Amnesty Hearings — Durban — 1997-08-13

MR PURSHOTAM: Yes, I've seen them at political gatherings.   It may be true that it's unusual to see 20 Black people or in fact 20 individuals wearing political T-shirts, slogans with political insignia in the street but I think for - it's unreasonable to conclude merely by that fact, that is constitutes a political uprising, disturbance or event.  And that's what the Act asks us to look at.  It has to be a political uprising, disturbance or event.  And I think before ...[intervention]

JUDGE WILSON: 20 members of the same political party, dressed in a political uniform, breaking into a shop, stealing things and stabbing, wouldn't you call that a political disturbance?

MR PURSHOTAM: With respect Mr Commissioner, I would call that and those individuals, common criminals.

CHAIRPERSON: What you're saying is, it did not constitute a political uprising?

MR PURSHOTAM: That is correct Mr Chairman.  I'm submitting that the actions of those people in the morning did not constitute a political uprising, disturbance or event, it was a purely criminal action.  Because if one has to then ...[intervention]

ADV DE JAGER: Could an event be political as well as criminal or both?

MR PURSHOTAM: Yes, it's possible in our criminal justice system.  If one has to take the argument which was put forward, to it's logical conclusion - if a Black person who is presently in prison for robbery and he was convicted of robbing a White person, why wouldn't he be able to come to this Committee and say, I robbed that White because I was in the business of re-distributing ...[inaudible]
	It's my submission that one has to construe this provision very strictly because if a precedent is set where individuals - as long as they are of different colour - it would grant them a licence to say it's a political uprising, disturbance or event.  Anything would then fall within the provisions of that section.  And I'm asking the Committee not to set this precedent.
	The next Sub-Section which is of importance, is the object or objective of the act, omission or offence and in particular whether the act, omission or offence was primarily directed at a political opponent or State property or personnel or against private property or individuals.  That's a very important Sub-Section.  
	We've dealt with the motive and the object of the applicants.  What we now have to deal with is - against whom and against what, did the applicants direct their attack?  It wasn't against a political opponent, it wasn't a property or personnel.  It was against private property and private individuals.
	There's no evidence before this Committee that the victims had any political inclination and it's important that we keep this in mind because Section 21, Sub-Section 2, deals with - in every paragraph in that Sub-Section from (a) to (g), deals with:
"Against whom is the attack launched - against what is the attack launched - the target".
The target is crucial and from Sub-Section (a) to Sub-Section (d) "the target" is repeated and I'll be coming to that later on.  So it's very important to keep in mind that an attack against private property and individuals does not qualify one for amnesty.  
	We now deal with the next Sub-Section and that is: 
"Whether the act, omission or offence was committed in the execution of an order of, or on behalf of or with the approval of the organisation, institution, liberation movement or body of which the person who committed the act was a member, an agent or supporter".
The applicants have told the Committee that they were members of OB.  For present purposes I'll assume that OB exists, although I intend dealing with that later in the argument.  For purposes of Sub-Section (e), we'll assume that OB exists but there's nothing, there's no evidence and there wasn't any evidence even at the criminal trial that anyone ordered them to launch this attack.  It could not have been done on behalf of the organisation because if one is engaged in a military struggle as we heard, operatives are given instructions on the kinds of acts that they may engage in.  
	I don't think one can really construe the formation of a cell as giving carte blanche to the commander of that cell, to do as he pleases but we have the evidence of  Mr Botha.  He took it upon himself to launch this attack.  There was a chain of  a command but he did not phone up anyone on that particular day, he phoned up the next day to inform his superior about the attack.  He did not deem it appropriate nor necessary to telephone on the day that he proposed carrying out a murderous act.
	So we don't have any evidence of an order and it's my submission that it wasn't done on behalf of an organisation.  If the applicants are to be believed, that it was done on behalf of an organisation, then one would find that individuals who are presently in prison, who have committed common criminal acts including murder, would come forward before this Committee and say that I did it on behalf of the organisation to whom I belong.  There would be no evidence on the relationship between the organisation and the individual.  And I'm asking the Committee not to let the flood gates open.  
	We also heard yesterday that it's one of the pastimes of right-wing groups and individuals, to go around at night or during the day, mostly during the night, to go to places, public places, hotels, pubs and chase away or assault or if necessary even kill Black people who frequent those places.  We heard that in evidence yesterday.  I'm sure there are people in prison today, who assaulted and killed Black people during those pastimes.  And I think the word which was used by Mr Marais was "excursions".  They used to go fully armed during these excursions.  So what I am saying Mr Chairman, is that the provisions of Sub-Section (e) also have not been complied with.
	Sub-Section (f) ...[intervention]

BERNARD MAKGABO NGOEPE: Before you go to (f) I hear you but, what happens where there has been - where a policy has been decided upon and directives given to members of, say of the Orde Boerevolk that once one White person is killed, 10 Blacks must be killed.  Are you saying that they must every time go back for instructions to actually launch the attack despite the fact that a directive, a clear directive has been issued that you should do this?  Because that seems to be your argument and I want to know whether really that's what you're saying.  You're saying that each time they must go back in respect of each attack before they launch?

MR PURSHOTAM: It's my submission before this Committee that if one is going to engage in the most serious capital offence besides treason, one needs that authority.  We're not talking about some trivial traffic offence here.  We're not talking about stealing something, we are talking about taking away the lives of innocent people.  We are not even talking about taking the lives of political opponents ...[intervention]

BERNARD MAKGABO NGOEPE: But they knew when they issued that directive, they knew that it is serious.  They knew that it was not trivial.  They were quite aware of that but notwithstanding the fact that they knew that it was not anything trivial, they issued a general policy to say, do it.

MR PURSHOTAM: Well, it may be true that those kinds of instructions were issued to them but I think the crucial point is, that whatever one engages in must have as it's purpose, a political objective.  It must further ...[intervention]

BERNARD MAKGABO NGOEPE: That's a different ...[inaudible]  Whether there was political objective or not it's a different argument.  I'm addressing (e) - the question of the chain of commands.  I wanted to know whether you are saying that they should have gone back again, despite a clear long-standing directive?