Amnesty Hearings — Cape Town — 2000-11-18

MR MARTINI: Hundred percent, it's hearsay.  But one might have to call the witnesses from the case Mr Bizos referred to.  Chairperson, I'm not going to make an issue, I just do believe it would be improper and the Committee - Mr Bizos in their Heads, are asking the Committee to revoke it.  Certainly, on the record I'm not agreeing to it, because I believe there's prejudice, but the Committee can make a decision.

CHAIRPERSON: I think at this stage you can proceed with your argument and then perhaps revisit this at the end of the argument.

MR MARTINI: Where was I, Chairperson?

CHAIRPERSON: You'd just dealt with the question of proportionality in response to Mr Lax's question to you.

MR LAX: Yes, and you'd onto full disclosure.

MR MARTINI: ...(sound cut off) ... on the issue of proportionality we know that in terms of the Groote Schuur Minute, which was accepted in Government Gazette number 12834, that those principles were attempting give a definition to a political offence.  So the reason why I say that is they merely induciai as Mr Lax raised, I was unaware of the Botha Judgment and I'm indebted to Mr Lax, but it is my submission that are induciai, they are factors to be taken into account in determining if there is a political objective.
	Chairperson, also on the issue of why the Act should be interpreted more liberally and widely I've referred in my Heads, the Act also talks about the Committee having reference to other acts repealed by Section 28 of the Act, all the Indemnity Acts, which similar provisions, and I elaborate upon that that some of them are similar to the Norgaard principle.  That's all dealing with the political issue.
	Now Chairperson, with respect to the requirements which Mr van Zyl must satisfy, it is clear that he was a member of the Security Forces, I cannot see how that ...(intervention)

CHAIRPERSON: That is dealt with in the argument of the victims, where they contend that he's not.  So if you could perhaps deal with it, because it's going to be dealt with later to the contrary view, I'm sure.

MR MARTINI: I'm sorry, Chair, I just want to ensure the procedure, if we're going to reply or if we're having one shot or how the proceedings are going to take place.

CHAIRPERSON: Well you'll be given an opportunity to reply in the normal course of events, but you can anticipate, because we've got the Heads ... and also in the interest of saving time, as Mr Lax says, what arguments are going to be coming.  So we know that the victims briefly have said that they were not members of the Security Forces as contemplated in the provisions of 20(b), because of the fact that they'd resigned they weren't subject to military discipline, etcetera, etcetera.  I'm sure you've read that.

MR MARTINI: Yes, Chairperson.  With respect, where that evidence to contradict all the evidence of the applicants - the General stated CCB was a unit of the Special Forces, forming part of the South African Defence Force, the budget came from the South African Defence Force, they were paid by the South African Defence Force.  Possibly one can say by the very nature that they were covert, they weren't uniform soldiers but they clearly fell within the ambit of the Security Forces.  How somebody could argue that they didn't after all the evidence, is beyond me.  They were controlled by a General, and according to the General, the footsoldiers so to speak, the applicant wouldn't know this, had to revert to higher authority, to the Minister of Defence, for certain instructions.  If Gen Webb's version is to be believed.  If someone had to be killed, I think his evidence was he had to revert to a higher authority which would be, I'm not sure if it was the General or the Minister of Defence or the Chief of Defence.  But quite clearly the Minute Mr Bizos handed in, L1(?) refers to the CCB, where the General signed it, where he tried to redefine murder.  That's raised in my Heads, Chairperson.  So with respect, I cannot see how any member of this Committee could ever find that the applicant was not either an employee of the State, or a member of the Security Forces.  Based on the evidence we've heard.

CHAIRPERSON: There's a question of agent as well in Section 20(3)(e).

MR MARTINI: But you can also look at Section 20(2)(g) which says
"a person associates himself with"

CHAIRPERSON: And 20(3)(e).

MR MARTINI: And 20(3)(e), that deals with the factors to be taken into account, where it does talk about
"an agent or supporter"
Correct, Chairperson.  I actually thought during the proceedings that that was common cause, so it was quite a surprise when I saw it in the Heads of Argument.
	Chairperson, it can never be said that Mr van Zyl acted out of malice or personal gain.  In fact, on the issue of malice, it was never even put to him, he was never challenged that his deeds or his conduct was out of malice to the victims.

CHAIRPERSON: But personal gain has been put in issue, in the victims' argument it's argued that the motivation in resigning from the Police Force and joining the CCB, was a business decision, betty pay, better package and then also the question of the performance bonuses, actually doing it ... coupled with the fact that, I think it's said in the argument, that they didn't have strong political objectives, they were working more for the money than anything else.

MR MARTINI: That would touch to the issue that it's not political, if you read the Section.  That the act was not political
"but does not include any act, omission, offence committed by any person referred to (2), who acted"
	And subsection - sorry Chairperson, with respect, I've got confused there, refers to Section (2), not (3).  	Chairperson, the fact is, in the Police you he a salary.  He says he made a decision to move, because his words were, I think, if I recall his evidence correctly, it was a business decision, it was a career move "I was moving to the Army", it was - I don't think the packages were vastly different ...(intervention)

CHAIRPERSON: It was far better in the CCB, clearly.

MR MARTINI: Well from a financial.

CHAIRPERSON: Yes.