Amnesty Hearings — Bloemfontein — 1998-08-17

MR MADASA: It was too late, Mr Chair, I mean at the scene, it was too late, everything happened fast there, it was too late now to withdraw or to realise that, at that moment, it was a hit of the moment and it was a matter of life and death at that stage.
	Mr Chair, I go to full disclosure.  I submit that applicant made full disclosure as to what he believed and what he was told.  He was honest and straightforward.  There is no evidence before the Committee that there are matters that he left out or deliberately omitted which are material to his application.
	I submit lastly that in terms of the Act, section 20A and B, the requirements thereof, that the offences were political and were associated with the conflict of the past.  I submit that his version, if it's accepted that these people were indeed members of ANC and MK, which was in conflict with the government of the past, and that he then made full disclosure, and in terms of section 22B, he satisfied that requirement, namely that the offences were ordered by an employee of the State, here I refer to the letter by General Malan, but I'm saying even if that letter didn't exist, there was an implied authority on the employees of the State at the time to deal with political activists, either by arrest and/or killing.
	I submit further that,in terms of section 23 ...(intervention).

MR MALAN: Sorry, may I again interrupt you there, I have a major difficulty with that argument.  The argument that you're putting before us and the evidence is that the killing was never planned, it only eventuated when things went wrong.  Now that is not a political motive, that's part of police duties then, to act in a certain way.  How do you bring political motive, because it's not, the political in terms of 22B is not in the broad political conflict, especially when it concerns a functionary of the State, it must be under an order or a direct order.  You rely on an implied order, which I think the Amnesty Committee has taken as a line, but the implied order does not relate to duties, it relates to criminal activities, outside of the scope of duty.  Sorry, Mr Madasa, that's perhaps again the argument that I asked you earlier to think through, put it in clear terms before us, because I remain with a difficulty with that at the moment.

MR MADASA: Thank you, Mr Chair, indeed I'll do so.
	Further on, I submit that in terms of section 23, the applicant has shown that these offences which he committed were associated with a political objective, in that he believed that the deceased persons were members of a political organisation and in attempting to arrest them and then killing them, he was doing his duty as a policeman, and that the killing was directed at the opponents of the State, because they were members of a political organisation.
	I further submit that the applicant had the factual basis, on the fact that the deceased were political activists, on the information received from Fouche and Elsa.
	And lastly, in terms of section 23F(I), the applicant did not benefit personally from the offences that he committed, and I submit that he has made a good case and he should be given amnesty.
	Thank you, Mr Chair.

CHAIRPERSON: Well we were told yesterday that the other three gentleman are going to be short, which of you is going to start?

MR COETZEE: Mr Chairman and esteemed members of the Committee, I'm not going to address anything as to the soundness of the application, it is only my respectful submission that the only true full disclosure as to the cause and the facts leading up to the death of the deceased is contained in the two statements by Fouche, who I'm representing, and that is in fact the full disclosure of the truth, and I will leave it at that.  Thank you.

<UNKNOWN>: Thank you, Mr Chairman, I deem it unnecessary to advance any argument on behalf of the implicated person, Isak van der Merwe, alternatively I'm of the opinion that it will have no relevant contribution to any decision taken.
	Thank you.

<UNKNOWN>: Thank you, Mr Chairman, the position of the victims were from the beginning that they're opposing the application because of the basis that the actions of the applicant were not politically motivated whatsoever.  This is still the view of the victims, except to say, maybe lastly to say that the victims feel that the applicant didn't take the Committee in his confidence and there was no political motivation whatsoever for his deeds, and his application must therefore fail.
	Thank you, Mr Chairman.

CHAIRPERSON: I take it you don't want to reply to that.  How long would it take you to prepare arguments basically on the points raised by the members of the Committee, or on any other legal points you wish to raise?  A week?  I don't want to push you too hard on this, I'm aware you have other things to do.  How long would you need?

MR MADASA: Mr Chair, just before I answer that, I'll answer that, shortly on this admission by Advocate Coetzee that the statement of Fouche must be taken as such and as truth.  I submit that Fouche had an opportunity to go there and tell the Committee his version.  He did not have courage to do so, for obvious reasons, and an adverse inference can be properly drawn from that fact.
	Mr Chair, lastly, on the last question then, a week would be sufficient.

CHAIRPERSON: Could you arrange to have it sent to the Cape Town office and they can forward it to us?  I think that's easier than asking you to send copies to all three of us at different places.
	Thank you.  We will now adjourn this matter to allow ...(intervention).

MR MADASA: Sorry, Mr Chair, I've a question to ask from Mr Chair about the first application, just, I don't have an indication of what is going on in that application.  Is Mr Chair in a position to supply ...(intervention).

CHAIRPERSON: Well I don't know what's going on either, because as you will recollect, we discussed at some length the fact of the second application, and the Committee that heard the first application considered it desirable that they should hear the second, and in fact if questions of credibility were to arise, and if you look at the end of the transcript of the evidence of the first, there is a request that arrangements be made to set that application down at the same time as the present application, so they can be dealt with together.  As you know, that hasn't been done, we now sit with a separate Committee, so the previous Committee will have to decide on what it has heard or on any information that's become available here on that application, but do you wish to advance further argument, because you did, as I recollect, on certain points say that you would rather not address the Committee?

MR MADASA: Mr Chair, eventually I did ...(intervention).

CHAIRPERSON: You did submit a fairly long, you have submitted helpful and detailed written argument, but I don't know whether you, as I, were under the impression that the Committee was going to sit again and that you would have an opportunity.  I don't want to deprive you of that opportunity.  If you are satisfied that you don't want to add anything to the written argument you have already submitted, we can proceed to deal with it on that basis.

MR MADASA: Yes, thank you, Mr Chair, I have nothing to add, except to request Mr Chair to, in his powers, to expedite that matter.

CHAIRPERSON: Thank you.  As I say, we'll now adjourn for a few minutes to enable a fresh team to arrive and for such arrangements to be made.
COMMITTEE ADJOURNS