Amnesty Hearings — Pinetown — 1999-03-08

MR STEWART: If I understand the Committee Member correctly that's particularly in relation to orders being given.  Yes indeed, indeed.  Of course, it's my submission that it's not a requirement, inasmuch as someone may be placed in a position where they have the authority to make the decisions, and to order and to command others to do certain things, and they're not themselves acting under orders, yet they would qualify for amnesty, or the circumstances might be such that they would qualify for amnesty.  And that applies in particular in the case of Mr Luthuli in these hearings, that there are occasions in which he didn't necessarily have specific orders, he had general orders, and he had authority, and in, within the scope of that authority he then took decisions which involved either himself acting on things or ordering other people to do so.
	So it's in my submission not a requirement but that, where there are order from high authority, then it's that much easier for the Committee to conclude that it's an act associated with a political objective.
Now insofar as the various incidents are concerned, as I've indicated, we will draw particular attention to some of them, but it's not, in our submission, practical to deal with every single one.  We would be here for a week, and in respect of some it may not be necessary at all, and we would be wasting your time.  But in the event that Members of the Committee have particular concerns or questions about any particular incidents, then obviously we would welcome the opportunity to  address you on those particular concerns.  It may be that we don't ourselves have all the facts and the record immediately to hand, but we would be able to do so as quickly as possible. 
	Members of the Committee will notice that in the schedules that we've prepared there are cross-reference from the affidavits forming the applications by the members, and to them the places in the record where the incidents are dealt with.

CHAIRPERSON: Sorry Mr Stewart, just before you get into this, the position relating to Mr Luthuli, who was the commander, are you going to argue that he is involved in all the incidents, just because of his position, or only those incidents where he had direct dealings with the members who were involved in the incidents?

MR STEWART: Thank you Mr Chairperson.  The position taken by Mr Luthuli has been one where he accepts moral responsibility for all the activities that the Caprivi trainees were involved in, even where he didn't know what those activities were, or may not have given orders in relation to them.  But that's at a broader level.  But in respect of amnesty in particular, he can only, in my submission, apply for amnesty in respect of offences which he, for which he himself might be convicted, and so where some of his Caprivi trainees have gone and done certain things that he knew nothing about and hadn't specifically ordered them to, he would be a step removed, and the prospects of conviction on those things would be negligible ...(intervention)

CHAIRPERSON: So his matters re confined to those matters where he gave the direct order to, for the incident, or himself, he himself, participated.

MR STEWART: Or where he may, he may be found to be involved by the doctrine of common purpose.

CHAIRPERSON: Yes.

MR STEWART: So we've confined our application
...(intervention)

CHAIRPERSON: So for instance for, with regard to the Ermelo incidents, he's got nothing to do with those at all.

MR STEWART: He's not applying for amnesty in respect of those.  Otherwise we'd find ourselves in the position of applying for effectively a sort of blanket amnesty, which the Committee has recently ruled is not something which is possible in terms of the Act.
	Now I don't want to dwell, or spend too much time, on the background to the conflict.  The Members of the Committee are well aware, having sat through many applications, but it is nevertheless a critical point to traverse, and that's the background to the political conflict between Inkatha or the IFP, I'll use the terms interchangeably, on the one hand, and the ANC, UDF on the other, and that's well documented and indeed there have been findings by the Truth Commission itself in respect of that conflict.  And I've set out extracts from some of those findings in my Head of Argument.  	Indeed the findings, or the chapter dealing with KwaZulu Natal in particular and the findings in relation to that, give even more detail than what I've set out here.  And for that reason I'm assuming that the Members of the Committee, and perhaps wrongly and I hope not presumptuously, I'm, assuming that the Members of the Committee accept that there was that conflict and it was particularly intense and it was particularly ... (intervention)

CHAIRPERSON: I think you can be assured of that.  We're fully aware of that.  There was in fact a conflict.