Amnesty Hearings — Durban — 1998-03-23

MR DE KLERK: Yes. Regarding that specific matter there was a matter of Judge Wilson specifically where an ANC person applied for amnesty he was busy at a meeting and he received the information that this person he received information about was killing ANC people. He then took it upon himself to stop this unnecessary killing and he then went and killed that person. he received amnesty. I do not see from this specific.

CHAIRPERSON: Do you know what case you are talking about.

MR DE KLERK: I don't, if I can stand down I can quickly get it from my office because I received from the internet. I do have the reference but not with me at the moment.

CHAIRPERSON: Yes.

MR DE KLERK: I would give it to you.

CHAIRPERSON: Let us have it early in the morning.

MR DE KLERK: Early in the morning. I don't see the subsection 3 as saying there must have been an order.

CHAIRPERSON: No it does not say it has to be. These are just all the criteria that are set out and I want to know from you  what your views are in so far as your client's case is concerned whether he meets these criteria?

MR DE KLERK: Definitely I think that he had a motive which was political. You see in the context of what is done it shows there were political uprising disturbance and it was a reaction thereto.

CHAIRPERSON: What uprising was he reacting to?

MR DE KLERK: Well there was killing. There was a war at that stage.

CHAIRPERSON: No, no he personally? I am not talking about what was happening in other parts of eZingolweni. I am talking about him personally?

MR DE KLERK: Him personally being in that area.

CHAIRPERSON: Yes.

MR DE KLERK: Him personally being involved in that killing. Him personally being involved as a leader, a youth leader.

CHAIRPERSON: You had the situation where he walks into a house with a gun and he can arrest a young man who he thinks had a say in an attack and instead of taking him to the police he executes him.

MR DE KLERK: I think Mr Chairman the reality of that time was that people did not go to the police. There was attacks from both sides. It was clear that it was a war. So it was not uncommon for people not to go to the police. It was actually quite common for people to mistrust the police at that stage.

CHAIRPERSON: Well now what about subsection F of Section 3 then? Where they talk about the proportionality of the offence in relation to the objective which he hopes to achieve.

MR DE KLERK: Well I think the objective to achieve and that means for the one political party to win against the other one I don't think you can get a higher political objective seeing into the context of what happened at that stage. If you can eliminate your enemy which is your political opponent and by that secure that your party is actually the winning party, there is no bigger prize that you can strive for.

CHAIRPERSON: Is there no such thing at all as want to take into account the proportionality of his offence in relation to the objective which he is seeking to achieve?

MR DE KLERK: I agree with that as I put it Mr Chairman I must argue that his objective was the highest objective and that is to secure his party's success. As it would have been for a freedom fighter for the ANC to blow up 10, 20 people in a restaurant trying to secure democracy.

CHAIRPERSON: Well there would be difficulty in arguing by analogy in cases that are so disparate. The circumstances there, the factors there are completely different from a chap who armed with a gun and who stalks his enemy, he watches them, he knows where they live and one by one literally goes to where they were and eliminates them.

MR DE KLERK: Mr Chairman taking into consideration now the context. The fact that he was the youth leader. The fact that he also personally suffered. That his mother was killed. The fact that he was also attacked and that other members of his party was being attacked at that stage. Surely there must be a (...indistinct) It is not just one person that's mother was injured, nothing else, he is nobody and he decides upon himself to now to go and kill a lot of people. The context is much bigger than that. The context his a youth leader, a IFP youth leader that believes in what he is doing. Now further things happen that then make him come to this conclusion. Surely it couldn't have been just an easy procedure, it must have been a lot of influences that made him come to this conclusion or to this decision.

CHAIRPERSON: Yes carry on? So you say that he meets the requirements of Subsection F of Section 3?

MR DE KLERK: Definitely.

CHAIRPERSON: Yes.

MR MALAN: Mr de Klerk could I take you back to Subsection 2 and specifically Subsection 2(A) which refers to an act with a political objective being
"1: committed in this instance by a member of a political organisation in support of such organisation."
Then the crucial word;
"bona fide in furtherance of a political struggle waged by such organisation."
	Now on the evidence was the applicant not telling us that he did not do this bona fide on the agenda of the organisation. Because he withheld information, he did not report, he knew that they wouldn't approve. Would you argue that for us? And then would ...(inaudible) Sorry if you would then also look at 3(E) and just address on the criteria which talks about the act or offence or a mission having been committed in execution of an order or with the approval of such organisation. In terms of us having to apply criteria. And let us for the sake of that assume for the moment everything else that you have put before us.

MR DE KLERK: As pleases Mr Chairman. I read Subsection 2(A)
"Any member or supporter of a publicly known
political organisation the applicant was IFP youth
leader moved on behalf or in support of such an 
organisation or movement. Bona fide in furtherance 
of a political struggle waged by such organisation or 
movement against the State or any former State or 
any other publicly known political organisation or 
liberation movement."
There was a war according to the accused between the ANC and the IFP. He bona fide believed that he was doing this in furtherance of his political struggle and the struggle of the IFP. Although it was not sanctioned.

CHAIRPERSON: He couldn't have believed that the IFP were going to agree with what he was doing?

MR DE KLERK: No he did not believe that. But he bona fide believed that by doing this he is furthering his party's success in the coming elections.

CHAIRPERSON: How could he have believed that when he knew that it was his party's policy not to engage in violence?

MR DE KLERK: I can only argue that Mr Chairman that, that is where the multi-facets of the decision-making comes in with the fact that his mother was also killed. So yes there is situations where he did do something that was not specifically according to the orders and the policy of the party. But he bona fide believed by doing this he is actually doing something good for the party.

CHAIRPERSON: When you say he bona fide believed don't, let's just leave out. You mean he believed not necessarily bona fide. I mean if he knew (...intervention)

MR DE KLERK: Yes he believed.

CHAIRPERSON: If he knew what the political party's policy was and organisation and that it was against violence in principle, he knew that. He is a highly placed member of the, he claims to be a leader of the Inkatha youth.

MR DE KLERK: I think in his evidence it was clear that it was never said that he is not allowed to defend and he also testified that he received information that these people would either attack him or did attack. And he also testified that this was a measure of defence.

CHAIRPERSON: None of these people that he has killed died in defending him or attacking him.

MR DE KLERK: Yes but.

CHAIRPERSON: They were all picked up, stalked as it were and eliminated.