Amnesty Hearings — East London — 1998-10-07

ADV DE JAGER: ...[inaudible] but whether the act is an act associated with a political objective, committed in the course of the conflicts of the past in accordance with the provisions of 2 and 3.  Now once, as far as 3 is concerned, once in the context and on the evidence before us, we find it's associated with a political objective even if only one of those criteria has been met, what would the position of the Committee be then?

MR SMUTS: Well, with respect Mr Chairman, it would be my submission, improper to return a finding based on only one of those criteria.  The interpretation given to the Act by the constitutional court in the Azapo judgement in 1996, Volume 8 of the Butterworth Constitutional Law Reports and I refer to ...[inaudible] Mr Justice Mohammed found the following
"Moreover, it will not suffice for the offender merely  to say that his or her act was associated with a political objective.  That issue must independently be determined by the Amnesty Committee pursuant to the criteria set out in Section 23, including the relationship between the offence committed and the political objective pursued and the directness and proximity of the relationship of the proportionality of the offence to the objective pursued."
That's not a suggestion, with respect, that once one finds one of the criteria met, the question is no longer open and my respectful submission, it requires a weighing of the criteria in their entirety and that is the thrust of the finding in the Azapo judgement.  My ...[intervention]

ADV SANDI: Sorry Mr Smuts, is it your argument that you can never have this thing which you call an act associated with a political objective until you have satisfied all those guidelines?

MR SMUTS: No, I would submit with respect that some of them are phrased in such a way that there's not a question of satisfaction to use the phrase that...[intervention]

ADV SANDI: The question of consideration rather?

MR SMUTS: Indeed, Mr Chairman, I would submit it would be improper not to weigh everyone of those considerations.  If the question of proportionality by way of example were ignored in entirety by the Committee, that would be reviewable in my respectful submission.  It has to be weighed but the criteria are interactive and some of them don't require a standard.

ADV DE JAGER: ...[inaudible] asking for factual ..[inaudible]

MR SMUTS: Correct Mr Chairman, yes.

ADV SANDI: Do you agree this has always been my belief whenever this particular part of the Act has to be looked into, it would seem to me that the purpose of parliament really was to ensure that we as members of this Committee did not have a blank cheque to simply declare that any form of conduct is an act associated with a political objective but to look at that as against those guidelines, do you agree with that?

MR SMUTS: Yes, Mr Chairman, in fact when the - the Act is an outflow of the interim constitution which required the promulgation of the Act and required that contained in such Act there should be criteria to be considered by the Amnesty Committee.
	Mr Chairman, my submission is that when the criteria are weighed the Committee examining aspects such as against whom the offence was committed, innocent private individuals unconnected with the events in respect of which the applicants were retaliating, the absence of the order, of any order, the gravity of the offence, the lack of proportionality.  Weighing the criteria in sub-section 3 there is not sufficient before the Committee to find that this is an act associated with a political objective on the evidence that is available because given that the lack of reliability of that evidence, the applicants could not have satisfied the Committee.  I've already made the submission that they fail on sub-section 2 in any event.
	Mr Chairman, the absence of an order in the light of the conflict which the stated policy of the party is fatal to the application or the applicant, the rejection of the right-wing infiltration argument must, in my respectful submission, be founded upon the lack of reliability of the evidence of the applicants and once that is so, it is fatal to their case because they cannot satisfy the Committee.
	They don't qualify in terms of Section 20, sub-section 2 or Section 20, sub-section 3 and it is inescapable, with respect, then that having rejected that evidence, the Committee must dismiss these applications for amnesty.  Thank you Mr Chairman.

CHAIRPERSON: Mr Smuts, we require a list of defined victims and their addresses please?

MR SMUTS: I've prepared such a list, Mr Chairman.

MR ZILWA: Mr Chairman, just in very brief reply.  	Hard as he may try my learned friend cannot wish away the facts.  The facts we have are that Chris Hani was assassinated and three days later the accused, I'm sorry, the applicants committed their offence.  Now they've stated clearly and completely the motivation that caused them to do so.  My learned friend is urging this Committee to reject those averments, I'm not sure of the basis on which he states that, I'm not sure of the alternative on which he says if
they're rejected then, in other words, if they are not telling the truth, then what is the truth?  In my submission, all that the accused have stated, sorry, the applicants, is completely in keeping with what is stated in Section 20, sub-sections 1 and 2 and the guidelines set out in Section 3 in my respectful submission, it is not an absolute necessity that all of them should be satisfied but I submit in any event that all of them have been satisfied.  To submit that the accused, that the applicants merely acted out of ill will or spite for members of the white group, now in my submission if that was so, there would be an explanation as why the accused left, I'm sorry the applicants left alive the white child that they found at the premises if it was just a wholesome general hatred of the white group and as such their actions were just out of ill will or spite.
	Another aspect which has been mentioned by my learned friend, he has hinted that Guleni has in fact not applied for amnesty in respect of the position of the unlicensed firearm.  Page 39 of the papers, the typed application of Guleni, says:
"Nature and Particulars:  In Weakley Brothers Case used a 9 mm shot pistol"
I would submit that reference to that shows that the possession by Guleni of such pistol is in fact inherently included in this whole application.

ADV SANDI: Maybe Mr Smuts means that that has not been mentioned under paragraph 9(a)(i) where it says acts, omissions or offences?  He simply says murder cases.

MR ZILWA: Yes, I would submit though Mr Chairman that ..[intervention]

CHAIRPERSON: Mr Zilwa, do you want us to include it because it's inherently part of an act of murder?

MR ZILWA: Yes, that's what I was going to say.

CHAIRPERSON: It's really a technical charge.

MR ZILWA: It is, that would be my submission, Mr Chairman.  Yes, that is all thank you.