Amnesty Hearings — Johannesburg — 1998-10-15

MR COETZEE: It is clear from the evidence, that the applicants were members of the AWB which organisation was a political organisation, which waged a political struggle against the State or a generally known a political organisation and freedom movement.
	My submission is furthermore that the applicants acted bona fide in order to promote the struggle as stated in Section 20(2)(a).  In order to determine whether the deed for which application is made for amnesty, was a deed which related to a political objective, I have to respectfully refer briefly to the following:
	Firstly the motive was clearly to obtain automatic weapons.
	Secondly the context within which it occurred, had been sketched and the arms would have been used as part of a political uprising or event or in reaction thereto.
	Thirdly, the factual nature is that the applicants received an instruction from Colonel Van Schalkwyk, their Officer in Command, together with De Meillon who had been introduced to them as a Commandant in the BWB and Boere Republikeinse Leer with further impression that he knew what to do, to cooperate with him, and under his command.  To participate in a Boere Republikeinse Leer operation.
	The second and third applicants were partially misled or misinformed regarding the task they had to fulfil, but in the bona fide belief that their action was tied up to a political objective, the undeniable act was that Mr De Meillon who at that stage was only 21 years of age, was their Commander, was confirmation of the fact that they acted within AWB and BRL structures in carrying out instructions within a definite command structure.
	They were found guilty on the basis that they had the shared intention with De Meillon and that they had dolus eventualis as part of their objective.  It is also further common cause that Mr Van Zyl just waited in the car during these events.
	I would also like to point out and submit that it should be taken into consideration very thoroughly that the action of that night, took a totally different course from what had originally been planned.
	The fact that they didn't search for automatic weapons in the guard house or that Swart's pistol was not taken, confirm this submission.  The fact that Swart informed the Committee and the Committee was privileged to hear him personally, it was clear that there was adequate time to do him personal harm or injure or kill him, if that had been the intention.
	If that had been the case that Mr Holder had taken his firearm from his holster, the fact that it was doubted, the question was why Mr Holder wouldn't have taken it then.  I wish to submit that if one looks at the broader picture, it is clear that this action had taken a totally different course from that which the second and third applicants had believed, it would take.
	The question as to whether it was justified for the sake of one pistol, to kill a policeman in this case I would submit respectfully, is not the question that should be asked because the initial planning which from the point of view of the second and third applicant, had been made, would never have involved the killing of a person for the sake of a single pistol.
	Applicants Holder and Van Zyl, at all times believed that they would obtain a large quantity of arms, with relatively little threat to life.  It is also clear that the action had been planned against a political opponent, but that it was actually carried out against government employees.
	It was not doubted in this application, that Commandant Van Schalkwyk had given an instruction that Messrs Holder and Van Zyl had to assist Mr De Meillon in the operation.  If the broader political circumstances were to be taken into consideration, the attempt to obtain automatic weapons three days before the elections, should be regarded to be in direct relationship to their political objectives and if not directly, then at least, closely.
	If one looks at it objectively, the killing of one person cannot be justified by obtaining a single side arm.  But then one has to keep in mind the total objective.
	I also with to argue further that we are not busy here with pure arguments regarding self-defence, etc, and what is involved, what is justified and what is not justified.  One has to look at their objective, more than at the actual eventual result, and if it is a factor to be taken into consideration, it shouldn't be a decisive factor.
	I furthermore respectfully submit that the applicants Holder and Van Zyl, had disclosed all the relevant facts fully.  Mr Holder was criticised because of an amendment which he had made to a paragraph.  I would like to respectfully submit that before he had testified, this aspect had already been pointed out and furthermore, the date of his application confirms that it had been finalised by a legal team in a few days before the deadline, by a legal team that were not involved in the court a quo and that the applicant also found himself in prison, and that he had to be consulted regarding a wide variety of facts in a very limited time by that team.
	I also would like to point out that Mr Holder had been criticised for example, regarding the completion of question 8 in the amnesty application, where he said he would have completed it himself, and the suggestion had been why he hadn't disclosed that he had done military service. It is clear that the form as contained on page 16 of the bundle, had been typed and that it had not been completed by Mr Holder in the first instance.
