Amnesty Hearings — Cape Town — 2000-11-19

UNKNOWN: That we submit that in order for the Committee to be satisfied that Section 20(1)(c) has been complied with.  The Committee must be satisfied that the applicant has been able to show on a balance of probabilities that he has told the truth concerning the relevant facts and we have already done that in the addendum.  I merely wish to state, Mr Chairperson, in general terms, that the claim by our learned friends in relation to a benevolent and liberal interpretation of the constitution.  These are general terms, of the purposeful interpretation.  Yes, as generalities they are correct but in relation to the specifics as to what interpretation must be given to the words or phrases in the Act, they should not be interpreted in order to deprive the constitutional rights that the victims have and that they should not be interpreted in a manner in which the effect is that on somehow or other principle grant amnesty if they've come here and they have told you some sort of a story.  That is not a proper interpretation of the constitution and it's not a proper interpretation of the Act.
	I want to go on to paragraph 46, Mr Chairperson.  The applicants claim that they acted as members of the Security Forces of the State within the meaning of Section 20(2)(b).  The evidence, however, is clear that the CCB was created and structured so as to ensure that the CCB employees were neither members of the Security Forces nor employees of the State.  It is true that the CCB was State funded but so too are many other bodies whose employees are not employees of the State.  Now I want to deal with the interpretation of the Act in support of this Mr Chairperson and if we have a look at B:
"Any employee of the State or any former State or any member of the Security Forces of the State."
Now quite correctly, your attention was drawn as to what is meant by Security Forces in the definition section.  It says"
"Includes a member or agent of the South African Defence Force, the South African Police or any of their organs."
But now, 22B speaks about employees or members in the Security Forces.  The word that we have to look for is whether there were employees or members and what we say is that on the facts they were neither.  On the facts they were neither.  We do not want to elevate this into a point of law, Mr Chairperson, that it is clear that they are not entitled to amnesty on this basis only.  But we submit that it must be taken into consideration that they were not employees or members in the ordinary sense of the word.

CHAIRPERSON: ...(inaudible) part time agent?

UNKNOWN: ...(inaudible) had used the expression only of security service.

CHAIRPERSON: Forces.

UNKNOWN: Forces.  Then you go to the definition.  But here they speak only about employees or members.  They don't say Security Forces as defined, they expressly choose the two and leave the other one out and it's never been their case that they were agents.  In their forms they described themselves as members of the Security Forces but their terms and conditions of employment do not bear that out so that the definition doesn't help one.  But be that as it may it is not the main ground of opposition, we merely say that it is a factor to be taken into consideration.

MR LAX: Mr Bizos, just to deal with the word "organ" in that definition's clause, could it not be argued that the CCB is an organ of the South African Defence Force?

UNKNOWN: Yes.

MR LAX: Therefore they would be a member of that organ?

UNKNOWN: But if we have a look - I can only submit this and I must concede that because of the what may be described as unfortunate drafting, putting the definition in as it is, that difficulties are created because you can't really use the definition in a proper term, in a proper way by - you have a definition and then you use employee and member.  Why?  It should have said the Security Forces as defined or something like that.  So there is this difficulty.  I don't know what one makes of it, no.

MR LAX: This statute is full of these anomalies.  It's one of the problems we've had working with it over the years but that doesn't help you or us.

CHAIRPERSON: Because the agents also brought in (3)(e), when you've got to determine whether an act associated with a political objective, there it allows for an agent.

UNKNOWN: Well, Mr Chairperson, don't let us press this because of the difficulties because we believe that we have sufficient grounds on non-controversial interpretations of the section.  But we thought that we would - this does not detract from our argument that predominance of the motive was not that of an ordinary member of the Security Force or an employee or agent.  I don't intend reading, Mr Chairperson, the section until the next heading which is on page 32, proportionality and with your leave I would ask my learned friend, Mr Kahanovitz to continue with the argument and I'll take over once my throat has recovered.  That's not the only reason, it's his work admittedly.

CHAIRPERSON: Thank you.  Mr Kahanovitz?

UNKNOWN: Thank you, Chairperson.
	The argument here is at two levels.  The first relates to, well we say is an important matter of general principle and that is the circumstances under which it might ever be proportional to target civilian politicians for murder. 
	The second level relates then to proportionality in relation to the particular individual.  In other words, if you are against us and even if you were to find that sufficient is here being led to justify the proportionality of targeting civilian, certain classes of civilian politicians for assassination, then we would say well, then let's look at the proportionality in relation to particular individuals and shortly there must then be a difference between a Gavin Evans and a Dullah Omar and a bunch of kids who go to a meeting in a hall in Athlone.
	Now we start of in paragraph 61 saying that we refer to the well known Constitutional Court decision in Makwanane about proportionality and we submit that inherent in the notion of proportionality is whether the desired ends could reasonably be achieved through other means less damaging.  This is of considerable significance in the context.  That test is of considerable significance in the context of this case because you will recall that the applicants were cross-examined at some length on this issue and we say that there's no reason why that test should not equally apply to the concept of proportionality.  Within the context of the TRC Act it's difficult to perceive of any other real meaning that can be attached to proportionality.
	Moving then to page 33, paragraph 62.  We say that the test must be premised on the understanding that the CCB was there to act on behalf of the State to maximally disrupt the enemy.  Now you will recall, starting off with the cross-examination of Joe Verster, that we got involved in this issue and what was put up really by the applicants was an argument which tended to suggest that this Committee must assess the CCB on the premise that they are some sort of hermetically sealed unit separate and apart from the State and that you can't really ask them what other machinery was available to the State as a whole to take steps against people like Omar or Evans.

CHAIRPERSON: Yes, I think it came out several occasions, they just didn't want to refer to the Police, matters to the Police because that might blow their cover and that sort of thing.