Amnesty Hearings — Durban — 1999-08-17

CHAIRPERSON: Yes.  Now I ask that because I have a choice of adjourning at this stage and taking a break, the usual break at this stage and calling upon Mr Visser and Mr Rorich in case they have anything to add, to reply, but I think we might be able to dispose of that within the next few minutes.  Mr Visser?

MR VISSER: It will be very brief, Mr Chairman.

CHAIRPERSON: Yes, reply please.

MR VISSER: Perhaps if it's convenient then Mr Chairman.

MR VISSER IN REPLY: My learned friend says that full disclosure of the relevant facts isn't what is necessary.  Section 20 (i)(c) says
"If the Committee, after considering an application for amnesty is satisfied that the applicant has made a full disclosure of all relevant facts, it shall grant amnesty."
My learned friend can't extend the provisions and requirements of the Act, Mr Chairman.  
	Secondly Mr Chairman, my learned friend says that, apparently departs from the point of view, I should say, that what the applicants must show is that this was a terrorist, and that he was an eminent danger to society etc etc, well, that's not necessary, Mr Chairman.  And we know that because the whole of Section 20 sub-section (ii) deals with that and Section 22 (b) which is the relevant sub-section Mr Chairman, talks of any member of the Security Forces, leaving out unnecessary words, 
"Forces, any member of the Security Forces who acts within the scope of his express or implied authority directed against a publicly known political organisation or liberation movement engaged etc, etc or against members of supporters of such organisation or movement and which was committed bona fide with the object of countering or otherwise resisting the said struggle..."
Now that was the evidence and that is sufficient Mr Chairman.  We don't have to prove that Mr Ninela was a terrorist.  
	My learned friend said that there's an onus on the applicants, Mr Chairman, I don't want to go through that argument again, with respect, no decision has been handed down, but quite clearly the argument has been accepted that there is no question of onuses in an inquiry such as this before you and you deal with matters which you find have been established whatever way, Mr Chairman.
	My learned friend makes a point of remembering nothing at the time when the amnesty applications were signed and now suddenly and miraculously remembering all the detail, all this finer detail which includes who shot, who blew him up, etc.  Now Mr Chairman, we submit it's an exaggerated submission.  It starts with a wrong premise.  The wrong premise would be, as I've already argued that they knew nothing about this incident when they signed the original application form.  That is not the evidence.  They told  you that they had difficulty in distinguishing various events and the victims, Mr Chairman, and that is what they wanted to establish.  With great respect, my learned friend is departing from the point of view that they knew nothing then and then suddenly out of the blue they had all this information is not based on the evidence before you.  
	"Why blow them up?" asks my learned friend.  Mr Chairman, you perhaps gave a better answer than I could and that is that the motivations of people who acted the way they did  in the time of strife during the conflict, can't now be judged by lawyers sitting in a quiet room, particularly with an armchair approach.  As was testified to before the Human Rights Violations Committee and I believe Mr Lax was a Commissioner at the time, or a member of that  Committee, by APLA, by the ANC, by everybody to say that we acted in that time on the spur of the moment, we didn't have time to reconsider.  We, thinking back today, we would never have done that, thinking back about it clearly, now they say, Mr Chairman, they thought they had to cover their tracks.  Now what is so wrong with that?  And the way to stop identification although it is cruel and crude, is to take away a man's face and to take away his fingerprints.  Now there's nothing special about that, Mr Chairman, with great respect, we can disagree with it and we can be abhorred by it, but it doesn't take away the fact that it is so.
	Mr Chairman, again this matter of should have been prosecuted was brought up.  One must just think, Mr Chairman, and this was perhaps the reason why Mr Bhengu's evidence was presented here, in order to show you that the police had a clear case against Mr Ninela, well, was it such a clear case?  If they wanted to prosecute Mr Ninela because of the limpet mine he had handed to the Bhengu brothers, who would they have used as a witness?  This witness that gave evidence here today?  That would have been the one and only star witness.  Would he have been prepared coming from the background where he came from, to go and give evidence against his friend and comrade Mr Ninela?  We submit on the probabilities not, Mr Chairman.

CHAIRPERSON: But didn't he tell the police?  Didn't he tell Taylor in hospital that Ninela gave him the mine?

MR VISSER: Yes, he did.

CHAIRPERSON: Now why would he do that if he wanted to conceal this?

MR VISSER: Well, Mr Chairman he would still have had to give evidence and he would still have experienced the pressures from the community.

CHAIRPERSON: He may have.

MR VISSER: He may have, yes.

CHAIRPERSON: There are lots of others who have given evidence despite pressures.

MR VISSER: Absolutely.  All I'm saying, Mr Chairman, it's not that clear and it might not have been clear to Taylor that it would have been plain sailing if he prosecuted Ninela.  That might be one of the considerations, and again we're speculating, why Taylor said "I can't prosecute the man."

CHAIRPERSON: Yes, but you see the enormity of taking away a man's life is what is the factor that is taken into account weighed against whether he should be prosecuted or not, do you understand?  The chances are that he might be acquitted.

MR VISSER: Yes.

CHAIRPERSON: So now why take a chance?  Kill him.  Is that how it's done?