Amnesty Hearings — Durban — 1998-10-21

MR DE KLERK: Thank you Mr Chairman.  Be that as it may, I don't want to go too much into the facts.  Commission has listened to all the facts.  The problems regarding these sort of applications is usually the political motive, was there any order or was it on behalf of a political party or organisation.  Clearly in these circumstances, according to the evidence of the applicant, there was a political motive.  The question usually now derives and that is usually the problem of these situations where we can accept that there was a - let's call it, the applicant also called it - a war situation on the ground.  The situation perceived at that stage differs from any other situation in a normal community.  The dynamics of that situation was two groups fighting with each other.  The one group and it doesn't matter how we look at it, the one group trying to overpower the other group.
	In this situation and dynamics, the one group will decide to attack the other group and kill people because that will benefit them in some or other way.  In these circumstances the applicant said no, it was done to take away the threat.  So the motive is clear, the take away the person which they perceived as the person supplying firearms would have been to a great benefit for his party, his community and even as he thought at that stage, his government.
	Then to say, well he didn't have a political motive, well we're almost saying well in a war situation there's two groups and one group wants to overpower the other and somebody dies according to that, there's no political motive, it just can't be.  Now the question is usually asked, the IFP especially in those circumstances, had a policy of non-violence.  So anybody that was a member of the IFP that had to live in these circumstances where we all know that people died, IFP died and ANC people died, that because they belonged to a party which officially said that there should not be violence, that makes any act of a member of that party doing something against that party's policy because that is not really true because the political party at that stage said and it was said by many of the leaders that the people may protect themself.  
	If these members now say well, we have to protect ourselves and by protecting ourselves we have to take out the persons that is involved in killing us, what is he doing against what his party is telling him?

MR LAX: Are you in essence saying this is a - that that sort of pre-emptive strike, if you like, is a part of defence?

MR DE KLERK: That's correct, Mr Chairman.
	So we sit with a problem that it's very easy to sit back and say well the political, even today say, no violence.  For that reason, no amnesty.  But we know the truth is that they had to protect themselves.

CHAIRPERSON: Yes, we also know through experience and it's general knowledge that there was huge conflicts within the province of KwaZulu Natal and that conflict involved various political parties.  I mean that's common knowledge.

MR LAX: And if I can just add particularly the areas he's talking about, I bear personal knowledge of those conflicts, so that's not an issue.

MR DE KLERK: In this specific instance, there's no indication that there was a quarrel between Mr Gumede and the applicant.  It seems that the applicant, as he explained, was under the impression that his brother who was a youth leader was in control of the situation.  He didn't deem it necessary to go and ask for permission, go to higher levels to clarify it ...[intervention]

CHAIRPERSON: On that one, Mr de Klerk, the applicant said he assumed that Tabani had done, so we don't know he did or didn't and then after questioning by Mr Mpshe he eventually said "well we didn't have any specific instruction" and that fits, you know, as far as he's aware he didn't think or know that Mr Phillip Ngobo or any of the others had said "okay you go ahead" but he assumed that Tabani may have communicated and got, so there may have been that authority or there may not have been.

MR DE KLERK: Yes Mr Chairman I agree.  My argument about that is that for him, his subject of thought at that stage is that there was nothing wrong with it because his brother even told him everything is alright.
	Furthermore, taking into consideration the situation where there was attacks and everything, surely any person at that stage staying in those areas would have acted and would have thought that he actually did a great thing for his community and behalf of his party.  The reason why I'm saying that is, if you look then at Section 20, sub-section 2(e) where it says "the omission or offence was committed in the execution of an order of or on behalf of", I'm of the opinion that it is clear from his subjective thoughts at that stage that this was done on behalf of the IFP, his community and the KwaZulu Government which he perceived as one.  So in that sense, I think there it should be no question about the fact that this was a politically motivated killing.
	There's only one last aspect I want to mention Mr Chairman and that is my personal opinion regarding applications for amnesty, the fact that it must bring reconciliation also into the picture.

CHAIRPERSON: It's not a requirement, but if one looks at the preamble of the Act, what you say is incorrect.

MR DE KLERK: Because of that, the reason why I'm mentioning that is, if you take that reconciliation part and you put it in to the situation as it was at that stage, it easier to understand why people acted on the information like this, why they didn't go to the police.  It was a divided community, it was difficult to go to police, it was difficult to trust people.  Sometimes family members did not even trust each other and my request is, taken the situation, taken the fact of the time lapse that has transpired from then until now, I don't see the few contradictions in the evidence as of such a nature to reject the evidence of the applicant.  It's clear to me that he didn't try to hide anything.  He even, in cross-examination, when specific names was requested from him, he did give names of the leaders that referred back to his brother and so forth.
	I think that if there is a motive, it must be this motive, there was no other reason for them to kill this person.  If they needed firearms it's common knowledge it was easy to get firearms at that stage.
	Even Mr Ngobo initially did not give any reason of a personal nature why this should have happened.

CHAIRPERSON: I don't think there's anything on record at all, certainly not on the documents of a personal ill-feeling between Gumede and the applicant.  The only suggestion on the papers is that, according to Ngobo, it was to get the firearm.

MR DE KLERK: I know that was said, my only explanation for that is if that person did receive information at a later stage, we don't know how.  He knew that this information was the correct information.  Let's say he did testify regarding the information that he got, he wouldn't have known what was the real reason behind it and the only reason at that stage would have been the robbery of the firearm.  But I don't think it fits into the logic following of the facts.

MR LAX: Except to say this that the two people worked together.  Again it's total speculation but it's a possibility like all others and if one is going to weigh up probabilities, they worked together, he knew he worked in a secluded school, he was easy picking.

MR DE KLERK: Yes Mr Chairman, the only answer that I do have to that, it's clear from the applicant's evidence that he knew him from sight, he didn't know his name.  So if you know somebody from sight and somebody else tells you of Mr Ilan Lax, I know you from sight but I don't know what's your name, I still need somebody to point you out or to give me more information about you.