Amnesty Hearings — Durban — 1999-08-30

MR VISSER: Just so, Chairperson, I'm just mentioning this as a matter of background and because it was raised but of course, Chairperson, the fact of the matter is that Operation Vula was smashed because of information which could only have come from Ndaba.
	Now if I may come to the present matter, Chairperson.  At the time there was suspicion of a mole, an enemy agent, in the security branch at C.R. Swart.  Mr Mac Maharaj confirmed that, that there was such a person.  This at once explained why about two weeks - well, even less, after the arrests of the Operation Vula people had been made, he went to Bethlehem to go and ascertain from Mr Gordhan who - what the identity of this person was.  He told you here that he had good reason to believe that Mr Gordhan knew who it was and that was in fact confirmed by Mr Gordhan's questioning here today, he knew who it was and the rest, Chairperson, are facts which you are aware of.  Mr Gordhan and I take it Mr Lalla, appeared to oppose these applications on the trite issues set out in the requirements of the Act, no full disclosure.  The closest that Mr Gordhan could draw the non-full disclosure is in regard to his arrest which is not to remain to the issues before you today.  The fact that the - as it appeared, Chairperson, from the questioning, that the assault would have taken place because of a personal vengeance or personal malice or spite on the part of Mr Botha, no basis is laid for that.  There's no evidence before you, tested under cross-examination which even vaguely hints at it except for the statements put by Mr Gordhan to Mr Botha.
	And lastly then, Chairperson, there might even have been a hint of disproportionality.  Mr Botha, with great respect, gave frank evidence before you.  He has made various concessions which shows and proves in our respectful submission his credibility and we submit in brief, Chairperson, there is no evidence at all to make a finding against Botha on any of the counts which I've just mentioned.
	Chairperson, it is clear that also again from the cross-examination of Mr Gordhan that what took place on that day in July/August 1990 in Bethlehem had everything to do with a political background and political motivation.  It was quite clear that the armed struggle was still at the time proceeding, in fact the armed struggle was only suspended on the 6th August, if I remember correctly Chairperson, 1990 which is a date which follows the occurrences of the present incident and Mr Botha also gave evidence here to you to say that while the bomb attacks had diminished, other type of attacks were taking place particularly that in Natal or between the IFP and the ANC which was just another dimension as we all know, Chairperson, of the armed struggle.  So the armed struggle was by far not something of the past when these assaults took place.
	We say, Chairperson, that it is clear on the evidence that has been given to you under oath that it was a very brief encounter.  Ten to fifteen minutes.  Chairperson, nothing turns on another fifteen minutes for that matter but the fact is that all the witnesses recorded to have been brief, it was not a savage assault and even if it was, Chairperson, amnesty also provides for savage assaults but the fact is, in our submission, it does appear to be proportional to the ends which Mr Botha intended to achieve.
	All in all, Chairperson, we submit that you would not have a problem with the evidence of Mr Botha or for that matter of any of the witnesses.  The contradictions such as they appeared from the evidence are such as one would expect from honest witnesses attempting to recall what happened nine years before.  There was no inherent improbability in anything that the witnesses stated and there certainly wasn't a fatal contradiction between them on any essential part of the elements for which - of the incident for which they apply for amnesty.  
	We would therefore ask you, Chairperson, to favourably consider that amnesty be granted to Mr Botha as prayed for.  Thank you Chairperson.

CHAIRPERSON: Thank you Mr Visser.  Mr Nel, do you have any submissions to make?

MR NEL: Yes thank you, Chairperson.
	As I've indicated at previous hearings, I'm always in the position, the nice position to argue after senior counsel so there is not much more that I can say but with regards to my applicants, Chairperson, I can only submit that it's my humble submission that my clients submitted their application for amnesty on the prescribed form.  It's my submission to this Committee that the Acts to which these applications are related are associated with a political objective committed in the course of the conflict of the past.  The main focus lies on Section 20, sub-section 1 (a), (b) and (c) and I do submit that those requirements have been met.  
	Of course the other hurdle that my clients have is to place them in the category as mentioned in Section 20, 2(a) to (g) and I respectfully submit, Chairperson, that all three of my clients falls within sub-sections (b) and (f) that being employment of the State and they believe that they were acting in the course and scope of their duties.
	Finally, Chairperson, the provisions of Section 20 3(i) and (ii) excludes a person if he acted for personal gain or out of personal malice or ill will or spite and I do, with respect, submit that my clients did not do that.

CHAIRPERSON: It would also seem that your clients were acting under instruction?

MR NEL: Chairperson, the evidence given by my clients were straightforward, it was not disputed and not contested and I also ask this Committee to consider their application for amnesty favourably and I cannot see that it could be done otherwise.  Thank you Sir.

CHAIRPERSON: Yes, it's been brought to my attention by Advocate Bosman that the applicants have all been applying for amnesty mainly in regard to the offence of assault.  If one takes a look at the definition of gross human rights violations as contained in the Act, it talks about assault being one where there has been serious injury but it also specifically refers to torture.  Now we all know that torture always involves an assault of some form or another but one would imagine that they've identified torture separately from assault to include torture even if there hasn't been serious physical injury so are there any submissions?  If the applications were to succeed should it be granted in respect of assault or should the word torture be involved.

MR VISSER: Mr Chairperson ...(intervention)

ADV BOSMAN: Perhaps Mr Visser if I may just add, or perhaps assault with intention to do grievous bodily harm?