Amnesty Hearings — Durban — 1997-08-13

MR WILKINSON: Thank you Chairperson.  Initially I would like to submit that the third applicant and his application as currently before the Committee, complies with all the requirements laid down by the Act.  It's also my submission that the applicant, in his evidence before the Committee disclosed all the relevant facts, made full disclosure of those facts.  And it's my submission that all the applicants for that reason disclosed these facts with - in such a way that the interpretation of those facts today, should be such that there was no remorse.  It is my respectful submission that it was the cold-hearted truth and in the presentation of that truth, there wasn't remorse as such.
	In Section 22(b) the Act stipulates certain criteria, six criteria to explain what is meant by an act committed with a political objective.  Eight of these criteria independently and in the light of the circumstances of the case must be considered.  
	As far as possible we should distinguish these criteria but there will be a large measure of overlapping and that's unavoidable.  And we therefore request that the criteria in sub-section three must be seen as a whole.
	It is my respectful submission that a too strict application of these criteria would result in a fact that the objectives of this Act would not be realised and cannot be realised if we act too strictly.  There will be a measure of overlapping and flexibility must be applied.  It's clear from the documents relating to the trial and the documents presented before the Commission, that during the attack, there was no question of any personal benefit or gain.  It cannot be argued that the deaths happened out of sense of fear of later identification.  The organisations were important role-players at the time.  The PAC launched an attack against innocent people that morning and there was a counter-reaction later that day by the Orde Boerevolk.
	As far as motive is concerned, it seems from the evidence of the applicant that the motive was politically inspired.  He said that he was a member of the Orde Boerevolk and he therefore signed a declaration of war.  During his detention, under Section 29 of the Internal Security Act, there was also a charge of high treason investigated against him.  It's probably as a result of the magnitude and the seriousness of the crimes of which he was later convicted.  This particular case against him was not proceeded with.  The crime was not investigated by a normal investigating team but by a special riot unit which also shows that the State's perception of the Act at that particular stage, was definitely that it was a political crime rather than a normal common crime.
	He was detained for 96 days without trial, as already mentioned.  And the trial court, Judge Hugo specifically said, that the offence was committed for political motive.  The context in which the act was committed was in reaction to the PAC's attack that morning.  There was a general shock amongst the right-wing community of Richard's Bay as a result of this attack and it's clear from the evidence that in the course of the day, that was the only point of discussion in Richard's Bay in that shop, the applicant's shop.  The attack that night on a passenger bus was therefore a clear reaction to the attack of that morning.  
	During the trial Judge Hugo also said the following during sentence"
"What happened was clearly a catalyst for the evening's attack as far as the legal and factual nature of the crimes is concerned".
It is so that the Act constituted a grave human rights violation ...[intervention]

JUDGE WILSON: Where do I find these remarks? Have you got it ...[inaudible] copy of Judge Hugo's judgment?

MR WILKINSON: I can refer you to the page number but I'm quoting from the document prepared for the trial court.  It won't necessarily be the same pages as you have in front of you but I will see to it that I will prepare a full copy of the judgment.
	Insofar as the objective of the act is concerned, it's my submission that these two criteria are very closely linked.  The attack was aimed against the Black civilians who were simply identified as potential victims.  The objective of the attack - and the reaction to the attack that morning was in furtherance of the Orde Boerevolk's policy and doctrine.  As far as the order is concerned, the act was carried out in - as a result of an order given by the cell leader and Botha testified that he gave the order that they should shoot.  
	If I can take the Commission back to the trial court where Judge Hugo said the following:
"We accept that Botha took the initiative, in that evening's attack and we also accept that he was in a position of authority".
He also says that:
"We accept that Botha gave the ultimate order to shoot".
The applicant admits in retrospect that the attack perhaps did not succeed in it's purpose.  The applicant did not plan the action but it was a simple instruction coming from higher up.  I'd like to refer you to Mr Boraine and Levy's book, The Healing of the Nation where in a schedule, the following is said by a Mr Norgaard where he sets out certain criteria in Namibia.  Mr Norgaard says the following:
"In such cases, it must be recognised that there may be little or no explanation as to why a particular target has been selected for attack and I do not consider that the absence of such explanation is decisive against the act being political".
He continues:
"I therefore ...[inaudible] relevant to consider whether the act was one which could have been regarded as within the scope of the campaign".
All three applicants throughout, said that they were working with Orde Boerevolk policy.  There is a document and was submitted to the Committee, setting out the guidelines and the policy of the Orde Boerevolk and it's clear that their policy gave rise to this counter-attack that night.

ADV DE JAGER: Could you please give us that quotation?  Could you please give us that reference?

MR WILKINSON: Alex Boraine and Levy were the authors, title The Healing of the Nation and I think it is Appendix E in which the Norgaard principles are formulated and Mr Norgaard's explanation of these criteria.  That is literally - that appears in the last two pages of the book.

BERNARD MAKGABO NGOEPE: Accept that, with regard to the quotation you've given us - accept that in this particular case an explanation has been given which is in the target.  The explanation for that for every one White, there must be 10 Blacks killed.  There's no absence of explanation.  There is absence of - there is presence of explanation and the presence of explanation has an impact - can have an impact on the question whether or not there was political objective.

MR WILKINSON: If I could put it like this, it was almost an explanation in terms of numbers in the ratio of 1 to 10 but the other aspect was, that it - the victims also had to be innocent people such - in the same way as the White people of the morning's attack were also innocent victims.  Many of these criteria overlap and must be seen in that context.
	It's my submission in conclusion that the third applicant falls within the ambit of these criteria and more specifically Section 20.  And my request would also be that amnesty be granted to him on the charges as set out in the indictment.   I don't know whether there are any specific questions which the Committee would like to put to me.

JUDGE WILSON: One thing that causes me perhaps technical difficulty, is that you are asking amnesty in respect of the teargas grenade.  There has not been, as far as I can recollect, one word of evidence relating to that.  As to why it was in their possession?   Whether it had anything to do with this incident?  Where it was found, we don't know.  ...[inaudible]

CHAIRPERSON: Very well, we'll take the usual adjournment and resume at 2.15p.m.
COMMITTEE ADJOURNS
ON RESUMPTION