Amnesty Hearings — Boksburg — 1998-06-22

MR LANDMAN: ... might be to move an application for the recusal of one of the members of the Committee, Mr Wynand Malan.  Mr Chairman, Section 36 of the Promotion of National Unity and Reconciliation Act makes it quite clear that the Commission and every member of the staff, shall function without any political or other bias or interference and shall be independent.
	It is my submission that Mr Malan has indicated by his questioning, that he is biased in favour of the applicants, that he is aware of the applicant's difficulties and has asked questions of a particular nature designed to stop certain holes which have appeared in the applicant's case.  In order to understand the application Mr Chairman I need to give a bit of background.
	Mr Chairman, it is the applicant's contention that they were acting on the orders and instructions of the AWB and under their auspices when these dastardly deeds were committed in Bree Street, Germiston and other places.	What has emerged after Mr Barnard and Mr Myburgh withdrew their applications, is that they were left without Mr Barnard who had a large role to play in the planning, according to the documents, a large role to play in the planning.  They are left in the situation where they don't know whether Mr Barnard had any real role to play in the AWB, they don't know his rank, they know nothing about him. They don't know where he gets his instructions from.  
	What we do know is that an organisation by the name of Boere Krisis Aksie took responsibility for the bomb in Bree Street, what we do know is that there is no evidence before this Court at, before this Committee at this stage that the AWB has taken responsibility for the bombings.
	In fact, on the contrary it seems that the AWB at no stage publicly took responsibility.  Now, that presents a problem for the applicants in that the applicants may well end in these proceedings, with there being a strong belief that the actions undertaken by inter alia Mr Barnard, upon which this particular applicant in the witness box at the moment, also relies, that those actions were taken either by Mr Barnard in his personal capacity or as part of another organisation.
	It is our submission that Mr Malan has, in his questioning of this witness, taken it upon himself to assist the witness in demonstrating that actions that were taken, even if they were taken by other groups, were actions of the AWB and indeed the last question which was asked, was to the effect - did you see it as part, that is now the ANC, the AWB's planning and agenda and he promptly said that that is the case.
	Also there was questions which suggested quite clearly that the answer should be that this was part of the AWB, that this carried the approval of the AWB and as I say, (indistinct) with it in fact being part of the AWB's planning and agenda.
	This is asked, with respect, by the learned member of the Committee, at a time when he is aware that this particular witness has no knowledge of the planning and agenda, he has never testified that he knows what the AWB's agenda was in relation to the splinter groups, he didn't know what the AWB's plan was in regard to the Bree Street bomb, in fact according to his evidence, he knew nothing about it before the bomb actually went off.  Yet, all these questions are designed to again bring these actions by these desperate people, and at this stage, no evidence that they were acting on behalf of the AWB, under the umbrella of the AWB and in our submission, the reason for that is quite clear, the evidence at this stage is going very much against the applicants in proving that these were actions of the AWB, that they were orders carried out on behalf of the AWB.
	At this stage the closest one can get is that some of these acts were committed under the orders possibly of Mr Barnard.   It is our submission that there are other issues, which still need to be dealt with and one of the issues which ought to have been dealt with before Mr Malan suggested that this was all part of the planning and the agenda of the AWB, is what is the status of these splinter organisations.
	The witness' evidence is clear that they were separate from the AWB, it was only during questioning that the seed was planted that they may in fact have been the AWB.  Mr Chairman, there has been evidence in previous applications before the Amnesty Committee that the Boere Ordevolk exists as a separate organisation and indeed if I can refer you to the amnesty decision in relation to David Petrus Botha, Adriaan Smuts and Eugene Marais heard in Durban on the 12th of August 1996, it is clear from the majority decision in that case, that the Orde Boerevolk operates under the leadership of a Mr Piet Rudolph, that it is more militant than the AWB and that this organisation and members of this organisation, have to take an oath which is not the same as an oath which the AWB members would take, and certainly their aims and objectives are different to that of the AWB.
	Before any of that could have been dealt with, Mr Malan has already taken the view, in our submission, and in our submission taken more than the view and indeed has made up his mind that these splinter groups are in fact part of the AWB, part of its planning, part of its agenda and that therefore they should not be seen as separate to the AWB.
	There is, with respect, no objective evidence and there is nothing at all on record, to suggest that that is the case or that those suggestions should have been made at this particular stage.
	We submit that this demonstrates on an objective basis, never mind the subjective basis which the Supreme Court of Appeal indicated in S v Malindi & Others, that Mr Malan has made up his mind about certain aspects of this application, that he is showing bias in assisting the applicants to overcome what is clearly a difficulty standing in their way and we accordingly submit that in the light of the comments which have been made by Mr Malan and his thinking which is quite clearly in favour of finding that even if there were splinter groups, they were AWB - it was still the AWB's agenda and purpose in action, that that is a matter which ought not to have been expressed at this stage and we respectfully submit that from an objective and certainly from a subjective point of view, it is clear that Mr Malan has made up his mind about certain aspects of this application before hearing any evidence from the victims, never mind having heard all the evidence on behalf of the applicants.
	Mr Chairman, I also want to point out that Mr Malan has intervened previously in this application and we submit that when those interventions are taken globally, then it is clear that there is a bias in favour of the applicants.  
	I wish to refer to only one other incident, and that is when Mr Fourie was testifying and again it was clear under cross-examination by myself, that Mr Fourie could not in any way say that he either committed, aided, planned, advised or ordered or any of the requirements in the Act, anything to do with the Bree Street bombing, Mr Malan's intervention at that stage was to say to the witness well, you associated yourself with that bombing.
	Again, attempting to assist an applicant to bring himself into the net so that he can apply successfully and that he can be successful in his amnesty application.  It is therefore with some regret, it is my unpleasant task then to ask that Mr Malan recuse himself from the Committee, thank you.

MS CAMBANIS: Just for purposes of the record, may I just state that I associate myself with the argument submitted by Adv Landman in this matter.  I have nothing further to add, thank you.

CHAIRPERSON: Anybody else wish to associate themselves with the application?  No?
	Mr Landman, you referred to certain comments made by Mr Malan.  Do you argue that that was intended to assist the applicant?

MR LANDMAN: That is my argument yes.