Amnesty Hearings — Boksburg — UNKNOWN

ADV POTGIETER: It appears Mr Malindi, I'm sorry, it appears that 22(d), which is covered by F, also refers to a member but it appears as if that that infers to somebody who is an official who holds some or other position who has some or other clear duty and not an ordinary member who just happens to be a member of the organisation, as to 2(a) seems to provide for.
	So it looks to me as if it's only a very clearly defined group of members who would qualify for the grounds in F and not just any member, I mean you must establish some duty, you must indicate that what you are doing.  If one looks at it reasonably, could have been interpreted as falling within your clear duties that you have.
	So it seems to me as if that is the sort of situation that is catered for in F, only those kind of members.

MR MALINDI: Indeed so Chairperson.  In fact under cross examination Mr Derby-Lewis was specifically asked about the tasks, the duties that were given to him as a leader within the CP which gave him the authority to do so and his responses throughout were, as a leader, I have the authority and I don't have to consult anyone and we dispute that Chairperson and we say, as a leader of the CP, organisations designate functions to it's officials, spokesperson for justice, secretaries to organise and those functions are clearly designated to officials and no function designated to Mr Derby-Lewis goes anywhere near a suggestion that he could take a decision on his own or with Mr Walus or with Mrs Derby-Lewis to plan and execute a serious act as assassinations.
	Dr Hartzenberg himself testified that if the CP were to consider such a serious step as from moving from negotiations, participating in elections and adopting violence that that would have been an issue for discussion within the party and that was also Mrs Derby-Lewis' evidence during the trial that the party had not moved over to violence and if the party were to move over to violence, the party would have had to discuss it, it was a contingency plan.
	Chairperson, at Page 40, Paragraph 10, the question whether the act committed by the Applicants is an act associated with a political objective, Chairperson, the act envisages that if an act is committed, it will be for the benefit of a political organisation or liberation movement.  
	We have here an instance where the party says the act was not in pursuance of it's political objective.  It is our submission therefore Chairperson that even if the Applicants and their co-conspirators which were not disclosed had a political objective in their minds the Conservative Party was not aware that such an act was going to be committed on their behalf, so the act could not have been committed in the eyes of the CP with an objective of advancing it's political objectives.

BERNARD MAKGABO NGOEPE: Why should we determine that only through the eyes of the CP?

MR MALINDI: Because Chairperson this act had to be executed on behalf of the CP and it was not executed on behalf of the CP and as for the CP, it was not aware that anything was being done in order to achieve it's political objectives and therefore the act is divorced from the objective if the party did not sanction it.

CHAIRPERSON: Not sanction it prior to the commission of the offence?

MR MALINDI: And did not approve it after the commission of the offence as well.

BERNARD MAKGABO NGOEPE: Yes, but a political party could have approved of something which we would nevertheless possibly could still find that it is not an act associated with political objective.  But you see, the criteria, your argument come, ventures close to adding a further criteria under Sub 3, Sub Section 3, that the act as such must be viewed by the political party, in the eyes of the political party concerned, it must be seen as an act associated with a political objective.

MR MALINDI: Chairperson, my submission is that the act envisages that an act to be associated with a political objective, it must be an act committed with a view of achieving that political objective.

CHAIRPERSON: Correct.

MR MALINDI: And in this instance we have

BERNARD MAKGABO NGOEPE: The political objective as seen by the perpetrator?

MR MALINDI: It may have been a political objective as seen by the perpetrator but was it for the benefit of the political party and the political party says no.  Although Dr Hartzenberg tried to say that if a Christmas gift was presented to him like that he would have accepted it and so on, he was

BERNARD MAKGABO NGOEPE: That could be a different requirement.  That touches on the area of authorisation and the like.  But you see, we determine from, objectively speaking, we are to apply the criteria here as set out under 3.  We look at a particular conduct objectively.  Leave aside other requirements, leave aside the question whether they had authority from the party, we leave that aside.
	We look at the nature of the incident and we look at it objectively and decide whether or not it is an act associated with the political objective.

MR MALINDI: Except that Chairperson if I may read Sub paragraph 2,
"That act, in order to be associated with a political objective must have been advised, planned directed, commanded, ordered by a political organisation, publicly known political organisation."
This was an act planned and executed by a group of individuals, the Applicants and their co-conspirators.

ADV POTGIETER: Let me just intervene, Mr Malindi does that submission not speak to Section 22(a) rather than to the criteria, the knowledge of the political party.  Isn't it more germane to that 2(a), to that requirement, rather than the criteria in 3?

MR MALINDI: Well Chairperson also under Sub paragraph 3(e), the act or mission must have been in the execution of an order of or on behalf of or with the approval of the organisation.

SISI KHAMPEPE: But Mr Malindi I think, my problem is, does the fact that the organisation is not aware of what an Applicant was about to do render that not as an act which is associated with a political objective if according to the Applicant, that act was seen as furthering the cause of that political organisation?

MR MALINDI: Chairperson, such an individual who acts in the name of the organisation must have had authority or must have been ordered by that publicly known organisation to act in that manner, to advance it's political objectives.

CHAIRPERSON: What happens if he, in his own judgment decided that a particular course of conduct, which he's about to follow, will in his opinion be in the interest of his organisation?  Don't you take that into account?  Whether it is approved subsequently by his organisation, whether he had prior, or the organisation had prior knowledge of it, is a different consideration.
	The first consideration is if he, in his mind, believes that the act I'm about to perpetrate will be in the interest of my organisation as I see it.

MR MALINDI: Chairperson, in this instance, firstly, with the Second Applicant, Mr Derby-Lewis, we are dealing with a person who was an executive member of the organisation.  We will submit that he was not the kind of person or the person of his standing within the political organisation would not have sat and contemplated what act would have been to the benefit of his organisation.
	He should known what he ought to do as a leader of the CP to advance his political objectives.

BERNARD MAKGABO NGOEPE: I think you have helped me Mr Malindi.

MR MALINDI: Chairperson

BERNARD MAKGABO NGOEPE: No, I was about to say that you have helped me with regards to the point that I raised because as particularly when you look at 33(e), that you have just referred to.

MR MALINDI: Yes.