Amnesty Hearings — Cape Town — 1997-07-07

MR SWART: Certainly.  The next criteria which is sub-section C is the legal and factual nature of the act including the gravity of the act.  Now, the murders definitely must be the gravest kind of offence which you can commit and I am speaking only in respect the first applicant at the moment.  So obviously it is a very serious matter.  Then if one goes to the object or objective of the act, that is what has being discussed at some length now and then specifically whether the act or mission or offence was primarily directed at a political opponent or the State property or personnel or against private property or individuals.  Now, in this case, that is very telling, because the murder was not of a political opponent, by the first applicant's own evidence, it was somebody who was with them in the struggle.  This person could not, was a defenceless person and so when one looks at that specific criteria then he did not make the grade on that one, definitely not.
	The next one, whether the act, mission or offence was committed in the execution of an order of or on behalf of or with the approval of the organisation.  Now there again there is a problem for the first applicant in that it seems to be common cause that the instruction from the ANC was not to kill.  It was to obtain firearms.  So, in respect of that criteria as well, my submission is he does not make the grade.  
	Then, very important, is the next one is sub-section F.  That is the relationship between the act, mission or offence and the political objective pursued and, in particular, the directness and proximity of the relationship and the proportionality of the act, mission or offence.  My submission is that the first applicant could, as has been said, when he made his decision when he decided to shoot the first shot.  Before he pulled the trigger they could have turned their backs, they could have walked away and if the farmer himself had seen them at the gate and let them enter I assume nothing further would have come it, but by pulling the trigger he did something which was completely disproportional to the circumstances and if one then looks at what happened afterwards, after the first shot in proportion to what they were there for, it is disproportionate.  
	Then I, in respect of the first applicant, I must go further and at the small roman two, one must just look at the facts and it makes one wonder if it was not, as it says here, if his actions do not speak of someone acting out of personal malice, ill-will or spite directed against the victims.  His evidence was, no, it was not, it was to prevent being identified, but the actions, shooting defenceless people, shooting somebody who is tied up, shooting a person who has had somebody plead for his life with you.  It makes one wonder if, in fact, he was not acting out of ill-will or spite or malice.  That in respect of the first applicant and then if one ...

CHAIRPERSON: I think ill-will and spite bring into play questions such as him lowing the people beforehand and harbouring ill-will towards them or having some spiteful contact towards them.  These were strangers to him.  There was no relationship whatsoever between them.  So I think that that consideration might not apply in dealing with this problem.  That section, that sub-section of sub-section three.

MR SWART: Yes.  It may be so Mr Chairman, but my submission would still be that ill-will or spite or malice is possible in respect of somebody who you do not know at all, but you are the guy with the gun and you are the guy to pull the trigger and the way in which you do it can be construed to show that you have absolutely no regard for that person's life and in that respect I submit that he acted with malice.

JUDGE WILSON: Do you say this on the basis that on the evidence it would seem that she was, gave out the water then she was grabbed and then it was explained to her, and I must say I have a little difficulty understanding how it could have been explained rationally in the circumstances, what they wanted to do and that is, presumably, she was told and the first applicant would have heard her being told, look, we have come here to steal guns for the struggle, open the door and let us in and when she refused to do that and started screaming instead, that he then felt the ill-will or spite, because she was not prepared to co-operate?

MR SWART: That is possible.

JUDGE WILSON: Can one, does the evidence support any such findings?

MR SWART: No, it does not.  It does not, but the fact that the shots were fired and the evidence which is undisputed, the way in which the gardener was shot, for example.  I find it difficult to say that somebody could do that completely dispassionately.

JUDGE WILSON: No, that is why I put to Mr Lourens that it seems here that it, one could almost use the phrase "trigger happy" ...

MR SWART: Yes.

JUDGE WILSON: ... which would indicate that because of the stress he was under he was behaving irrationally.

MR SWART: Yes.  The ...

JUDGE WILSON: And then it would not be ill-will or malice if it was irrational behaviour.

MR SWART: Yes.  What is more I think the arguments which have been made before in the fact that these were unfortunate innocent bystanders, in fact, goes against the first applicant in that regard in that there was a disregard for the lives of these people.  Tough luck, they just happened to be at the wrong time.  In fact, his evidence was at a stage in cross-examination that if he went to any premises and there were people there bad luck for them and, as far as I am concerned, that type of disregard must be seen as absolutely, it is tantamount to malice or ill-will towards that person, towards his right to life.

SISI KHAMPEPE: Despite the fact that the applicant was suffering from the general anxiety disorder?

MR SWART: Madam, that is so according to the Appeal Court record, but that was not his case before this Commission, Committee.  I accept that he had a disorder, but that was not the reason he gave for having shot the people.  I agree, also, that is one of the factors to be taken into account.

CHAIRPERSON: Presumably was the evidence led on his behalf in mitigation or extenuation ...

MR SWART: Yes.

CHAIRPERSON: ... by his counsel.

MR SWART: That is correct.  If I could look at the criteria again, run through them a second time in respect of the second and third applicants and then, perhaps, just before I start with Section 20, 23, right in the beginning at Section 21C there is also, of course, the text that the applicant must make a full disclosure of all the relevant facts and I mention this one first, because there is doubt in my mind whether the second and third applicants made a full disclosure and that is specifically on the point of the other items which were not disclosed.  I know there is no conclusive argument in this regard, because there were other people involved.  It just seems very strange that in spite of the meeting which the second applicant spoke of where everybody spoke, where everybody said what had happened, discussed the matter that nothing was said and this was a group, besides the first applicant, who had worked together, who trusted each other, who had been on operations before, according to the evidence.

CHAIRPERSON: The suspicion ...

MR SWART: Yes.

CHAIRPERSON: ... that they knew, but I do not think you can go very much further ...

MR SWART: I ...

CHAIRPERSON: ... than that.

MR SWART: ... cannot go further than that.

CHAIRPERSON: Yes.

SISI KHAMPEPE: At that meeting, Mr Swart, was not attended by all the members of the group.  I think it was attended by the people who ultimately managed to go to KTC.  That was the evidence we heard.