Amnesty Hearings — Durban — 1997-08-13

BERNARD MAKGABO NGOEPE: It may be that innocent people likewise, were killed in the instance that you are referring to but what I'm saying to you is that there's a fundamental difference.  There the bomb was placed and left where it was.  It could have killed any person of Indian origin, Black, White but in this particular case, they would not have shot if the bus - if in the bus there had been Whites.  So, there's a fundamental difference.

MS VAN DER WALT: I agree with you but now one takes it further.  It was, and this was always the case - the policy of the PAC - their policy was opposed to White people, White people who were dominating and as I understand it throughout the years no White person has been a member of the PAC.

BERNARD MAKGABO NGOEPE: I don't know PAC's policy.

MS VAN DER WALT: I just want to suggest this.  Those events of the morning of that day, that involved PAC members who killed White people not Black people.  There wasn't a single Black person involved as a victim there, it was only White people who were killed and one must never lose sight of that fact.

JUDGE WILSON: If one is going to look at it with that sort of eye, should one have regard to the other factors of the killing that morning?  That they were unarmed, they stole knives from a shop and then stabbed people, they didn't go there as an armed gang.   So would that indicate that it was a political struggle or that it was a bunch of young hooligans?

MS VAN DER WALT: With respect, I want to refer to what you personally said to the representative of the victims.   If there are 20 people wearing PAC T-shirts - in the history of the country people have done things for different reasons.  Now those people perhaps they decided that they also wanted to do something and just at that point they didn't have arms and they stole what they could get.   If they'd managed to get firearms they would have used those.
	There's another matter, another aspect which Mr Brink referred to and that is that Mr Botha and Mr Smuts said that they would continue with the struggle.  I want to argue that Mr Botha was completely honest with this Committee.  Mr Botha could have told you, "I as a Boer Afrikaner, who has struggled for my whole life for the Afrikaners and for the Boer people, now suddenly just because I'm applying for amnesty, I'm going to throw everything overboard".   
	But then as was pointed out to you - this banner above your head - then he wouldn't have been telling the truth because I don't believe any of these Committee members would have believed him if he'd come here and said,  "that since my early years I'd been brought up as a Boer Afrikaner and now I'm going to throw it overboard".  He didn't say, as the victims representative said, he didn't say, "I'm going to go out again and kill Black people again".  What he does say that now in our country there is a negotiating table.  He didn't say a word about the Orde Boerevolk.
	Take the Volksfront which is in Parliament, they appear every day in the house and the Volksfront says, "we are still fighting for our own State for the Afrikaner".  That's precisely what Mr Botha was saying.  Constand Viljoen doesn't say that he's going to kill Blacks when he says that.  One must see it in that light.  He's been honest, he said, "I still stand for that policy but I'm going to do that through negotiation".  I have nothing to add.

MR PRINSLOO: Regarding Mr Smuts, with respect, he acted on the orders of and on behalf of the organisation the Orde Boerevolk, an organisation that he belonged to.  The target was identified and the instruction was given by the commander, Mr Botha.  That is evidenced in Mr Botha's evidence and also in Mr Smut's evidence.  No questions - there have been no questions saying that this is not the case.
	With respect, furthermore, Mr Smuts' attitude now.  He said that he would continue believing and acting for what he believed, to establish a Volkstaat by negotiation.  He didn't say by means of violence.  There is no requirement in the legislation that a person has to say to each of the victims that he regrets it, that he has remorse.  
	No reconciliation can take place if that is the basis of negotiation because you have a path of negotiation and reconciliation, it's this Committee which has to give the applicants the opportunity to negotiate with people and then to achieve reconciliation.
	But it can't be achieved while they're sitting in prison, not at all.  With respect, there has been no indication at all that these people as a result of any other action than a political motive, that they acted for any other reason than a political one.  Political motive is distinct from a person's intent.  These two concepts shouldn't be confused.
	With respect, in respect of whether it was an order, a cell acts at it's discretion like the discretion of the leader when it sees fit, otherwise it would make no sense.  This is clear in the case of the State v Messina.  1990  709, page 718 of that judgment ...[intervention]

CHAIRPERSON: Say that again, I didn't hear you.

MR PRINSLOO: State v Messina and others 1990 (4) SA 709 (AD) judgment of acting Appeal Judge Friedman as he was at the time, page 718, letter C
"In respect of the fifth finding, it needs to be mentioned that the evidence does not reveal that the appellants were mere puppets who were obeying the orders of their superiors of the ANC without thought or questioning.  They were under the general command of their leaders.  They themselves identified as targets for assassination, people whom they considered in accordance of ANC policy, to be appropriate victims"
With respect, these people also identified suitable targets for the purposes of suicide.  The Act was accepted as one which had a political motive and that is how it was implemented.  
	With respect, this is the case here as well.  Here Mr Botha was acting as the leader of the cell, such as the person I referred to acted.  The people who were killed in this case - there was a policeman who was described as a person who would have killed other members of the ANC or Black people.  There was a Mr Lukele who had a tendency to kill people or could tend to do so, that was analogous.  So this is a matter of a consequence of a previous act. 
	In Exhibit A which has been submitted to the Committee says that:
"I shall ensure that commands that I give in the course of the achievement of the above-mentioned ideals are carried out".
There's no reason why Mr Smuts should have doubted in the authority and powers of Mr Botha.  On the contrary, as Judge Ngoepe said, it would be fatal in any organisation to go back every time to ask, "what are my commands"?  That would be against the whole purpose.  So here is a matter of a person acting in his own discretion to ensure that a certain goal is pursued and that is how it is carried out.
	With respect, it would also be problematical for - in many cases which are probably still going to be seen by the Committee - in the case for example in the Eastern Transvaal there was a case of a landmine and two Black people were killed.  This is people who have no connection with a political organisation but again that was intended to indicate to the Government of the day - you're on the wrong path and then there are innocent victims.  But that isn't the problem with respect, one must look at the political motive and that political motive and the objective matches with that, that is to criticize the Government.
	So, I submit that there was a full disclosure and as my colleague said and I associate with it,  I say that amnesty should be granted to the applicant.  Thank you.