Amnesty Hearings — East London — 1998-10-07

ADV DE JAGER: I'm not going to quarrel with you about the objective analysis of, or criteria as far as the first two sentences, two lines are concerned, but bona fides could only be subjectively analysed.  If they bona fide believed that they acted in furtherance of a political struggle waged by a political party, could you act bona fide in a furtherance of a struggle according to your point of view subjectively even if it was objectively against the policy of a party?

MR SMUTS: Mr Chairman, you could act in good faith but mistakenly, yes.

ADV DE JAGER: And you could in good faith believe that your action would further the struggle, it would be in furtherance of the struggle?

MR SMUTS: It's conceivable, yes Mr Chairman.

ADV DE JAGER: Rightly or wrongly, suppose they were in good faith thinking that they're furthering the struggle, wouldn't they qualify then?

MR SMUTS: Not if they failed the objective test, Mr Chairman, they need to satisfy the objective test of the first two lines and the subjective test further on.  It may be appropriate at this time to deal with the bona fides in any event, Mr Chairman.
	All the applicants indicated that they were fully aware of the commitment to peace and non-violence of their organisation.  All of the applicants indicated that they were not aware of any change in that policy.  Their reliance for some sort of belief that they were furthering the interests of their organisation is dependant upon a suggestion that this was an act of defence rather than an aggressive act and I've dealt with the credibility of such a proposition.  It was reliant further on their wish to send a message to the authorities that their leaders would not, that they would not tolerate the assassination of their leaders and that change must be brought about.  Contained in this good faith promotion of the interests of their party however, are the facts of what they did.  Their evidence is that the message would not be sent by killing any whites, their message was that it was important to identify whites associated with violence, that would be what would send the message, that would be what would promote the political struggle and ...[intervention]

CHAIRPERSON: Are we not being too simplistic there, Mr Smuts?  Is it not the case that really there was a decision to retaliate against white people in general and to minimise and possibly make the proposed act more acceptable the target group took on a restricted form and directed at those who they thought were involved in the destabilisation of what was occurring politically at the time, but really speaking, they were directing their efforts to whites, to white people?

MR SMUTS: Mr Chairman, are you asking me what actually happened or are you asking me what they said there, what they say their case is?

CHAIRPERSON: What I'm asking you is what your views are on what I'm proposing to you.

MR SMUTS: Mr Chairman, the evidence of the applicants certainly was not that just any white could be targeted.  They wanted to send a message, it was a message to the Government.  The Government that in some extraordinary way they believed was bound up in the assassination of Mr Hani, notwithstanding the fact that the forces employed by the Government at the time had arrested Walus on the same day, but the message had to be sent by the killing of a white person whom they could connect to violence and if that was what was required, if that is what they in good faith believed was required to send that message, that is not what they carried out.  They made no effort whatsoever to identify victims in their self-appointed category.  In fact ...[intervention]

CHAIRPERSON: Would you say that was deliberate, that they did not make efforts?

MR SMUTS: Well Mr Chairman, I'd go so far as to say that they acted in bad faith.  It is was indeed their objective to identify whites who were associated with violence, once they had gone to scout the area at the camp at Mpande, discovered on the evidence heard today from Mr Guleni that there was a family group there, that this family group was not locally based but had come from afar and that elements from this group had gone fishing.  It is apparent and it was apparent to them at the time that what they were dealing with was holidaymakers, it was a holiday season, there were people from afar from a family grouping who had gone fishing for the day.  With that information at their disposal they set an ambush and committed murder and with respect, on their evidence that could not comply with the requirements with the message they wished to send and subjectively, they were not acting bona fide in furtherance of a political struggle.
	Mr Chairman, one can speculate as to what actually was the motivation but the Committee is confronted with the evidence tendered by the applicants.  They say those were the requirements and their evidence is that they took no steps to ensure that they were meeting those requirements.

CHAIRPERSON: Are you saying that we must reject part of the evidence and accept another?

MR SMUTS: Mr Chairman, I intend to submit in due course that you can't accept any of their evidence once you reject, as you must, the evidence of right-wing infiltration but that probably falls more effectively in answer to the second question.  In summary on the first question then, objectively they did not act on behalf of or in support of their organisation, they acted in conflict with it's policies as so clearly illustrated by the statement by President Mandela and subjectively on their own requirements, they did not act bona fide in furtherance of a political struggle.  Absent an order to act as they did, they fail the test absolutely, they do not qualify in terms of Section 22(a).
	...[inaudible] if it's accepted that their motive is in any event a retaliation committed to send whatever message they wished to convey, my submission to the Committee would be quite correct in rejecting the evidence of any AWB activity because as this hearing wore on, it became quite apparent that there was no evidence of any AWB activity.  At best for the applicants, there were unconfirmed rumours which they had not sought to confirm and even with a modicum of examination by the applicants of the rumours that had come to them, there could be no belief, no sincere or honest belief, that there was a right-wing infiltration of the area.

CHAIRPERSON: Why not?

MR SMUTS: Well Mr Chairman, if one looks for example at the suggestion that there was gun smuggling.  Why was there gun smuggling because heavy boxes were carried to the home of Mr Costello?  Well, with respect, these are individuals who tell you that they've been trained by the armed wing of the African National Congress to become members of the self defence unit.  That's not military intelligence, with respect.  People carry in heavy boxes therefore there must be arms in them.  There was no ...[intervention]

CHAIRPERSON: I've come across a lot worse conclusions.

MR SMUTS: I don't doubt that Mr Chairman but we're talking about good faith here and my submission is there was no bona fide belief in a right-wing infiltration.

CHAIRPERSON: Well, if their informants gave them information, is there any reason that you may suggest that they should disbelieve those informants?

MR SMUTS: Well, Mr Chairman, they didn't have to disbelieve them, if they believed everything they were told, they had no evidence of a right-wing infiltration.  They had heavy boxes being carried in and meetings being held at where uninformed or matters were discussed of which they had no knowledge.  There was one instance of somebody wearing khaki, apparently getting inebriated on a bus and saying he was a member of the AWB who'd been on a mission to Port St Johns.

ADV SANDI: Was that the man who was drinking brandy in a bus?