Amnesty Hearings — Cape Town — 2000-11-19

CHAIRPERSON: I think the reason, I don't know if it was the reason, but the reason given was, in argument, was that it was such a bad track record ...(indistinct- speaking simultaneously) therefore be a waste of time.  It's a risk that one takes when one elects not to cross-examine.

MR COETZEE: Yes and now to criticise - Yes and also with regard to the order to shoot Omar, my respectful submission that it is very clear from the context of which the evidence was given that the instruction was:  "Go and kill Omar" and in this regard as well, if Mr Martini wants to suggest that Mr Barnard is lying to implicate Mr or to discredit Mr van Zyl, certainly if that was the intention, he could have said:  "I got the order in threefold, signed by the General", if he wanted to lie to discredit Mr van Zyl, certainly he would not have then carefully avoided saying:  "I got an instruction from Mr Omar".

CHAIRPERSON: I think also if you take a look at Mr Barnard's evidence as it stands, even if there's no evidence directly,  "Here is the gun, I hereby instruct you to go and shoot Adv Omar", the fact, there's also evidence from Mr Barnard that when he told him that he didn't shoot anyone, he got very upset, he got very upset about that.

MR COETZEE: With respect, that's what I thought is that it's clear from the context that he alleges that he got an instruction.  If I then can just shortly refer to proportionality, Mr Commissioner, the problem is who was to assess at that stage whether or not an act was the right thing to do or was proposed in the right context, because at that stage this Act was not there, the people did not have necessarily a barometer to make that kind of value assessment at that stage and then again we must see where Mr Barnard ...(intervention)

CHAIRPERSON: I think the whole question of proportionality is an objective - look most of the people who appear before the Committee as applicants don't know what proportionality is, let alone ...

MR COETZEE: Yes, Mr Commissioner, that's what I'm getting at.  For the foot soldier or the person as Mr Barnard was at that stage, an operative or an agent who was sent out to kill, for him there was no position to assess the situation, he had to go out and the words come to mind, even from my own military service, when we were so often told when we questioned is:  "Yours is not to question why, yours is just to do and die", that is exactly what it was.  I mean that is what he had to do and that was his order, there was a line of command which he could not question and he could not assess the suitability of a target.
	The second aspect here is for personal gain.  Now it can never be the intention of the Act and I don't think that was professed by any person to include ordinary remuneration that a person would obtain in his line of work, if that can be so construed, but then one must, one cannot criticise if there was a package deal.  If it was a good package, if it was proper remuneration, if it was a good salary that he would obtain, certainly he cannot now be criticised therefore because obviously that depends on the resources.  The Government had money, they did pay the people, they knew they had to use the people to do dirty work, so they remunerated them on a proper basis, but to say that he did what he did for the money and that for the money alone, would not be fair because with great respect, Mr Barnard has testified as to his association with the political views of the Government and he has also said that that was also his personal belief, that it was a justifiable action in terms of the current struggle that was at that stage in the country.  So with great respect, to say that it was done for personal gain would not be correct.  So he got bonuses, so he got paid, this moral dilemma is really not the question of this tribunal to say whether or not it's morally wrong or right to accept payment for work for your country.  That is great and excellent patriotism is not one of the criteria the Honourable Commission has to look at.  
	Now my respectful submission that that specific sub-section is in the Act to refer more particularly to a person who acts as a mercenary, who has absolutely, who has no compassion for the views or the moral views of the instructor, it doesn't matter on which one of the parties on the line give him instruction to go and kill.  "Sir, I give you R100 000, go and kill this person".  He comes to this person to kill him, he says:  "No, but I'll give you R200 000, go and kill your instructor".  That is, with great respect, what this sub-section refers to, is to the blatant - to exclude blatant mercenaries from now coming under the banner of the indemnity that this Act will give them and this is basically what I want to ....
END OF SIDE A - TAPE 4A
START OF SIDE B - TAPE 4

UNKNOWN: Might I just draw two things to your attention, one in relation to Mr Martini filing the subsequent Heads.  If I can make the prognosis as to what you're likely to find in there and maybe set out an in principle objection in advance.  If what Mr Martini's going to do is go trawling through the evidence of Mr Barnard with a view to saying:  "Here are the following contradictions, all of which I could have put to this witness, but I never did", then we object in advance to the Committee being called upon to make a finding on the basis of ex post facto cross-examination by a lawyer by reference to a record in relation to a version that was never put.  That can't ever be the basis on which one makes a finding.

CHAIRPERSON: Yes, look, we're fully aware of the fact and in fact I must say we were a little bit surprised that there was no cross-examination because we all know why there is cross-examination and what the effects of not joining issue are and we are aware of that and we won't allow cross-examination to come in ...

UNKNOWN: I think there was a perfect example there, I don't know what exactly the record says, but if you put to the witness:  "When you said the Holiday Inn" and he said:  "No, I didn't mean the Holiday Inn, I made a mistake, I meant the Inn on the Square", well that could normally be where the issue might end.

CHAIRPERSON: He's of course entitled to analyse.

UNKNOWN: He can do that, but most of what I heard him argue here and yesterday, they all sounded like wonderful points for cross-examination, but they weren't put. If I can also just give you one case reference, just in relation to this issue of look at Amy Biel, look at this, compare this, compare that, Gerber vs Kommissie vir Waarheid en Versoening, yes, it is reported that ...

CHAIRPERSON: ...(indistinct - mike not on)

UNKNOWN: 1998 Volume 2 SA 559 Transvaal Provincial Division.  The Provincial Division there said in terms the applicant walked in there and said:  "I'm white, I did this and that" and he waved around some other finding from some other Amnesty Committee and he said:  "On the basis of the parity principle they should have found in my favour" and the Court held that those principles did not apply to the workings of this Committee.  Similarly, Mr Wessels must be wrong in law if he suggests that an administrative body which is consistently made, which has consistently incorrectly applied the law, assuming that to be the case, that it must continue to do so, it can't possibly be so.
	My attorney just wishes to say something.

UNKNOWN: Mr Chair, just one last aspect.  As the attorney of record in this, who has been working extensively with the Commission's staff, we just want to place on record our appreciation to them for really an extraordinary amount of work day and night and weekend and all that they've actually put into this.  It's made our task easier.

CHAIRPERSON: Thank you very much Mr Kahanovitz for that.  Mr Coetzee.