Amnesty Hearings — Pretoria — UNKNOWN

HASSAN MALL: Who gave those people amnesty?

ADV PRINSLOO: Mr Chairperson, I am certainly away of it that this Commission did not grant amnesty or indemnity to those people but, with respect, every citizen of this country must receive equal treatment, as every citizen accepted in the circumstances.

BERNARD MAKGABO NGOEPE: You refer us to what are not our precedence, where you refer to instances where decisions were taken by different bodies, using different criteria, which are possibly not the same criteria that we are using. I am trying to say to you that I don't think that it is accurate of you to refer us to McBride's case or Barend Strydom's case, et cetera, and the like, because those decisions to grant amnesty or release those people were taken under different circumstances, possibly by different institutions, constituted differently from the way we are, and applying different criteria. That is all I am saying.

ADV PRINSLOO: Mr Chairperson, I agree that this inquiry must lay down its own rules.  What I wish to point out or what I want to submit, is that there must be equal treatment.  If there is to be reconciliation these factors must be taken into account.  With respect, they cannot be ignored.  In that those acts, all those acts which were committed, whether by right wing or by left wing groups, were in fact the same, as those which now appear in front of this Commission.  Those people, in those circumstances, in the circumstances in which they found themselves, and what they believed in, that these comply with the requirements of a political cause. What is to be linked with is, is that those acts resulted from what is today the dispensation in this country and therefore these have to be linked and they cannot be ignored.
	Mr Chairperson, the aim or objective - excuse me, paragraph (c), the legal and the factual nature of the act or omission, it is a fact that this is a serious matter.  But with respect, in this case it was aimed specifically against a political organisation.  It wasn't generally aimed at any person, it was aimed against at the particular organisation and the deceased was believed to be a member or supporter or part of the group of this organisation.

JUDGE WILSON: Are you suggesting that this murder was aimed at the PAC?

ADV PRINSLOO: I beg your pardon, I couldn't hear,  Mr Chairperson?

JUDGE WILSON: Are you suggesting that this murder was aimed at the PAC, is that what you are saying now?  Aimed at a particular political organisation?

ADV PRINSLOO: I wish to argue with respect, Chairperson, that Mr Gerber believed that the deceased at the least, a supporter of the PAC, and the purpose was to expose the PAC and that he was a component of it.

JUDGE WILSON: If we are discussing his murder, not anything else, that is what you must address us on.

ADV PRINSLOO: Mr Chairperson, it is specifically the results of that, the cause of the assault, to get information from the deceased, which shows that it was believed that he was a member of the PAC, and to get the information as a result of what happened.  This action, as a result of this, the deceased passed away.

JUDGE WILSON: He was killed because he was thought to be escaping and that they would be in trouble. That is what your client said.  Didn't he?

ADV PRINSLOO: With respect, Chairperson ..

JUDGE WILSON: Didn't he say that?

ADV PRINSLOO: He did say that at a stage he tried to escape but I wish to submit that one shouldn't look at things in compartments here, at the circumstances.  With respect, Chairperson, but in a range of circumstances it would lead to absurdities, in which case a person who thinks he is in the process of fighting a freedom struggle and in the process of wounding somebody, injuring somebody and then doesn't take him to hospital, that would have the same results, if he died as a result.  If you had given him hospital treatment then the person wouldn't die.  That would have the same consequences.  With respect, this was a war being waged.  That is how it was seen on both sides.

BERNARD MAKGABO NGOEPE: Mr Prinsloo, you keep on saying the applicant believed in this and that.  What is the test here?  Should the test be objective or subjective?

ADV PRINSLOO: With respect, Chairperson, was that the applicant believed was subjectively what he believed. It was a subjective test to see what he believes.

BERNARD MAKGABO NGOEPE: So really, we - the inquiry should simply be according to a submission that if one morning anybody believed Kanaga was a member of the PAC he could be knocked off, whether or not that person has got a reasonable basis for believing that the deceased was associated with the PAC, that is irrelevant.  As long as that person himself believed that this was man was connected or was a member of the PAC, that is sufficient?  Is that what you are saying?

ADV PRINSLOO: With respect, Mr Chairperson, that is not my argument.  Whether his belief was reasonable in the circumstances will have to be judged, what a reasonable man would do under those circumstances.  The example which the honourable Committee member has submitted is not that simple.  Here one has to look at the surrounding circumstances, which have already have been presented to the Committee.  Namely, Chinese stick grenades were found, information was provided by an informant. The security police supported them in this view that there was in fact an onslaught.  The circumstances prove this, in fact R4,2 million was stolen.  It is a fact that AK-47 shells were found.  The deceased was found in suspicious circumstances.  With respect, Mr Chairperson, that in itself provides sufficient grounds, reasonable grounds which are reasonable because a reasonable person objectively believed that a person was involved in these circumstances.
	The act, the intervention, Mr Chairperson, how will the Commission be able to determine whether a person, if there is a death in a bomb explosion, whether that was deliberate, because there one is not involved in motive, one is dealing with deliberation.  Motives and intentions should not be confused.  This Commission must examine the motive of the person and not whether the intention was justifiable, not whether it was a case of neglect.
	The circumstances, with respect, Chairperson is that in the course of the whole thing, that Gerber believed in those circumstances, that he was working against the struggle for liberation.  There were many examples which have been before our courts, where politics specifically were involved, murders, assassinations, in which the victim, as in the case for example, S v Messina & Others. There, for example, various people were killed.  Ex Minister Lukele in that case, the members decided personally that they would murder Lukele, it wasn't as such a specific instruction from the ANC, it was their own choice. In that same case the people worked in with an AK-47, Lukele was shot, his sister-in-law was also killed, his wife was seriously wounded, one Const Vuma was killed in an assassination, without being able to defend himself.  In the judgment which was referred to here, there another member of the police was killed.
	With respect, if one looks at these things, in relation to the case before the court, the Appeal Court found a political motive to be involved.  What motivated them to commit this act, in that comparison, with respect, Mr Chairperson, this should not be lost sight of in these circumstances.
	There must be an investigation launched and then at the end of the day it must be identified whether there was a full revelation and whether the requirements as set out in the Act have been complied with.