Amnesty Hearings — Boksburg — UNKNOWN

CHAIRPERSON: Tell me, what is the significance of the fact that there was this change between April and November, that he acted on his own and then subsequently in November they say that they acted together?  The evidence that we've heard is that they acted together, what is the significance in this difference?

MR MALINDI: Chairperson, it shows that the Applicants have not been consistent.  In April 1996 when they filled their Application forms, they were aware of the facts.

CHAIRPERSON: Well are they not entitled to correct it?

MR MALINDI: Chairperson they are entitled to correct it but their corrections tend to show a deliberate attempt on the part of the Applicants to do things either in this instance, in order to lessen Mr Derby-Lewis' role in the whole plot.

CHAIRPERSON: But they openly making it patently clear to anybody that they've said something, they know that if they are going to change it in November they will be criticised for contradicting what they had said and yet they make it quite clear that look hear, we said this in April, in November we now want to say that the two of us acted together.  So what is sinister about that?

MR MALINDI: Chairperson it may go to credibility of the Applicants but also when we later deal with the evidence of Mr Walus who, despite the change in the November page that they acted jointly, then in evidence changed his version to consistently try to say he was acting under orders.  There's an inconsistency from April '96 to November '96 to when they give evidence before this Committee.

BERNARD MAKGABO NGOEPE: You could argue that they changed but what they initially said could not have been a mistake.  It's one thing to, well, everybody are entitled to make mistakes and then of course correct them, but what they said earlier on, right from the beginning, whatever they said, which they sought to change later, could not have been a mistake because it is in respect of something, the facts are on that particular thing were in their knowledge.

MR MALINDI: The facts were in their knowledge Chairperson, except that in April when Mr Walus said he was acting alone, he was wrong at that stage, so although he

BERNARD MAKGABO NGOEPE: But could that have been a genuine mistake?

MR MALINDI: It wasn't a genuine mistake Chairperson.

BERNARD MAKGABO NGOEPE: It's the point I'm making.

SISI KHAMPEPE: You will remember Mr Malindi that the reason that was advanced by Mr Walus for the change was that there was no legal representation.  Just to latch on on what my colleague has just said Chair that it couldn't have been a mistake.  These were facts that were within their knowledge all the time.

MR MALINDI: Yes, thanks Chairperson.  Chairperson, on Page 25, Paragraph 7, we deal with the question as to whether the Applicants were acting on behalf of or in support of the Conservative Party.  At 7.2, we make the submission that they could not have been acting on behalf of the Conservative Party because leaders of the Conservative Party, including Dr Hartzenberg who gave evidence before the Committee clearly states the policy of the Conservative Party which is that the CP had no policy to use violence to achieve it's political objectives.
	And Mr Bizos has dealt already with those submissions of and statements made by various political leaders of the Conservative Party.  Chairperson, at 7.4, I would like to add the following references, Second Record 791, 796, 799 and 811.  And at 7.5 I would like to add the reference Second Record 805 - 806 which is a reference to where Dr Hartzenberg said the CP was in 1993 committed to peaceful solutions and the CP is still committed to peaceful solutions.
	And at 7.12 which is on Page 27 on to Page 28, if I may correct the following references, it's R1 Volume 9 and at 7.13 it's Volume 9 again, R1 Volume 9, 7.14 R1 Volume 8.  Chairperson at 7.3 we respond to the reliance of the Applicants on various statements made by their leaders which also have already been dealt with by Mr Bizos and the submission that we make in relation to their reliance on his statements is that when Mr Du Plessis spoke in Parliament against people who interpret or interpreted Dr Treunicht's speeches as speeches calling for war and our submission being that that speech in Parliament was made after many of these speeches by the CP leaders were made and we submit that that Parliamentary speech cancels any notion that ...[inaudible] Monument speeches and the Voortrekker Monument speeches were a call to violence.
	And Chairperson on Page 34, 7.3.15, we make a point that if the Applicants are relying on Exhibit A3, which was only adopted on the 26th March 1993 then they were very much ahead of the CP in that they had taken a decision to assassinate Chris Hani long before the adoption of this document and we also dispute that this document, at the time of it's adoption meant that the CP had moved over to violence.
	We submit that the options that were still available to the CP were participating in elections or in elections in negotiations with other parties at that time.  Still on Page 34 at 7.3.17, Chairperson I would like to correct the reference there where it says 9 Record, that will be Second Record of this hearing.

BERNARD MAKGABO NGOEPE: Mr Malindi, sorry to interrupt you, this point is being repeated again that the CP was involved in negotiations at the time around March/April 1993.  I'm not so sure if that was the case.

MR MALINDI: Chairperson

BERNARD MAKGABO NGOEPE: The multi party talks, didn't they commence more or less around May 1993?  And as far as I can recall, the CP was not there.

MR MALINDI: Chairperson, Dr Hartzenberg has admitted before this Committee and I will find a reference that they were involved in multi party forum negotiations, the Applicant Mr Derby-Lewis has considered that point and Mrs Derby-Lewis has also considered that point.  That they were involved in negotiations at the time.
	At Page 26 Chairperson, 7.5, Dr Hartzenberg was giving this interview on the 20th April 1993, the day after Chris Hani had been, the day after the funeral and he said that the CP was still involved in negotiations, the multi party conference negotiations which were being held and reference is at the paragraph itself.
	Chairperson at Page 36 which is acting in the course and scope of duties and within the scope or express or implied authority, Chairperson if our submission is correct that the Applicants did not act on behalf of the CP, then this submission becomes superfluous but in their Heads they do contend that they were acting within the course and scope of their duties and Mr Bizos has already made a submission that in order for the Applicants to rely on course and scope they should be able to state what duties, what tasks had been given to them by the CP within which they claim to have assassinated Chris Hani.
	And it is our submission therefore that in as far as they tried to rely on this paragraph, they cannot succeed because they have failed to specify their duties within which they were acting.  In fact the CP has discounted having ever planned, commanded or ordered any of the activities in relation to violence and specifically in relation to the assassination of political leaders.  And this fact was made clear when Koos Botha was told in Parliament that he was not acting on behalf of the CP and therefore they can't rely on this paragraph.
	At Page 38 Chairperson, paragraph 9, we have been alerted to the fact that Section 20, Sub 2, Paragraph F now excludes any person who is mentioned in Section 20 Sub 2(a).  Chairperson, our submission therefore is that it is clear that a person who is a member of an organisation as the Applicants claim, as Mr Derby-Lewis clearly is and as Mr Walus claims he is, can no longer rely on Paragraph F to say there were reasonable grounds which made them believe that they were acting within their express or implied authority.