Amnesty Hearings — Cape Town — 2000-11-18

MR LAX: Of course the difference is quite obvious, that in a criminal trial the State has a duty to prove beyond reasonable doubt, it's in the context of that beyond reasonable doubt case that the burden on the accused then kicks in.  Here we don't have that scenario, here we're in the situation of a civil trial where an applicant bears the onus of proving his application.

CHAIRPERSON: But you wouldn't have in a criminal trial that on the one hand the State must prove it beyond reasonable doubt and on the other the accused, in order to succeed, must prove it on a balance of probabilities.  Because after you've proved it with a reasonable ... they're too close to each other.

MR WESSELS: No, that is so.  But one must look at what the Act here says, it says if the Commission is satisfied that there has been a full disclosure.  It is clear that we don't have the position where an accused or an applicant must come and prove anything on any probabilities.  If that had been the intention it would have been easy for the legislature to state that the applicant must prove on a balance of probabilities, or whatever the position was, that he was telling the truth or as is said in the Criminal Procedure Act, before indemnity can be granted in terms of Section 204, there was must be an honest and frank disclosure, then he can get it.
	One must assume that the legislature was aware of the provisions in the Criminal Procedure Act, where indemnity can be granted to a person if he makes frank and honest disclosure, and the legislature didn't use those words in this particular Act.  And one must then look at the Act as a whole to see what was the intention of the legislature, was there an onus that is being placed on a particular applicant in a civil sense, where on the probabilities he has to prove things, or does he merely have to satisfy a reasonable Tribunal, that the facts that he's disclosed were full in the sense that people would know what had been done in the past.  He doesn't even have to be a good or an honest witness. He, in my submission, can be a bad witness in the sense that he hasn't make frank disclosure or honest disclosure about many facts in his application, which in terms of the Criminal Procedure Act, would not entitle him to an indemnity in a court, but as long as he makes full disclosure of the facts pertaining to the particular application.

CHAIRPERSON: Just on that point, Mr Wessels, if an applicant applies for there or four incidents and he makes an honest and frank disclosure in respect of one but not in respect of the others, what would be the situation then?  Would the fact that he's found to be a liar in respect of three of the four incidents ...(indistinct) taint the incident in respect of which he's probably told the truth, or do you compartmentalised the incidents, or what approach have you followed?

MR WESSELS: With respect Mr Chairman, I think that illustrates my argument very well.  If the test was that he has to be an honest witness who made a frank disclosure, as the test is in the Criminal Procedure Act, then once it is found that he doesn't comply with that test, then he shouldn't get amnesty for anything, because he's not a frank and honest witness.  Whilst, if the test is applied as I submit it should be applied, that he must make full disclosure of a particular act, then you can grant him amnesty for the acts where he's made full disclosure and refuse him on those that he hasn't made full disclosure.  And I think one must look at the Act and if you test it in this fashion, then you'll see that that is what the legislature had in mind.  Mr Chairman, I deal further in the paragraph with the argument that we've just deal with, I won't read further my Heads.
	Paragraph 22, I deal with the Criminal Procedure Act and the words "frankness" and "honesty" that are used there.
	Then I submit that the applicant qualifies for amnesty under Section 20(2)(b), alternatively, Section 20(2)(f).  Now Section 20(2)(b) reads as follows, Mr Chairman:
"Any employee of the State or any former State or any members of the Security Forces of the State, or any former State in the course and scope of his or her duties and within the scope of his or her express or implied authority, directed against a publicly known political organisation or liberation movement engaged in the political struggle against the State or a former State or against members or supporters of such organisation or movement and which is committed bona fide with the object of countering or otherwise resisting the said struggle"
and then (f)
"Any person referred to in paragraph (b), (c) and (d), who on reasonable grounds, believed that he or she was acting in the course and scope of his or her duties and within the scope of his or her express or implied authority, qualify."
	Now this becomes relevant in regard to the dispute between Verster and Webb on the Omar and Evans incidents.  Mr Chairman, it should be mentioned or submitted that the dispute between Verster and Webb, in regard to whether Webb had given authority for a plan to eliminate Messrs Omar and Evans, is of no real consequence.
	Gen Webb did not apply for amnesty.  What his position will be in the future is of no concern of this Committee.

CHAIRPERSON: Well on his version, one would expect him not to have applied for amnesty in respect of those matters if he didn't know about them.  Although one could argue that maybe in his capacity as overall leader he accepts responsibility for all that was done.  He obviously hasn't applied for amnesty, because he denies giving authority.

MR WESSELS: Yes.  So it's not necessary for you to make a finding in that regard, you must only look at Verster and ...(intervention)

CHAIRPERSON: But he has testified in this before us, I mean the evidence is there.

MR WESSELS: Yes, no, certainly.

CHAIRPERSON: But you say we needn't make a  ...(intervention)

MR WESSELS: You needn't make a finding, because it's not necessary.  You don't need to test or make any decision in regard to Gen Webb on these issues, what you need to do is you need to make a decision in regard to Verster on these issues.
	Now if Verster acted within the scope of his employment and with direct or indirect authority in terms of Section 20(2)(b), then he must get amnesty for that.  If Webb did not give him permission, then you must test whether he bona fide believed that he had authority, express or implied, in terms of Section 20(2)(f).  
	Now let's look at the facts, Mr Chairman.  It is submitted that insofar as Verster is concerned there's no dispute that he gave the authority for the elimination believing on reasonable grounds that he was acting in the course and scope of his duties and within the scope of his express authority.  The Committee is referred to the testimony which on this ground, was not attacked, save by Gen Webb.  No-one else suggested to Verster that he did not have authority from Webb, with reference to the logistical support, ie: the money and the firearm was made available.  And furthermore, having regard to Gen Webb's own testimony that had Verster asked him for the authority he would probably have granted it.  There can be no question that the applicant on reasonable grounds, believe that he was acting in the course and scope of his duties and within the scope of his express or implied authority and therefore complies with Section 20(2)(f).

CHAIRPERSON: Just on that, we've heard evidence from Gen Webb to say that with regard to any operation that would involved the assassination of any person, not only he would have to give authority, but he would have to go higher.  That was his understanding of it.  And I don't think that's disputed, is it?

MR WESSELS: No, what happened between him further was not known to anyone.