Amnesty Hearings — Cape Town — 2000-11-18

CHAIRPERSON: So if Mr Verster didn't in fact, for the sake of argument, didn't in fact get the authority from Webb to put the Omar and Evans operations into effect, on what implied authority would he have been operating?

MR WESSELS: Well as long as he's bona fide believing that he had authority.  If there was a discussion where, and the one person, if Verster thought he had the authority to eliminate and carried out the operation, whereas Webb in fact, his authority fell short of that.  As long as Verster bona fide believed that he had the authority to go that far.

CHAIRPERSON: This is the sort of thing you can get confused about though, whether you've got authority to kill somebody or not.

MR WESSELS: Well the manner in which this happened, we know that there were discussions, sometimes over the telephone, on these things and one may criticise the method in which this happened.  I'm not suggesting that that is a good way of doing things.  That doesn't alter the fact that there may have been a misunderstanding of some sort in that regard.  There's a dispute between the two and there has been a dispute for many years in regard to exactly where or to what extent Webb had given authority for these operations.  It's clear from that that at least as far as Verster is concerned, he was bona fide in believing that what he did was within the purposes of what he was there for.  He got the money through a budget, he got or made the arrangements that a weapon be obtained and this was the type of operation where had he, Webb says that if he had been asked for permission to do it, he would have granted it.  So there may have been something that happened at the last moment, where Webb didn't think that he gave permission when Verster thought he had given permission.

MR LAX: Can I ask you this, because it really, we can go around in circles forever.  My difficulty goes to this point and that is, he says he got permission, so there's a disjuncture between what he says.  If he says he got permission, he can't then rely on his implied authority, because he says categorically: "Webb gave me permission.  I had Webb's authority to do it."  Webb says: "I didn't give you authority."  If he's telling us he got authority and he's wrong in that respect, either he's not telling the truth, or he's mistaken, or whatever the case might be, he can't then rely on his implied authority, because the two are mutually exclusive.

MR WESSELS: Then he can rely on that he bona fide believed that he had that authority.

MR LAX: But he can't because he says he got it, so his belief ... you can't on the one hand say: "I got authority" and then on the other hand say: "Well now I'm not sure that I got authority, but I bona fide believed I did get authority.

MR WESSELS: No, with respect that's not the test.  You can say: "I had authority" and if you are found to be wrong, that you didn't have authority, that's when you can say: "But I bona fide believed that I had authority."  The one is not exclusive of the other.  It would be ...(intervention)

MR LAX: You see they don't make sense to be in the alternative, but I'll ...

MR WESSELS: Mr Chairman, if you can't relay in the alternative, then there's no purpose, there would have been no purpose for putting (f) in the Act.

CHAIRPERSON: I think what Mr Lax is - I'm sorry, I think you can put better what you're thinking.

MR LAX: You see the purpose of (f) is a different class of people and my point is a subtly different one which says that if you say you had authority, then that's different to having a bona fide belief that you had authority.  And in that sense, at a factual level the one excludes the other.  You can't say: "Well he gave me authority", because there's a dispute of fact now.  Either he did or he didn't.  If he didn't, then you're wrong, then you can't come in the alternative, because basically the issue goes to full disclosure.  Is he making full disclosure if he says he had authority when he didn't have authority?

MR WESSELS: Yes Mr Chairman, he does, because full disclosure is full disclosure insofar as he's concerned, of the facts that pertain to the case and his motive, or rather, his beliefs if found to be incorrect, can't be held against him and now say: "You genuinely believed that you had authority, but now it's turned out that somewhere there hasn't been the official authority that was required, now you can't get it, because that's not a full disclosure."  It's not an objective full disclosure in regard to all facts and - let's take an example, let's assume that authority had to be given by the Minister of Defence and somewhere in the chain of events the Secretary of the Minister didn't sign the order, but lower down it was believed that the order had been signed and the deed is executed, then objectively there wasn't the authority as is required, presumably in Section 20(2)(b), then he can still get the amnesty, although he will come and say: "I had the authority".  Some other witness may later on come and say: "No, that signature that appears there is not the Minister's, that's only the Secretary's signature.  And that's where (f) comes in.  If I may read (f) to you ...(intervention)

MR LAX: You don't have to, honestly, I'm very familiar with all these Sections.  You see where I disagree with you or where I'm finding difficulty with what you're saying is this.  Verster is not saying that: "I thought I had authority", he's not saying: "I believed I had authority", he's saying I got authority from Webb and Webb's denying that.  So he's not in a position of someone who can come under (f) and say: "I bona fide believed I had authority", because he's going further than that, he's saying: "I did get personal authority".  So he's not in the position of a footsoldier acting on someone else's order thinking that that person was authorised to give him the order.  And that's the gist of (f), is that there is an objective set of facts upon which you rely, a sort of representation if you like, on which you rely, which then says. "based on those facts, I am entitled to assume that the person who gave me the order had authority and I bona fide believed he had."  This is different, this is where you're in primary instance receive saying: "X gave me the order" and X is saying: "I didn't give you the order."  And that's what we have to look at.

MR WESSELS: Mr Chairman with respect, the position is different.  Let's assume two persons talk about this and the one understands the other one to give an authority, but for whatever reason there's a mistake.  On the proposition that you put to me, the moment that a mistake comes into it, the applicant has lost out, he cannot get amnesty.

CHAIRPERSON: You see this goes back to what I put to you.  If one just looks at the probabilities, if one takes into account Gen Webb's approach saying that he would not have granted authority without having gone up and gotten authority from his superiors.  So if he - let's just assume that Mr Verster comes and says: "Okay, we want approval for these two operations", Webb them follows the route and he goes up to some other higher General, then comes back and says: "You've got ..."  I'm just finding it difficult, how would there be a misunderstanding or a mistake?  How could there be?