Amnesty Hearings — East London — 1999-04-21

MR HATTINGH: 0063/96, 0065/96 and 0064/96.  It was heard in Durban from the 5th to the 7th of November 1996 and again in Johannesburg from January, 20th until January 23rd.   On page 3 of the decision, the following appears
"... the evidence before us also disclose that some time after the killing, Brigadier Schoon gave the first applicant R3 000-00 which he had apparently received from Brigadier Jan du Preez and which was to be given to the three persons who actually participated in the killing.  This included the second and the third applicants.  Although they received this reward for having acted as they did, we do not feel that in killing the deceased, they acted for personal gain as referred to in Section 20(3)(i) of the Act."
	Amnesty was granted to these people.   Now there the Committee actually found on the evidence, that that money was paid as a reward for the act performed in that particular incident and despite that, they arrived at the conclusion that it cannot be said that that act was performed for personal gain.  We submit Mr Chairman, that you have to look at the time when the act was performed, when it was planned and performed.  This act, there is no evidence that the act was performed for personal gain.  There is no evidence before you of whatsoever nature with respect, Mr Chairman, and I will elaborate on that further, that the weapons concerned in this particular incident with which we are dealing here, were supplied for reward.  There is no evidence that there were negotiations prior to the delivery of the weapons, to the effect that a reward would be paid.  In fact, the only evidence in that regard is evidence to the contrary.  De Kock said there were no negotiations for compensation, no other witness came forward and said anything to the contrary.
	In as much as you are still entitled Mr Chairman and members, to have regard to the application of Mr Nieuwoudt, and we may be wrong when we submit that you are still entitled to look at his affidavit, even though his application has been withdrawn, because that was evidence placed before you, and you could had you decided not to have a public hearing, you could have decided that in chambers on inter alia that information contained in that affidavit.  It is after all evidence on oath, before you.  If you look at that affidavit, you find no evidence from Nieuwoudt to the effect that there was a prior agreement ...

CHAIRPERSON: Yes, I think it comes through in that affidavit that it was only accepted after insistence, it wasn't accepted through expectation and in the normal course of business.

MR HATTINGH: That information is contained in an extract to the Truth Commission's report which was annexed to the papers before you.  I will address you on that as well in due course, Mr Chairman.  The fact of the matter is nowhere in Nieuwoudt's affidavit does he state that there was a prior agreement between himself and De Kock to the effect that De Kock would supply arms and ammunition for reward.

ADV SANDI: Sorry Mr Hattingh, can I interrupt you for a moment.  Would it not be correct to say that perhaps what the lawmaker intended to do, is to introduce what one would call a stigmatising provision in the Act, in other words one can have a situation where the conduct of the applicant on the face of it, was politically motivated and there is no question about full disclosure, but the moment you have this element of personal gain, does it not mean that one does not even have to begin to exercise his mind as to whether the requirements of the Act have been complied with?  Is it not the end of the matter the moment you have this element of personal gain creeping in?

MR HATTINGH: Mr Chairman, with respect, no.  One has to have, as quite correctly pointed out at the beginning when you posed your question to me, have regard to the preamble to subsection (3), which  says
"...whether a particular act, omission or offence contemplated in subsection (2), is an act associated with a political objective, shall be resided with reference to the following criteria ...",
	and then it goes on to say -
"... but does not include any act, omission or offence committed by any person referred to in the subsection who acted for personal gain."
	Now, who acted for personal gain, that presupposes that the act which he performed, was performed for personal gain.  You cannot adjudicate that question with reference to events which occurred after the act is performed.

ADV SANDI: Yes, but clearly that would require a closer look or examination of the evidence before the Committee.  We heard evidence yesterday that even before the act was carried out, there was a talk which in the end was said to have been a joke, of plots being given to people for participation in the act?

MR HATTINGH: Mr Chairman, I am subject to correction, Mr Cornelius would probably deal with that, but my recollection of Mr Vermeulen's evidence and Mr Snyman's evidence on that aspect was that that was said after the firearms had been delivered, also something which was said after the act had been performed.  There is no evidence of any possibility of them receiving any compensation for the act performed prior to the performance of the act.

ADV SANDI: Does it really make any difference whether it is before or after?

MR HATTINGH: We submit that it is of the utmost relevance Mr Chairman and members.  You cannot judge a person's objective as being an objective for personal gain, merely because after he performed the act, somebody came to him and gave him money which he never expected, (a) and (b), which he first of all refuses to accept.  You have with respect, got to decide Mr Chairman and members, whether the particular act was associated with a political objective.
	As was decided in the Nofomela and Tshikilanga matters, the fact that  money was paid and accepted afterwards, does not change that objective.  The crucial time to look at is what happened before and at the time when the act was performed in order to decide whether that was the objective which they had in mind.  One should ask oneself the following question, if you had asked De Kock immediately prior to the performance of this act and probably during the course of performing the act as well, why are you doing it, surely he could only have given one answer, I am doing it because I believe that Mr Holomisa's government should be substituted by another government.  That is our political objective.  We have no personal gain, no motive to obtain any personal reward for what we are doing.  That is not why we are doing it, we are doing it for political reasons.  If you later on get money, how can it ever be said that that changes the motive with which you performed the act originally?
	Mr Chairman and members, that is - I have been addressing you now on the assumption that a reward was paid in respect of this particular transaction.  Mr De Kock applied for amnesty in respect of three different transactions.  The first one took place in about March of 1990, the second one being the relevant one, November of 1990 and the third one, in roundabout February/March 1991.  There are clearly three separate incidents with some months elapsing between each of them.   De Kock's evidence was that after the third incident, he was paid the money which he first refused.  Once again the argument would be relevant to that incident as well, he didn't agree to provide the firearms for reward on that occasion, he did it with the same objective in mind as he did with the first two incidents, and he was only offered the money after he had delivered the arms on the third occasion.