Amnesty Hearings — Cape Town — 1997-07-07

MR BRINK: I shall be brief, because so much has been covered by my colleagues.  I am in a lucky position, I do not have to keep you very long.  I deal firstly with the first applicant, that is Mr Maxam.
	It is my submission that this killing was not or these killings, rather, were not political.  He killed in an irrational manner and, on his own evidence, to avoid being identified which has all the hallmarks of a common law housebreaking and robbery.  I do not dispute that he was a political activist.  I do not dispute that the main motive was to go to the farm to get firearms, but he does not qualify for amnesty, in my submission, in respect of the murders.  If the Committee accepts his evidence, (A), that he and others went to the farmhouse in order to obtain firearms and that he, the first applicant, merely stole the bullets in the little red box which he spoke about, then it may well be that he qualifies for amnesty on the housebreaking matter.  
	As far as the second and third applicants are concerned, my difficulty is that, which I share with Judge Wilson, with respect, and raised by him during my colleague, Mr Lourens's argument, and that is these two applicants had denied, notwithstanding the factual findings to the contrary by the trial court, have denied that they were in any way party to the murders of the two deceased.  They have said so here and if that is so they cannot, in terms of the Act, qualify for amnesty in respect of those murders.  If they say, notwithstanding the fact, that I was found, we were found guilty of these murders, but we had nothing to do with them.  It is unfortunate, but they cannot qualify.

JUDGE WILSON: Problem there is, is it not Mr Brink, that one does not know on what basis the trial court convicted them.  What precise findings were made as to common purpose and the trial court may have found common purpose based on some other factors which have not emerged before us.

MR BRINK: Yes, that may well be so Judge.

JUDGE WILSON: Is ...

CHAIRPERSON: The question now is that they have been, in fact, convicted and sentenced.

MR BRINK: They have been convicted and sentenced.

CHAIRPERSON: And sentenced and ...

MR BRINK: Just ...

CHAIRPERSON: ... they are now applying for amnesty as a result of that conviction.  They maintain and have indicated the limit of their participation in the actual killings.  We are now directing our attention to that aspect of the case.

MR BRINK: Yes, Mr Chairman ...

CHAIRPERSON: You do know that one of the applicants says that he actually told applicant number one not to shoot the gardener.  That is an important fact, is it not?

MR BRINK: Yes, but as, Mr Chairman, with respect, as pointed out by Judge Wilson, you, as a Committee, are not a Court of Appeal.

CHAIRPERSON: Pardon.

MR BRINK: You, as a Committee, are not a Court of Appeal.

CHAIRPERSON: I understand.

MR BRINK: And if an applicant says, notwithstanding the fact I was convicted, whatever the basis of my conviction was, I was convicted of murder and housebreaking.  I did not commit murder.  Then the application is hopeless.  It does not matter what basis he was found guilty.  He has to tell you that he either the committed the crime and the reason for it or if he says, well, I did not commit it that is the end of the matter.  As far as that aspect of his application is concerned, but as far as the housebreaking is concerned, it may well be that if you accept the evidence relating to the motive for going to the farmhouse and stealing firearms you may well consider that to be done with a political objective which is confined only to the housebreaking and robbery and I make no point about the fact that they took money and jewellery as well, because I think it would be fair to assume and in this regard I agree with my colleague, Mr Lourens, that taking money and jewellery would enable them to exchange or purchase arms in exchange for the jewellery and use the money to that end and the balance of the money to support themselves while they were on duty in the townships.  So I make no point of personal gain and those in effect are my submissions relating to these applications.

ADV LOURENS: Mr Chairman, without ...

CHAIRPERSON: Mr Lourens.
ADVOCATE LOURENS ADDRESSES COMMITTEE IN REPLICATION

ADV LOURENS: Yes, if I might just one aspect in reply to my learned friends' remarks.  I would submit that applicants number two and three, in all probability, do not understand what common purpose is about.  I do not think their evidence was a denial of their guilt, as such, as according to how the trial court convicted them. Their evidence for this, before this Committee was about their involvement in the events of that day and that is what I would ask the Committee to consider.  Their evidence regarding their own involvement.  Thank you Mr Chairman, I have no further submissions.

MR SWART: Mr Chairman, sorry, I have just got the ages of the people.  According to the Paarl Post article which appeared on 17 April 1986, Mrs Rolion Foster was 50 years old and then the gardener, according to the farmer, was a pensioner, he was 52 years old.

CHAIRPERSON: Thank you very much.  The Committee will make its decision known in due course.  Thanks very much for your assistance.

ADV LOURENS: Thank you Mr Chairman.

CHAIRPERSON: The Committee will adjourn and reconstitute itself shortly.

MR BRINK: Mr Chairman, before you adjourn may I see you and the other members of the Committee in regard to the next matter, the procedure to be followed?

CHAIRPERSON: Well, we are adjourning, you can do what you like.

MR BRINK: Very well.

CHAIRPERSON: Yes.
HEARING ADJOURNS