Amnesty Hearings — Cape Town — 2000-11-19

UNKNOWN: Thank you Mr Chairman.  I'm nearly finished.  So my submission is that this evidence contained in the Truth and Reconciliation Commission report as well as the evidence given by Webb and Verster, should be taken into consideration.  It was mentioned here, I think by Mr Chairman yourself, who placed Burger in the upper managerial echelons of the CCB.  I wish to submit that that is not quite correct.  He was not allowed to go to Headquarters to associate himself with any of the other regional.

CHAIRPERSON: Probably more correct to say middle management.

UNKNOWN: Yes, he was the Manager of no more than three operatives and one of them was suspended most of the time, so he didn't have much to manage, but in any even, I think the point is made there.
	Then the last point I wish to canvass, perhaps just very briefly, is reliance is placed on the evidence of Botha and Barnard, for instance and also Gen Webb, where it is said by my learned friends for the victims, that Webb's evidence, or the fact that Webb didn't apply for amnesty, is an indication that he didn't give authorisation for Omar and Evans for instance, but in his evidence where I referred to the record, it is very clear that his own evidence is that he couldn't give such authorisation without going higher up, so if he did give, for instance, if he did give authorisation, it wouldn't have been lawful in that sense, because he wouldn't have the authority to do so.  Now they wish to rely on Webb's evidence in that regard, but when it comes to other aspects, then for instance they say that rely on Botha's evidence, but he also didn't apply for amnesty, but they say in his case you should accept his evidence that he did commit the Webster murder as an order from the CCB, or Verster specifically because he didn't apply, one of the aspects is he didn't apply for amnesty.  There's no consistent argument in this and I submit that in relying on Barnard and Botha's evidence, and I'm referring as far as my applicants are concerned, for instance, to the fact that Barnard said that there were nails attached to the bombs and that van Zyl said to him that the whole purpose was to kill people etc and I'm making the submission that in asking this Committee to accept the evidence for instance of Barnard, is not intellectually honest and I will go as far as to say that it would boil down to prostituting the case of the victims if that is done and I will immediately rush to say that I'm not saying that Barnard's evidence should be rejected, or Botha's evidence should be rejected, but you should be very, very careful in accepting evidence of co-conspirators and virtually co-accused, the authority there is very clear and I submit that their evidence could be taken into consideration individually as far as their own cases are concerned, but there would be no inference, or the Committee would not be able to make any inference of any value against any of the other applicants as far as Botha and Barnard for instance are concerned.
	And then the very last point I wish to make is this, regarding the proportionality aspect.  My learned friend Mr Kahanovitz made an excellent study of the International Law on this point and he spent about 20 or 30 pages in the Heads of Argument specifically on this point.  My submission is what has to be kept in mind here is we're not working here with International Law, we're working with this specific Act 34 of 1995.  This is a unique Act, this is a unique procedure and it does not really, or it isn't really helpful to refer to International Law, as Mr Kahanovitz did here and it was for instance said here, or there was a reference made to the Amy Biel matter and the St James Church and said how come these people were granted amnesty if one has a look at the proportionality aspect of their cases and I submit it is actually very simple, Mr Chairman.  The fact of the matter is that it is only required that the act be associated with a political objective.  It is not required that the applicants must prove Section 20(3)(a), (b), (c), (d), (e), (f) as part of their case, that they must comply with each of those points.  The only reason why a reference is made to 20(3) (a) to (f) is those are factors which would indicate political motive, so for instance if one has a look at the Amy Biel case, it would be clear from the evidence in that case that the motive was political, the context would be clear, the riots which took place, the slogans, the brainwashing which took place of these kids in the struggle against the whites, etc., so the motive of those people, the political motive  ...

CHAIRPERSON: Objective, I think you're talking about, the political objective.

UNKNOWN: Ja, the political objective, would already appear from those factors mentioned in 20(3)(a), (b), (c), we wouldn't even need to get to there, but the value of (f), that is the proportionality aspect, would be for instance if one say referred to the St James Church incident.  If for instance the facts were that these people came into the Church, killed a lot of people, stole R500 from the collection monies and their excuse was:  "We were going to take this R500, we didn't rob these people, this was political.  We came here to steal the collection money, R500, we were going to donate it to the ANC."  Obviously then the proportionality aspect would indicate that there was a political objective, so that is the value.  I'm not saying that in this case the proportionality aspect is of no value at all, but I'm saying that it is not a requirement which has to be proved by the applicants and in conclusion I say that the political objectives and the political motives of the applicants are clearly shown already by the fact that they were employed by the CCB, that they were in fact attacking people of political position like Omar or Evans, that they were acting, even if all the information they received about the ELC was false, they bona fide believed that they were attacking political opponents and what is also very important obviously is the context in which these acts were committed and that is why I'm again emphasising what pages 30, 31, 32 of my Heads of Argument, because that is exactly what I say here, that one should weigh these factors against each other and that the value or the importance of Section 20(3)(f) actually diminishes to a large extent if one has a look at the full background of this case, the motives of the applicants, the context, the fact, very specifically that they were employed by the SADF in the CCB, a covert organisation, specifically aimed at combatting the enemy and we've heard the evidence of Verster, we've heard the evidence of the General, that's the evidence on record and that is the evidence this Committee should act on.
	I'm not going to canvass any other points right now.  I will do so in writing, if necessary.  Thank you Mr Chairman.

CHAIRPERSON: Thank you Mr du Plessis.  Mr Coetzee, do you have any reply that you'd like to make?

MR COETZEE: Mr Chairman, I do have a couple of aspects.

MR COETZEE IN REPLY: First of all regarding the credibility of the evidence of Mr Barnard, the problem that I have with Mr Martini's argument regarding the firearm, or where the firearm was obtained from and all, is that that evidence was led, he heard that evidence, he did not dispute it in cross-examination, to now come and to take some piece of evidence which does not necessarily have a basis because it stands out, it most likely easily be placed in context if he was properly cross-examined thereupon.

CHAIRPERSON: Yes, that was - Mr Martini essentially chose not to cross-examine.

MR COETZEE: Yes.