	The criticism against Mr Holder is therefore with respect, not valid.  The question asked in 8(a) is if you are/were an Officer or office bearer or employee of the State or any former State or if you are or were a member of the Security Forces of the State, or any former State, state the Department/Division and then the answer there is not applicable.
	This would just have referred a statement of his military involvement if it had been under the banner of the South African Defence Force or some other Security Force under whose banner the action was carried out.  What is important is in question 7(a) where he indicated that he committed this operation, or carried out this operation under the banner of the AWB.  That criticism I would respectfully submit, was not justified.
	Mr Holder was also criticised because in his supplementary affidavit he hadn't made this correction.  The documentation indicate that additional questions had been asked in terms of which additional information was obtained, and the supplementary affidavit was clearly just in answer to the additional information that was required and the applicant had clearly not been invited to make previous corrections or to rectify previous corrections.
	I would therefore submit that it should be taken into consideration, particularly where Mr Swart acted as a witness, and his testimony was tested.  It was also clear that Mr Holder in his corrected version, actually fitted in with Mr Swart's evidence.
	The question which also arose is how it was possible that Mr Holder would just have heard one shot, whereas the other witnesses heard two or three and I would respectfully submit that Mr Swart's evidence also confirmed and clearly elucidates this fact, that a shot fired in a confined space would have a deafening and stupefying effect and if this happens under extremely stressful circumstances, it is quite apparent that Mr Holder's impression of a number of shots fired, cannot be a deduction of a lack of truthfulness.
	I would also like to point out that at a stage from the sideline sort of, I would almost call it, in terms of the Criminal Procedure Act, Section 212, that a .38 Special projectile had been found on the scene.  The exact implication is not that it had been found there, but just that it would have been analysed and found to be a .38 Special projectile.
	I would like to point out that there is no nexus that can be placed before this Committee, or had been placed, to say exactly where this projectile had been found, by whom, what the circumstances had been and whether it had indeed been a .38 Special projectile or bullet.
	It was contested during the trial of Messrs Van Zyl and Holder, whether this alleged .38 projectile which would have established serious evidence against Mr Holder, was never placed before the Court, and in the proceedings of the court a quo, it was never alleged that Mr Holder had indeed fired a shot in the guard house.
	Given the evidence of Constable Swart today, Swart says that his impression was that Mr Holder had not fired a shot.  The first shot would have been fired while the light was on.  At that stage, he would have been right close to Mr Holder, within arm's length with Mr Holder on his left, while they were looking at Messrs Terreblanche and De Meillon.
	If the first shot had been fired by Holder, he would have known it, he should have known it.  I would therefore submit that the testimony of Mr Swart is a strong indication that Mr Holder had indeed not fired a shot there.
	Although the Section 212 certificate which was basically robbed of all its value in the fact that it was not used in the trial, certainly casts doubt on this whole aspect.  I would submit that a finding of a lack of truthfulness against Mr Holder, cannot be made on the basis of this aspect.
	Mr Chair, I would also like to point out that the only aspect in Mr Swart's evidence which does not agree with Mr Holder's evidence, is the matter of whether Mr Holder had a revolver with him in the guard house, or not.
	If Mr Holder had indeed entered the guard house with the object of doing harm to anybody there, in contrast with his evidence that he had actually wished to defuse the situation, which had taken an unexpected change, I would like to submit that if he had done so male fide, he would have acted more aggressively towards Mr Swart.
	Mr Swart's evidence furthermore that Mr Holder was the second person who would have entered, confirm Mr Holder's version.  The fact that he confirmed that Mr Holder at the time of this whole action, never made any remarks or statements, confirm that Mr Holder was not the initiator of this action, and I would respectfully submit that there is no reason to find that Mr Holder had not made a full disclosure regarding the material facts.
	It is clear that as far as the death of Mr Terreblanche is concerned, Mr De Meillon had accepted responsibility for that, and if the broader picture were to be considered, it is clear that Mr Holder was only playing a supporting role in that situation as a misguided or confused person.