Amnesty Hearings — Pinetown — 1999-03-08

MR STEWART: Thank you Ms Committee Member but the proportionality, in my submission, is not to be weighed by the insult on the one hand, against the murder on the other.  The proportionality is to be weighed by the objective on the one hand and the act on the other, and the objective was an objective, as I've suggested, of saying that the IFP is here, we're not, you must know we're here, we won't be insulted in this way, you people must be aware that this is not just an ANC area.  In broad terms that's the objective, and that in the context of this war and the context of what took place in KwaZulu Natal broadly and in Claremont in particular, that response was not disproportionate to the objective.  The act was not disproportionate to the objective, in my submission.  Those are the things that are being compared, as opposed to the insult.
	There are, it arises in particular for reference of the Committee, Mr Luthuli's explanation of the objectives in these incidents arise in particular in the cross-examination of Mr Hewitt, that section of the record.  There are explanations in other sections of the record as well, and in his affidavit.  As the Members of the Committee will recall, the way in which Luthuli's evidence was handled at the hearing by myself was rather than deal with the details of each and every incident, what we said is, we rely on what's in the affidavit and we'll now deal with some of the incidents specifically and we'll deal with some of the overview.  And we really only for considerations of time and convenience didn't deal with each one in a lot of detail.  But much of that detail was then picked up in cross-examination, and where it doesn't, where it's not in the cross-examination, then it's in Mr Luthuli's affidavit itself.  ...(intervention)
	Sorry Mr Committee Member.

ADV MOTATA: I said before you proceed on that point, I'm particularly worried that when we look at the Claremont incidents, and we look a Jamile for instance, that we would say was it not in trying to eliminate business opposition, because whatever acts they carried out he would reward them with couple of hundreds of rands.  Every time for every incident.  And if we are, I understand the evidence in its totality, it was that no, we were making the presence of the IFP felt, but every time they would get a reward from Jamile in these particular incidents in Claremont.

MR STEWART: With respect Mr Committee Member, I don't see the necessary connection between the rewards on the one hand and the business objectives on the other.  That the rewards, such as they were, can be equally consistent with the objective being a political objective to eradicate the ANC in the area, to assert the IFP's presence, to try and further their campaign for the incorporation of Claremont into KwaZulu, and so on.  That Jamile was a political leader inasmuch as he had businesses, he was a political leader, he was a member of the KwaZulu legislative assembly, he was later a cabinet minister in KwaZulu and he had political objectives.  And the fact that he rewarded people for assisting him in his political objectives is not inconsistent, and not only consistent with a business or eradication of business opponents kind of objective.  That would be my answer and my submission in that regard.
	Some of the justifications and explanations in regard to these incidents and attacks also occur in the cross-examination by my learned friend Mr Wills of Mr Luthuli.  And indeed by the Members of the Committee.  The cross-references, much of the  cross-referencing is already in the schedules, but that, those refer on the whole to evidence in chief rather than the cross-examination, but it is there and in my submission falls into those particular, particular incidents, or particular justifications.
	Now, the Honourable Member Ms Khampepe has pointed out to me that in the first instance the most reliable place to find answers in this case is the record of this case, rather in other cases, and I'm equally mindful that in a particular case the Honourable Member gave a dissenting opinion or decision, but in a sense, the amnesty decision in the case of those who were involved on the attack, the AWB attack on a bus, which I think was on its way to Inanda, if I remember correctly, falls into a like kind of category.  So too in a sense the attack on the St. James church in Cape Town.  I don't come before the Committee to argue in support of those decisions, but only to suggest that those decisions do offer some support to amnesty being granted in respect of the incidents which fall into this category here, of so called random attacks, or attacks on innocent or unidentified civilians but nevertheless pursuant to an overall political objective or motive as I've suggested.  I appreciate of course that in the case of the AWB bus attack there's some very different considerations as well, if anything that case is much worse.  It's far more retaliatory.  It's far more out of anger.  It's far more out of racial hatred, than any of these cases before the Committee today, but it, because of the extremity of it it does offer some support to the amnesty applications here today.

CHAIRPERSON: With regard to these random attacks as well, then one cannot even begin to look at these various conventions of war.  Geneva Convention, etc.  I know that some of the amnesty decisions have been criticised because of that.

MR STEWART: Because they don't, they don't refer to those?

CHAIRPERSON: Yes.

MR STEWART: Well in my submission ...(intervention)

CHAIRPERSON: Like shooting a group of people waiting at a bus stop.  That sort of attack.

MR STEWART: It's my submission Mr Chairperson that no, that those conventions don't offer assistance in this particular case, or indeed in the case of amnesty applications under this Act.  And they don't offer assistance because this Act is not seeking to, it's not seeking to question the morality of the tactic that were employed, which, in my understanding, the international conventions seek to do.  They seek to set an international standard of morality, which says there will be warfare in our world, unfortunate as it is, now let's all agree that we'll conduct warfare within certain moral boundaries, and that isn't something which this Act requires to be done.  There are very specific requirements that need to be met and if those are met then amnesty, in my submission, has to be granted.  If they're not met, then it has to be refused.
	By just way of example, and I, this will be my last reference, I hope not to bore the Committee with references to the second world war, but by way of example, before the second world war the United Kingdom participating in the discussions which led to the Geneva Convention, originally had the position that there should be no bombing at all, not even of, this is air bombing, not even of oil installations or military factories or whatever.  That position was then abandoned in recognition that there will be bombing, but at the beginning of the war the bombing that was embarked upon was only on so called military targets.  By the end of the war the position had shifted and it was bombing for military objectives on civilian targets.  And I raise that only because the circumstances there determined for the people involved the particular tactics that they would employ, and indeed there's severe debate about the morality of some of those tactics, and in this case there may be less debate about the morality only because some of these attacks are so clearly immoral or morally unjustifiable.  The point is, were they acts associated with a political objective, and in my submission the answer to that in each case ultimately is yes, regardless of whether they're within or without the norms set in the Geneva or other international conventions on warfare.