Amnesty Hearings — East London — 1999-04-13

UNKNOWN: Mr Chairman may I start off by referring the Committee to Section 20 of the Promotion of National Unity and Reconciliation Act No.34 of 1995. I will take the section portion by portion and deal with it as we continue Mr Chairman.
	It starts off by saying that:-
"If the Committee, after considering an application for amnesty, is satisfied that..."
Now regarding the question as to what comprises an application Mr Chairman, I would like to refer the Committee to the decision of M G HOLMES (PTY) LTD v NATIONAL TRANSPORT COMMISSION AND ANOTHER 1951(4) SA 659 (TPD), more specifically at pages 666H-667B, where the learned judge indicated that it was not only the written application but everything that is placed before the tribunal that comprises the application.  
	So that in this instance, Mr Chairman, I submit that General van der Westhuizen's application comprises his written application as well as the verbal evidence which he gave as well as the exhibits that we handed up, as well as this address which I am now making to you.
	Then secondly, Mr Chairman, regarding the words "is satisfied that", I would like to start off by referring the Committee to the post-amble to what is called the Interim Constitution, namely the Constitution of the Republic of South Africa Act 1993, Act 200 of 1993, which reads inter alia as follows:
"This constitution provides an historic bridge between the past of a deeply divided society, characterised by strife, conflict, untold suffering and injustice and a future founded on the recognition of human rights, democracy and peaceful coexistence and development opportunities for all South Africans irrespective of colour, race, class, belief or sex; the pursuit of national unity; the well-being of all South African citizens and peace require reconciliation between the people of South Africa and the construction of society.  The adoption of this constitution lays the secure foundation for the people of South Africa to transcend the divisions and strife of the past which generated gross violations of human rights, the transgression of humanitarian principles in violent conflicts and a legacy of hatred, fear, guilt and revenge.
		There can now be addressed on the basis that these are a need for understanding but not for vengeance; a need for reparation but not retaliation; a need for ubuntu but not for victimisation, in order to advance such reconciliation and reconstruction amnesty shall be granted in respect of acts, omissions and offences associated with political objectives and committed in the course of the conflicts of the past".
	To add onto that, Mr Chairman, to refer you to a portion of the preamble to the Promotion of National Unity and Reconciliation Act which reads:
"And since the Constitution states (and the reference is to the Interim Constitution) that the pursuit of national unity; the well-being of all South African citizens and peace require reconciliation between the people of South Africa and the reconstruction of society and since the constitution states that there is a need for understanding but not for vengeance; a need for reparation but not for retaliation; a need for ubuntu but not for victimisation; and since the Constitution states that in order to advance such reconciliation and reconstruction amnesty shall be granted in respect of acts, omissions and offences associated with political objectives committed in the course of the conflicts of the past".
Then the legislature continued to write down the Act.
	Then thirdly on this point Mr Chairman, I'd like to refer you to the decision in the Constitutional Court of AZANIAN PEOPLES' ORGANISATION AND OTHERS v THE PRESIDENT OF SOUTH AFRICA AND OTHERS 1996(4) SA 671, and more particularly at page 685, paragraph 19.  The judgment was given by His Lordship Mr Ismail Mohamed.  
"To allow the culprits of such deeds...."
and he is now referring to gross human violations...
"...to remain perhaps physically free but inhibited in their capacity to become active, full and creative members of the new order by a menacing combination of confused fear, guilt, uncertainty and sometimes even trepidation, both the victims and the culprits will walk the historic bridge described by the epilogue, will hobble more than walk to the future with heavy and dragged steps delaying and impeding a rapid and enthusiastic transition to the new society at the end of the bridge, which is the vision which informs the epilogue.
		Even more crucially, but for a mechanism providing for amnesty the historic bridge itself might never have been erected.  For a successfully negotiated transition the terms of the transition required not only the agreement of those victimised by abuse but also those threatened by the transition to a democratic society based on freedom and equality.  If the Constitution kept alive the prospect of continuous retaliation and revenge.  The agreement of those threatened by its implementation might never have forthcoming and if it had the bridge itself would have remained wobbly and insecure threatened by fear for some and anger for others.  It was for this reason that those who negotiated the Constitution made a deliberate choice preferring understanding over vengeance; reparation over retaliation; ubuntu over victimisation".
	Why I refer you to this Mr Chairman, is to submit to you that you should rather more easily be persuaded and satisfied than not, and that by adopting that more lenient attitude you will be, in fact, doing that which the Interim Constitution and the Act and what Judge Mohamed has been referring to, namely to assist in the building of a new and better South Africa.
	Then Mr Chairman, Section 20 continues in 1(A) by a reference to the application.  It says:-
"If the Committee after considering an application for amnesty is satisfied that the application complies with the requirements of this Act..."
Now we submit that that reference to the application must be a reference to what is stated in Section 18, which is the formal and written part of it.

CHAIRPERSON: Is that, that is the way that it's approached, and I don't think there's any difficulty in this matter relating to that ...(intervention)

MR KNOETZE: I submit, not, Mr Chairman.

CHAIRPERSON: In respect of both applications.

MR KNOETZE: Then 21(B) reads, Mr Chairman
"The act, omission or offence to which the application relates is
1.	An act associated with a political objective committed in the course of the conflicts of the past in accordance with the provisions of subsection 2 and 3".
	Now in this regard, Mr Chairman, it is common cause, I would submit, that General van der Westhuizen was a member of the security forces at this stage, and if one then asks oneself, because section 21(b) forces you to go to section 22, whether the General was in fact performing these acts in the course and in the scope of his duties and within the scope of his express or replied authority.

CHAIRPERSON: Yes I think in that regard you know one can conveniently go to section 22 ...(intervention)

MR KNOETZE: "B" Mr Chairman.

CHAIRPERSON: No, sorry, section 20(3) and exclude personal gain, personal malice, ill-will, spite.  I think once those have been excluded it's easier to then look at section 22.  I don't think there's any question, in the evidence before us, of any personal gain, personal ill-will, malice or spite.

MR KNOETZE: In my submission there is none Mr Chairman.

CHAIRPERSON: Ja.

MR KNOETZE: On the contrary.  The man did everything which he did, not only to comply with his direct orders and indirect orders, but also to benefit the people over which he had the duty to protect them.

CHAIRPERSON: Yes, and the personal gain of course referred to there relates to gain resulting from the specific act or incident.  It doesn't obviously exclude salaried persons.

MR KNOETZE: Obviously Mr Chairman.