Amnesty Hearings — Boksburg — 1998-03-18

GEORGE BIZOS: Yes it has Mr Chairman and I have a note at the 
bottom of it by my attorney who's copy I have but she obviously 
checked it that a. deleted by the - I may say Mr Chairman that 
once Judge Wilson raises it, I hadn't looked at it before until 
Judge Wilson read it, I have not made up my mind finally and we 
have to do something tonight in order to make what we hope to 
be meaningful submissions or as to what it's effect may or may 
not be on this application and we are indebted that it was drawn 
to our attention so that we can deal with it.
	Then we say in paragraph 4.7. the offence was not 
committed in the course of or as part of a political uprising, 
disturbance or event or in reaction thereto as that the time of the 
negotiations had reached and advanced stage and a peaceful 
solution to the country's problems was in sight.  Now I want to 
make clear Mr Chairman that we submit that the conflicts of the 
past were coming to an end.  Counsel for the applicants said but 
look what Mr Visser told us that Gen Viljoen was planning, that 
was, we submit, clearly a conditional possibility, if there was not 
a settlement.  As it turned out, General Viljoen himself subscribed 
to the settlement, therefore what might have happened according 
to the plans of the Volksfront at that stage which were not 
publicly known for which the applicants do not purport to have 
been acting on behalf of, can be left out of account, we submit.
	What is relevant and the evidence stands uncontradicted, it 
was put down in a written statement supported by annexures 
which are before you as Exhibit, it's Bundle B which contains, it's 
a carefully prepared statement and practically all the statements 
in it are supported by  what Mr Jeremy Cronin now says Mr Chris 
Hani said at the time, but we were careful to go to the public 
record as to what Mr Hani was saying at the time and what he 
was saying was obviously gaining ground and obviously not to the 
liking of the fanatics like the two applicants, Mrs Derby-Lewis 
and Mr Clarke.  
	And it is that, and when their party in April 1993 was party 
to those negotiations, Mr Chairman, how could they believe that 
killing one of the negotiators and the general secretary of one of 
the negotiating parties at that process where their own party was 
participating be in the course and scope of their duties or that 
they had the express or implied authority?
	It can be tested in this way Mr Chairman, there was Mr 
Langley there if I remember correctly, there was Mr Hartzenberg 
there, pride of place for the television cameras of the world 
negotiating for a settlement, these applicants say that whilst they 
were in CODESA negotiating a settlement, these two gentlemen 
believed that they had express or implied authority from them to 
kill on of the top leaders of the alliance working to bring about 
democratic changes.
	Again Mr Chairman, I must refer to these four, and I 
include Mr Clarke, to this day Mr Chairman they speak about a 
communist party take-over.  They do not accept that we had a 
democratic election.  To them democracy means something else 
entirely.  I mention this because we will make some references to 
it in greater detail as to whether reconciliation is about to take 
place by people who still speak about a communist take-over 
when 62 or 63% of the population of this county voted for the 
government that is in power.  They may be fanatics, they may be 
unreasonable, they may be beyond the pale, but none of those 
entitle them to say that they believed that they had express or 
implied authority.  There was nothing happening at the time to 
which they had to react by killing a top leader.
	Then we say in 4.8 Mr Chairman that the Act was not 
proportional to the objective pursued in their own version and on 
their own version they sought to create chaos, expecting hundreds 
if not thousands of people to be killed during a race war in the 
hope that the riot would stage a coup.  This has been canvassed, I 
do not want to take up very much more time on it at this stage, it 
was very important for the proportionality.  But I was actually 
somewhat surprised by the Counsel for the applicant, Mr 
Chairman that the killing of Pieterse led to chaos.  I don't know 
why he said that, I would have thought that that would have been 
a warning to his client about irrational killing of people because 
we know that hundreds if not thousands died as a direct or 
indirect result of the wanton killing of Master Petersen on the 
16th of June 1976.
	And in 4.9 Mr Chairman the relationship between the 
objective pursued and the act is director or proximate, 
particularly as on their own version they had not planned or even 
informed the CP who they claim to have represented or any 
elements, to any elements of the right.  I think that the members 
of the Committee are aware to what we are referring to in this 
regard and I will take it no further at this stage.
	Now in relation to full disclosure Mr Chairman, we submit 
that the applicants have not made a full disclosure of all the 
relevant facts and have been untruthful relating to when the 
conspiracy to kill Chris Hani was first mooted or entered into; 
who were the victims of the conspiracy; who had become members 
of the conspiracy and more particularly Mrs Gaye Derby-Lewis 
and others who had procured the murder weapon; who procured 
the murder weapon and the reasons thereof.  Details of this are 
given in the rest of the heads of argument.  
	It is further submitted that the grant of amnesty to the 
applicants would be inappropriate and not in accordance with the 
objective of the Commission to promote national unity and 
reconciliation in that the act or offence was committed during the 
time when the country was at its most sensitive stage towards 
building peace, reconciliation and democracy.  The offence was of 
such gravity that the chaos envisaged to result from the 
assassination could have led to the death of many innocent 
civilians.  
	Well may I pause here and again refer to the evidence of Mr 
Jeremy Cronin as to how near we were to a civil war and the real 
chaos that had been envisaged and the evidence that had it not 
been for the leadership of Mr Mandela then as President of the 
ANC and Mr Tokyo Sexwale as the Transvaal Chairman of the 
ANC, there would so easily have been a blood bath and a race war 
in South Africa.

BERNARD MAKGABO NGOEPE: Mr Bizos I do not understand the first 
sentence in that sub paragraph.  The second one I would 
understand provided it still deals with the question of 
proportionality and therefore that it's not a new argument.

GEORGE BIZOS: Yes the sentences should have been the other way 
around, it's not an argument, it's a fact supporting the argument 
appearing in the second sentence.  Or have I misunderstood the 
question?  Are we talking about the first sentence of 5.1

BERNARD MAKGABO NGOEPE: Correct yes.

GEORGE BIZOS: And is that compared to some other sentence?

BERNARD MAKGABO NGOEPE: No reading it on it's own, it somewhat 
surprises me because well in conjunction with the introductory 
part which is 5.5, and if you read 5 and then you say 5.1, you say 
that the grant of amnesty to the applicants will be inappropriate 
and not in accordance with objectives of the Commission to 
promote national unity and reconciliation in that the act or 
offence was committed...(intervention)

GEORGE BIZOS: I can see that, it's confused thinking with respect 
and I'm sorry for it.  There are really two separate issues; when 
was it committed, and under what circumstances and that is a 
proportionality argument, the other is should it be granted 
because of - and they are really separate points, I agree.