Amnesty Hearings — Durban — 1996-08-14

MR D'OLIVIERA: Sorry, that is correct, the Court of Appeal, page 3, the second paragraph.  I will read it in English because I've done a translation.
"The trial court correctly found the following mitigating factors
1.	That members of the police force were then subject to extreme stress and pressure which in many cases led to extraordinary actions, personality disintegration and even suicide as a result of the role they played in the political struggle in the community and the fact that they were to a large extent the targets of criminals and as we know still are today".
	The record bears out, with respect, this finding of the Honourable Court of Appeal. There was a violent political struggle in progress in the Kwamanambe area between, on the one hand, members and supporters of the ANC and on the other hand members and supporters of the IFP.   The applicant and other members of the SAP found themselves in the middle of the struggle inasmuch as they were seen as the soldiers of the then government against whom the political fight of the ANC was also directed.  The SAP, including the applicant, were by law duty-bound to resist the activities of those trying to further the ends of the ANC. 
	The requirements of Section 22 regarding -
"an act associated with a political objective, namely, in the course and scope of his duties; within the scope of his authority and permitted bona fide with the objective of countering or otherwise resisting the said struggle"
are capable of widely divergent judicial interpretations. 
	Instead of attempting to refer to various court decisions which may find application I would urge this Tribunal to adopt the common-sense approach expressed in HORNE v UNION GOVERNMENT 1931 (CPD) 165 at 171.
"Now acting must, in my opinion, include acting wrongly.  For if the section applied only to regular action there would be little need of it, for it is when there has been wrong action that litigation arises.  The action must be within the scope of the Police Act but it need not be correct".
	This approach is borne out by Section 22 itself which speaks of "an act or commission which constitutes an offence".  Interpreted literally a member of the security forces cannot commit an offence in the course and scope of his duties because the duties and powers of a member of the SAP as spelled out in the former Police Act do not include the commission of any offence.  If a literal interpretation of the Act is insisted upon no member of the SAP would qualify for amnesty.  But if the above approach, the HORNE v UNION GOVERNMENT is adopted then the objects of the Act can be achieved.
	It is known history that there existed a political struggle between the then government and the ANC.  The ANC in pursuit of its struggle made use of violent means in which people such as the deceased played an active role.  The government in its political struggle against the ANC employed the SAP and SADF.  In hindsight it is accepted that the police were used in a role outside of normal policing.  The applicant was part of that arm of the then government in its political struggle. The applicant, as with other police members, were trained and indoctrinated to conduct the military side of the political struggle on behalf of the then government.  	The then government made the ANC illegal and so legalised the military struggle which followed against the ANC.  The SAP were, therefore, in the conduct of normal policing also conducting the military objective of the political struggle of the then government against the ANC.
	The Court of Appeal which dealt with the applicant's appeal against sentence referred to this in confirming the correctness of the finding of the trial court in the mitigating factor referred to previously, namely recognising the role the police force has played in the political struggle.  
	Through his membership of the SAP and following the indoctrination to which he had been subjected to fight the political enemy of the government which he then served the applicant himself was directly involved in the political struggle.  The deceased themselves were involved in the political struggle for the ANC.  The trial court acknowledged that the second deceased, as the trial court referred to him, committed crimes with a political motive and it must be conceded that the first deceased was associated with the second deceased in the political struggle.
	The applicant's actions in murdering one and in attempting to murder the other must be judged in the light of what has been argued before.  He did not act out of personal hatred or malice against those individuals but as a tool of the then government in its struggle against the ANC who in turn used the deceased as its tool.  They, the applicant and the deceased were thus enemies out to destroy one another.  
	The applicant's actions were wrong which he himself admits and shows remorse, but nevertheless these actions flowed from the political struggle in which he had become a part as a member of the SAP.  His state of mind in the violent struggle must have a bearing on his actions.  Undoubtedly the state of mind of his victims must have also been affected by that same struggle.  
	The intention of these proceedings is to decide upon amnesty.  The broader intention of these proceedings is to find forgiveness and reconciliation.  I submit that the applicant is a person who should be given forgiveness and amnesty in the spirit of reconciliation.
	In addition to that I wish to submit that as far as Section 21(b) is concerned, if I may read that section again"
"The act, omission or offence to which the application relates is an act associated with a political objective committed in the course of the conflicts of the past in accordance with the provisions of subsections 2 and 3."
	Now I submit that the evidence is clear that the act in question was one associated with a political objective if this Committee accepts my argument of a policeman's role in the struggle. 
	As far as subsections 2  of Section 20 is concerned the relevant portion is subsection (b).  He was a member of the security forces and the question of "in the course and scope of his duties", I have covered that in my argument as well that obviously the Police Act would never be able to legalise that action, but the fact of the matter it flowed from his duties as a policeman.
	As far as subsection 3 is concerned, each of those can be answered, the criteria I am referring to, the motive of the person who committed the act, omission or offence, it is clear that what the motive was - he's explained it.  	
(B)	the context has also been explained, the war zone that existed at Kwamanambe;
	(C)	the legal and factual nature of the act that has been established, clear murder and its serious consequences;
	(D)	the object or objective of the act - it was directed at a political opponent who was a soldier for the government for all intents and purposes;
	(E)	whether the act or omission or offence was committed in the execution of an order or on behalf of.  He was acting on behalf of the government in its war against the ANC;
	(F)	the relationship between the act and omission or offence and the political objective pursued is also clear in order to neutralise what he considered to be the enemy at that stage.
	I submit that his actions do fall within the criteria that have been set out in that subsection.  Thank you.

CHAIRPERSON: Do I understand you to convey that any policeman, because he's a policeman employed by the government at the time, would be entitled to shoot and kill anybody whom he suspected to be an opponent of the government?