Amnesty Hearings — Cape Town — 1998-01-14

MR PRIOR: I think it's a sad comment but that doesn't seem to tie up with the distinction that the Brigadier made with not attacking creches and not attacking disabled people, not attacking hospitals.  There's certainly - those are the very - we just don't know because one is unable to cross-examine the document, so unfortunately when it is stated that they did not apply International Humanitarian Law, then I submit with respect, it's a sad comment because they were embarked on a war a liberation and those protocols should have been drawn to the attention of their members - given their structures and given their political training.
	And the emphasis that they spelt out in their submissions, that the political training - no military act made sense without a political objective.

JUDGE WILSON: Perhaps you should look at the previous page where the Brigadier says
"I got the meaning of what International Human Law is when I integrated into the South African National Defence Force, equally the form of South African Defence Force did not even know what International Humanitarian Law was"
It would seem the lack of knowledge was widespread.

ADV SANDI: And where does that put - Mr Prior, where does that put the applicants?  Would one expect them to know anything about those matters?

MR PRIOR: I'm simply drawing the Committee's attention to try and understand what motivated these attacks.  If one follows the rationale that there was a political decision and the military action was to further the political objective, then one understands it because then those acts are understandable within the context of the amnesty process - one of the criteria are, that here has to be some
link - there's got to be some consequence but where that political objective seems to break down - on their own evidence, then the applicants are saying simply: "We are carrying out orders".
	Whether it was to liberate the country, whether it was to kill White people, whether it was to do whatever, is immaterial because they're saying: "We acted on orders"

ADV SANDI: If I recall, last time when this Committee was sitting hearing all the evidence on this matter, one of the applicants - I think it was Mr Madasi, when he was asked as to whether they had any conversation in the vehicle whilst driving to the tavern, his answer was
"We never had any conversation, we were just singing"
	There was not attempt whatsoever to find out - to get any information about the place they were going to and the impression I get from that is, these were just people who wanted to carry out the orders.

MR PRIOR: I must agree with you, that was the evidence and whatever questions were put to them, they stuck to that that they never discussed the target - although it was suggested at some stage that that was improbable, that they would not even have discussed afterwards what had happened because that was the evidence.
	They never - once they had disbanded and dropped the weapons off and parted, not even at that stage was it discussed.  But I do agree with you, that was their evidence - that they were simply singing, they weren't discussing what they were to do and they all seemed to know what to do at the Heidelberg Tavern when they got there - I can't take it any further than that.

CHAIRPERSON: Mr Arendse, are you going to reply to the argument advanced by Mr Prior?

NORMAN ARENDSE: Just briefly Mr Chairman.

CHAIRPERSON: Yes?

NORMAN ARENDSE: Mr Chairman, ...[intervention]

CHAIRPERSON: Would it be convenient for you to do it now?

NORMAN ARENDSE: Yes, I shouldn't be longer than 5/10 minutes.

CHAIRPERSON: Let's hear you.

NORMAN ARENDSE: Mr Chairman, the analysis done by Mr Prior on APLA's strategies and objectives and so on, would carry a lot of weight in a normal situation but the fact of the matter is - and we don't need evidence to be placed before this Committee, is that we were - before May 1994, in a grossly abnormal situation.  It is not appropriate to subject the strategies and the political objectives of any organisation for that matter, to the kind laboratory analysis which my learned friend attempted to do.
	This Committee has - the Act recognises this and the Committee has recognised it by granting amnesty to - for example 
Coetzee and Mitchell, by simply looking at the chain preceding the commission of the offence - the chain of command, did that person get an order or didn't he get an order.  
	The Committee hasn't gone beyond that and it hasn't done so for good reason, it hasn't done so because then the Committee will become embroiled in political debates, it will start making value judgements.  In other words, this Committee with respect, cannot objectively look at whether or not a political objective or a political aim was objectively sound and valid etc.
	The Committee has to rely - in the nature of it's work, it has to rely on the belief of the perpetrators of an act or of an offence.  For as long as that belief is not so outrageous or so unreasonable or so insupportable, the Committee has set a precedent by accepting that: "If that is what you believe, then - and it can be supported and it's not impossible, then we will accept what you say".  And that was done in the case of Coetzee, it was done in the case of Mitchell and it should be done in the case of these youngsters.
	These youngsters were sitting in the Transkei, you have a command who is sitting in Dar es Salaam or wherever - in the situation which prevailed at the time, it is impossible for them to have had communicated to them what exactly this strategy would be, how this strategy would be carried out.  
	There was a lot of misinformation, miscommunication yes, and that often led to misinterpretation of instructions and orders and it may well be that the Heidelberg and the St James may be such examples.  But the fact of the matter is that these applicants did not commit the Heidelberg Tavern massacres on their own account or for their own benefit, clearly they did not do so - the evidence cannot be attacked.
	In fact, one of the regional PAC members applied for amnesty and was granted amnesty by this Committee - Mr Siyolo, for harbouring - I think, APLA members, so there was a support structure.   They believed that they were given a genuine order and they carried out that order and that is how far it should be taken otherwise you get into a situation whereby you now have to call PW Botha and FW de Klerk to come here and say to you exactly what they meant when they told people to carry out certain instructions.
	In fact, it is of interest to note that they have publicly said - maybe not before this Committee, that: "We never told Dirk Coetzee and other people to do all these terrible things that they did" and the Generals have also said so.  Notwithstanding that, this Committee has accepted in amnesty applications, that people during the course and scope of their duties, they believed they were conducting a war against the ANC, against the UDF, against APLA, against the liberation movements - they had a genuine belief that they did that.
	If we go too far, then I think the Committee runs the risk that it then begins to make political choices and passes value judgements and that - with respect, should be avoided.
	Just another aspect, it is also common knowledge and a fact that is sufficiently notorious for this Committee to accept and that is that the PAC had not as at December 1993, renounced the armed struggle - that is a fact of the matter and we also know as a fact that APLA was the armed wing.

CHAIRPERSON: ...[inaudible] that the PAC may have made statements but APLA had not.  In other words, the military wing had not taken the decision, though the political wing may have, is that not the position?

NORMAN ARENDSE: No, that is not the position with respect Mr Chairman.

CHAIRPERSON: So, although their decision was not taken, the PAC was involved in these negotiations?