Amnesty Hearings — White River — 2000-05-04

CHAIRPERSON: Read it in Afrikaans, let's see what category of people that includes.
MR SMIT
"Any persons in paragraph (a), (b) and (c) mentioned sub-paragraphs, who on reasonable grounds believed that he or she acted in the course and scope of his or her duties and within his or her expressed or tacit authority."

CHAIRPERSON: So with the course and scope of his duties or authority?  "Bevoegdheid"

MR SMIT: Ja, authority.

CHAIRPERSON: Category (a).

MR SMIT: A would be
"Any member or supporter of a publicly known political party or liberation movement, in support of such movement or party bona fide in furtherance of a political struggle which was fought against the State or any other political party or a liberation movement."
Now I would submit that the liberation movement here would include Toekomsgesprek, being an organisation, an undercover organisation, if one would call it that, with the Conservative Party.  Once again we have had no contrary evidence.

CHAIRPERSON: Yes, but is your difficulty not there that Toekomsgesprek would not be a publicly known - it's a secret organisation, it's not a publicly known political organisation.

MR SMIT: Well it differentiates between a generally known political organisation, or a liberation movement, so the "or" would state that it could be any party then.  But liberation movement could be an unknown movement as well, unknown organisation.  And the qualification - my learned attorney is showing me now, the qualification is that
"... die bevrydingsbeweging ten behoewe van, of ter ondersteuning van (which is important) so 'n organisasie of beweging."
So:
"... bevrydingsbeweging (Toekomsgesprek) ten behoewe van die (Konserwatiewe Party), of ter ondersteuning van (weer eens) die Konserwatiewe Party."
That includes the one in (a), I would submit to you, Mr Chairman.
	The others, (b) deals with workers of the government or any previous government, or members of the Security Forces, as well as (c).  (d) might also be applicable where it says:
"... any employee or member of a publicly known organisation or liberation movement in the course and scope of his or her duties."
That directly deals with the statements in - the setting our the liberation movement in (a) once again.  That is Section 20(2)(d).

CHAIRPERSON: Yes, well that might be a bit more problematic for you.

MR SMIT: Ja, that might be, yes.

CHAIRPERSON: The reference to duties, that seems to suggest some or other situation, almost a contractual situation, where the person is under specific duties and he's executing those duties.

MR SMIT: I'm not relying on this, I'm just going through - 'cause I've mentioned (a), (b), (c) or (d), ...(indistinct) (f).

CHAIRPERSON: Yes.

MR SMIT: But I would then submit that (f) would pertain to this matter as well where it states that on reasonable ground believed that he was acting in the scope and course of his duties.  And it further says
"... her or his express or tacit capacity"
Now two of the applicants were members of Toekomsgesprek, they thought they had the duties of stopping the National Party, or getting them to call out a general election and therefore they acted in this way.  That would be the second leg.

CHAIRPERSON: Ja, but you see that is the point, are you not - if you're in that sort of situation, now you're not talking about office bearers, are you?  You're talking about people who have some clear duty that they have to perform within ...(intervention)

MR SMIT: I would submit they are under instructions.  Under instructions, in this regard that it is obvious that certain "gesagstriktuur" existed within Toekomsgesprek, as Mr Snyders in his application points out, that it was very strict, first of all, there were certain rules to be followed, at meetings they suggested certain things should not be done because the ground troops, if one could it that, were not properly prepared yet.  Therefore it was a military structure that was set up, which would then fall directly within the ambit of Section (f).

CHAIRPERSON: Yes, you see, if you refer to the concept "course and scope of duties", then in the normal legal understanding of that term you're talking about a situation, normally it's a situation of employment, but it could be, in this scenario, it could be an office holder, office bearer or an organisation and not necessarily (a), which seems to be the member himself or herself.  It seems to be directly the member.

MR SMIT: Ja, it's directly and a subjective test that has to be applied, it's a member of an organisation.

CHAIRPERSON: Yes, so it seems as if the other sub-sections seem to be the widening scope of that, to include say, office bearers and people who have some specific duty to perform on behalf of the organisation that they represent and so on.

MR SMIT: I would submit that in their instance they all received orders from a higher ranking officer, if one could put it that way, and that amounts to a duty one could argue.  That would be my submission.  But in terms of (a) I am completely with you, Mr Chairperson, that that should cover it, and therefore I would submit that they should get amnesty in terms of that.

CHAIRPERSON: Yes, thank you, Mr Smit.

MR SMIT: As it pleases.

CHAIRPERSON: Mr Morgan.

MR MORGAN: None, Chairperson.
NO ARGUMENT BY MR MORGAN

CHAIRPERSON: Thank you, Mr Morgan.  Mr van der Bank.

MR VAN DER BANK: I have no submissions, thank you, Mr Chairman.
NO ARGUMENT BY MR VAN DER BANK

CHAIRPERSON: Thank you, Mr van der Bank.  Ms Mtanga.

MS MTANGA: I have no submissions, Chairperson.
NO ARGUMENT BY MS MTANGA

CHAIRPERSON: Thank you, Ms Mtanga.  Anything further that you wish to add?

MR SMIT: I have nothing to add, thank you Mr Chairman and Learned Committee Members.

CHAIRPERSON: Very well.
	Well that concludes the proceedings, the formal proceedings.  The Panel will take some time to consider the application, all of the documents that were placed before us, as well as the submissions, and will notify the parties as soon as the decision in this matter is available.  So the decision would then be reserved.
	Ms Mtanga, does that conclude our roll here?

MS MTANGA: Yes, Chairperson.

CHAIRPERSON: We would like to take the opportunity to thank the legal representatives, Mr Smit, your attorney, Mr Morgan, Mr van der Bank, Ms Mtanga, and in his absence, Mr van Wyk, for your assistance in this matter, we appreciate that very much.
	We also would additionally thank all of those people who assist us in being able to hold hearings of this nature.  We are thoroughly aware of the fact that there's a lot of effort that goes into having a hearing of this nature.  We have our staff compliment that normally exert themselves to make it possible for us to have sessions like this.  The members of the public who attend to witness to the process, which is very important.  We are normally grateful to the proprietors, owners of the venues where we sit, for their willingness to accommodate us.  It's not always a matter without risks sometimes.  We wish to thank the interpreters for their assistance.  To the police for their duties.  And finally, my colleagues on the Panel with me, for their assistance.  Thank you very much.  We're adjourned.
HEARING ADJOURNS