Amnesty Hearings — East London — 1998-10-07

ADV DE JAGER: Ja, Mr Zilwa, Section 22(a) deals with the status of the applicant, whether he would qualify as an applicant, that's the only thing that 22(a) is dealing with and on the evidence before us, he was a supporter of a publicly known political organisation.  He was involved in the struggle of the past so as a person, he could apply, he qualifies as an applicant.
	Now Section 22 (iii) deals with whether such a person, even if you're a members, even if you're a supporter, deals with whether you acted with a political motivation or an act associated with it, that deals with the act.  So if we divide the two things, we've got the person now and now we're proceeding to the act and sees whether he's qualifying.  As far as the person is concerned, I think he would fall within the ambit of the description of or the definition of 22(a).  I may be that he did not act on behalf of the movement but according to his evidence, he acted in support of the movement.  Now you could you act in support of a movement if you're acting contrary to the policy of the movement?  Isn't that the only issue in this as far as this is concerned?

MR ZILWA: Thank you Mr Chairman.  I would assume I was first dealing with the person, after that I was going to deal with the Act, I would assume that the Committee is satisfied that as far as the position of the person, if the applicant is concerned, then it falls within the Act, which then to me suggests that I should not waste any further time dealing with the person himself, I should go straight to the Act.  Thank you.

ADV DE JAGER: Can a person act in support if he's acting contrary to the policy of a person, can you say he's supporting a movement if he acts in contrary to the policy?

MR ZILWA: Yes Mr Chairman, let's take a look at that.  Now I suppose it is common cause as the documentation exhibit, that is Exhibit B clearly indicates that the policy of the ANC as at that stage was that the ANC had taken a stance against violence.  Now the question as I understand it, was seeing that the applicants' action in killing the Weakleys amounted to an act of violence which could be said that, against a stated policy of the ANC.  Now could it be said that they acted in support of the ANC?
	Now before I address that question directly, let's take a look at the facts.  What are the facts?  The facts are that as I say it's common cause that the ANC had taken a stance against violence but now the surrounding circumstances very much appropriate to take a look at, they are crucial in addressing that whole question.  Now the surrounding circumstances are such that, given that the ANC had taken that stance against non-violence, but an event of such magnitude such as that it can be said that it's an event the like of which had never been seen in this country and which plunged this country in the chaotic situation in which it plunged it had occurred.  Now extraordinary events can be said to call for extraordinary measures.  Now it is a fact that as at that time, the clear policy of ANC was that it had a stance against violence but now this momentous event that threatened to completely sweep away the fragile peace process that was being brokered at that time, now the effect of that on the mind of the ordinary person or on the mind of a person such as the applicants has to be taken into account.  Now a suggestion is that...[intervention]

CHAIRPERSON: Even if that mind and what that mind decides contrary to the policy of the organisation?

MR ZILWA: I will make the submission that it cannot be said that what the accused did at the time was contrary to the policy of the organisation at least in so far as they were concerned.  Now Mr Chairman, I will submit that one really should view this subjectively even though of course the element of reasonableness as to whether or what they have done is reasonable or what he says is reasonable should also be taken into account.  But one should take into account the state of mind of the applicants at the time of the commission of the offence.  Now they say they belonged to the SDU's which was set up for the purposes of protection or defence.  Now they say the event of the murder of Chris Hani was such that -and what they subsequently learned was such that this was not an isolated event, similar things were going to follow, in other words, similar murders to prominent leaders of their organisations were imminent.  Now they say when they got that intelligence, they took it upon themselves that acting as they did cannot be said to constitute an action that would be in violation of the stated stance of their organisation.  In other words, they say they regarded their action of pre-emptive defence, if one could put it that way, that if the message is sent that a deed of this nature would not be tolerated and there's going to be retaliation if murders of prominent leaders of the struggle, such as Chris Hani, were killed.  Now they say they regarded their action in that sense as a species of a defence in that similar victims, similar leaders who could have fallen victim to similar assassinations would have been saved by their actions if the message did go across.
	Now addressing the question directly that has been posed, whether one can be said to be acting in support of a particular organisation if he acts directly, directly contrary to it's principles, one could say that a direct answer to that would be a no, but again, as I keep repeating, one should take a very close look at the prevailing circumstances, the magnitude of the event that gave rise to this action and all that.  Even the Act itself has made a provision for that, because Section 3 - I'm sorry, Sub-Section 23, it says:
"Whether a particular act, omission or offence contemplated in Sub-Section 2 is an act is associated with a political objective, shall be decided with reference to the following criteria
(i)	The motive of the person who committed the act, omission or offence"
Let me pause there.  The applicants have clearly indicated the motivation that led them to commit this offence and in my submission there can be no doubt whatsoever that it was a political motivation, they wanted to retaliate and to send a message for the salvation of their political leaders.  So insofar as motive of the applicants in committing the act is concerned, I don't think there can be any doubt it was politically motivated, there was no robbery, nothing, in fact I need not even refer to that because it's clear that this was done purely in response to the slaying of Chris Hani.  So, as to the nature of their motive in committing the offence it's clear that it was politically motivated.
	Now (b) which is also very opposite to their situation ...[intervention]

CHAIRPERSON: Mr Zilwa, what would your comment be to the following question.  Would retaliation be contrary to the ANC policy of the time?

MR ZILWA: Mr Chairman, I would say we should first take a look at what form of retaliation this was.  It's a fact that ...[intervention]

CHAIRPERSON: Well basically, look, as I understand it, as their submissions state, the ANC's stated policy at the time was that they'd given up the armed struggle and their call for political tolerance and non-violent campaign during elections etc. etc.  I asked the question just to assist my own considerations.  Given the ANC's necessity, as they found it, to establish SDU's, what would be the position of retaliation in that regard?