Amnesty Hearings — Cape Town — 1997-07-07

MR SWART: As I understood it, there was actually a conflict in the evidence there in that I understood the second applicant to say that everybody, excepting the first applicant, was there and then the third applicant...

CHAIRPERSON: No.

MR SWART: ... saying that there were only four people there.

SISI KHAMPEPE: That was not my understanding.  My understanding was that that meeting was attended by the four people who ultimately proceeded to Cape Town.

MR SWART: I am, that is the way I saw it.

CHAIRPERSON: (Indistinct) that as far as the second and third applicants are concerned, you think that they have not made a full disclosure.

MR SWART: Yes, that is ...

CHAIRPERSON: That is the point you are making.

MR SWART: It is just a suspicion, as I say, it cannot be proved.  It just seems that it is unlikely that they would not have known what happened to the other things.  Then if one goes to sub-section 3, again the first point is what was the motive of the person and then one must look at the Tambo text which has been submitted and also at their applications.  They or the second applicant said in his application that the motive was to steal firearms as did the first applicant, but the third applicant, as I understand his application, does not actually give a specific motive.

CHAIRPERSON: I think that he went along with ...

MR SWART: With the group.

CHAIRPERSON: ... with the group and the motive of the group was to go to look for firearms.

MR SWART: That is correct, but then in their evidence the motive is expanded into say that it was not only firearms, but anything else which could, cash or other valuables which could be sold.  Now, it seems to me just that that is possibly a convenient explanation for what happened.  One would have expected that the first and the second applicants whose motives appear on their amnesty applications clearly, would have also said that we were, our motive was to go and ransack the farmhouse, take what we could get, because we so urgently needed firearms that we were all out to take whatever we could get and it seems to me that the explanations given here were so as to explain away, to make it acceptable that there was actually a robbery.
	Then if one looks, secondly, at the context in respect of the second and the third applicants as regards the murders.  It is so that they were part of the group, but that the second applicant had specifically asked that the gardener not be shot.  As a group they, unfortunately, have to bear some of the brunt of what happened in the group. 
	The third criteria, the legal and factual nature, I will not go into that.  Then again the object or objective against which was directed, that the same arguments apply as in respect of the first applicant excepting that it could be argued in their favour, I suppose, that the stuff was stolen from a farmer, but the lives were taken of people who were their own compatriots.  
	Then sub-section E and that is, again, what, if they were acting within the execution of an order or with the approval of the organisation.  My submission is in this case I am not convinced that their organisation would have approved of them taking anything more than firearms.  They said that this was their motive and the text which has been supplied speaks specifically of firearms.  I think that it has just been convenient for them to say to this Committee, well, we took anything else as well to buy firearms with.  On that same point there was the evidence of the first applicant who bought a firearm for R50,00.  So there were ways and means of, other ways and means of getting firearms without killing people and that also applies then to sub-section F which is the relationship between what happened and the objective which they were pursuing and especially the proportionality of that act.  Whether it was necessary to go to these lengths to kill people, in their case not directly, but to then ransack a house go beyond the scope of their direct order.  I do not think, I think it is disproportional.  
	Then lastly there is the question of personal gain.  If the Committee should find that it was outside the scope of what was said in the Tambo text, that they should steal firearms, they actually took jewellery and cash as well.  The jewellery they say they bought firearms with, but the cash they used for expenses.  Now, is that not personal gain?

JUDGE WILSON: Well, did they not, I was interested in that and I thought the answer, answered that and I do not think, we used the money to feed ourselves when we were on duty as self-defence units.

MR SWART: Yes.

JUDGE WILSON: Not that we bought food to take home.

MR SWART: I ...

JUDGE WILSON: So did it not bring it into the common purpose to support the community rather than personal gain and ...

CHAIRPERSON: Well, I believe that they fed other Comrades as well with whom they had been housed.

MR SWART: Yes.

CHAIRPERSON: I do not think there is very much that can be said ...

MR SWART: Yes, I ...

CHAIRPERSON: ... this point.

MR SWART: I think it is aa very fine line one ...

CHAIRPERSON: Yes.

MR SWART: ... says when you are on that one.  I just leave it with the Committee that there ...

CHAIRPERSON: Yes.

MR SWART: ... is a possibility that this money which was very loosely used, they say it was used in the group for some of them, it could very well have been used for personal gain.  Those are my submissions and on the basis of that the next of kin oppose the amnesty applications.  Thank you Mr Chairman.

CHAIRPERSON: May I ask you whether, you have not told us what the attitude of your client is, your clients, if they are here, what their attitude is towards this, these applications.

MR SWART: They oppose the applications Mr Chairman.

CHAIRPERSON: Yes and they understand what is meant by, what the purpose of the Act is?

MR SWART: Yes.

CHAIRPERSON: And that is an attempt to bring about reconciliation?

MR SWART: Yes.

CHAIRPERSON: That has been explained to them?

MR SWART: That has been explained to them, Mr Chairman, at some length, because my client, the son of the housekeeper who was killed is actually my client.  He feels that it is his Christian duty to forgive the people and he has said so, but by the same token he feels that this Act has got specific requirements and if the applicants apply for amnesty they should meet these requirements and he feels they do not meet them.  Thank you Mr Chairman.

CHAIRPERSON: Thank you.  Mr Brink is there anything you wish to say?
MR BRINK ADDRESSES COMMITTEE ON MERITS OF APPLICATION