Amnesty Hearings — Cape Town — 2000-11-19

UNKNOWN: We submit that that is not an acceptable argument from a matter of first principles.  The CCB itself says "we were acting for the benefit of the State".  They can't then come and say yes, but you can't ask us to justify why we didn't make use of other mechanisms that were available to the State to maximally disrupt the enemy.  It's inconceivable that you can come along and say by definition we only resort to unlawful methods, so don't ask us to ever justify why it is that we did not make use of lawful methods that were available to us.  You can't begin to get involved in testing the proportionality of anybody's conduct on the basis of that hypothesis as your commencement point of your argument.
	So we submit and we say you can obviously take notice of the fact that in 1989 the State had had at its disposal a vast array of legal and non-violent resources.  Prosecuting its enemies was one, but even were one to move in the realms of having to take action on the basis of intelligence which cannot stand up in court, the applicants have the greatest of difficulty in justifying their methods.  The events dealt with in these proceedings occurred during the state of emergency.  The State was able to indefinitely detain, without trial, it's enemies.  This fate befell several thousands of people, some of whom were held for more than a year.  We say excepting for the sake of argument that Evans et al were the enemies of the State, to assess the proportionality of the State's response, one must proceed from the premise that the State was in a position to have indefinitely detained all of these people without trial and had it done so it cannot be doubted that such conduct would have severely disrupted the State's enemies.
	We say prima facie the objectives of the CCB and the State are thereby able to be achieved through means less damaging than murder and bombing.

CHAIRPERSON: Just before you proceed, if I could ask a question?

UNKNOWN: Please interrupt me whenever.

CHAIRPERSON: If you take a look at Section 20(3)(f), the following criteria
"The relationship between the act, omission or offence"
Okay, here we're talking about - I'm talking now in respect of the conspiracy to murder matters, Omar and Evans matters only, not the ELC.  The relationship between the offence and the political objective pursued.  Now this gets back to what I raised before about - does one not need to look at the actual physical result of the offence because the offence here is conspiracy to murder.  It's incomplete, it's complete in a sense, but incomplete in the sense that the murder wasn't actually committed.  So now the offence we've got to look at referred to in (3) is conspiracy and the political objective?  Well, it's a step away from the political objective.  The political objective can only be attained if the conspiracy was carried out and the murder performed.  So therefore, can proportionality and I'm asking this as a question, apply at all in respect of an offence such as conspiracy which is just a state of mind basically?

UNKNOWN: Yes.  There are a number of submissions there.  Firstly, obviously you are not entitled to disregard (f) because it is one of a basket of factors that are obviously statutorily obliged to take into account.  The wording of the section is of some importance.  It says in relation to the objective pursued which is something entirely different to the objective attained and I would submit that that phraseology is not used by mistake because one is correct in suggesting that with the conspiracy which is in fact - never goes further than the conspiracy.  Well, ipso facto, there wouldn't be a test of proportionality to be applied because as my learned friend argued, nothing ever happened.  But that's not what the section says because if you were to take that argument as logical conclusion, it would then imply that in all conspiracies, proportionality never comes to be assessed and we submit that that would do offence to the language of the section itself.  You will also recall that - and again, I do not have any text books or references here, but my recollection is that if you are found guilty of the crime of conspiracy, you may in fact be sentenced to the same sentence that you would be entitled to.

CHAIRPERSON: You're correct there.  It actually does say that although in practice it very seldom happens but certainly the court would have the power to do that.

UNKNOWN: But what that does tell you about society's perception of conspiracies is that from a moral blameworthiness perspective, the fact of the conspiracy is judged by equal terms to the fact of the completed crime and where you are dealing with a set of factors that relate to the moral culpability of a person who has been engaged in the offence with the view to determining the proportionality of their response, surely one would have to take into account the factors such as - well you could only take into account what it was that they were seeking to achieve in the same way that you would in a criminal case involving conspiracy.  Yes, my learned senior also points out that insofar as Omar is concerned, our submission is that it's an attempt and it's not a ...(intervention)

CHAIRPERSON: It's not beyond just the ...(intervention)

UNKNOWN: Yes, although I would assume on my learned friend's argument, once again, even with an attempt, they would suggest that the Committee disregard proportionality because the attempt never succeeded.  So - and one can also think of a different scenario where I planned to blow the Kewtown Youth but instead I blow up the members of the soccer team.  What you're going to be assessing in terms of (f) and I'm pretty sure this is what applicants on those facts would say, look at the objective that I was seeking to pursue, do not look at the objective which I in fact obtained because if you had to then take that argument to its full conclusion and say only look at what was attained, well then you would say if, due to genuine error, members of the soccer team were blown up by mistake, people in those circumstances would never be able to obtain amnesty because we only adjudicate from the perspective of what in fact happened, not what you in fact intended to do.  So the test must relate to your intention.

MR LAX: With regard to Evans, that's exactly what might have happened.  If they'd killed him, they would have killed the wrong Evans.