention had been of his visit to Cape Town, in order to take the necessary action against him in terms of Criminal Law.   There was, therefore, elements of a mere interrogation in terms of Criminal Law, but there was also interrogation in terms of his participation in the political unrest at that time.   And that in fact takes it beyond a mere criminal act in that regard, the fact that he disregarded his banning order, because in my view it would not have been necessary to detain him in terms of security legislation, if the only matter involved had been the fact that he disobeyed his banning order.
      In determining the question if an act was associated with a political objective, it is submitted that in terms of Section 20, sub-section 2, an applicant should prove the following:
(i) 	that the act was an offence or delict.
(ii) 	which according to the criteria in sub-section 3 is associated with a political objective, and then
(iii) 	which was advised, planned, directed, commanded, ordered or permitted.
(iv) 	within or outside the Republic.
(v) 	during the period 1st March 1960 to the cut off date.
      If you would bear with me for a moment.   I submit to you that it is clear that Section 20, sub-paragraph 2B, contain both objective and subjective elements.    Now, the principles of the 1990 Indemnity Act have been referred to in Rapholo v The State President and Others 1993 (1) SA 680 (T).   
	In this case an application for review of the refusal of the Amnesty Committee to grant amnesty in respect of four acts was brought against the State President    The Committee found in the Rapholo case, that Section 20, sub-section 3, sub-section B, related solely to political uprising or disturbances. The Court, however, found that  that was a too narrow construction.   This gives an indication that this requirement should be interpreted widely.   It should therefore go further than a simple political uprising, disturbance or event, and could also pertain to a war situation, which existed between the South African Government on the one hand, and the Liberation Movements on the  other.
      Section 23D refers to the object or objective of the act, and in particular whether the act, omission or offence was primarily directed at a political opponent or against private property or individuals .   The Court in the Rapholo case found that the test in terms of this guideline was not whether a cause was served, for example, the political opponent or its property was targeted as opposed to private individuals and their property.
      Now, Section 20, sub-section 3, sub-section F, refers to the relationship between the act, omission or offence, and the political objective pursued, and in particular the directness and proximity of the relationship and the proportionality of the act, omission or offence, to the objective pursued.   
	In the Rapholo case, the Committee found on page 687A, that for the purposes of this guideline, something akin to a war situation has to be envisaged.   It could therefore never be that the killing of a political opponent would mero motu not be proportional to the political objective.   
	It is submitted that the Rapholo decision provides legal precedence for the application of the amnesty principle as set out in Section 23 of the Act, and that this should be applied according to the Rapholo decision.
      I want to refer you to another case where Section 20 was referred to.   That is the case of AZAPO and Others v the President of the Republic of South Africa  1996 (4) SA 671 on pages 671 to 683.   The rationale of the act as a whole was discussed on page 683 and 684, and it is submitted that Section 20 should also be interpreted taking into account the reasons behind the act, the purpose of the act, and the objectives of the act.
      I want to pause hear just to read some of the objectives.   I only have the Afrikaans version here. 
"Since it is considered necessary to determine the truth with regard to events of the past, as well as the motives for and the circumstances within which gross Human Rights Violations occurred, and in order to make known the findings in this regard in order to prevent the recurrence of such acts in the future, and since the Constitution determines that the goal of National Unity and the common good of all South African citizens as well as reconciliation under the reconstruction of our society; and since the Constitution determines that there is a need for mutual understanding rather than the intention to achieve vengeance and not to victimise people, and since the Constitution determines that in order to achieve such reconciliation and reconstruction, it is necessary that amnesty must be granted with regard to acts, failures or misdemeanours which had relation to political acts in the past.   That is the purpose and the goals in terms of which Section 20 of the Act should be considered."
	In terms of Section 20 sub-section 4 the previous indemnity acts shall be taken into account when Section 20, sub-section 3 is applied.   I place emphasis on the word 'shall'.   It is therefore obligatory to take account of the previous acts.
      In terms of the Indemnity Act number 35 of 1990 indemnity could be granted to any person who applied therefore on the basis of the guidelines published in Government Gazette number 12834.   Now the following was stated in the guidelines:
      There is no generally accepted definition of political offence or political prisoner in International Law.   What is generally accepted, however, is that principles developed in the field of Extradition Law are relevant in distinguishing between political offences and common crimes.   The law and practice of states show that there is now a considerable degree of consensus both as to the types of offence which may in principle be classified as political as well as to the sort of factors which should be taken into account in deciding whether an offence is political or not.
	The further Indemnity Act, that is now the Act No. 151 of 1992, was promulgated in 1992 incorporating a much wider test for purpose of determining political objective.   A political objective was defined as follows in Section 1 of that Act, that is now the 1992 Act.   
"Means any act or omission which has been advised, directed commanded, ordered or performed, with a view to the achievement of a political object for the promotion or combating of an object or interest of any organisation, institution or body of a political nature, or with a bone fide belief that such object or interest will be served, or with the approval, or an instruction or in accordance to policy of such organisation, institution or body or in reaction thereto."
      It is submitted your Lordship that the further Indemnity Act, that is now the Act of 1992, widened the scope of the test, and placed the emphasis on a subjective test.   It is therefore submitted that in the interpretation of Section 20 of the Promotion of National Unity and Reconciliation Act, that is now the 1995 Act, more emphasis should be placed upon the subjective part than the objective part of the test in each instance.   This would apply to application of Section 20, sub-section 3 of the Act.
      Furthermore, a wider, rather than a narrow interpretation in a case of doubt should be applied.   This argument is important as an applicant's view of the political character of his act may conflict with the objective facts.   An applicant may therefore have acted  with a political motive, but not knowing that the act itself was not political itself in nature and purpose.   
	It is submitted that the Committee should, when applying Section 20(3), place more emphasis on the subjective part of the test, than the objective part of the test.   In any event, there can be no doubt whatsoever in the minds of the Committee, that all the incidents in respect of  which Mr Beneke testified, occurred against a background, and in the context of the conflicts between the Liberation Movements on the one hand, and the South African Government and National Party on the other hand.   They all therefore occurred within the sphere and context of a political uprising, disturbance or event, or in reaction there to.   Objectively therefore, the applicant, Mr Beneke, should be regarded as a political offender.