Amnesty Hearings — East London — 1998-10-07

CHAIRPERSON: Can't we believe them on that score?

MR SMUTS: Yes, because there is an objective leader ascertainable fact, that death, indeed.

CHAIRPERSON: Against which that part of the evidence can be measured?

MR SMUTS: Yes Mr Chairman, but then the question is when they come and seek to persuade the Committee, having sought to mislead the Committee about this right-wing threat, when they come and seek to persuade the Committee that they were acting bona fide in furtherance of the political struggle of their organisation, where they can satisfy the Committee of that as a motivation, whether they were in fact acting in good faith or whether it was merely an act of racist revenge and while ...[intervention]

CHAIRPERSON: Their attempt to - sorry, their attempt to mask and colour their evidence for whatever reason they did it, should that act as a penalty against them such that the application be refused?

MR SMUTS: Yes, Mr Chairman, because they must satisfy the Committee that they've made a full disclosure of all relevant facts.  If they've said ...[intervention]

CHAIRPERSON: They've made disclosure and added.

MR SMUTS: Well, with respect, once they seek to mislead the Committee as to motive, the Committee, in my respectful submission, can never be satisfied that they've make a full disclosure of all relevant facts.  It's the risk you take when you start on a lying course, Mr Chairman, once you cannot be believed, you cannot believed on those crucial aspects where you bear an onus.

ADV SANDI: But Mr Smuts, is it not implicit from their evidence that the whole thing about this right-wing ...[indistinct] Costello and all the problems that go with it, was just a secondary part of this background?  The major event having been the assassination of Chris Hani?

MR SMUTS: Well, would that that was so, Mr Chairman, it became of lesser significance when they got into trouble on the right-wing threat but central to the evidence, central to the evidence is this right-wing threat.  That's what brought the men of Flagstaff to Port St Johns.  That's what caused the selection of an area as a suitable target for an attack.  That's why they went to Mpande.  That is the thrust of the evidence of the applicants.  If that's not credible, with respect, and my submission is on the face of it it's not.  Their evidence is in tatters.  They could have ..[intervention]

CHAIRPERSON: All of them?

MR SMUTS: Yes, with respect, there isn't one who didn't associate himself with that story as being central to why they went where they went and why they selected whom they selected as their victims.

ADV SANDI: Should we - are you suggesting that we should disregard the evidence of high levels of emotions which existed on their part?

MR SMUTS: Not at all Mr Chairman, but a high level of emotion may lead to irrational conduct.  That doesn't mean that because you act irrationally one can ignore the fact that what you were doing didn't meet the requirements of the Act.  If the defence is "I was emotionally swept up and that's why I went and did it" that doesn't necessarily lead to a conclusion, in fact it may preclude a conclusion that this was a decision motivated by political considerations taken in good faith with a view to further the political struggle, it may militate against such a finding in entirety.  In fact, once one reaches that stage, Mr Chairman, and one has this high level of emotion and hatred as Mr Mxhayi calls it and anger and frustration as Mr Hermans and Mr Mazwi put it and once one has the low level of credibility of the witnesses in consequence of their ...[indistinct] during their testimony, one's constrained to look at the provisions of 23(ii) which preclude the granting of amnesty for persons acting out of personal malice, persons acting out of ill will or spite directed against the victims of the acts committed.

ADV SANDI: But in that - is it not clear from that provision that the person concerned must have known the victim of the act in question?  He must have known him before?

MR SMUTS: My submission, with respect, would be that if there is ill will directed against a group the knowledge of the identity of an individual would not be a requirement to fall within that.  If by way of example, the act is merely an act of racism directed at all of a particular race, that would be an act acting out of ill will.
	Mr Chairman, to expand on the consequences of the Committee's rejecting or disregarding the AWB involvement, then one is left with the retaliation or revenge attack.  In the circumstances that I've illustrated where information was sought and obtained as to the identity of the persons who were subsequently attacked and my submission then is that an examination of the provisions of Section 23 (f) which deal with the question of proximity and proportionality would be fatal to the applicants.  This was not, Mr Chairman, Jack Ruby shooting Lee Harvey Oswald shortly after his arrest for the assassination of President Kennedy.  This is a random attack, three days after the shooting of Mr Hani, directed at holidaymakers who turn out because the applicants couldn't be bothered to find out what they were or what they stood for, to have been themselves opponents of those who were old enough to have a political view, opponents of the regime at the time and as the columnist put it, Mr Chairman, the killed a new South African.  Nothing in the evidence before the Committee in my respectful submission would suggest that this violent murder of two of the party and the attempt to murder the two children and the other adult could be considered an act proportional to the objective, the political objective pursued.  That, the Committee will recall, was expressed to have been sending a message to the Government.  There was not an attack on a Government institution which could have avoided any loss of life, there was not attack on any Government office bearer or political leader, there was not even an attack on the forces supportive of the regime of the day.  This was an attack on defenceless holidaymakers and it would in my respectful submission be nothing short of an obscenity to suggest that it met the proportionality test enunciated in Section 23(f).  
	Mr Chairman, that there are aspects of Section 23 which count or can be taken into account on behalf of the applicants, I would not dispute, particularly 23(b) which deals with reaction.

ADV DE JAGER: Ja, but Mr Smuts the aspects being set out in 23, 20 sub-section 3, are not prerequisites, they're directives and it's not necessary to meet all of them, they're only guidelines in order to assist one to see whether there was a political objective, an act associated with a political objective, even the - it need not be a political motive as such, it should be an act associated with a political objective and even if only one of those criteria has been met and it's satisfies the Commission that it's been met in such a way that you could be satisfied that the act was associated with a political objective and then we're bound to find that that part of the prerequisites stated in Section, sub-section 1 has been met.

MR SMUTS: The fact is - is the question Mr Chairman whether once there is a finding that there was a political objective?

ADV DE JAGER: ...[inaudible] there's an act associated with a political objective.

INTERPRETER: The speaker's mike is not on.

ADV DE JAGER: For instance by looking at the nature of the Act, the context of the Act, aren't we then bound to come to a certain decision?

MR SMUTS: Not in respect of Section 22(a) which would be applicable to the instant application if the requirements of that section are not met.

ADV DE JAGER: Ja, the applicant complies with the requirements of the Act, isn't that the formal requirements?

MR SMUTS: Yes.

ADV DE JAGER: Because that deals with the application.

MR SMUTS: Yes, Mr Chairman.