Amnesty Hearings — Cape Town — 2000-11-21

MR MALAN: The question I'm putting really to you is, if it's clear and I'm not arguing that it is, but if it's clear that the objective or that the attack or whatever was associated with a political objective, does 20 (3) come into play at all?

MR BERGER: Yes, yes Mr Malan it does because you know people wonder why ...(intervention)

CHAIRPERSON: Isn't there a Supreme Court case defining proportionality?  It's a decision of Mohammed C J as he was.

MR BERGER: I'm not aware of ...

CHAIRPERSON: I speak under correction but it says there that the act, the offensive act by the applicant in considering whether amnesty must be granted, must also be weighed in terms of proportion whether the threat which the offensive action was directed at, required the veracity of that action.

MR BERGER: Yes, well in answer to Mr Malan's question, whether an act is political, is not decided as what a newspaper journalist would consider to be political, or what an ordinary person would consider to be political.  There's a very specific definition of what is political and (3) of section 20 says
"whether a particular act",
I'm leaving out words that are not relevant,
"Whether a particular act is an act associated with a political objective, shall be decided, shall, with reference to the following criteria"
and then they set out the motive, the context, the legal and factual nature of the act, the objective of the act, whether it was primarily directed at a political opponent, whether the act was carried out with the approval of the organisation.  Then (f):
"The relationship between the act, omission or offence and the political objected pursuit and in particular the directness and proximity of the relationship and the proportionality of the Act to the objective pursued"
and then doesn't include for person gain and malice.

MR MALAN: My question really relates to exactly that.  Are you arguing that all those sub-clauses, (a) through (f) or whatever, should be present before one could decide that an act is indeed political?

MR BERGER: No.  No.  They shouldn't, I'm not saying that.  It says
"Shall be decided with reference to the following criteria"
so they are ...(intervention)

CHAIRPERSON: It's not an exhaustive list of guidelines.

MR BERGER: No, it's not.

MR MALAN: No, but that's not my question.  My question is really ...(intervention)

MR BERGER: Your question, do all of them have to be met?

MR MALAN: Yes.

MR BERGER: Not necessarily, but the Committee has to have regard to all of them and weigh them up, balance them up to decide whether it was a political ...

MR MALAN: Now if we look ...(intervention)

MR BERGER: For example - sorry.

MR MALAN: But really you're arguing the proportionality and I'm open to that argument.

MR BERGER: Not only proportionality.

MR MALAN: Would you look at the other criteria as well and argue them then?

MR BERGER: For example motive, (a), what was the motive?  Was the motive to strike at MK in the broad, as the witnesses have tried to be broad about it, or was the motive to strike at anyone who was connected to the ANC, whether politically, militarily or connected in the ANC family, so to speak.

MR MALAN: It would be both political.

MR BERGER: No but Mr Malan it's not - a decision to strike at X because he's an ANC supporter, is political in the broad sense of the word, but that doesn't qualify for amnesty in terms of Section 20 (3) of the Act.  That's my submission to you.  My submission is, the example I wanted to give, the killing of Chris Hani, the ordinary person in the street is amazed, that's not political.  Clearly it's political, but does it comply with the requirements of the Act?  The Committee found no, it doesn't, because it wasn't committed on behalf of an organisation whose policies were x, y and z, so what I'm saying is what might appear at first blush to be political, is not necessarily political for the purposes of the Act and what I'm submitting is that I'm using it at the moment for the question of full disclosure.  What I'm submitting is that the applicants tailored their evidence to fall neatly within what would be accepted as being an act associated with a political objective because if it was an attack aimed at the army of the ANC, an attack by the army of apartheid, then questions of proportionality and motive and all of those things are easy to decide, but when you have an attack and I submit that this attack is clear, was an attack - look at the facts, 1985, I submit you can take judicial notice of the fact that that was when the state of emergency, the first state of emergency was declared, 1985, the climate at that time, the rumblings from the apartheid state that were coming out at that time, the way there was such a clamp down, then Mr McPherson testified.

MR MALAN: Well at the same time also the increase in activity from MK and especially the youth, 85, 86.

MR BERGER: Indeed and what was happening... (intervention)

CHAIRPERSON: Before you carry on Mr Malan raises an issue here that strikes me.  When this raid took place, amidst these rumblings and whatever, it was immediately before the ANC Conference.

MR BERGER: Indeed, that's what I just want to point out.

CHAIRPERSON: To decide on a very important matter.

MR BERGER: Absolutely.  Absolutely.

CHAIRPERSON: At that stage the ANC, as far as I read the notes, did not have a policy of not taking care of civilian casualties.  That was subsequent to that conference.

MR BERGER: Kabwe?

CHAIRPERSON: Ja.

MR BERGER: Yes, one of the decision at Kabwe was now the line between hard and soft starts getting blurred because "look at what the regime is doing to us".  Now a decision like that doesn't get taken in a vacuum, there's a lot of caucusing going on and planning before a conference and who is one of the people who is feeding information?  It's Mr McPherson's delegate to Kabwe.  Remember the evidence of Mr McPherson, he had a spy who was going to Kabwe.  They knew where it was, they knew what was going to be discussed there and ...

CHAIRPERSON: Did they have the agenda?  I can't remember I'm asking.

MR BERGER: He was preparing, he was preparing his delegate for conference.

CHAIRPERSON: Ja, strange as it was.

MR BERGER: Yes, and so the apartheid state knew what, everybody knew that the conflict had the potential of being escalated, there were attacks coming from Botswana to South Africa.  Now in that context of a state of emergency, I submit, that the apartheid state needed an excuse to unleash its forces once and for all and to just create mayhem in a way that they could legitimise that mayhem to the international community and the way they needed to do that was to escalate the conflict so that it then became hard target, soft target, it didn't matter.

CHAIRPERSON: Are you saying that the attack, at least one of the reasons for this attack, was to enhance the physical conflict?

MR BERGER: It was to increase, to intensify the conflict, yes.

CHAIRPERSON: So they were, in a strange ironic way, supporting the proposal of the Kabwe Conference?

MR BERGER: I submit that it didn't matter to them one bit whether they hit military targets, political targets, women, children, friends of the ANC, it didn't matter at all.  Mr Olifant was observing the house where Muff Anderson stayed.  Muff Anderson had moved out of that house ten months before.  It was never used as a safe house.  He brought the information back to his handlers, to Coetzee.  What could he have told them?  What information could he have given them?  And I submit it's easy to say he's a useless witness, we must disregard whatever he said, but he brought that information, it wasn't in his interests to manufacture information, or to pass through incorrect information.

CHAIRPERSON: What information would he have brought back?

MR BERGER: He would have said at that house was Uriel Abrahamse, if it was before ...