Amnesty Hearings — Johannesburg — 1998-08-07

MR LANDMAN: Mr Chairman we would go along with that argument, we would also point out in the ANC submissions that the ANC has made the point that some of it's cadres were considerably angered by a lot of the illegal attacks which took place and which were committed by the Security Forces in neighbouring states which led to suggestions that those sorts of attacks on innocent civilians should occur within the country as well, but committed by MK operatives.  Again it gives one an indication of how the conflict escalated where targets were being chosen very quickly and with a great deal of brutality at the time.
	Mr Chairman in regard to the factual and legal nature of the act, again one of the criteria, we submit that the attack was carried out as an ambush and accords with the tendency of guerrilla warfare and indeed Mr Chairman apart from possibly the romanticised versions that we have of the Battle of Waterloo where armies advanced upon one another in brightly coloured clothing and shot at each other, an ambush has for many years been considered to be a legitimate tactic to be employed in a war.  
	Mr Chairman we understand the criticisms which were raised by Mr Wagner when he said that the policemen were not in a position to fight back, however we submit that that is without merit in the context of this particular war, it was a guerrilla war, where the aim was to attack the police and Security Force personnel where they least expected it and the idea was to take them by surprise.  Mr Chairman that also then would have the effect of avoiding casualties amongst one of the warring factions, the MK cadres.  This again accords with the tendency of war.  
	Mr Chairman on page 17 we refer to the objective of the act.  We say it was clearly perpetrated in order to cause fatalities amongst South African Police personnel and such was frankly admitted by the first applicant in his full disclosure of his motivations and objectives in his evidence.  Mr Chairman our submission is therefore that the act was directed, not only primarily but solely at State personnel, the only involvement of civilians and private property was in the context of the civilians caught in the crossfire approach to warfare.
	Mr Chairman and then we specifically refer to the ANC's first submission dealing with the risk of civilians being caught in the crossfire.  That appears at page 51 of the first submission.  Mr Chairman one of the other criteria is for the Commission to be satisfied or to consider whether the act was committed in the execution of an order given by a - in the execution of an order.  In this particular case we submit that the order was given by a senior commander of the ANC of which the first applicant was a member.  
	Mr Chairman you'll also recall that we placed on record that General Nyanda, the person who gave the orders, does not intend to contradict any of the evidence which was given and indeed I'm instructed to inform you that he confirms that that is indeed the correct position, that the orders emanated from himself.  
	Mr Chairman then I wish to deal with criteria which has caused a number of applicants in amnesty applications some bother and that is the question of the relationship between the act and the political objectives being pursued and specifically whether the act was sufficiently direct and proportionate to the objective.  Mr Chairman our submission is that the ANC's submissions before the Truth Commission demonstrate clearly that the political objective of the ANC was to create a democratic and non-racial society and this was to be achieved by pursuing a multi-pronged strategy consisting of the four pillars, one of which was the armed struggle.  Mr Chairman others were for example the isolation of the apartheid state, but one of the pillars was the armed struggle and Mr Chairman it can certainly be again said that the South Africa of the 1960s to the late 1980s was certainly a society which the military and Security Forces as a whole played a large role in maintaining the government at that stage in it's position of power.  In that context an armed struggle against such bodies, the Security Forces, would in our submission certainly be a justifiable struggle.  
	Mr Chairman particularly taking into account that the attack was directed primarily against South African Police personnel it is submitted that this was a direct attack upon the persons who were perceived by the ANC, and indeed in our submission, were involved in maintaining the apartheid state and therefore were involved in preventing the realisation of a democratic and non-racial society.  Mr Chairman it has not been suggested at this hearing and I submit it is clear from ... (intervention)

CHAIRPERSON: Before we go on I think on this aspect and I'm thinking of some of the questioning, it is clear is it not that the real complaint is that the South African Police were the tool used by the Government.  The South African Police were members of a quasi-military organisation, if one wishes to call them that, who also felt that they were there to obey orders, it was not for them to question the orders they were given and a great many of the things that are now ... (end of tape 1) wanted to.  Do you accept that?

MR LANDMAN: We do Mr Chairman.  Mr Chairman it's probably not necessary to get into the whole debate about whether, at the very least, a considerable number of the police who did become involved were indeed committed to the maintenance of the apartheid state, but never ... (intervention)

CHAIRPERSON: But the point you are making, aren't you, is that the police were an essential tool of the apartheid government, without the police and the police support they could never have continued and for that reason the police were the obvious target to attack.

MR LANDMAN: Mr Chairman we submit that that finding alone would be sufficient for purposes of this application.
	Mr Chairman the ground upon which the Committee would certainly not grant amnesty is if it were to be established that the applicants were acting for personal gain or out of personal malice, ill will or spite.  This we'll deal with briefly in paragraph 25 on page 19.  Mr Chairman none of the (indistinct) has been, was suggested to them at the hearing and our submission is that it is clear from the evidence alone that they were carrying out orders, that this was a military operation and that is the proper, that explains the motivations behind the acts.  Mr Chairman it is therefore our submission that the applicants have satisfied their requirements for amnesty and that they ought therefore to be granted amnesty in terms of the act.
	Mr Chairman unless there's anything specific, those are my submissions.

DR TSOTSI: Mr Landman I see that we have dealt exhaustively with all the criterions that are (indistinct) of the act, motive, (indistinct) and so on.  Do you consider that the Committee has to be satisfied in respect of each and every one of those criteria set out in the act.  In other words (indistinct)

MR LANDMAN: Dr Tsotsi our submission and our view is that it's not necessary to meet all the criteria at all, but certainly we submit that in this particular case most of those criteria are quite obviously met.  That's the reason why I have dealt with them and although I have dealt with them one by one, I have indicated in the Heads of Argument that an overall conspectus must be taken of all the criteria and the act itself in determining whether this is an act associated with a political objective.

MR SANDI: Just one thing for me.  I don't know Mr Prior if you've heard anything from Mr Wagner?

UNKNOWN: Mr Chairman yes I was going to, in my address, indicate that Mr Wagner had phoned me yesterday and had indicated that he was not attending as per the arrangement.  There was no objection, or the objection that was initially envisaged was no longer there.