Amnesty Hearings — Pretoria — UNKNOWN

ADV PRINSLOO: As it pleases you, Mr Chairman. Chairperson, with respect with reference to the political motive, I would like to contend that the objective was aimed against the PAC. Now the PAC, they wanted to prevent the PAC in succeeding with their aim of overthrowing the government.  That was their constant political motive.  That was what Mr Gerber's actions were aimed at.
	Furthermore, the specific act which was committed by the particular persons, the associated objective and consequences and I would like to refer here to S v Messina & Others, 1990(4) (SA) 709 (A), page 719, and there Judge Friedman - he was acting Judge of Appeal that stage - gave the judgment. I would like to refer to (D) to (F), where it was stated as follows:
"According to me the circumstances which had an effect on their minds are such that their blameworthiness is reduced, irrespective of how blameworthy their conduct might be, and I am convinced that the death sentence is as a result not the appropriate sentence."
With respect, the motive of the offenders was the issue here and in the case of the applicants, they pleaded not guilty, and continued to maintain their innocence, but today, yesterday and today they came and made a full disclosure of all the facts and told the Commission what drove them to commit these acts.  This will be repeated by various people before this Commission, people who committed acts and who denied membership of a political organisation and then come with a full disclosure of the facts to the Commission.

JUDGE WILSON: Why would they conceal their political motive when they were facing the death penalty?  They wouldn't certainly have got a more severe sentence.  I can understand people, and I have no doubt people will say we didn't want to admit it was political because it would have increased our sentence.  But these men, you were present, defending, were facing the death penalty.  And there was not a word said that this had any political basis.  Was there, at any stage in the trial or on the question of sentence, it was never raised, was it?

MAMOGALA JACK MKOANA: With respect for that, Chairperson, was that the mitigating circumstances put before the Court related to the facts submitted by the State and also in the light of the fact that the applicants continued to deny their involvement in a crime.  The matter must be seen against that background.

JUDGE WILSON: Yes, but he admitted he was there when the shooting took place, Gerber.

ADV PRINSLOO: That is correct.

JUDGE WILSON: Yes, and these mitigating circumstances was age, drinking and matters of that nature.  I think not very strong to rely on when your client's neck is at stake, is it?

ADV PRINSLOO: With respect, Chairperson, it was also found by the Court that there was no premeditated intent to murder.

BERNARD MAKGABO NGOEPE: Mr Prinsloo, that case that you have been referring to us so many times, you probably must have read that judgment.  The appellants didn't testify in that case, did they?  Is that the case which was at Delmas, the Delmas case?

ADV PRINSLOO: That is correct, Mr Chairperson. The applicants did not take part in the trial at all, they simply handed in a statement in which they said that they were freedom fighters and they limited themselves to certain facts with the imposition of sentence.

BERNARD MAKGABO NGOEPE: Well, you must - the problem is with this case before us now, is that the difficulty here is proportionality and that issue could never have arisen in that trial.

ADV PRINSLOO: Pardon me?

BERNARD MAKGABO NGOEPE: The criteria of or the aspect of proportionality which is given us so much trouble here, could never have arisen, could never have been an issue in that case, in that trial at Delmas.

ADV PRINSLOO: With respect, Mr Chairperson, I would like to link this with the imposition of a sentence, namely, whether the death sentence was to be imposed or not. The effect which political motives had, that was decisive in that particular case, and that is why the death sentence was not imposed as shown by the piece that I have just quoted.  That is what I would like to convey.

HASSAN MALL: I think the real point that is being made, Mr Prinsloo, is that if this was a politically motivated offence, in the South African society of today, Courts have taken into account that offences have been committed because individuals had deep fundamental political beliefs which led them to do what they did.  The question is, why was it that it was not done in this case.  Why is it that we are hearing about it now for the first time.

ADV PRINSLOO: Mr Chairperson, with respect, as I have already said, the applicants in that case denied involvement in the case and they pleaded not guilty, and it would therefore have been contradictory at the end of the case say that they were involved.  It happens in many cases where people are charged with political crimes.  It happens that people deny any links with a political organisation. It happen that people deny their political involvement even up to the point of imposition of sentence.

BERNARD MAKGABO NGOEPE: You destroy your chances on appeal.

ADV PRINSLOO: With respect, Chairperson, that would be contradictory to the instructions given by the client to bring about this change, and on appeal it could cause a problem.

HASSAN MALL: Very well, carry on.

ADV PRINSLOO: I would also like to submit, with respect, to the Committee, that these requirements were complied with namely, that the applicant has to be a member of the - had to be a member of a political party, namely the National Party and he was also an agent or component of the police and he therefore falls within the ambit of Section 20(2) as well as within the principles laid down by Section 20(3) with which I have already dealt and which I will not repeat here.

HASSAN MALL: Yes.

ADV VAN DER WALT: No further reply, Chairperson.
ADV VAN DER WALT HAS NO REPLICATION ON MERITS OF CASE

HASSAN MALL: The Amnesty Committee will consider all the information that has been placed before us and in due course it will arrive at its decision and take the necessary steps in terms of the Act to communicate their decision to the applicants and to the Truth and Reconciliation Commission.  It is not possible at this stage to say when this is likely to happen.  Thank you very much.