Amnesty Hearings — East London — 1999-04-21

MR LAMEY: During Mr Hattingh, Mr Chairman, I perhaps do want to add also, although I was not of the opinion that the facts disclosed any contravention of the Explosives Act, but ex abundanti cautela I would submit, that that should also be added to the list, any contravention of the provisions of the Explosions Act, 26 of 1956.
	Mr Chairman, I will also start with my submission surrounding the question of personal gain.  I agree with my learned friend, Mr Hattingh, that the intention of the legislature in this regard, could only have been that the act, omission or offence must have been motivated by reasons for personal gain.  It is my submission that in order to determine whether an act was motivated by reasons of personal gain, that one should also have a look at the broader picture, namely also all the other criteria for instance the context in which the act was committed as well as the subject of motive, of the person.  I want to add something further here and that is that I think it is almost common cause, that members of the Security Forces as well as members of Vlakplaas, were highly decorated for what they have done.
	Surely when one reads the Act, it doesn't merely say financial gain, it refers to personal gain, but surely this cannot have been the intention of Parliament that a person who reasonably expects that he will be awarded in terms of decorations or promotion if he performs on merit, and also do what is required from him, that that can be said that he acted for personal gain.  So, I think what the Act here has envisaged is something out of the ambit of that.  My submission is that by implication, if one reads the Act, personal gain must have been a primary and principle motive here which outweigh any of the other criteria, listed in subsection 20(3) of the Act.
	Mr Chairman, Mr Nortje in this instance was a member of C1, the Vlakplaas Unit of the Security Police, as such he was a member of the Security Forces of the State and I submit, that that brings him into the ambit of subsection (2) of Section 20 of the Act, specifically (b).  I submit also that this specific incident relating to attempted coup, that subsections 20(c), (e) and also (f) are applicable in his instance.  Mr Chairman, it is also clear from the evidence that Mr Nortje received orders from his Officer Commanding prior to his participation.  He has outlined in his application, that he was also aware that the government under the control of Holomisa, was to put it in my own words, an ally of the ANC and PAC, they received assistance and that the attempt was to as he saw it at that stage, to assist with a coup, in order to replace that government in order to, with the ultimate aim to make it easier for the Security Forces to have access to the Transkei and to combat ultimately the activities of the ANC and PAC who were assisted from the Transkei.  
	If one have a look at also the submissions which have been made by Gen Van der Merwe, specifically also what he has said in the time frame, 1990, I wish to refer to the submission which he has made dated 21 October 1996.  I wish to read from paragraph 14 where the following is said -
"... as already indicated over many years, the liberation movements, regarded armed attacks on members of the Security Forces, being so-called legitimate hard targets, as morally acceptable.  This was to result in many Policemen being killed or injured whilst engaged in combating ordinary crime and performing their normal Police functions.  Of significance is the fact that this type of activity was to escalate even more sharply during and subsequent to 1990, when the negotiation process and that which was to bring about the election of the new democratic government, was already well and truly on course.  In this regard, the following statistics are revealing."
	Then he reveals there statistics of during the period 1980 - 1990, 270 Police members killed, but specifically also the period even 1991 to 31 December 1992, over a time span of two years, 385 Police members killed.  This is an indication, I submit that even after, this instant happened after the release of Nelson Mandela as well as the unbanning of the ANC, as well as other evidence of Mr Van der Merwe already made before the Amnesty Committee, that there was very much still during that time, a revolutionary climate and it was up to the Security Forces and specifically also the Security Police, to play an important role in combating that conflict and to keep the government in power. 
	I do not want to waste unnecessary time by quoting from various other sources, but I would also like to refer to what the Amnesty Committee has found also, has found in the judgement in the application of Jack Cronje about the implied authority, the condonation by politicians of acts of the so-called foot-soldiers, the so-called situation in which they found themselves in, namely an undeclared war where it was by implication, expected of the members of the Security Branch to act outside the parameters of the law in order to effectively combat that onslaught.

MR SIBANYONI: Mr Lamey, what is the reference of that Jack Cronje decision?

MR LAMEY: I refer to this decision for purposes of the more broader position of the ordinary foot-soldier, in which ...

MR SIBANYONI: I mean the reference number.

MR LAMEY: The reference number, I beg your pardon, it is the judgement in the application number 2773/96, applicant Jan Hattingh Cronje.

ADV SANDI: Mr Lamey, your whole point as I understand it, concerning Mr Nortje is that his position should be understood to be different to that of Colonel De Kock, because he was the junior person, foot-soldier, who had to carry out the orders?

MR LAMEY: I think Mr De Kock also operated under the higher ranking hierarchy, but it could also be applicable in his instance, but Mr Nortje, yes, being my client, I would submit it is even more so relevant in his case, being a foot-soldier who does not have access to all the information and haven't been party to the chambers where decision had been made and as many other foot-soldiers often expected, were often expected to be loyal and to carry out orders given to them, yes.

ADV SANDI: And even when he wanted, as I understand it, even when he wanted a house, he takes his wife, he goes to his boss to say we are looking for a place to live, and he sorts it out, he gives them a plot?