Amnesty Hearings — Cape Town — 2000-11-19

UNKNOWN: Sorry.  What we say, Mr Chairperson, is that the Committee should find that Section 20(1)(c) has not been complied with and that we should take the following facts into consideration.  Could I give you the references, Mr Chairperson?  As a whole we would refer you to paragraphs A158.1 to 7.  Sorry, could you put above that 1.5?  1.5, then 158.1 to .7 and B, paragraphs 391 to 396 where you will define the evidence discussed and also at A, 160.1 to 160.6 and on the strength of the analysis of that evidence in those paragraphs, we would ask you to make the following findings of fact, that Barnard was never tasked to monitor Omar but was instructed to kill Omar by Van Zyl and Van Zyl's evidence to the contrary is false, that Van Zyl handed to Barnard a Makarov pistol with a silencer to be used for assassination.  In or about September 1989, Barnard on Van Zyl's instructions, entered the premises with a firearm and had the opportunity to shoot Adv. Omar but declined to do so.  When Van Zyl was informed about the above he was angry and told Barnard that he should have shot Omar and the woman as well and that Barnard was paid R7000 by Van Zyl for his role in the attempted murder of Advocate.
	May I ask you to make a new paragraph 22.6, Mr Chairperson, on page 11, that the probabilities on these issues strongly favour Barnard's version.  May I just amplify that?  
	What was Peaches' mandate at the time?  He had failed.  And how does a high-profile killer do in the vicinity of the Omar home where a killing is to take place, sitting in a car watching the would be killer to do what and report?  It becomes even more ridiculous when one has regard to the fact that he wasn't to watch Peaches only because he was not going to do the killing.  Peaches was going to hire two other gangsters to do the killing and presumably Peaches would be watching them and Barnard would be watching Peaches.  Well when he had, to his knowledge, at his disposal an experienced and ruthless killer Barnard, the temptation to use him and not partake in what is really a charade on his evidence, is so highly probable that whatever the demerits of Barnard may be on general grounds having regard to his most unsatisfactory past, the probabilities clearly favour Barnard's version.
	The essence of it, even though it was by another court, but Mr Martini tries to wrongly use the finding in his favour.  It was in fact found as a fact that Barnard attempted to kill Omar and Barnard was sentenced to ten years imprisonment on the basis of that finding, not that he was there merely to monitor the movements of - it is true that the learned judge was generous, which judges are when they are not compelled in order to reach the conclusion that they want to make strong findings against a witness before them who is an accomplice and who is seeking amnesty.  That generosity in that regard should not be repeated by this Committee towards Mr van Zyl because at that trial Mr Barnard was in denial and the learned judge did not have the benefit of the evidence of Barnard that you have had in order to make, to round off on an additional and ...(indistinct) ground why his lordship Mr Justice Els was correct in finding Barnard guilty of attempting to murder Omar.
...(inaudible) Mr Chairperson, that generally speaking the State supports applications for indemnity under Section 20(4).  Significantly the prosecution, it's a factor to be taken into consideration which in itself may have not been enough.  The State there opposed the grant of amnesty - not amnesty, indemnity to Van Zyl because of it considered his evidence unsatisfactory.  But that taken alone would have been and I say well it was what the judge thought and not what the State thought of its witness that really is material or more important, perhaps.  But now that we have the evidence of Barnard that the learned judge was correct and that Van Zyl was in fact lying on this aspect, it is submitted that it may well be that even the indemnity may not serve Mr Van Zyl well if in fact it was obtained by false pretences.  But anyway, this is not a matter for the Committee.  What we do urge the Committee to find on the probabilities that Barnard was telling the truth and that Van Zyl was not.
	We want to refer to paragraph 23 on page 11 and I would ask you to note that the matter is dealt with in detail in A162.  This is paragraph 23.   In 23.1 we say that Van Zyl was instructed to monitor Omar in order to establish whether he was a suitable target.

CHAIRPERSON: That was contained in the amnesty application, in the statement.

UNKNOWN: Yes.

CHAIRPERSON: Which differed from the evidence.

UNKNOWN: Which differed.  Van Zyl in fact instructed to establish suitable method to assassinate Omar who had already been selected as a target.  The information received about Omar could not be placed before a court and accordingly it was for this reason that the extra legal methods had to be resorted to.
	Now in paragraph 24, Mr Chairperson, we submit that the applicant, besides Barnard, either falsely denied participation and/or falsely denied knowledge of certain further acts prepared by the CCB involving the actual assassination or the planned assassination of persons which with a similar profile to Omar, we will develop that argument. But may I ask you to merely note against paragraph 24, A92 to 108.  
	Perhaps this is a convenient stage for me to place on record, Mr Chairperson, Minister Omar or Dullah Omar's attitude and our instructions in relation to the matter of his attempted assassination, we are instructed to place on record the following, Mr Chairperson, that Mr Omar accepts without reservation that Mr Barnard made full disclosure in relation to the attempted killing of himself.  He has publicly and wishes to repeat that he forgives Mr Barnard particularly as he, in Mr Omar's belief, has made full disclosure and he has instructed us not to oppose his application for amnesty on this ground of full disclosure.  However, Mr Chairperson, as a person in public life he is concerned that it should not be viewed in the light that the is trying to influence the Committee in relation to either the decision as a whole or the other requirements which Mr Barnard has to satisfy in order to obtain amnesty.  He has left it to our discretion to draw to the attention of the Committee aspects which may not entitle because he is after all part of a group and we cannot be selective in our submissions as to what is a proper finding before this Committee.

CHAIRPERSON: Like for instance you've dealt with personal gain aspect.

UNKNOWN: The personal gain and other matters, the equally apply to him and Mr Minister Omar is not, want to be perceived to be expressing views on matters which are not of his - within his province.  I think that makes the position clear, Mr Chairperson.  Thank you.
	Then we deal with the question of absence of authority and we say no credible evidence has been produced to show that Verster was authorised by General Webb to instruct.  In view of our other argument, Mr Chairperson, could I ask you to put employees in inverted commas because employees within the meaning of the section means something - if you could just put it in inverted commas, I don't want it to be suggested that we concede that even that has problems because we're going to refer you, there is in fact a contradiction between the definition section and the sub-section in section 20.  But we will develop that argument that for the purposes of Section 20 on the facts of this case they are not employees, Mr Chairperson and we deal with it in paragraph A59.  Have I given you the reference Mr Chairperson?

CHAIRPERSON: Sorry, this word "employees?"

UNKNOWN: In inverted commas, if you would please.

MR LAX: You say the reference was A59?

UNKNOWN: A59.

MR LAX: Thank you.