Amnesty Hearings — East London — 1999-04-21

CHAIRPERSON: Good morning everybody.  Today we will be receiving submissions from the various legal representatives.  We will keep it in the same order, so we will be starting them with Mr Hattingh.

MR HATTINGH: Thank you Mr Chairman and members of the Committee.    Mr Chairman, we submit that it has been clearly established that the act, the supplying of weapons for purposes of a coup d'etat, that act has been clearly established as an act which was associated with a political objective and that that act was committed in the course of the conflicts of the past.  There can be no doubt about that, Mr Chairman.
	Mr De Kock testified that his objective was to assist in the overthrow of the Transkei government because of the fact that Mr Holomisa was sympathetic towards the ANC and the PAC, that he allowed members of those two political organisations to come into the Transkei and to plan acts of so-called terrorism, against the former government and the Republic from within the Transkei and at the same time, he did not allow members of the South African Police or the South African Defence Force to enter the Transkei in order to try and apprehend these persons.  That was the purpose of the whole transaction, the whole incident, they wanted to have the government of the Transkei overthrown so that a government more friendly disposed towards the former government and the Republic, could be put in its place.  That was the evidence of Mr De Kock, that was the evidence of all the applicants.
	It is also clear Mr Chairman, that Mr De Kock was an employee of the former State, that he was a member of the Security Forces of that State and that he acted within the course and scope of his duties as such when he supplied the arms for the attempted coup.
	You have also heard the evidence that he was given instructions by his superior Officer, being Gen Engelbrecht, to assist in this regard.  He therefore clearly believed that he had the support of his superior Officers in supplying arms for the purposes of the coup d'etat.
	The evidence, we submit, clearly establishes that the acts were associated with this political objective and that his acts were primarily directed at political opponents of the former State.   We also submit Mr Chairman, that the act is not out of proportion to the political objective, pursued by him, especially having regard to the fact that Mr Holomisa was assisting members of these political organisations in their struggle against the former government and the Republic of South Africa.
	We submit therefore Mr Chairman, that all those requirements of the Act, have been met and complied with and that the only thing, as you have pointed out to us yesterday, that you really need to be addressed on, is the question as to whether the act was performed for personal gain.
	Mr Chairman and members of the Committee, in deciding this question you can only adjudicate or decide this question on the evidence placed before you.  You cannot with respect, Mr Chairman and members, draw inferences from facts which were not placed before you as evidence.  You've got to be guided by the evidence before you.  That being so, with respect, Mr Chairman, it becomes necessary to determine whether Mr De Kock's motive at the time of the performance of the act, what his motive was at the time of the performance of the act, in other words, did he do it for personal gain, or did he have a political motive.
	We submit Mr Chairman and members, that there is no evidence whatsoever to the effect that De Kock provided the weapons relevant to this incident, for personal gain.   He, himself, said there was no agreement entered into prior to the delivery of the weapons in terms of which he would be compensated for the delivery of the weapons in question.  There is no such evidence.  	That is the crux of the matter Mr Chairman.

CHAIRPERSON: Mr Hattingh, if you could just assist, if one takes a look at Section 20(3) says
"... whether a particular act, omission or offence contemplated in subsection (2) is an act associated with a political objective, shall be decided with reference to the following criteria ...",
	then they set down proportionality, motive, context, etc, but does not include any act, omission or offence committed by any person referred to in subsection (2) who acted (i) for personal gain, and then they've got the exclusion relating to  informers.  Now, just for purposes of argument, let's say that somebody performs an act, his objective being purely political, there has been no agreement about payment, etc, he goes and he performs the act and then after the act, he gets rewarded to his surprise.  Would that be for personal gain?  When he performed the act, there was no motive for personal gain, because he didn't know that he would get rewarded, but then after conducting the act, the fact is, and I am not saying we are finding it here, but just for purposes of argument, the fact is that he does get rewarded, then can it not be said that he acted for personal gain, even though at the time of performing the act, he didn't have that motive or intention, but in fact, he became a rich man because he did the act and only for that reason?

MR HATTINGH: Sorry, that would place a (indistinct) on this Section ...

CHAIRPERSON: That is what I am asking for, because we haven't got much in the way of precedent to look at it, we've got to interpret it and you know, where do we limit the interpretation and this is what I am asking you for.

MR HATTINGH: Thank you Mr Chairman.  Mr Chairman, we submit that such an interpretation of that particular Section in the Act, would be totally untenable.  You have with respect, got to decide what the motive was at the time when the act was performed, you cannot look at events which took place after the performance of the act, in order to decide whether it was done for personal gain.  We submit that that is quite clear.  May we also refer you in this regard to the decision of the Amnesty Committee in the matter of Dirk Coetzee, David Tshikilanga, Butana Almond Nofomela.

CHAIRPERSON: Do you happen to have the number?  The three numbers, if you could just get it.