Amnesty Hearings — East London — 1998-10-07

MR SMUTS: Yes Mr Chairman and it's not apparent whether his confession to having been on a mission was before or after the consumption of the alcohol but be that as it may the uncontested proposition put to Mr Hermans was that Mr Costello ran a guest house.  Now that, those aspects ...[intervention]

CHAIRPERSON: As I understood it he knows that now.

MR SMUTS: Mr Chairman, I'm sure whether it was suggested that he didn't know it at the time, he ...[intervention]

CHAIRPERSON: His evidence was that there - his information was that he accommodated at the very least and associated with members of the AWB as he suspected but you put it to him that would he deny then now that what he in fact did was run a guest house and he said no he couldn't.

MR SMUTS: Mr Chairman but that illustrates the extent of the good faith reliance on available information.  There was, with respect, no tangible - nor was it suggested, that I must concede, that there was tangible evidence of right-wing activity.  There were rumours and the rumours were premised on the illustrations I have just placed before the Committee together with some hooting and light flashing outside a hall where the South African Communist Party was launched in 1992 and the participants in that exercise, I think the term used was left behind Mr Costello and it seemed to be clarified that they didn't have anything to do with it.

CHAIRPERSON: He should have said right behind.

MR SMUTS: It appears, I think, the intention was Mr Chairman, they didn't associate with him on the day and that with respect is the available evidence of a right-wing infiltration.  It is, in my respectful submission, without foundation and it reflects poorly upon the credibility of all of the applicants.

CHAIRPERSON: You see, I don't know if we can be that simplistic, Mr Smuts.  What you just mentioned now last is what some of the applicants observed.  Now on it's own you may be right but we cannot forget that it was fortified by all these reports, albeit untested and reports by informers on various parts of the area.  Now surely that must count for something?

MR SMUTS: But with respect Mr Chairman, they were reports, reports from out of Port St Johns, were reports that there were meetings.  No one knew what was discussed at those meetings.

CHAIRPERSON: But they were AWB meetings which has a certain connotation.

MR SMUTS: Mr Chairman, they were meetings associated with Mr Costello and because it was rumoured that Mr Costello was AWB therefore it was rumoured that they were AWB meetings.

CHAIRPERSON: Well as sloppy as the intelligence may have been, I'm just pointing out to you that we're talking about whether it was bona fide or mala fide.  We cannot just take isolated issues to determine that.

MR SMUTS: But my submission is, Mr Chairman, there is no basis on which the link with Mr - the suggestion that Mr Costello was a member of the AWB was founded either.  At best, for the applicants, at one stage there was person that emerged from his house that claimed to be a member of the AWB.
	A further point with respect to which the Committee is compelled to have regard is the surprise appearance of Mr Costello as a pivotal individual in the events leading to the attack launched by the applicants in the evidence of Mr Hermans.  Mr Chairman, one can speculate as to the motivation for it but my submission is simply if it were true we would not have heard of it for the first time yesterday.  What does that then suggest, with respect, that suggests that there had to be a tapering of evidence to ensure some kind of united front amongst the applicants.  My submission is that the Committee cannot be satisfied that it can rely on the evidence relating to the alleged right-wing threat.  If it can't be satisfied that that evidence is reliable then there is an answer to the question posed earlier, no basis on saying we can rely on some of the evidence and not on the rest of it unless it is objectively verified by other available evidence such as the fact of the death and injury which was sustained on the day in question.

ADV SANDI: Mr Smuts sorry, just to ensure that I follow your argument.  Is it your argument that on the base of the evidence that has been led before the Committee we cannot even conclude, we can't make a finding at all that this thing, this attack and ambush was actually triggered off by the assassination of Hani and we say all the rest is nonsense?

MR SMUTS: No Mr Chairman, my submission is that unless there are other facts which lend support to averments in the evidence of the applicants, the Committee will not rely on the unsubstantiated evidence.  But we know as a surrounding background fact that Mr Hani was assassinated three days previously.  That is a fact which the Committee will take into consideration when it weighs their actions but when they make unsubstantiated averments, only confirming each others evidence, then in the light of the weakness of their evidence and there are a host of other reasons, I mean with respect, it's a deviation from the question posed but there wasn't a single witness who was tested against his confession, who gave honest evidence, in credible evidence regarding why he said what he said in his confession.  As witnesses, the applicants were so unimpressive that the Committee will not accept the evidence unsubstantiated.

ADV DE JAGER: Mr Smuts, suppose we wouldn't believe them on the whole AWB question, but we've got the following objective facts.  Mr Hani was killed, there was a reaction throughout the country because of the killing of Mr Hani.  It's also a fact that Mr Hani was killed by a white person.  It's also a fact that our history caused a division between whites and blacks and black people were perceived as enemies in general, not in particular and whites in general without referring to particular people as the opposition, the two sides involved in this political struggle.  They now testify and suppose we agree that we can't accept everything they've said, but can we reject the evidence that they acted or planned something in reaction to the killing of Mr Hani?

MR SMUTS: No Mr Chairman and I wouldn't ask the Committee to reject that.

INTERPRETER: The speakers mike.

ADV DE JAGER: ...[inaudible] and to kill a white or whites and they carried out their plan in killing whites.  There was no robbery, they left them there and they went home and what could the motive be on a balance of probabilities for the killing of the white people?

MR SMUTS: Well that's the problem with the applicants have left the Committee with, Mr Chairman, because they haven't tendered credible evidence.  The motive could be political.

ADV DE JAGER: I thought you would be able to assist us in coming to a conclusion.

MR SMUTS: The motive could be racial hatred.  Fortunately, Mr Chairman, it's not incumbent on the victims to satisfy the Committee of anything, that is the role of the applicants and the victims and the applicants have to satisfy the Committee.

CHAIRPERSON: But haven't the applicants informed us that that was the reason for them embarking on this?

MR SMUTS: Well, in doing so Mr Chairman, the applicants linked their motivation to what I submit is a spurious right-wing infiltration and if they are not credible witnesses in that regard then they will not satisfy the Committee.

CHAIRPERSON: But does it mean Mr Smuts that if we reject the evidence on this possible right-wing infiltration that we have to reject their evidence in total, because I want to point out that as Advocate de Jager correctly points out, that that portion of the evidence of the applicant is substantiated by the truth of other knowledge that we have.  I mean Mr Hani was assassinated.

MR SMUTS: Mr Chairman, I'm not suggesting that the Committee will not find as a fact that the assassination of Mr Hani prompted a reaction on the part of the applicants.