Amnesty Hearings — Cape Town — 2000-11-18

UNKNOWN: Yes, the applicants.  ... then I submit that there is very little understanding of the Afrikaner, of his history, of his struggles of the past and his background.  If that was put to them, obviously we could have dealt with that in greater detail and if this was going to be a trial where the applicants had to prove on a balance of probabilities that they had political motives, then surely we could have asked the ...(intervention)

CHAIRPERSON: I don't think it's required anywhere in the Act that the applicant has to show that he had strong political feelings, one way or the other, whatever affiliation he was to.  What is in question is that the offence or the act which forms the subject of the hearing is an act associated with a political objective.  So technically you could get somebody who had no political leaning at all still being involved in an act which associated with a political objective. You don't have to go to the actual perpetrator and say: "Okay, he's got strong political feelings, therefore he's okay, whereas this one, he hasn't got much political interest, therefore he can't apply".

UNKNOWN: But I do submit that this is the point made by the victims' representatives, they say that these people did not have a strong enough political motive in what they did, and I beg to differ with that on the evidence.

GEORGE BIZOS: What we are saying is that the predominance of motive was not patriotism for the gentlemen that left Brixton in order to become the new soldiers of the sovereignty for the sovereignty of the State, the predominance of their motive was money and not patriotism.  We do not question, in fact we distinguish the Brixton people from other people and what we do say, that the mere fact that you were an Afrikaner, there are millions of Afrikaners that didn't take money for killing people.

CHAIRPERSON: But in any event, you see if a person - many members of the Security Force were apolitical, they were drafted in reluctantly.  They might have been involved in a highly political operation with a political objective and what their personal political views are is sort of irrelevant.  I think we can accept that.

UNKNOWN: The fact is however, just to answer to what Mr Bizos has just said that that is the second leg of his argument and it will be clear from his Heads of Argument how strong he makes the point that they didn't have the necessary political motive, but the fact of the matter is that it must be remembered, in answer to what he just said, that these people were drafted into the CCB by Verster, who told them what the purposes were of the CCB and it is clear, and I can refer to the record, that at that stage it wasn't done very elaborately with all the detail as it later appeared.
	It must remembered that as far as Burger, for instance, is concerned and his evidence is very clear, it was said that this was a covert organisation, that they were going to fight the enemies of the State, etcetera, but the details only emerged six months later.  	So when Burger and Maree at least, were drafted into the CCB, they were not aware of all the detail and that was only given to them six months down the road when they were established in the CCB, they were busy establishing their blue plans, etcetera, etcetera.  So it cannot be argued that at the stage when they were appointed into the CCB, that they had a financial motive and that it was said to them: "Look what we are needing you people for is to kill the enemies of the State for gain".  I submit that that was never said and it was only made clear to them about how the CCB was going to function, six months down the road, and that was also the evidence of Basson.  And I submit that it was never at any stage disputed by the victims that it was not so and that they were in fact then given contracts as hitman by the CCB right from the start.  Now I therefore submit that that argument by the victims' representatives does not hold water.  
	If I may just then proceed to the next point.  The context of the Act, I've actually deal with to a certain extent and at the moment I would just like to briefly refer to it again.  Now it's found on page 17 and further.  I once again submit that it is clear that the impression at least, the perception of the applicants was that there was total onslaught, an undeclared civil war where the ANC and its front organisations were waging in the country.  That was the evidence of Burger, at page 1853.  That was the context of the time.  I refer to that.  The Emergency Regulations were in place.  	The argument by the victims is you could have used the Emergency Regulations, you could have detained these people without trial for so many months, but the point is, just a bit later on in their Heads they do concede virtually, saying that those regulations were not working.  And it's also stated, that much is also stated in the TRC Report to the President, that the government in 1984 thought they'd turned the corner, but they didn't and then the unrest spread throughout the country.  There was virtual panic in government circles and in the SADF and they had to evolve new methods to address the position. I submit that that is the context in which the acts by the applicants should be judged.  	And I make the point a bit later in my Heads that this in fact is a very important factor, because when having regard to the requirements in Section 20(3), it does not say that the applicants have to comply with Section 20(3)(a) (b) (c) (d) (e) (f) and that they have to prove on a balance of probabilities that they comply with each of these.  In fact, it says that this is a question which has to be decided with reference to those points.  
	And what my argument is on page 30 and further, is that in fact, if one then has regard to the fact that this was the context of the acts and furthermore that these people were employed by the Security Forces and they were acting under orders, that that has to carry weight.  And if one then has regard to that, the weight of the fact that, for instance the proportionality of the act to the objective pursuit, is perhaps a bit disproportionate, because it can never be exactly equal. Then one has to consider the context and the fact that they were standing under orders and that in fact a government and a General were approving their actions.  So it's a process of weighing all these different factors, which has to work to the advantage of the applicants.
	If I may just go back to my Heads.  The next point is in the legal and factual nature of the act which I deal with, with reference to all the different acts.  Now I'm not going to read through this in detail, obviously.  We make the concession here that all of these acts were of an exceptionally grave nature, the bombing, the possibility of loss of life there, obviously the two attempts to murder.  It must be grave.  It's a planned, preplanned murder and this was not voluntarily stopped by the CCB because they realised that their actions were wrong, there were others why it didn't proceed.  But what I do submit obviously then, is the fact that no - on page 21, mercifully, no-one was seriously injured or killed.  That has to be taken into consideration.  And once again on page 21 I refer to the background, the context of the acts.
	I wish to make the submission here that with reference the submissions by the victims, that the actual intention was to kill the people at the ELC, I wish to make the submission that this cannot be found on a balance of probabilities, to have been the situation.  I make the submission that as far as my clients are concerned, Burger and Basson more particularly, they were not at the scene, they cannot be held responsible for what Van Zyl may have done or not have done.  Obviously they were totally ignorant of the fact that, for instance, Barnard was used in other instances where Omar was concerned and ...(intervention)