Amnesty Hearings — Cape Town — 2000-11-18

MR LAX: Just on the issue of proportionality, I'm not sure I understand you correctly.  You're saying that - this is what I thought you were saying or arguing, that because the end result was not particularly drastic, proportionality doesn't come into it?  Isn't the issue of proportionality relative to the intended result, whether it happens or not?  That's what we're dealing with here, is a conspiracy.  And so that when you're dealing with conspiracy the fact that nothing resulted is irrelevant, what is relevant in that context is, was the intended result proportional to object to be received? - intended.

MR MARTINI: I say it is irrelevant, but if it is relevant, if the Committee considers it relevant, then I say in any situation which prevailed in South Africa, my submission is, which was a war, the acts would be proportional.  After all, it was not a conventional war.  The Truth and Reconciliation Commission itself found that the war came into South Africa.  And in such circumstances as in Rafollo's case, which I quote in my Heads, in a war situation which prevailed in South Africa, which was an abnormal situation, maybe it is justified to kill a political opponent, but one would never, generally, in a civilised society justify the killing of a political opponent if there was no general war prevailing,  or circumstances prevailing at the time.
	That's why in my Heads, Members of the Committee, I say the Committee must attempt to judge the applicants in this case, Mr van Zyl, for the deeds and try and judge them at the time that prevailed 12 years ago, not today in a democratic society where we can reflect and say well, the deed was terrible, to think of killing somebody was a terrible thing.  One's got to attempt to place itself in the applicant's position at the time.  And at the same time my submission is, even if proportionality does become relevant, which is not a requirement, the deeds of the applicant, the acts were proportional to the overall objective that the CCB attempted to achieve.  After all it was breaking of a window to the elimination of an individual and it was, to put it as Gen Webb's version was, not total destruction, maximal disruption of the enemy.

CHAIRPERSON: Sorry, just before we proceed and I should have raised this when Mr Wessels was arguing, but I don't think it impacts on the argument, the question of the foetus incident.  We've a lot about it at the hearing, received evidence although it wasn't set down as one of the incidents, in the victims' Heads they suggest that be portion of the decision in this matter.  Are we all agreed on that, we include it in the decision in this matter?

GEORGE BIZOS: ...(inaudible - no microphone)

CHAIRPERSON: I think so, yes.

MR MARTINI: Chairperson, I'm not sure that all have agreed, I don't know.  I thought Mr Wessels raised the issue in his argument.

MR WESSELS: My client didn't apply for that, so I'm not really concerned with ...(intervention)

CHAIRPERSON: I think it would be convenient if we, that's my personal view ...

MR MARTINI: Chairperson, my problem with that is, not to prejudice my client, is a decision was taken by the Committee, one can find it, where the Committee stated it would allow these questions, but they would not be taken into consideration in dealing with that aspect.  More particularly since in terms of the Act, the applicants are entitled to be given notice.  They weren't, they were actually told this is going to be dealt with in chambers.  So it is - there's been a lot of surprises during these hearings and at this late stage ...(intervention)

CHAIRPERSON: No, they can be dealt with in chambers then.

MR MARTINI: Although Chairperson, I've placed it in my Heads, but not in great detail.

MR LAX: Can I ask this question just in this issue.  Is there any point in not dealing with it now, arising out of all the evidence we've heard?  Is there any prejudice to anybody that you can possibly think of, apart from possibly the victims in that matter, who probably weren't notified specifically, that it was going to be heard?  But in any event they wouldn't have received notice if it had been dealt with in chambers.

MR MARTINI: Well there could be prejudice to the applicant, he wasn't prepared fully on that issue.  Witnesses could have been called on that issue, I don't know.  If Bishop Tutu would have testified, what he would have said, we don't know.  I'm not trying to be difficult, Chairperson.  You know you're putting me in the situation where I do not want to prejudice my client because of the way these proceedings have been conducted and at this late stage to say, well let's also include it.  I know that the, if we can call them Respondents, are suggesting in their Heads that the Committee revoke its decision.  Now I submit that would be improper.   That's the only submission I can make there, Chairperson.

GEORGE BIZOS: ...(inaudible) that a decision to hear the matter in chambers is not a final decision but a procedural matter.  And we submit that there is no prejudice to any of the applicants.  If anything, if the result is that they are granted amnesty, it's in their favour.  If they are refused amnesty, they are not in any different position.  But I do not believe with respect, that this Committee, having heard the evidence, having received written argument by the person who is now raising the objection, on that issue, that you should not make a decision on the evidence that has been presented here.  If you're going to do it in chambers, are you going to disregard the evidence that has forthcoming?
	I think that it would be incorrect to do so, that you can't disregard that evidence.  So there has been no decision on the amnesty yet, if the applicant feels that he's in any way disadvantaged or prejudiced, there is still time for him to undo the prejudice that he says that he has suffered.  What prejudice has he suffered by the additional evidence that has been placed before the Committee?  He's had an opportunity to cross-examine on it, his client has responded to it.

CHAIRPERSON: It's also difficult to imagine what further evidence could be led on that matter, because the Archbishop was away.  I suppose the only other evidence would be the person who found it hanging in the garden.

MS LOCKHAT: Chairperson, if I can be of assistance here.  What I can do is contact the Archbishop, because he's basically the only person that's being prejudiced here, that the baboon foetus incident, him being a victim.  So I can clarify with him whether he has any opposition to us making a decision without him being here at the hearing, Chairperson.  So I think that's the only person really that is suffering prejudice in relation to that.

CHAIRPERSON: And he can read the transcript of the evidence if he desires.

MR MARTINI: Sorry Chairperson, I'm trying to find it, but there was evidence by Mr Bizos that this was possibly a Region 9 project, so there's plenty prejudice.  I'm trying to find it.  Mr Bizos quoted ...(intervention)

CHAIRPERSON: No, but prejudice as between it being dealt with in chambers or this Committee just dealing with it, whether we ... the only prejudice would be that we might have to listen to argument on it.

MR MARTINI: Not necessarily, the Respondents are contending that there was a five point plan.  Now Mr Bizos referred to this case where they say it was a Region 9 project involving this five point plan.  We know Mr Barnard, who I didn't question, says: "Well, Mr van Zyl told me this was part of a five point plan".  There is substantial prejudice, but I can't ...(intervention)

CHAIRPERSON: Yes, but that's in the documents.  If you read Barnard's statement he also makes reference to the five point plan.  It's hearsay.