Amnesty Hearings — East London — 1999-04-21

MR CORNELIUS: Thank you Mr Chairman.  I will try to introduce a new line, a fresh line of thought which we can entertain on the issue of the personal gain.  If we look at the Act, if certain requirements are satisfied in terms of Section 20(1), the Committee shall grant amnesty in terms of the omission or offence.  It is not may, it is shall.  So, we will have to look very carefully at the way Section 20 is divided into different ambit areas.  If we look at Section 20(2), we would note that Section 20(2) is divided into paragraphs (a) to (g), which is clearly to the persons or candidates who may apply for amnesty.
	Secondly Section 20(3) of the Act is the ambit on the political objective of the applicant.  Then strangely, it initially caused me quite a lot of grief, at the end of subsection (f) it flows over into quite a new aspect of the Act, it says but you cannot apply if you acted for personal gain or out of personal malice, ill-will or spite.  You wouldn't expect this subsection to be incorporated in subsection (3).  I would personally have felt more at home if it was incorporated into subsection (2), as candidates who may apply or may not apply.  I think from that respect, Adv Sandi's remark that somebody should actually be prohibited if he had personal gain from the start, to apply for amnesty.  The only other reason why I can think it is included in subsection (3), is because it might deal with certain subjective aspects which the Commission might have to weigh up to come to a decision.
	I would say Mr Chairman, also I had a look at the Norgard Principles, I read the relevant cases as far as I could, I would say that the evaluation of personal gain should lie in a objective test and a subjective test.  Objectively we will have to evaluate what was placed before this Committee.  Now to make an objective approach, you can only look at the merits which was placed before this Committee, Mr Chairman.  The merits before this Committee is for the Duli coup, which occurred in November 1990.  There was reference made to other arms deliveries, for maybe successive or attempted coups, so-called first and second attempts, which applications have not been heard.  I do not know what evidence will be adduced at those hearings Mr Chairman.   It might be that there might be a reflection of certain rewards, it might be that there might be not.  There are certain people who did not testify before this Committee, whose applications were withdrawn, who obviously we would have liked the opportunity to cross-examine.
	I act as far as the objective test is concerned, for the so-called foot-soldiers, two of them, but it is also highly applicable if they acted for personal gain or not.  So we must closely scrutinise them objective and subjectively.  If it was found at the onset that my two applicants were mercenaries, they couldn't have applied.  They couldn't have on an objective basis, they could have had the objective political motivation objective, because depending on their Task Master, they would obviously have a differentiated objective political objective every time they act and they would most certainly, if they were mercenaries, would have been paid and would have had very real personal gain interest.
	If we look at the merits before this Committee Mr Chairman, there wasn't any evidence of any promise to receive a reward of any possible donation that will be made if they attend the Duli coup, and deliver the arms prior to the commission of the offence, or during the planning phase of the offence.  There is no such evidence before the Committee.  There is no evidence before the Committee that my applicants were in any way induced to participate in this act, omission or offence.  They received orders, that is quite clear, which they had to obey.  If we accept, I will get to that now, I think that is more on the subjective side, let me just finish the objective side Mr Chairman, if the applicants did not carry out the orders, it would have had a serious affect on them.
	The evidence of Gen Van der Merwe in the COSATU House and Khotso House is quite clear what the affects would have been if orders were not carried out.  I think in a certain way, Mr Eugene de Kock as well, received certain orders which he had to carry out as Head of that Unit.  How could personal gain, if you receive an order to carry something out, be a factor when you've got to decide if you want to obey the order or not?  They didn't have a choice.  The money which Colonel Eugene de Kock obtained or defrauded from the employer or the Secret Fund, the foot-soldiers, and the applicants I represent had no knowledge of that, they didn't know where the money came from.  Colonel Eugene de Kock testified, he was convicted and he is serving sentence for the crime.  There were various isolated events where money were given to people, but it is quite clear that this was not a standard procedure.  There is no procedure laid down that they know if they do participate, they will be rewarded.
	We get the idea that he was a Good Samaritan, he gave certain gifts to certain people, and he lent money to them.  If I look at those merits on a balance of probabilities, Mr Chairman, I would say that indicates that he bought their loyalty.  That is the impression I get.  He didn't reimburse them for certain acts, omissions or offences, I think it was a fact that he was paying them for their loyalty and the fact that they were not breaching the security of a highly sensitive and secret Unit.  We have seen what happens when the security is breached and there were various people murdered who breached security of this particular Branch.
	The act, omission or offence itself Mr Chairman, and the personal gain as envisaged as in Section 20(3)(i) is a unity, and if we look at what the legislature is trying to say to us here, we see Section 20(3)(i) -
"... but does not include any act, omission or offence committed by any person referred to in subsection (2) who acted ..."
	now there we must place the emphasis Mr Chairman, the words "who acted", indicates in the verb, that that act, when that act was committed, there should have been a motivation for personal gain.  Otherwise if we read the context of this provision, the words "who acted" would not have been used.  It is clear that when he acted, he must have acted for personal gain.  The point I am trying to bring home, is that this unity between who acted and the personal gain itself, is something which we cannot divide into two little divisions, Mr Chairman, with respect.  We must look at it as one unit, at the time of the commission of the offence or the commission of the act.
	It might be that the same applicant might succeed for an application for amnesty in one case, and not in the other case if we keep the units together.  What I am trying to bring home Mr Chairman, it might be that he received reward in another case, but that doesn't mean that he can't get amnesty in this case, so we will have to weigh the circumstances and the merits of each case individually to decide and to come to a decision.
	If a donation or a reward was given to the applicant after he had committed the act, it is my submission he must still get amnesty.  For example, if we take the applicants ...

CHAIRPERSON: And on your argument, that is only if he had no knowledge that he would get it, prior to the commission of the act?