Amnesty Hearings — Pretoria — UNKNOWN

MR PRINSLOO COMMISSION ON MERITS OF CASE: Mr Chairman and members of the Committee, in relation to the argument relating to the two applicants, and with specific reference to Mr Gerber.
	Firstly, in terms of the Reconciliation and Promotion of National Reconciliation Act, Section 20 thereof provides that there must be a full disclosure of all the facts. 
	I would like to submit with respect, that Mr Gerber - and my colleague will address you regarding Mr Van Eyck, but the two run concurrently, that there was full disclosure regarding the facts of this particular case.
	Firstly, Mr Chairman, Mr Gerber has given evidence here in an unambiguous way and he has given full details of how he caused the death of the deceased, and how the deceased met his unfortunate end.  These facts were not revealed during the trial court hearing the applicant's case and as far as the political background is concerned, the factors relating to that were submitted to the Commission.
	Section 20 requires that the Act must have been committed with a political motive and must be connected with such political motives.  That is in terms of Section 22 of this Act.
	The Act further requires, the section requires that the applicant must have been a member or supported a publicly known political organisation or liberation movement, and must have acted on behalf or in support of such organisation, bona fide in furtherance of that political struggle waged by the organisation against the State or any liberation movement.
	Now our argument is that at that stage the political climate which existed as also submitted in the evidence, and also in the evidence of Mr Gerber, he was a member of the National Party and he associated him fully with the view held by the State that there was a total onslaught directed against the State.
	I would like to submit, with respect, that the preceding history supports that view and standpoint and the evidence placed before you also supports that view.  The evidence of Mr Van der Graaff that is and Van Eyck and Gerber's evidence also supports this.
	The evidence further shows that there was information that members of the PAC were responsible for an internal robbery at the basement of the Fidelity Guards Building, and that Mr Gerber had received information from a particular source which was said that the deceased had this information at his disposal.
	Now what is important, Chairperson, is that Mr Gerber not only acted as a result of this information from his informer, but also as a result of his close contact with the South African Police, as well as his contacts with the security police and always in the interests of the society, bearing in mind his political background, and also bearing in mind the fact that he was a member of the South African Reservist Force.
	Now in the light of the application made by Fidelity Guards, and in the light of the evidence here that Fidelity Guards considered themselves to be an extension actually of the State, and also in view of the fact that Fidelity Guards were largely staffed by formers members of the South African Police.  It is important that at that particular time, the South African Government was fully mobilised, and each individual, private individual or State organisation or business, everybody was mobilised to combat this so-called total onslaught.
	Chairperson, it cannot be disputed on the basis of the history which we have sketched, that there was a total onslaught and that there was a total mobilisation as a result thereof. The total onslaught was directed by the former liberation movement, such as the ANC and the PAC, and this fact is supported by numerous documents.  It would just place an added burden on this Commission to refer to all these documents, but such was the case.
	Now as far as Mr Gerber is concerned, he was made to realise by the State that he had to combat this onslaught. Mr Gerber believed bona fide that this onslaught was also aimed against the Fidelity Guards in that it had been found after the armed robberies.  There were Chinese stick grenades that had been used, there were AK-47 shells at the scene and it was commonly known in this country that members of the liberation movements had access to the Eastern Bloc countries, and that is how they obtained things such as these stick grenades and AK-47s.
	The information at the disposal of the South African Police - names were mentioned here such as Genl Du Toit, At van Niekerk, Deetlefs, people who shared this opinion and this opinion was that the weapons had been smuggled into the country, such as for instance the Chinese stick grenades and that Apla had targeted these financial institutions.
	Now this is confirmed by the evidence of the witness Van der Graaff, who testified this morning, that there were these attacks launched by Apla and they financed their activities by means of the funds so obtained.
	Now in the circumstances, Chairperson, our argument is that Gerber bona fide believed that there was such an onslaught which he had to fight and combat.
	As Section 20(a) sets out - I will also address you on (d) and (f) of that section. In conjunction of this must be seen the information which cannot be disputed, that Gerber indeed had such information that the deceased, Simon Kanaga was involved in this particular operation.  Seen against this background, that it will be highly improbable for attackers from outside to gain access to this building and so perform this robbery. Added to this is the evidence of Van Eyck that the person found dead in the vehicle was indeed a stranger and could not be identified as a citizen of this country.
	Chairperson, there was thus sufficient reasonable grounds for any reasonable person to believe objectively speaking, that there was such an onslaught which had to be combated.
	The next point deals with subsections (a), (d) and (f) and in particular of Section 20 of the criteria which hang together with this. It is set out in Section 20(3)(a) to (h), Mr Chairperson.
	Chairperson, if we look at the specific links between Gerber, Van Eyck and the South African Police, that they saw themselves as a cog in the State machinery, it can be contended that Gerber saw himself as an agent of the Police. His evidence that he had talked with the investigating officers in this case, that they were aware of his investigation, that there was reference also to what was found at the scene, I would like to respectfully submit that none of this was in dispute.
	I would like to contend that Mr Gerber on that basis had the instruction to investigate this matter, whether tacitly or expressly.  But such a directive did in fact exist.  In this aspect he was an agent such as found amongst the liberation organisations where there was mass mobilisation of the people and such mobilisation took place on a wide front, and involved members, sympathisers, supporters, and these people were exposed to propaganda and mobilisation in order to exhort them to act against the enemy, which was the government at that stage.
	If such a person who was not a member but only a sympathiser, for instance, of the ANC at the time, if such a person would have acted in defiance against the Police by, for instance, killing a policeman, where would he fit in in these circumstances?  He is not a supporter, merely a sympathiser, he is not a member of the party, but he has associated himself with the cause of that particular organisation by means of his defiance. In those circumstances, I think it can be said that Gerber and Van Eyck must be treated equally.  On the same basis as such a person as I have just described.
	Mr Chairperson, then turning to the motive in Section 20.3.  The motive of the person committing the act or omission, with respect, one must deliberate here, this must not be confused with motive.  Motive must be seen completely apart from intention.  What was the motive behind such an act?  The motive here, with respect, was that Gerber in good faith, believed, together with Van Eyck, that there was an onslaught, an onslaught against the Government, which they were in the process of defending.  Just as the farmer, a member of the pistol club, who is given approval, who regarded the ANC as part of as a component in their periodicals, that they were in fact defending their countries, in order, as they put it, to fend off total onslaught.
	Then Chairperson, in Section (b) the context in which the act, the crime or the omission takes place, more specifically whether it took place as a part of a political resistance.  Here I with to state, with respect, that this requires that there should be - it does not require that there should necessarily be a physical uprising in process at the moment.  But a political climate which prevailed at a particular moment, at that moment, there was not yet any mention of an election. At that moment various political disruptions were taking place, there were movements, there were revolts, there was violence, right up to the election, Mr Chairperson, right up till the last minute.  
	The resistance remained in the minds of the community.  On the one hand the liberation movements who wanted to take power in the country and on the other hand the people who had power and wished to retain it.  Each person was defending himself and these two poles stood against each other.
	Mr Chairperson, the context of the act omitted by Gerber and Van Eyck, the link, it is in relation to that that I submit, with respect, the cases of Barend Strydom, McBride, Albert Misima and others, S v Togo, various such cases, where previously amnesty or indemnity has been granted.