Amnesty Hearings — East London — 1998-10-07

MR ZILWA: I suppose on that aspect of it to determine the motivation which is referred to here in the motivation of the applicant, I suppose the test there should be subjective.  The motivation, that will only apply to the motivation itself, the motivation of the applicants.  Now what really motivated because we have to use that motivation in trying to determine whether in fact the act qualifies as a political act.  Now if we accept that their motivation was that they were to kill whites because a white man had killed Chris Hani and they wanted to achieve the objective which they have referred to, in my submission it should be accepted that they in fact, their action, falls within the scope that is covered by this sub-section 3 and with that I would submit that the applicants have clearly shown that they have acted with political motivation and as I've already submitted, according to them, they acted in support or in keeping with the policies of their organisation and that being the case, I would submit that their actions falls within the scope or within the - yes the scope of the people who should be granted amnesty and as such in response to the second question posed i.e. whether their action is regarded as retaliatory for the Chris Hani's death, whether they've established that indeed they wanted to convey the message and in my submission, following their submissions and following the argument which I have used, it is in my submission clear that their retaliatory, their action was clearly intended to be a retaliation to the death of Chris Hani and they wanted to convey their message and indeed as I've submitted, as they themselves have stated, it's quite unfortunate that their choice of targets was so wrong, that it resulted in innocent people being killed.  But insofar as there motivation i.e. sending the message is concerned, it is my submission that I've clearly shown, that that is exactly what they intended and that being the case, their actions falls within the scope of the people who should be granted amnesty.  That would be my address with regard to the two questions.

ADV SANDI: Do you have anything to say, Mr Zilwa, pertaining to the question of proportionality?  Section 3(f) I suppose, in the Act?  Do you think in the circumstances that have been outlined, the action that was taken by the applicants was the only action that could have been taken to make this political statement?

MR ZILWA: Yes, proportionality Mr Chairman, it's almost
apropos to the position in self-defence, the legal position in self-defence.  It says the defence must be proportional to the attack.  Now let's take a look at that.

CHAIRPERSON: That must have been an eye for and eye, isn't it?

MR ZILWA: Yes it could have been, could have been.  Let's take a look at that.  Chris Hani.  Who was Chris Hani?  I need not say anything.  Chris Hani was, as the applicants themselves say, was the epitome of everything the struggle stood for, he was almost the struggle.  Now this bastion of the struggle, Chris Hani, has been killed.  Now if I understand the question correctly, was then the applicants' action of killing these white people in this car, was it proportional to the event to which they were reacting?  In my submission I would submit that given the stature of Chris Hani, given the danger that they foresaw in the event of killings such as this continuing unchecked, I would submit that their action was quite proportional to the objective they sought to achieve.  In other words, my direct answer to the query would be that their action was clearly proportional to the danger that they wished to effect or the event that they were reacting to, given the stature of Chris Hani, I would say.
	Mr Chairman, unless you wish to hear me on any further aspects that would be my response to the questions.  Thank you.

UNKNOWN: Thank you Mr Chairman.  Mr Chairman, firstly regarding the question of the absence or failure to acquire an order to commit the crimes in respect of which the applicants make application for amnesty, those crimes involve two murders, three attempted murders in respect of two of the applicants, if I recall correctly, the unlawful possession of firearms, although one of those who admitted to possession and firing of a firearm has not made application for amnesty in respect thereof, that's Mr Guleni.  The offences we know were committed in respect of holidaymakers, now described as innocent parties even by the applicants, on a fishing expedition and even if one accepts that there was a political motive for those offences, it is quite apparent from Exhibit B, the document containing a number of policy statements from the African National Congress that resorting to political violence of this nature was prima facie in conflict with party policy.  They stop ...[intervention]

CHAIRPERSON: Mr Smuts, we all know that the African National Congress at some time during it's history embarked on the armed struggle.  There's a dispute as to whether that was necessary or not from certain quarters in this country.  But would you agree that the introduction of the armed struggle on the part of the African National Congress was the decision that was taken to be positive in arresting the control of this country from the apartheid regime and when eventually it was negotiated that the armed struggle would be abandoned, it did not include the right to defend oneself by violent means.

MR SMUTS: That's quite correct, Mr Chairman and nor did it have to because that right was extended at common law to every citizen and inhabitant of the country.

CHAIRPERSON: Well I make the point, I'm asking you to consider the point that if we accept that the applicants, rightly or wrongly, brought their actions under the confines of the duties of an SDU, that that was not contrary to the policy of the ANC.

MR SMUTS: Acts of defence were not contrary to the policy of the African National Congress, they were not unlawful, they were perfectly legitimate, that is so.  It stretches the imagination to the point of breaking, Mr Chairman, to believe that three days after the assassination of Mr Hani in Boksburg, the murder of two fishermen and the attempted murder of another fishermen and two children at Mpande, could in any sane society be regarded as an act of defence.  My submission is then, those actions were prima facie in conflict with the policy, the stated policy of the African National Congress even if one were to accept that this was a politically motivated act.
	In the absence of an order and it is an instruction from superiors which has in quite horrific cases nonetheless qualified applicants for amnesty.  In the absence of an order from superiors it is my submission that these applicants acting as they did, knowing that their party was committed to a policy of non-violence, could not and did not believe that they were bona fide acting in furtherance of a political struggle waged by their organisation.
	Mr Chairman, an illustration of the effect of an absence of an order emerges from the amnesty decision in the matter of Dawid Petrus Botha which is application 57/1996 where Advocate De Jager was a member of the Committee and the majority decision there granted amnesty to the two AWB sub-ordinates in consequence of the instruction that they had received from Botha but refused the application of Botha on the basis that he acted without any instruction.