Amnesty Hearings — Pretoria — UNKNOWN

HASSAN MALL: The deceased was killed, in killing the deceased, the applicants (speaker's microphone not on) ... You are saying that - I don't know, I might be amenable to understanding your argument a lot better, if the application was for amnesty in respect of an assault on the deceased.  Because that would have been an assault in the course of trying to get information. I am not saying that the task would have been easier for me, but here is an application for amnesty in respect of the killing of the deceased. So are you saying that at the time when they shot the deceased, their intention was to sever a political cause, by killing the deceased?

EMILY FOURIE: With respect it must be seen on an ongoing basis and the evidence explains why the deceased was killed ultimately.

HASSAN MALL: But it cannot be seen on an ongoing basis.  They never had the intention at the outset to kill the deceased.  They had the intention to assault him in order to extract information from him.  That I will accept although the first applicant wouldn't accept that.  But the intention was to assault him.  The intention to kill the deceased never existed.  That did not, that intention was not present throughout and that is my problem.

ADV PRINSLOO: But with respect, Chairperson, that particular conduct of the applicants must be seen on an ongoing basis as if it existed throughout. The motive must not be confused with intent.  That is where the problem will arise.
	Just as in the case of S v Messina where the sister-in-law of Lukele was shot.  There too, there was no intent to kill her.  The intent was directed against Lukele and she was caught in the cross-fire.  With respect, what happens to those cases, for instance, the Pretoria bomb case.  It was accepted that it was aimed at a government body, but innocent people are often caught in the cross-fire, but the intention was not that they had that intention.  It will be argued that they did not have that intent.
	But the way in which the act was performed, and the consequences thereof, means that one cannot divide it into compartments. It is one ongoing action performed by the applicants.
	For instance, Van Eyck gave evidence why he burnt the corpse of the deceased afterwards.  So there is one ongoing mode of conduct.  The whole reason for the act must be found in the political motive, because the applicants will have no case if they have no political motive. But I would like to submit that the political motive is decisive.

JUDGE WILSON: The motive was to get information from him, was that not so?  That was your political motive, that's what your witness said.

ADV PRINSLOO: That's correct, Mr Chairman.

JUDGE WILSON: By killing him you made that impossible.

ADV PRINSLOO: Mr Chairperson, with respect, as a result of what happened, things went wrong, how could they have foreseen that Oosthuisen would have shot the deceased through the shoulder and that the whole thing then went out of control.  What you are saying is that the person that they regarded as a part of the enemy, and they wanted to extract information from him, and they in fact did by all possible means; by suspending him from a tree and shocking him, all those are drastic actions.  The killing of that person is still connected with this particular conduct. It cannot be removed from it.
	Just a moment, please, Mr Chairperson.
	With respect, the next aspect is the motive or purpose behind the act. I have already pointed out that it was aimed against the PAC, this act, and that the deceased as we have mentioned was a component of this organisation.  This was not a random act, it was a specific action against a specific person, an organisation. It wasn't a case of just walking into a public place and taking out a gun and shooting people or planting a bomb and killing people at random. That is not what happened here.  That is why we distinguish these two situations.
	Chairperson, I have already dealt with the aspect that the act was performed in pursuit of the aims of the National Party and the police.
	Paragraph (f) is the connection between the act, omission or offence and the political motive.  The directness and proximity of the relationship and the proportionality of the act.
	Chairperson, here I would like to put it to you that when we refer to proportionality of the act one must look at the even-handedness here. If I could illustrate this by means of an example.  Here it was aimed against a specific party, against a specific person.  It was not something done at random to try and persuade people, it was a very specific action aimed at a specific person and this I am sure will - this particular kind of situation will crop up again in respect of actions committed by the safety police.  That condition of balance which is important it.
	For instance, because of Barend Strydom in comparison to the two applicants.  Barend Strydom just shot people at random.  That is not the case here and can be distinguished from that situation on all points.  
	I refer here again to the case of S v Messina, where it was said that a policeman didn't treat people well, and the other policeman also.  They obviously didn't like Lukele due to his political involvement and in that case - these two cases can be distinguished from each other and this proportionality between the act and the relationship between it, the act and offence and political motive, that link or connection was to protect the State against possible infiltration by the liberation movements. 
	I would like to contend, Chairperson, that to sum up, that there was full disclosure by Mr Gerber and that they did in fact comply with the requirements of Section 20(2)(a), (d) and (f), and that the Committee must grant Mr Gerber amnesty on the charge of murder, in accordance with his application.  Thank you.