Amnesty Hearings — Durban — 1998-03-23

MR DE KLERK: It was testified that, on several occasions by the applicants that if he received the information that this person is the person that attacked or will attack he would have acted because it was a sort of a pre-emptive way to try and stop what was happening.

MR MALAN: Mr de Klerk I am prepared for the sake of this argument to accept that amnesty is there not for cases of self-defence. So we are not talking about self-defence in the situation of being attacked. So let's accept that for the moment but the question then remains what are we to make of the concepts "bona fide" in Subsection 2(A) of 20 and "order and approval" in Subsection 3(E)? Are we to disregard those concepts? Or - and this is really my question. Is it not compelling us to say that a person must have in good faith believed that he was on the agenda of the organisation and not simply in support of the organisation. Or to the benefit of the organisation by his own assessment.

MR DE KLERK: I understand that Mr Chairman. I do believe that what will bona fide mean? Is it an objective or a subjective test? Are we now going to say what did he believe himself? I believe it is a subjective test.

MR MALAN: I will grant that but what was his evidence on that?

MR DE KLERK: His evidence was clear that although he was never allowed or it was not the aim of the political party to attack all these attacks that took place and he was involved with he received information either that this person was the guilty one in some or other murder or is going to attack him or is planning or he is going to do something. And he bona fide believed in his mind that this will benefit the party. And I am sure, I don't want to be difficult but I am sure that it can be seen as self-protection which was condoned by the party. The self-protection side. That means we are not there just to sit and be attacked and accept it.

CHAIRPERSON: We must not confuse two issues as to self-protection on the one hand. When a man does that because he believes that somebody is going to kill him. He takes the initiative and goes and kills them. That is what might fall under the heading of self-protection. But then that cannot be equated with the political motive of his political party. He did not do it for that reason. He did it because he was told that they were after him and therefore before they could get him he would go and get them. That was the driving force behind what he did.

MR DE KLERK: Yes if he was a normal person I would prepare to agree with you but he was the youth leader, the IFP youth leader.

CHAIRPERSON: Does that make him abnormal?

MR DE KLERK: No it puts him in a position as a political leader. So by defending him he is defending the party. It is not mere self-defence. By protecting yourself as political leader you are in effect protecting the party. It is not mere self-defence.

CHAIRPERSON: So he is equating himself as the party?

MR DE KLERK: Oh definitely. The fact remains that he thought bona fide that this what he is doing is to the benefit of the party. And the party did not ever said there is anything wrong with protecting yourself. And it does not seem that any of these persons were merely killed without any reason. That means by aggression alone.

CHAIRPERSON: Well he went around killing innocent people and he is now sorry for having tried to kill them or shoot them.

MR DE KLERK: No

CHAIRPERSON: He shot people whom he didn't even know.

MR DE KLERK: But he had information.

CHAIRPERSON: Yes he may have information, he may have misinformation.

MR DE KLERK: That is possible Mr Chair.

CHAIRPERSON: Yes. So what happens to the mothers and the fathers of those people?

MR DE KLERK: The fact remains that if he acted on that information and he bona fide believed that, that information was correct he did that for the purpose to protect himself as leader and for the party.

CHAIRPERSON: Yes alright.

ADV MOTATA: Mr de Klerk let's probably stretch our imagination and say 23, stretch it. Give it liberal construction. And then we return and say he was given a gun by Zulu for instance that he should protect himself with that gun that he was now looking at the subject element of bona fide - that he was even shy to go back to Zulu and say: "I have killed people with that gun." Would we say even if we give it that liberal construction we would be falling in the ambit of the Act?

MR DE KLERK: Yes I believe so.

ADV MOTATA: Despite not even - say condonation after the fact of his actions. Even let's say no orders condonation after the fact?

MR DE KLERK: I must say I found one thing difficult. Maybe the Commission can assist me there. I don't know what was the position with all the applications up till now. Did each and every individual in those matters receive a order or some or other instruction? Or was it condoned afterwards? I don't know. I am of the opinion that if this person subjectively bona fide believed what he is doing is to the benefit of the party -even if he hides it from the party, what difference does that makes in his mind?

CHAIRPERSON: Well it all revolves around the use of your word "bona fide."

MR DE KLERK: That is correct yes.

CHAIRPERSON: The question is that was he bona fide when he knows that it is in the policy of his party. When he knows that the Inkatha Freedom Party is not in favour of the resort to violence.

MR DE KLERK: Except in the circumstances where it also comes down to protection. I am not going to use the word self-protection. I am going to use the word protection.

CHAIRPERSON: Yes so we are now talking about this bona fide?

MR DE KLERK: Because Mr Chairman I am sure that in the past what we have listened today is not an uncommon situation. What about the normal citizen that were attacked by the opposition group. He retaliates the next morning. He goes and kill those people. He actually ran after them and killed two or three more. That is what happened. Many thousands of those incidents took place. Does none of them fall under this Act? Was this Act not also for the benefit of these people which on the lowest level were involved in this conflict.

MR MALAN: Mr de Klerk that's exactly the question we are asking you. We have to make that deduction on the basis of the wording of the Act. And we asking you to assist us.

MR DE KLERK: I believe yes. I believe yes. The reason why I say this. It is not a simplistic situation where you know it is only self-defence or revenge. It is a Zulu, traditional Zulu man, only standard 6 being chosen to be the political leader maybe without the knowledge or the necessary knowledge of how to be a political leader. Being sent for training by his brother. Being caught up by a total unnatural and uncommon situation of war. This is a situation where we have to look at the person. Now he acts on those impulses. He believes what he is doing is to the benefit of the party. Surely it is also to the benefit of him. He is not going to be killed if he kills the people that wants to kill him. Surely he is not telling it to the party. But he believes in his heart and it shows from his poem that he did it as a soldier. As a warrior to the benefit of everybody. Not even the party but everybody in his community.

CHAIRPERSON: Except of course the victims.

MR DE KLERK: Except the victims if we consider that they were not involved in any actions against the other group at all.

MR MALAN: Well even if we do.

CHAIRPERSON: Yes. Is there anything else you wish to add? Mr Brink is there anything you wish to say?