Amnesty Hearings — East London — 1998-10-07

MR ZILWA: The point I'm trying to make Mr Chairman is that when this newspaper, when this article was written it is clear that the killers, the killers of the Weakleys were not known and accordingly no De Klerk motivation for such killing had been made, but the point I'm making is, despite that fact, despite the fact that the perpetrators of the killing of the Weakleys had not been published nor their motive, but the point made by the applicants that it was so obvious that everybody would deduce that it had something to do with Chris Hani and his killing is born out in this article.  What is clear here is that at the time the article was written, there was no idea, nobody had any idea as to who had done the killing but it is clear that there is a very good speculation, a very accurate speculation as to why the killing was done which means that the motive which the accused, which the applicants wish to attain i.e. sending a message that it was done to retaliate Chris Hani, was clearly born out as it appears clearly in this article.

ADV SANDI: If one makes a finding that the applicants were acting mala fide - no, no, let me put it this way - if one comes to the conclusion that when the applicants committed this act they were acting mala fide, in other words they subjectively believed that what they were doing was in the interests of the organisation referred to.  Does it make any difference as to whether the act committed coincides or conflicts with the policy of the organisation in question?

MR ZILWA: My submission Mr Chairman would be the Act makes reference to the motive of the person who committed the act, the motive of the person.  As I say, this would seem to introduce a subjective element, his motivation, what drove him to do the thing.  Now the evidence of the applicants was that their belief was such that they felt that by committing this offence, the objective which has already been referred to, i.e. the retaliation and the sending of the message for the -to other would be assassins, would have been achieved.  So to address your question, it would be my submission that even if it could be said that with the benefit of hindsight and all that, in fact their act was not on all fours with the policy of their organisation.  If they subjectively believed, as I would submit that there's no evidence to indicate the contrary, if they genuinely bona fide subjectively believed that their actions were such that they were furthering their interests of the organisation.  In my submission that should be sufficient to make them qualify for the amnesty.

ADV SANDI: Is their any conduct on the part of the applicants on the basis of which one could say they must have known that what they were doing was contrary to aims and objectives of this organisation.  Is there any conduct on their part?

MR ZILWA: I would submit Mr Chairman that there is absolutely no indication whatsoever that would give rise to such an inference.  In fact on the contrary, to fortify their stated belief that they believed they were acting in the furtherance of the objectives of their organisation, uncontradicted evidence which has been given is that after they had committed the offence, they proceeded to the higher echelons of their organisation, they had reported to Ntekiso who in turn reported to Madikizela and so on and so forth, that is within the organisation.  After committing the act, since as I say, they subjectively believed it would be in furtherance of the objectives of the organisation.  They went to their organisation and said "We did this and this is our motivation".  That would in my submission fortify what they say, that they genuinely and bona fide believed that they were furthering the interests of their organisation.  Hence they approached their organisation after committing the acts and actually telling them everything because they claimed or they believed to be doing that under the banner of the organisation.
	So what I'm saying is, contrary to any affirment that there was no bona fide belief on their part that they were furthering the interest of their organisation, all indications by them subsequent to the commission of the defence are such that they genuinely believed that they were furthering the interest of the organisation, hence they reported the act to them.  So I would submit that that should over and above everything else that they have stated, go to fortify their stated belief that they were furthering the interests of their organisation and I would further add that there's not an iota of evidence to even suggest that at the time they committed the offence they knew because the relevant time is the actual time of the commission of the offence.  They knew that they were acting against the interest of their organisation and to take that even a bit further there is uncontroverted evidence on their part, that they had intended to carry on similar operations but to show that at all material times they wanted to remain within the bounds of the policies of their organisation, when it was pertinently brought to their attention that in fact, contrary to their belief the feeling of their organisation i.e. the ANC was such that even though this dastardly act had occurred but people should really not take it personally upon themselves to retaliate or to do anything else.  When they received the message that the President of the organisation, President Mandela, was in fact appealing for calm and for people not to take the law into their hands with regard to this particular incident, they obeyed that ...[intervention]
ADS. DE JAGER:   Mr Zilwa, it's not required by the Act that they should act in the interest of the ANC.  Section 22(a) says bona fide in the furtherance of a political struggle.

MR ZILWA: That is - I'm quite aware of that, Mr Chairman, the argument I'm advancing is just a caviller, so to speak, it's over and above the requirements of the Act, even if it could be said that strictly speaking it had to fall within the furtherance of the interests of the ANC, that is not even a requirement.  But what I'm saying is, even if the requirements of the Act were more stringent than what they in fact are, the applicants would still be falling within the purview of the category that should be granted amnesty.

ADV SANDI: But surely the act committed must be something falling closer to the interests of that organisation?