Amnesty Hearings — Durban — 1997-08-13

MR PURSHOTAM: Thank you Mr Chairman.  Sub-Section 2 of Section 20 deals with individuals and organisations which were involved in political acts and what is referred to in the Act as a political struggle.
	My learned friends have apprised this Committee that the applicants intend basing their applications on provisions in Sub-Section (a), (d) and (f), so it may be instructive to look at those provisions and determine whether the applicants fall within the ambit of those Sub-Sections.  Sub-Section 2 starts off by saying that:
"The act must be an act associated with a political objective, advised, planned, directed, commanded, ordered or committed by Sub-Section (a).  Any member or supporter of a publicly known political organisation or liberation movement on behalf of, or in support of such struggle or movement, bona fide, in furtherance of a political struggle waged by such organisation or movement against the State or any former State or another publicly known political organisation or liberation movement".
	I've mentioned this earlier and members of the Committee have also touched on this.  And that is, which political organisation are we dealing with here?  We are told that it's the OB.  The question is, whether it's publicly known?  There mere fact of the release of a video on TV, is that sufficient to suddenly constitute a publicly known political organisation?
	We haven't got before us even a Constitution of this organisation.  We were told in evidence yesterday, that nothing is known about it's membership.  It may be 3, it may be 30, it may 300 or it could even be 3.000.  How can one conceivably talk about a publicly known political organisation, if one knows nothing about it's structure and it's constitution.
	The applicants know what they have to satisfy in this Act but I repeat, no attempt has been made to bring before this Committee any document which talks about the structure of this organisation or it's constitution or it's aims and objectives -  we have an oath.  I'm not so sure whether that is sufficient to suddenly constitute a publicly known political organisation.  But even if we assume, for purposes of argument, that it's a publicly known political organisation, one has another hurdle to cross.
	The acts which are committed by members of that political organisation must be directed against:
"the State or any former State or another publicly known political organisation of liberation movement".
We don't have any evidence about how one could fit an attack on innocent law-abiding citizens within the ambit of:
"the State, a former State or a publicly known organisation of liberation movement".
That's Sub-Section (a).
	The next Sub-Section that was relied on, is Sub-Section (d).  And that reads as follows:
"Any employee or member of a publicly known political organisation or liberation movement, in the course and scope of his or her duties and within the scope of his or her express or implied authority directed against the State or any former State of any publicly known organisation or liberation movement, engaged in a political struggle against that political organisation or liberation movement or against members of the security forces of the State or any former State, or members or supporters of such publicly known political organisation or liberation movement and which was committed bona fide in furtherance of the said struggle".
	For purposes of logic, that Sub-Section may be divided up into it's constituent parts.  The first part deals with:
"in the course and scope of his or her duties"
We've touched on this already as regards the policy of the OB.  How one suddenly converts the policy of an organisation into a duty, is beyond me - in my submission.  	The next constituent part of that Sub-Section, deals with: 
"the express or implied authority"
How ones brings within the ambit of this, these important terms.  Again, the policy of the organisation - because that is the only thing which we have before this Committee - the policy which has suddenly been magnified into an order, it's been magnified into a command, it's been - all sorts of terms have now been applied to the term "policy".  But the Act is specific on this, it talks about duties, it talks about express or implied authority.  We have no evidence of the applicants having had any express or implied authority from anyone in the OB in a responsible position.
	And then we come again - the Sub-Section repeats against whom and against what the attack must be perpetrated.  That's the golden thread of this Act.  The central purpose of this Act is to determine, against whom and against what, were the acts perpetrated.   And it's repeated in all the Sub-Sections.  And I don't want to repeat what I said as regards Sub-Section (a) but again we don't bring ourselves within the ambit of:
"the State or a publicly known political organisation or a liberation movement"
against whom the attack has to be carried out.
	And then reliance was placed on Sub-Section (f) ...[intervention]

JUDGE WILSON: Sorry, before you go on, while on this point.  If one accepts the evidence, isn't there a difference between Smuts, Marais and Botha on the question of authority?  They say, he was the man in charge of the cell, he was the man who gave the orders.  He gave them an order.  As far as those two are concerned, can't they argue here that it was within their implied authority or their expressed authority and that they were ordered to do it by their commanding officer?

MR PURSHOTAM: It is conceivable to have that interpretation.

CHAIRPERSON: But not for Botha?

MR PURSHOTAM: Definitely not for Botha.  But I would urge the Committee not to put that interpretation on those provisions because ...[intervention]

CHAIRPERSON: As I understand your argument that in this case here, the act that was perpetrated was not against the State or any political organisation, but against the victims.

MR PURSHOTAM: That's correct Mr Chairman.  It wasn't perpetrated against any State or against any responsible member of the State or against a political organisation or liberation movement, as this particular section requires you to do.

CHAIRPERSON: You heard their evidence in which they said, their aim was to draw the attention of the State, the Government, that the Government was traveling along wrong lines.

MR PURSHOTAM: It's my submission Mr Chairman, that if one wants to bring a message home to an organisation or for that matter the State, one ...[inaudible] something connected with the State or that organisation or liberation movement.  There has to be some relationship as mentioned in Sub-Section 3, between the act and the target.

ADV DE JAGER: I - would that also be the case if a bomb was planted on the border and farmers were killed?

MR PURSHOTAM: Well, as I said earlier on, one has to distinguish between common criminal acts and acts which are committed in order to further a political objective.  Putting a bomb on the border and killing farmers is a barbaric act of terrorism, it's a pure and simple criminal act.  One cannot construe any act which does not bear any discernible relationship to a political objective if it does not bear any discernible and reasonable relationship between the act and the objective, it's not a political objective, it's a criminal act, it's an act of terror.
	The last Sub-Section on which reliance was placed is Sub-Section (f), but if one has regard to Sub-Section (f), one cannot bring oneself within the ambit of Sub-Section (f) before one has brought oneself within the ambit of Sub-Sections (a), (b), (c) or (d).  But it's my submission that none of the requirements of (a), (b), (c) or (d) have been complied with and therefore the question of reliance on Sub-Section (f) doesn't arise for argument.