Amnesty Hearings — Cape Town — 2000-11-18

MR MARTINI: And he saw it also as a career move.  And another issue that motivated him was, if Chairperson will recall, was he didn't want to move to Pietermaritzburg, because of the dispute he had had, just in summary, I think with the Attorney-General.  He wouldn't testify specifically what the Attorney-General, something to that effect, wanted him to testify.
	And what's also important Chairperson, is if you'll recall he was questioned, it's not disputed, when he joined he did not know the intricate workings of the CCB.  If you will recall they went on a course and only then did they start finding out what the CCB's work really entailed.  My submission is clearly that his acts were not motivated by personal gain or malice.  Were his acts authorised?  Was he acting in the course and scope of his duties or within the course and scope of his implied or express authority?  My submission is that it was.  And once again also one can have reference to Section 20(f).  He believed that he was acting, he on reasonable grounds would have believed that he was acting in the course and scope of his authority.  
	If the Committee recalls this, the nature in which this clandestine and secretive organisation worked, you had the General, the Managing Director, the Coordinator and the Regional Manager, Mr Burger, and what I'd term the footsoldiers, Mr Botha, Mr Maree and Mr van Zyl, in Region 6.  They received, Mr van Zyl received his instruction from Mr Burger or Basson, who in turn had received the instruction from Mr Verster, who in turn all must have believed that he had met with the General to authorise the projects referred to in the application.  Because the footsoldiers did not meet with the General and Mr Verster when a decision was taken to go ahead with the project.  
	When I questioned Gen Webb, Chairperson will recall that he conceded.  I said: "Notwithstanding the dispute between yourself and Mr Verster, as to whether you authorised Omar or other disputed projects (I said), would the footsoldiers of Mr van Zyl have believed that they were authorised to carry out the act?"  And he had to concede it because of the nature of the way the structure worked.  
	They didn't know whether Verster and Webb met, so once Mr van Zyl got the order from either Mr Basson or Mr Burger, he believed reasonably, could only reasonably have believed that he had the authority to go ahead.  Because if you remember further in re-examination we tried to clarify the issues and it does touch on issues raised by - can we call them the Respondents, Chairperson, no disrespect, it's just a shorter word, was suggesting that Mr van Zyl took the decision to eliminate, say Minister Omar, to bomb the Early Learning Centre.  If you'll recall in the re-examination where we attempted to clear up, there was some doubt by the Committee how exactly it worked.  
	The decision did not come from Van Zyl.  Van Zyl receives an instruction to do a pre-study for the purposes of, in the case of Mr Omar, elimination.  He does the study in-house and it goes further up.  And if you'll recall Mr van Zyl's evidence, the decision then actually to carry out that elimination is still not final yet until it comes back and they say go ahead and eliminate.  So he never makes that decision.  Clearly, he acted within the course and scope of his duties.

CHAIRPERSON: Ja, but not in all respects though, even on his own evidence, you know when he starts involving Mr Barnard.

MR MARTINI: Chairperson, that's irrelevant in my submission, that's raised by the Respondents, they contend that he could never have acted with authority, first of all, because they say he broke the rules.  Now that's not what the Act - the authority is not for the rule, it's for the deed.  So he had authority for the deed, to prepare a study and thereafter carry out the elimination, the bombing, arranging to have - bring up unaware members to attempt to kill Mr Evans ...(intervention)

MR LAX: Sorry, so are you saying that once he gets his authority he's got carte blanche in how he does it?  In a nutshell.

MR MARTINI: Chairperson, if I can answer that ...(sound cut off) what I'm saying is, the authorities for the deed.  So if they said: "Shoot Mr Omar", the project provided to shoot him, and he had the Minister's stand - thank God this didn't happen, he had the authority.  The authority was to eliminate.  In the course and scope of his duties?  The course and scope of his duties were to break a window or eliminate the person.

MR LAX: But it couldn't possibly have been that.  In this case the course and scope goes to the nature of his employment and that is, where does he reside and where does his authority come from, but his authority to do act X, is only given with regard to the specific authority for that act.  So in other words, that would in all accounts, if one looks at it in a logical way, one would say: "I did the pre-study, the pre-study was approved, I was told go ahead with the act as set out in the pre-study, or as varied by any other suggestions".  That is the plan, your instruction is to follow the plan.  Are you saying it doesn't matter that he didn't follow the plan, as long as the instruction was to kill?

MR MARTINI: Correct Mr Lax, because it's the authority for the act.  There must have been authorisation - let me put it this way, if Mr van Zyl had put in his pre-study: "I'm going to wear takkies when I collect Peaches" and he wears leather shoes.  The plan might have said he was going to wear takkies for whatever reason, and if he wore leather shoes ...(intervention)

MR LAX: But with all respect, we're dealing with material issues, not irrelevant issues.

MR MARTINI: Well let's change it then, there I took the ridiculous example.  If the plan says you must eliminate Minister Omar, and his plan provided for the using of a Makarov pistol and he had him stabbed, it could never be said that he was not acting within his authority.  If the act had been carried out and the result achieved, Minister Omar would have died, whether by gunshot wound or stabbing.

MR LAX: Look I think we're missing the point here a little bit, frankly, and that is there's a difference between acting in the course and scope of your employment and then getting a specific authority to do specific things.  And that's really what we're trying to separate out here.  Course and scope simply implies where do you reside, what is the nature of your duties?  Whether he had specific authority or not is a question of fact in each instance and the two are quite different determinations in ...(sound cut off)

MR MARTINI: I agree, but his duties entail arranging the assassins, that was his function within the CCB.  Mr van Zyl ...(intervention)

MR LAX: Yes, but you see the Chair's question to you was, what if he broke the rules?