Amnesty Hearings — East London — 1998-10-07

CHAIRPERSON: Wasn't that decision wrong?  ...[inaudible] been wrong?  On many occasions during hearings of various clients and by various applicants affiliated to various political groups, a number of policemen have made, or former policemen have made application for amnesty for committing offences ranging from murder to all sorts of things and on very many occasions they rely on this order.  For some reason or other, Mr Louis le Grange gave many orders after he died.  If he were alive and it will prove that he in fact did give the order and he was the starting point of the sequence of events, the question is begged whether he would be disqualified from applying and obtaining amnesty because he did not receive an order from anybody else, he was the author in fact of the order.  Does it follow that he would not be able to obtain amnesty?

MR SMUTS: Mr Chairman, that would have to be measured as to whether he was acting in accordance with the policies, aims and objectives of the government at the time or not and that, with respect, is what sets this application apart.

CHAIRPERSON: But the precedent that you refer to, as I remember it being reported to me, that the one applicant who failed to be granted or obtain amnesty, failed because he did not act on the order.

MR SMUTS: And with respect, Mr Chairman, there was no indication from his organisation that it owned his action.  It might be of assistance to read the passage from the decision, Mr Chairman, from the bottom of the third page of the five page judgment, the majority decision:  ...[no English translation]
"Botha het geen direkte opdrag ontvang nie, die spesifieke dade te pleeg nie.  Daar is geen getuienis voorgele dat die AWB of die Orde Boerevolk Botha beveel het om hierdie dade to pleeg nie of dat hy dit met hulle goedkeuring gepleeg het nie.  Nog Eugene Terre'blanche, nog Piet Rudolph het getuienis ter ondersteuning van Botha afgele of op enige wyse tydens die verhoor te kenne gegee dat hy met hulle goedkeuring of op grond van hulle bevele gehandel het nie.  Geen brief, geskrif of eedsverklaring deur hierdie leiers of hulle organisasies is in hierdie verband voorgele."
Now, with respect, the instant application goes further because what the Committee has before it, is a number of policy statements which indicate a policy in conflict with the taking up of arms and acting violently for political objectives and so with respect, if one then looks at Section 20, sub-section 2(a) and examines whether there is here an Act on behalf of, which it clearly wasn't, or in support of the political organisation or movement, there is no such Act.
My learned friend on behalf of the applicants suggested that that should be a subjective test.  The subjectivity comes in, in determining whether they were acting bona fide in furtherance of a political struggle.  What the Committee must be satisfied is that they were members or supporters of a publicly known political organisation or liberation movement, acting on behalf of or supporting such organisational movement.  Thereafter the question of bona fide is, kicks in the subjective test, it is objective up to that point and my submission to the Committee is, there is no basis on which it can be satisfied that these applicants were acting in support of their organisation.  On the face of it they were acting in conflict with the organisation and it's policies.

ADV DE JAGER: What Section?

MR SMUTS: Section 20, sub-section 2(a), Mr Chairman.  The test is objective in the first analysis, the subjective emerges when it's to be enquired into as to whether they were acting bona fide in furtherance of a political struggle.
My submission of course is, in that respect too, these applicants fail.

CHAIRPERSON: Are you saying that if they thought, bona fide or otherwise - it can't be otherwise, but if they thought that they were acting in support of a political organisation and it turned out on analysis thereafter that they were not in fact acting in the interests of that organisation, then the application must fail?

MR SMUTS: Yes Mr Chairman because then they were not acting on behalf of or in support of the organisation.

ADV SANDI: Mr Smuts are you persisting with this argument in spite of the fact that there's no evidence that the applicants were acting in pursuit of personal gain?  There does not seem to be such evidence in my understanding.

MR SMUTS: But with respect, Mr Chairman, that's not the test.

CHAIRPERSON: No it may not be the test but why else would they have done this if it was not for any gain?

MR SMUTS: Well Mr Chairman, they tell you, they tell you they acted out of anger and frustration, they tell you they acted out of hatred, out of hatred says Mr Maxhayi in his application.  That doesn't qualify him for amnesty, that excludes it, with respect, in terms of the provisions of Section 20 sub-section 3 (ii).

ADV SANDI: But is it not part of the whole history that different people from different racial groups in this country hated each other in the context of the conflict that was going on?  I thought that was a given historic background?

MR SMUTS: Yes, but with respect, Mr Chairman, different people did different things and not all of them qualify for amnesty.  There has to be an examination, fall squarely, of the terms of reference of the Act, to determine whether these applicants fall within the parameters which qualify them for amnesty.

ADV SANDI: You see right, each application has got to be evaluated in terms of it's own specific circumstances.  They say here they were emotional, they were angry about what had happened and they accept that in selecting the targets they were not as careful as they should have been?

MR SMUTS: It's hard to dispute that, Mr Chairman.  They showed no care at all in fact.  Mr Chairman but to the extent that one needs to analyse whether they were acting on behalf of or in support of the organisation, my submission is that the statement by President Mandela issued on the day of the shootings puts that beyond doubt and I refer to that section in the document which is P1 where he says
"We must not let the men who worship war and who lust after blood precipitate actions that will plunge our country into another Angola.  Chris Hani was a soldier, he believed in iron discipline, he carried out instructions to the letter, he practised what he preached, any lack of discipline is trampling on the values that Chris Hani stood for.  Those who commit such acts serve only the interests of the assassins and desecrate his memory."

ADV SANDI: Then they ...[indistinct] to that statement, isn't that no so, according to their evidence?

MR SMUTS: Their evidence is that after the call for calm they again acted in a manner which was in keeping with the stated policy of their party.  My submission that in acting as they did on the 13th April, they acted in conflict with that policy as is clearly indicated by the assessment of them, the President of their organisation and now of our country, in his assessment of the very sort of act which they committed on that day.

ADV SANDI: I thought the statement by President Mandela was issued after the attack had taken place at ...[indistinct]

MR SMUTS: Yes but is a call for calm and peace and it analyses the consequences of the sort of action which the applicants were indulging in and it describes them as actions which desecrate the memory of Mr Hani - "Those who commit such acts serve only the interests of the assassins."  If such acts were serving the interests of the assassins, with respect, they were not acts in support of the African National Congress.