Amnesty Hearings — Cape Town — 2000-11-18

MR MARTINI: Well we don't know that there were 15.  If you accept the evidence there were 15, but I'm not going to dispute there was an injury, I'm dealing with the inference which the Respondents seek to draw and to say, 'you have not made a full disclosure because you didn't tell us you intended to kill'.  Chairperson, I'm not sure how far I must go, because every now and then when I stress it ... but no such inference can be drawn.  And one just has to look at the evidence, because another inference could be drawn.  Yes, they didn't want to kill, but look at the proven facts, factually nobody was killed.
	Now Mr Williams cross-examining Mr Hardien confirmed, yes Mr Hardien walked in and saw Mr Williams.  Now if Mr van Zyl, who had a remote control device, wanted to ensure that they killed the people, why not press the button then?  He's just been told: "I saw Mr Williams inside", kill him.  Why would Mr van Zyl run the risk of exposing himself.  He could have planted, for example, a bomb, a time-bomb and say look, 'I know the meeting's running from eight till nine, I let it explode at quarter past eight, guaranteed I'll kill them'.  Why didn't he do that?  Why does he take the risk to go there?

MR LAX: Well that's a very good question, because the plan was that he shouldn't go there and in fact he was instructed not to go there, but he disobeyed that.

MR MARTINI: Correct.

MR LAX: Look, the simple issue is that when we're dealing with what his objective was, his objective was to go there to blow up the building, but to blow it up in such a way that it would have certain consequences.  That's what he testified.  And the Objectors are basically saying, if I understand their Heads correctly, that that's simply not borne out by the facts and that the only inference you can draw is that that's not possibly true.
	Now you relied on Hardien seeing Williams in there, but what Hardien says he did when he went into the building is to warn Williams that there's a bomb in the thing.  I mean, do we believe that bit of evidence?

MR MARTINI: Chairperson, I'm not here representing Mr Hardien, for all I care you can - on the relevant facts, Mr Hardien can be believed on relevant facts, but whether Mr Hardien told Mr Williams there's a bomb in there, there's a dispute.  Mr Williams says that's nonsense and they had a bit of an altercation with the use of the words that were used.  But that's irrelevant, because to get - the objective once again is irrelevant, it's not a requirement, Mr Lax.  But to come to the inference, how can the Committee possibly not draw another inference that the applicants and Mr van Zyl did not intend to kill?  When?  The facts are, no-one died.  	Touching on the Barnard thing about nails, the facts are there were no nails.  Now that comes back to accepting Mr Barnard's version.  Botha says he was the last person who put the bag in the haversack, there were no nails.  Mr Steenkamp, the bomb expert who came to ... there's a statement by him - no nails.  Mr Oesman who is the only victim who testified, didn't tell us there were nails.  So ...

MR LAX: But it's common cause there weren't nails, the issue was that Van Zyl allegedly told him that.  That's what Barnard said.  Barnard didn't say there were nails, he said: "I was told there were nails".

MR MARTINI: Sorry Mr Lax, that's not common cause.  Mr Bizos said there will be witnesses, not one, in a debate with Mr Wessels, that will testify there were nails.  So it's not common cause.  And we haven't heard any such witnesses, other than Mr Barnard.  So it's not common cause that there weren't nails, it's contended by the Respondents, they said evidence was going to be led ...(intervention)

MR LAX: It's not contended in their Heads, so let's just move on.

CHAIRPERSON: I don't think there's any basis on which we can find there were nails attached to the bomb, there's no evidence before us.

MR MARTINI: But then that's important, because then it affects the credibility of Mr Barnard, 'cause Mr Barnard says that and it's a question the Chair asked me earlier: "Well what do you have to say?"  And I've been criticised for not questioning Mr Barnard on that issue.  You see the dilemma, Chairperson?

MR LAX: It's a bit late now to be raising all these things if you didn't put them to him, but anyway ...

MR MARTINI: That's not the point I'm making, I've just been told that it's common cause there were no nails.  Are you suggesting now Mr Lax, that the Committee might find there were nails?

MR LAX: Please just move on, I'm not suggesting that and I've already said the opposite.

MR MARTINI: So the issue Chairperson is, can the only inference to be drawn is that they intended to kill?  I submit, no.  For the reasons I've elaborated upon.  There was no such intention, and the probabilities are against that intention, supported by independent facts.  Independent facts and revival evidence, Chairperson.
	In the circumstances, Chairperson, I submit that the applicant has complied with all the requirements of the Act and that full amnesty, both criminal and delictual or any delict or offence which may flow ...(intervention)

CHAIRPERSON: No, I don't think we're empowered to give partial amnesty, if we grant amnesty the effects flow from the Act.  I don't think we would be allowed to grant amnesty, but exclude amnesty from criminal prosecution or delictual ... or make an order that the record, if he's convicted, doesn't get expunged.  It's a consequence of it.

MR MARTINI: Chairperson, my first appearance and I'm not sure, so I just raise it in my argument.  And I would like to conclude that it was a please and an honour to have appeared at these proceedings.

GEORGE BIZOS: ...(inaudible - no microphone) to have an adjournment, could I raise a small matter of some importance to me?

CHAIRPERSON: Certainly, Mr Bizos.

GEORGE BIZOS: In this lengthy argument there are no references to the record.  I would appeal to Mr Martini to please turn page 52 of his Heads, in which he says" "For example, Mr Omar quite clearly from his position today, and as was conceded by Mr Bizos, was a high-ranking member of the ANC, involved in an armed struggle against the State".  I have no recollection of ever having said anything like it, my learned friends that are acting with me have no recollection.  If it does appear on the record, I would dispute it's correctness.  So Mr Martini in this reference free Heads of Argument, at least find that reference for my benefit, Mr Chairman.

MR MARTINI: Sorry, Chairperson, if Mr Bizos could refer me to what page?

CHAIRPERSON: Page 52 of your argument, just below the middle of the page.  If you take a look it says: "For example", go down the right-hand column.

MR MARTINI: Well what I intended to mean here, Chairperson, and it's not what Mr Bizos - and I'll correct it, because I intend correcting another issue as well, and I should have ...(intervention)

GEORGE BIZOS: ...(inaudible - no microphone) affects my ability as an Advocate, saying this contrary to my instructions.  Let's correct this thing and then Mr Martini can correct anything else that he may want that doesn't affect me.  What is it that he wants to correct and what does he want to say about it?

MR MARTINI: Chairperson, I'm not Mr Bizos's son and ...(intervention)

MR LAX: Listen, let's just get on with it.

MR MARTINI: What I'm trying to correct here and I wanted to correct another issue, was, and I should have done it at the beginning, what it is intended to mean there is not that Mr Bizos conceded that Minister Omar was involved with the armed struggle, what Mr Bizos conceded was he was a high-ranking member of the ANC, and what I'm ...(intervention)

GEORGE BIZOS: But it's false ...(inaudible)