Amnesty Hearings — East London — 1998-10-07

ADV DE JAGER: ...[inaudible] met this group and they made a different decision.  If they say we were acting on our own volition, not on behalf of the SDU because the SDU didn't take a decision.

MR ZILWA: Mr Chairman, I must say, let me put it this way, I'm not at all suggesting that the manner in which things were being done in this SDU, the manner in which important decisions such as the one that was taken were arrived at is a model of reasonableness or it's the best way that things could be done, but the evidence ...[intervention]

CHAIRPERSON: Well maybe I can help you with this and pose the following question:  Do you think it's fatal to the application if they didn't have authority?

MR ZILWA: Mr Chairman, I will submit that it is by no means fatal to the application even if they didn't.  My argument was going to be that they acted in the proper manner as SDU manner in which they operated in arriving at this decision, but even if they didn't, even if they took this decision on their own without really involving the SDU or getting the authorisation of the SDU.  Even if that was the position, that would not be fatal to their application.

CHAIRPERSON: Proceed on that basis then.

MR ZILWA: Thank you.  Now the relevant Act or the relevant section of the Act under which the applicants are seeking amnesty i.e. Section 20, Section 20 of the Promotion of National Unity and Reconciliation Act No. 34 of 1995, the provisions of which I suppose I need not repeat to this Committee because in this Committee it's very much or much more than I will ever be, it having sat on this matters for numerous ...[intervention]

CHAIRPERSON: It's not going to get you anywhere.

MR ZILWA: Yes, I assume so, I assume so.

ADV SANDI: You must simply tell us what you think those provisions mean.

MR ZILWA: Thank you.  Thank you Mr Chairman.
	Now the provisions of Section 20 (i) a.  I'll just quickly read them:
"If the Committee after considering an application for amnesty is satisfied that:"  Okay and then it goes on
(a)	 The application complies with the requirements of the Act, the act, omission or offence to which this application relates as an act associated with a political objective
	     (b)	committed in the course of the conflicts of the past in accordance with the provision of sub-sections 2 and 3.
	     (c)	The applicant has made a full disclosure of all the relevant facts, it shall grant amnesty in respect of the act, omission or offence.
In other words, what this particular section of the Act says, is that this Committee needs to be satisfied that the elements referred to in a, b and c which I've just referred to have been satisfied and once that is the position then it is obliged to grant amnesty in respect of that omission or an offence.
	Now Section 2(a) which is really the applicable section in my submission to the position of the applicant.  It reads as follows:
"In this and unless context otherwise indicates, associated with a political objective means any
	act or omission which considered an offence or delict, which according to the criteria in sub-section three is associated with a political objective and which was advised, planned, directed, commanded or that commanded within or outside the Republic during the period 1st March 1960 to the cut-off date by (a) any member or supporter of a publicly known political organisation or liberation movement on behalf of or in support of such organisation or movement bona fide in furtherance of political struggle waged by such organisation or movement against the State or any former State or another publicly known political organisation or liberation movement."
Let's pause there for a moment.  In other words, the act in issue should be by a member or a supporter of a publicly known political organisation or liberation movement.  Now applying that to the applicants, I suppose in fact it is common cause that in fact the accused were members or supporters of the ANC and the SAC...[intervention]

CHAIRPERSON: Well, well, well, when they committed the act, with which act were they acting?

MR ZILWA: According to them, when they committed the act they did so as members of the SDU but then in the event that that is not accepted, that in fact they duly acted as members of the SDU, their evidence is that all of them, without exception, they did so in furtherance of the aims and objectives of the ANC, that is what they say.

CHAIRPERSON: If we reject their status as they claim when they committed the act, would they not have been supporters at least?

MR ZILWA: That was exactly the point I was going to make Mr Chairman, because it says member or supporter.  Now, in the event that it is not accepted that in acting as they did, they acted as members of the ANC.  Now if that is rejected on the basis that if they were doing that they should first have obtained the authority of the ANC then my alternative argument would be that there can be no doubt that in their minds, they acted as supporters of the ANC.  Now why do I say that?  Their evidence without exception, the evidence of all of them is that Chris Hani was a very respected leader to who they looked up to epitome, that's how they put it in their applications as the epitome of everything they stood for in the struggle.  So if it to be suggested in any way that their failure to first obtain the authority of the ANC or the SACP, which Chris Hani was a leader of, then that takes them off the category of members of the ANC or the SACP at the time of the commission of the offence.  Then the alternative argument would be that there is absolutely no evidence to then say what they say, that when they acted as they did, they acted as at least the supporters of those organisations and the objective, according to them, is that since the nature of the act that had been committed to which they reacted, i.e. the murder of Chris Hani, was such that it plunged this country into the abyss and almost all hope for black people which they represented almost went out of the window and they realised that actions such as this would be allowed to go on, all hope of the negotiations which were going afoot, all hope of any proposition that a black man would ever be given the vote would go out of the window if similar leaders like Chris Hani were to be killed.  Now what they say is that when that occurred and they realised how gloomy the future would be for the black man in this country if similar operations were carried on, i.e. similar leaders like Chris Hani would be assassinated, then all hope for liberation of the black man in this country would go through the window.  So they say in an effort to present that and to send a very clear message to the government and those right-wing elements, they say by the way, in their mind, they associated the government which of course were known it had a lot of dirty tricks at that stage, they associated it with this action.  So they say their action was designed, their action as supporters of their organisations was designed to send a clear message to this government and whoever.