Amnesty Hearings — Pretoria — UNKNOWN

UNKNOWN: Member of the Committee, prima facie it would be the same thing, but it would differ on degrees of proportionality.  That is, that may also include the manner in which the taking of the life was done and so on. I will address that fully when I come to that aspect, but as a response - as a response thereto, prima facie there will be no difference.

JUDGE WILSON: Do you perhaps mean that when the taking of the life is the only means of achieving a political objective, rather than a last resort to achieving it?

UNKNOWN: Member of the Committee, can that still be another way of putting it appropriately. I agree thereto.
	Then I move to (d) of the Act.  Whether the act was directed was at a political opponent or State property or against private property or individuals. 
	As regards political opponent, the answer with respect, is in the negative.  There as no political opponent whatsoever in the case of the applicants.  Because as I have said at the beginning, it has not been established that the deceased was linked to PAC or any liberation movement.  Whether it was directed to an individual, yes, it was, but the direction to an individual was not at all for political objective.  He was killed to conceal the bad deed, full stop, and not to achieve any change, political change or unjust situation.
	Paragraph (e).   Paragraph (e), Mr Chairman and members of the Committee, also does not qualify.  The applicants do not qualify on paragraph (e).  If I have to read it -
"... whether the act committed was in the execution of an order of or on behalf of or with the approval of the organisation, institution, liberation movement or body, which the person who committed the act was a member, an agent or a supporter."
We do not have such evidence.  The only evidence we have before us came at a very late stage through argument or submissions by my learned friend, Mr Prinsloo, that Mr Gerber was an agent of the SAP or of the security.  But this is just what we have been told.  We do not have any evidence to that effect.  Therefore, I move that it be rejected that he was an agent of the security forces.  Especially, again based on what I have already stated to the Committee.  Be it via the media.

BERNARD MAKGABO NGOEPE: Sorry, Mr Mpshe, I just don't want us to get muddled up with concepts.  There is a requirement on behalf of - the applicants said that they did this, and whatever they were doing, on behalf of the government, on behalf of the National Party, and to do something on behalf of somebody - I mean, you can do something on behalf of somebody, even if that person has not actually given the instructions to do that.

UNKNOWN: I agree, member of the Committee.

BERNARD MAKGABO NGOEPE: If I walk past my neighbour and I see that - I mean he is away on holiday, his dog is without food. Even though he didn't ask me I can feed his dog on his behalf, on behalf of.

UNKNOWN: Yes.

BERNARD MAKGABO NGOEPE: And I am trying to say that that included many concepts here.

UNKNOWN: True.

BERNARD MAKGABO NGOEPE: One of the things they included here is that you can act on behalf of somebody, even if that person had not given you prior authority to do that.

UNKNOWN: Yes, I agree fully, but may I say something  again on that? Here we are dealing with the question of people saying they acted on behalf of. I agree there was no need for them to establish that they were directed to go and do this on the deceased. I agree on that one.  But, at least there should have been some form of evidence that they were members of that National Party and this was the policy of the National Party, in general.

BERNARD MAKGABO NGOEPE: They said so.

UNKNOWN: Member of the Committee, if my memory serves me well, they did not say so specifically, but this was said in generalising about their political set-up.  But I speak under correction.

HASSAN MALL: Yes, they did say so.

JUDGE WILSON: My recollection is, about the second thing that Mr Gerber said was that he was a member of the Nationalist Party.

HASSAN MALL: That's right.

JUDGE WILSON: He commenced his evidence saying it and it was never challenged, was it?

UNKNOWN: Yes, he said he was a member of the National Party and this was also said by my learned friend in his submission, but the fact I am trying to put on record, is that no policy of the National Party that one could draw an inference from, that they did this because of this policy.  This evidence was not put on record. Save that he was a member of the National Party, full stop.  That is just the point that I am trying to make.

HASSAN MALL: Yes.

UNKNOWN: It cannot be accepted that one, at least he is a member of the ANC and without him stating that the ANC believes in one, two, three and four, then we assume on his behalf that this is what the ANC does, then therefore he acted on behalf of the ANC.  No.

ADV DE JAGER: If the evidence was that the National Party or the leaders of the Government told him that there was a total onslaught, a total war against the regime, and they believed they were defending the regime, and the economy?

HASSAN MALL: Then they can go around shooting anybody who they thought was not a member of the National Party or an opponent of the Government. Any man in the street who they believed was not a member of the National Party, or a member of the Government should be shot, just because they believed that. That is how ridiculous it could become, isn't it?

UNKNOWN: Yes. Thank you, Mr Chairperson.
	Mr Chairman, finally, paragraph (f) thereof is on the proportionality. I have already addressed this aspect when I referred the Committee to page 97 in the criminal case. I want to refer further to the evidence before the Committee about the torture, the long time torture that was effected on this man.  This is definitely not proportional ... (intervention).

JUDGE WILSON: That is not the act that he is charged with and convicted of, as my Brother here put to you earlier.

UNKNOWN: They were, the applicants were convicted of murder.

JUDGE WILSON: Yes.

UNKNOWN: Now I am saying, member of the Committee, the manner of arriving at that murder was preceded by the torture. Can it be said that the torture including the taking of life is proportional to any objective sought?  No.  That is the point I am trying to make.

JUDGE WILSON: I cannot accept that the murder can be linked to the torture. He didn't die as a result of the torture. It wasn't part of the torture. They didn't indulge in an extra act of torture.  The act of murder was a separate act, wasn't it?  Committed because they wanted to preserve their own skins.  They were frightened they would be caught now or when I say they, Mr Gerber.  Twice or three times in his evidence he said that we realised that we were now in a very difficult position, I realised I was, so he committed murder.  It has not got anything to do with the torture, has it?

UNKNOWN: I am indebted to you, member of the Committee.  	But in rounding up, I want to move this Committee, not to be convinced that the criteria laid down in Section 20(3) as a whole, (a) up till (f) has been satisfied, and that these applicants do not qualify for amnesty.  That is all.

HASSAN MALL: Mr Prinsloo, do you wish to reply?