Amnesty Hearings — Pretoria — UNKNOWN

ADV VAN DER WALT COMMISSION ON MERITS OF CASE: Mr Chairperson, I support Mr Prinsloo's argument. I won't repeat the whole body of the argument. I would just like to emphasise certain points as they relate to Mr Gerber. I would also like to argue that he complies with the requirements of Section 22(a), (d) and (f), but I would like to further argue in relation to Mr Van Eyck that he complies with the requirements of subsection (2)(g).  Any person who associates himself with any act, omission or offence committed for the above purposes mentioned in the mentioned paragraphs.
	Chairperson, it is so, and I would like to argue that the witness called by Mr Mpshe, Jack Mkoana, confirmed that Mr Van Eyck told you the truth when he testified here.  No other evidence was placed before you which contradicts this and it is so that Mr Justice Roos also found that Mr Van Eyck did not commit this murder.  It is also true that as Judge Wilson said, that he cannot apply for amnesty if he did not commit murder, but here I would like to argue that Mr Van Eyck was present during the torture and he also took part in it.  When the shooting started, the shooting by Mr Oosthuisen and later continued by Mr Gerber, Mr Van Eyck was present.  He did nothing to prevent the shooting and during cross-examination by Mr Prinsloo also said that he associated himself with this act.  He goes on to actually burn the corpse and he told the honourable Commission that he did this, because he wanted to make it appear to be a political deed, political murder. So he took this act much further and I want to contend that he was correctly convicted of murder and he therefore is entitled to apply for amnesty, and that he also complies with the requirements set out in subsection (2)(g).
	It is very important to note the requirements set out by Section 22(f) and if you look at this subsection, it is quite widely drafted, and that is that any person in Sections (a) and (d) as I would like to argue, I am contending that he complied with those requirements.  Any person who had reasonable grounds to believe that he was acting in the course and scope of his duties.  Here I want to point out that the section continues by saying that the instructions could have been given in an express or an implied way, that he believed as a result of certain information which he had received that this was the case.  Mr Gerber also said in his evidence that various slogans had been painted on walls, et cetera.  All the things which led him to believe that the ANC, PAC and Apla were involved in these armed robberies.  Mr Van Eyck acted in this belief that what he was doing was correct.
	I am not going to address you further on subsection (3), that is the section from which you must determine whether this was an act associated with a political motive.
	Chairperson, what is very important is that subsection (f) which is perhaps one of the most important subsections of Section 3, is that there must be proportionality between the act committed and the objective ...
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	... the proportionality here and as Mr Prinsloo contended, I would like to contend that you employ different criteria than those used by the Indemnity Committee, but it can never be ignored, especially in relation to subsection (f) that in what Barend Strydom did, that there was on proportionality there between his act and the objective pursued, because he simply went out one day and shot people at random.  He simply wanted to show his political convictions.  But here the applicants had the motive and objective to obtain information about the PAC. 
	Mr De Graaff who does not know the two applicants, and who did not testify on their behalf, but placed objective facts before you, and those facts I contend support the conclusion that the PAC at that time had financial problems. 
	I would like you to bear these considerations in mind and also to grant amnesty to Mr Van Eyck for the deed which he committed. Thank you.

HASSAN MALL: Mr Mpshe?

UNKNOWN: Thank you, Mr Chairperson.
	Mr Chairperson and members of the Committee, I will first start by responding to certain issues raised by my learned friends and thereafter address the Committee as prepared.
	Mr Chairman, members of the Committee, mention is made of the fact that Mr Gerber, the first applicant, was a member of the National Party and he acted in his capacity due to the influence of him being a member of the National Party.  But nowhere in evidence either by himself, nor the record in the court of law, is it mentioned that he acted on a mandate or order or command of the National Party.
	It is further stated that the action was directed towards the PAC.  They acted as they did because of their belief.
	Mr Chairman and members of the Committee, there is not evidence before you now that can convince you, with respect, that the deceased was indeed a member of the PAC.  All what he said was that Mr Gerber reasonably believed that the deceased was a member of the PAC.  But that does not suffice, that is not enough.  We are not told what made him to reasonably believe that he was a member of the PAC.

JUDGE WILSON: Was any evidence led at the trial to this effect?

UNKNOWN: No, not at all.
	That is why I say there is no evidence to that effect, and if my memory serves me well, the evidence of Gerber, when questioned by myself, about membership of the deceased with PAC, he said when I asked him "did you confirm whether he was a member of PAC", and the answer was no.  The same question was put to the second applicant, Van Eyck, and I asked him "het jy bevestig dat die oorledene 'n lid was van die PAC".  He said no.  Now I don't know where does reasonability come in.  
	I want to move you, Sir, Mr Chairman and members of the Committee, to disregard and dispel the fact that they believed reasonably that he was a member of the PAC.

BERNARD MAKGABO NGOEPE: Sorry, Mr Mpshe, I think they are saying that they believed that as a result of the fact that they found cartridges of an AK-47 which at the time could only have been in the possession and being used by liberation movements and also the fact that they found a (indistinct) in the abandoned car.  Somebody who could not have been a South African, therefore it could have come from outside.