Amnesty Hearings — Cape Town — 2000-11-19

UNKNOWN: Thank you Mr Chairman.  Some concluding remarks Mr Chairman, ...(indistinct) what we have said, but some concluding remarks in which the validity of our arguments come to test.  You will recall the evidence of Kalla Botha that he was asked by Barnard to help him kill Webster.  You heard the evidence of Kalla Botha that he did help him to kill Mr Webster.  You heard the evidence of both that they got R15 000, they shared it, one third, two thirds.  Now that evidence is uncontradicted.  We know that Kalla Botha got R200 000 after that event, so that he was a member of the CCB at the time.  That's also a fact that easily can be found to be true.   He, Kalla Botha and Barnard say that they did it on the instructions of Verster and the gentleman whose affidavit was handed in later.  Now what I have related is important in a number of respects which negatives the validity of the arguments that have been advanced by learned friends in relation to relevance and relation to the importance of the conduct of this ...(indistinct)
	Now can it be said that it is irrelevant that Botha admits to a crime of murder, Barnard may have had all sorts of motives for implicating Verster but can it be suggested that Kalla Botha is lying about that?  I submit that we will find this a fact that he is not lying about that because of the high degree of improbability that a person admits to committing murder, if he hadn't in fact done it.  Having regard to the other acts that Kalla Botha had admitted to doing for the CCB, the question arises, where did the R15 000 come from, other than the CCB?  The probabilities are that Barnard and Kalla Botha don't murder people for nothing.  On the probabilities they must have believed that they got R15 000.  They say that they got it from the CCB through ...(indistinct.)  What is the evidence against it?  An affidavit which doesn't carry the weight of viva voce evidence with an opportunity to cross-examine.  Therefore you will find as a fact that that is correct.  Is it irrelevant and shouldn't you really concern yourself about it?  Obviously it is relevant.  Let us ask, why is it relevant?  Kalla Botha got another R5 000.  Barnard got R10 000.  Does that impinge upon Kalla Botha's application that he got another R5 000 from Barnard and he didn't disclose it in his application?  How can it be irrelevant?  Let us now move from the particular ...(indistinct) it's irrelevant.  How many other similar incidents were there?  You will not know because they refuse to answer questions.  My learned friend, Mr Wessels, an experienced Senior counsel, doesn't call his client to ...(indistinct).  What inference are you to draw?  He cross-examines Botha and calls him all sorts of names under the sun - Barnard, calls him all sorts of names under the sun, justified, but on the point on issue, really we merely have a denial put in cross-examination.  One would have thought that his client would have wanted to come here speedily in order to subject himself to examination that this is not so.  Now it illustrates - that incident illustrates the validity of our submission that where acts are committed in furtherance of a conspiracy, relevance is not to be confined to the particular acts which they chose to ask for amnesty for and we must close our eyes and ears and block our minds in relation to other matters in relation to which there is some evidence that there was - that they were committed, or may have been committed in furtherance of that conspiracy.  It's very important on the probabilities, if they were prepared to kill Webster, Omar, Gavin Evans, why not Lubowski, why not poison wells, why not the other things that the diary suggests as projects?  What were these projects?  Why don't they speak on the outside matters like the jail break in Zimbabwe?  All these are relevant factors and the authorities are clear, Mr Chairman, that where there is direct evidence in relation to a point and it is not so fanciful and hallucinatory that it can be discarded without asking any questions and that evidence is not rebutted, then it strengthens - the cases are well known, that's Smith versus Smith in the South West African decision.  It's quoted with approval. It's the SARFU case in the Constitutional Court and it goes even further to say that professionally you are not entitled to say to a person that you he or she is lying without calling the available evidence in order to contradict it.  I know or we know, and I'm sure that the Committee knows, that the applicants have taken up an attitude that we will not answer before the Harms Commission, we will not answer in the Webster Inquest and we will not answer here on a number of spurious grounds, including legal advice and what I want to say very briefly about that, that if you're going to use legal advice, there are certain prerequisites which you have, to identify the counsel, you've got to give evidence as to what the facts were that you put before the counsel and put the reasons of the counsel that you have consulted in order that the Court may examine.  None of this has happened.
	We submit that the evidence of Barnard is but a glimpse of what we would have heard if the applicants were going to be honest and forthcoming and spoke the truth.  We submit that they have not and that it was a conscious decision and insofar as it is necessary, and we submit that it is, they must pay the price of having their applications dismissed.
	Mr Chairman, we have avoided to use the word onus, or burden or persuasion to ...(indistinct), we have done so deliberately because labels do not really help, but what we do submit is that the words of the Section are clear, you must be satisfied and that's all you have to say, with respect.  We are satisfied that there are no facts which have been placed before us to satisfy us that this is what has happened and there is good authority for that proposition.
	Mr Chairman, true to my promise, we will not say anything more.

CHAIRPERSON: Thank you Mr Bizos.  Sorry there's just one point on clarity, it hasn't been said specifically.  With regard to Mr Barnard and the Omar incident, is it then application opposed by the victims in respect of no political objective and/or personal gain?

UNKNOWN: Sorry, in relation to Barnard?

CHAIRPERSON: yes.

UNKNOWN: Full disclosure.

CHAIRPERSON: Well full disclosure you said, but is the application opposed.

UNKNOWN: But we say that we leave it to the Committee as to whether or not he has satisfied ...

CHAIRPERSON: With regard to the other criteria.

UNKNOWN: Bearing in mind the argument ...(indistinct - speaking simultaneously) because it's part and parcel,

CHAIRPERSON: Yes.

UNKNOWN: They can't be separated and in some instances ...

CHAIRPERSON: Okay thank you.

UNKNOWN: to a lesser or greater extent.

CHAIRPERSON: Thank you.  Than you Mr Bizos, Mr Kahanovitz.  Mr Hockey.