Amnesty Hearings — Cape Town — 2000-11-18

MR LAX: Mr Wessels, we are faced with that argument so often and it will shock you to know that many people have come before this Committee and we're dealing with one or two matters, and it's been proven before us, sort of almost beyond a reasonable doubt ... this is conundrum that has faced us many times, people come before us, they tell us one version, when they could so easily have come and told us the truth.  We don't know why people do a thing like that, but it's something that happens often before us and it's in one of those peculiar quirks of human nature, I think.

MR WESSELS: Mr Chairman yes, and it's very important that one has regard to that in this particular case, because as I started I said that especially in the case of Verster, there's a public perception that surrounds him and one becomes sceptical if one sits in these proceedings, if you sit in criminal courts day in and day out, one becomes hardened against a lot of excuses that are advanced in these sorts of forums and especially in the case of a person with a certain profile.  And that's why you have to disassociate yourself with that sort of preconceived - and I don't mean it in a derogatory sense, but that sort of feeling that you know, it's probable that he's not telling the truth, he came here coming to tell lies.  You must take it as a new matter, give him the benefit of the doubt, if there's a doubt.

MR LAX: You can rest assured that we look for the positive in every single person who appears before us.

MR WESSELS: Thank you, Mr Chairman.

CHAIRPERSON: Thank you, Mr Wessels.  Who is going to follow Mr Wessels?  Do you want a five minutes stretch legs adjournment?  We'll just have a short adjournment and then the applicants can, amongst themselves, decide who is going to be next.

MR MARTINI: Mr Chairman, we've decided, we're going the order of the hearing.

CHAIRPERSON: Okay.  Yes, we'll have a short five minute adjournment.

MS LOCKHAT: All rise.
COMMITTEE ADJOURNS
ON RESUMPTION

CHAIRPERSON: Yes thank you.  Mr Martini.

MR MARTINI: Chairperson, thank you.  Chairperson, as the Committee is aware I represent Mr Abram van Zyl, otherwise known as Mr Slang van Zyl.
	Mr Chairperson, I do not want to, in the interests of time, rehash all the law that Mr Wessels has dealt with, but I associate myself with the arguments.  My Heads, I do believe, are rather comprehensive.
	Just to touch on the issue, Chairperson, of the purpose of the Act.  The purpose of the Act is to grant amnesty and one shouldn't be bogged down in minor technicalities or minutia relating to certain facts pertaining to the incidents.  And it's my submission, as I've elaborated in the Heads, that the Act should be given a broader, a more liberal interpretation, it shouldn't be interpreted restrictively.  And it must be interpreted in a benevolent manner.  
	After all it's the applicants that come, Chairperson, to this Committee and incriminate themselves.  There shouldn't be, to touch on the test of satisfied, there shouldn't be a heavy burden placed on them.  And my submission is that, as Mr Wessels stated, the test is, it must be reasonably possible, the version.
	What appeared to be a contentious issue, Chairperson, I've submitted in my Heads the proportionality.  I do believe that Section 20(3) are indicia, they're not requirements, they are there to assist of factors to be taken into account in order to determine whether the act was political or there was a political objective involved.  And I also say proportionality does become irrelevant, as raised in my Heads, because I say in these facts one has to look at what happened, was the result a grave result?  In most instances I'd say it was not, save possibly for the Early Learning Centre, it's a bomb, it destroyed the building, but still there weren't deaths, the results were not tragic.  And it's my submission that proportionality has no relevance.
	But insofar as the Committee may believe there's relevance, Chairperson, one has to look at the situation which prevailed.  The situation, it is submitted in my Heads, was a situation of war, it wasn't a simple political disturbance or uprising.  People were being burnt alive in this country, bombs were going off, innocent civilians were being killed, from actions carried out by the liberation movements.  It's tragic but it happened.  That's our history and it's regrettable that it happened.
	To revert back to the question of full disclosure, Chairperson, I associate myself with Mr Wessels, but at the same time it's quite clear from the wording of the Act, that there must be a full disclosure of relevant facts relating to the act for which application is made for amnesty.  Now on the clear reading of Section 20, it says:
"The Committee, after having considering an application for amnesty, is satisfied that the application complies with the requirements of this Act.  The act, omission or offence to which the application relates, is an act associated with a political objective committed in the course of the conflict of the past, in accordance with the provisions of (2) and (3) and (c), the applicant has made a full disclosure of all relevant facts"
and it goes further, which my learned colleague did not elaborate on:
"it shall grant amnesty in respect of that act, omission or offence"
so it refers back to (b).  So it's quite clear that there must be a full disclosure of the relevant facts, but that must also be of the relevant facts pertaining to the act for which an applicant applies for amnesty.

CHAIRPERSON: Ja, but I think one also - it's those words that led to the reversal of the so-called "ANC37" decision, that prevents the granting of so-called blanket amnesty.  You've got to only grant amnesty in respect of certain specific identified acts.  That's quite clear.  But does that mean like you interpret it as well?  For instance, when you've got a conspiracy to kill 30 people and the conspirator only applies in respect of one, are the other 29 completely irrelevant?

MR MARTINI: The disclosure relating to those facts?

CHAIRPERSON: Yes.

MR MARTINI: If the co-conspirator applies for a particular act, the point I'm trying to make Chairperson, is if a party applies, he's not seeking blanket amnesty from the Committee, he takes the chance.

CHAIRPERSON: Yes, but what I'm saying is, are those words not contained in the Act, to prevent the granting of blanket amnesty, rather than to restrict, in all cases, the Committee from taking considerations of secondary facts that might be relevant to the subject matter concerned, like in this conspiracy theory where you conspired to kill a whole bunch of people but choose only to apply in respect of one?

MR MARTINI: No, I submit a twofold argument on that basis, the Committee can't grant blanket - if the Committee grants amnesty to Mr van Zyl, for example, for the acts, it can never be said that he's got blanket amnesty for other conspiracies which the CCB might have been involved in, because then we're come into all different tests.  So he can't have his cake and eat it.  He can only apply and get amnesty, full amnesty, for the acts for which he applies.  And he's got to make a disclosure in respect of those acts, because he takes his chance.  If the Committee finds well I believe there was evidence you ... and you don't grant amnesty, Chairperson, then possibly if the Attorney-General decides to prosecute, there's a prosecution.  That's the chance he takes.  But my submission is yes, there's no blanket amnesty once the Committee has granted amnesty.  If the Committee grants amnesty, no applicant, in my view, can allege later on a totally different act and say well I got amnesty.