Amnesty Hearings — Durban — 1999-04-26

MR DE KLERK: I agree, Mr Chairman, I'm just purely stating the fact that he wanted a firearm because he was trained to protect, as he explained and also stated in his affidavit, not regarding this specific aspect but it seems that when he asked for the firearm, it was in the sense of now being trained as a, what he perceived, as a protector and as he stated
"Protecting the IFP members from the ANC"
- in paragraph 8 of his statement.  Mr Chairman, it seems that on this specific day something must have triggered the applicant to do this deed.  His explanation was that because of this provocation that happened in town, and that was also his evidence-in-chief, he lost it.  And because of that he then went and shot the people which he subjectively perceived that the people, that was the people swearing at him, being ANC members and so forth.  Maybe objectively I will concede to the fact that it is difficult to comprehend, but subjectively at that stage, and that is the evidence of the ...(no sound).
	Mr Chairman, the political objective, in my submission, will be the following.  I think it is common cause, the fact that there was tension and especially in the South Coast, between the IFP and the ANC. 
	I think it can also be accepted in a broad sense that there wasn't a, even if it wasn't a war in the sense that it was a war on paper and everybody accepted it, but there was in a big sense a war in the whole of KwaZulu Natal, and I'm sure that his has emanated from most of these applications.
	It seems to me that the subjective mind-set of the applicant at that stage was that as a member of the IFP, being in that situation where there was conflict and him being specifically targeted as a person being sworn at and maybe threatened in a way, that he could now pro-actively attack ANC people and thus, like he testified, protecting and his community.  And I think it emanates clearly also from what he testified, that there was also a part of that that was revenge, but it seems to me, out of his evidence, that it was clearly just revenge, it was a revenge couples with the reality of the situation where there was a conflict, him being perceived, or him perceiving the ANC as his enemy ...(intervention)

CHAIRPERSON: Revenge for what?

MR DE KLERK: Mr Chairman, his evidence was that in this situation of conflict if he allowed this to just go by, with all probability he will later be attacked in his area.  That's why I say ...(intervention)

MR LAX: That's pre-emptive, Mr de Klerk, if anything, not revenge.

MR DE KLERK: Yes.  What I'm trying to address here, Mr Chairman, is the fact that the subjective situation of the applicant at that stage was, in the area where he stayed he perceived that by killing these people he may pre-emptively stop him being killed.  That was his evidence.

MR LAX: How do we deal with the issue of proportionality, proximity, all those aspects in relation to this particular set of facts?

MR DE KLERK: Firstly, taking the political situation into consideration, as I understand it, and I think the Commission also accepts that the IFP's policy at that stage was not a policy of violence ...(intervention)

CHAIRPERSON: ... contrary to his party's policies.

MR DE KLERK: No, Mr Chairman, I will address that now.  But the policy at that stage, and it was accepted, is the fact that you could protect.  So the policy was not to physically, without any reason, attack people, but you are allowed to protect yourself.

CHAIRPERSON: Please!  People he thought may have been the people he saw in town, he didn't recognise any of them, they were a long way away from him, he came upon them suddenly, and you say he was protecting himself.  I'm afraid I have great difficulty with that contention.  There is no evidence that any of these other people were armed, that he believed they were armed, is there?

MR DE KLERK: Mr Chairman, I will agree with you on that, and I agree with Mr Lax as well on the basis of proportionality.  My submission on that can only be that to take into consideration the circumstances, being a person who has just been trained, receiving a firearm, being in that situation.  It is also true that the applicant testified, thinking back with hindsight, that maybe because of his youthfulness at that stage he would have maybe decided otherwise.  What I'm trying to say is that maybe his subjective decision-making process at that stage was influenced by all these factors and could have influenced him by a pre-emptive attack and by attacking people that may not have been the real culprits.

CHAIRPERSON: ...(indistinct).

MR DE KLERK: My only submission regarding the political aspect is the fact that there was really no other motive ...(intervention)

CHAIRPERSON: ...(indistinct)

INTERPRETER: The speaker's mike is not on.

CHAIRPERSON: He loses his temper, as he said himself.

MR DE KLERK: I would in a sense agree with that, in a sense I will disagree, Mr Chairman.   The basis on which I will disagree is the reality was that he lost his temper in the situation where he was an IFP member and was sworn at and certain things were said to him.  So it was in a situation of political affiliation that this whole incident took place.

MR LAX: Perhaps I could help you.  Is this what you're really trying to say - just so I understand you correctly, you're saying there was a political context within which this happened, which was the undeclared civil war in the province between the ANC and the IFP.

MR DE KLERK: Yes.

MR LAX: You're saying he was a trained, very young person who had animosity towards the other side and he was trained on one side.

MR DE KLERK: Yes.

MR LAX: And because of the provocation he lost it and he didn't exercise the judgement that even he concedes today he might have had he been older.

MR DE KLERK: That's correct.

MR LAX: And therefore, because of the context in which it happened, that makes it political.

MR DE KLERK: Yes, Mr Chairman.

MR LAX: Have I understood you correctly?

MR DE KLERK: Mr Chairman, it wasn't merely a situation like a bar brawl or a situation where there was a personal problem between the people, or the persons.

MR LAX: You see my difficulty, Mr de Klerk, is this.  That at best at least an hours passes between the provocation and the execution - if I could use that rather loaded phrase, of his plan.  Most people would have calmed down within that hour.

MR DE KLERK: I will agree with you, Mr Chairman.  If it was not in the political connotation, as I'm trying to explain, if it was merely a personal problem where somebody swore at me or so forth, yes, I would agree with the Chair, that that would be the situation, but where you were influenced by this political drive, then you will lose this normal approach which you are talking about at the moment.  I can't take it further than that and I just put it in that perspective.

CHAIRPERSON: ...(indistinct)

INTERPRETER: The speaker's mike is not on.

CHAIRPERSON: I take it you are going to contend that this was not, does not fall within the category of political objective as ...(indistinct) in the Act.

MR DE KLERK: Yes, Chairperson, that's my submission.