Amnesty Hearings — Pietermaritzburg — UNKNOWN

MR DU TOIT: No, because he instructed the special constables to attack in accordance with an order he was given, and I don't see what happened after that as not falling within.  It is the direct result of an order.  It is the direct consequence of the order.  It is - the order is what brought the action in movement, and that is why the Act does not require that the victims should be of a political party, but that the act should be primarily directed at a political opponent.  Otherwise the Act would have required that the victim should have been a political opponent, which the Act does not do, because the Legislature perceived the situation where, under the abnormal circumstances, an order can be directed at target A, the conduct of the officer in instructing on the ground can be directed at A.  Something may go wrong and innocent people in the process may be hurt or even killed, as tragically happened here.  But that is why the Legislature specifically requires that it is the aim which should be primarily directed at the political opponent, and not that the victim should objectively physically be the political opponent.  So, at worst for my client, if the target was not that specified in the order it will make no difference, because in accordance with the criteria as set out in the Act he will remain entitled to the amnesty.
	/It does
It does not say that the victim or the object should be a political opponent, but that it should be primarily directed at a political opponent or State property or person, or against, whether it was primarily directed at the political opponent or private property or individual.
I therefore believe, with respect, Mr Commissioner, that the question as to whether the target is in conformity with the actual order will not arise.  My client sought the achievement of a political objective, and that is what both the Constitution and this Act have in mind, namely to, even under unthinkable circumstances like this, women and children killed, to accept that in the abnormal situation horrendous offences were committed, and that provided that the aim or the objective was political that there should be an approach which is alien to the criminal justice system, namely to release or to prevent the criminal justice system from coming into operation by bringing about early release.

BERNARD MAKGABO NGOEPE: But if the plan to execute an act which is directed at a particular objective, as you say - if the operation is executed with such a reckless disregard, with such recklessness, surely it can have as its consequence the fact that it can hardly be said that you are directing yourself to the stated objective.  It can hardly be said so.

MR DU TOIT: No, I believe that the physical performance of the act is not to be judged.  That has to be judged is whether the act was primarily directed at achieving a political objective, and there can be no quarrel on the facts before you that that was indeed so.  Because in war, in civil war, and in situations like this many things go
	/wrong.
wrong.  That is why there is no specific requirement that the victim himself or herself should be a political opponent.  What is examined is the subjective intent, the motive behind - not even the intent, but the motive behind the conduct.

BERNARD MAKGABO NGOEPE: So if I am sitting somewhere behind the mountains, and I intend to kill members of the ANC in Pietermaritzburg, I can just throw a bomb over and even if I kill other people it doesn't matter as long as I am primarily - my primary objective is to hit members of the ANC.

MR DU TOIT: Is objective as long as your - the objective motive or the motive, the objective which is the aim of a motive, is political.  That is the consequence.  In my view the only ... (intervention)

MR DE JAGER: Mr du Toit, shouldn't the offence be associated with the political objective?  You need not have the political objective yourself, but the act should be associated with the political objective.

MR DU TOIT: No, that - I think that follows from what I say, namely that what is the main object of examination here is the motive which sits behind the act.  The consequences, unthinkably tragic as they may be, will not affect that motive.  And it is for that reason why the Legislature has been very careful not to limit the granting of amnesty to those - to be blunt, to those  murderers, the murderers of exactly the people at which the Act was also aimed at motive-wise by the perpetrator.  That is why the - the requirement is one of association.  The requirement is one of making the object, the primary object even - there may be secondary objectives, but the
	/primary
primary objective to achieve a political aim.
You are also called upon to keep in mind the criteria applied in the two Acts repealed by section 48 of this Act.  Of course the first Act would not be applicable because he was not entitled to consideration under the first Act, but the '92 Act the criteria there will be applicable.  And there the wider criterion is clearly associated with a political motive.  
I must point out that it is here where the release of the other four perpetrators of the offence found guilty by WILSON J will become relevant, because the four special constables, who were not only convicted of a similar offence, but the exact same offence or offences, were released under that Act.  And I would submit that that is also a consideration which should weigh heavily with you since, in my view, the Constitution could never have envisaged inequality, in that the four special constables are released and that the officer who gave that instruction is not released.  I would submit that one is driven to an inference of inequality if people who committed the identical offence are, for purposes of amnesty, not treated equally.  And therefore I think in this particular matter the criteria applied in the Act of 1992 will be of specific weight.
There are other considerations not directly applicable to the facts.  One of these considerations must be the effect or the outcome of this application.  If you were to grant amnesty or early release here it will send out a strong signal to other members in the police force, in the defence force, past and present, to come forward and to tell everything.  I think that an early decision
	/here, a
here, a speedy decision to release, will bring about a  situation where other force members, as my client has in fact urged them to do, will come forward and will lodge their applications.  I think that it is necessary that those who have more information than my client should come forward.  I would mention members of the force who may have been involved with the Management System and various other strategies for much longer than my client would have been would also possess valuable information.  If you were to grant the application of my client there will be a solid signal which is sent out. 
That also would be in accordance with the declared aim of this Act, because, as, Mr Chairperson and Commissioners, you will no doubt know, the aim to establish the truth to prevent a repetition of such acts in future is almost at the heart of this Act.  And I believe that you would serve ... (intervention)

MR DE JAGER: Okay, Mr du Toit, but that would amount to it that if we don't give amnesty other people won't come forward, so we need to give amnesty, and that can't be an argument.