Amnesty Hearings — Cape Town — 2000-11-18

MR WESSELS: Yes, but ultimately it goes through Webb.  I mean the budget has a root, it goes through Verster but Webb is still the person who has insight and who has to ultimately sanction everything.

MR LAX: Oh yes, but far down the line, at a much later stage.  So what I'm trying to say is, it doesn't help Verster to be saying: "Well ultimately Webb had to see the budget or had to know that a firearm was obtained from X or Y or Z".  Webb's evidence to that effect was he didn't know anything, he just was consulted from time to time on these things, this was a minuscule part of his activities and in essence, Verster's evidence was that he was in control of the CCB himself, and everyone else's evidence was that Verster told them what to do, by and large he was the one who was the Managing Director, to use the right term, and Webb's approval was only really required in exceptional cases.  In other words, where the elimination of person was involved.  If it didn't entail elimination or other serious consequences, he didn't even need to be consulted.

MR WESSELS: Mr Chairman, that is correct, but one must look further down the line.  If Verster did not reasonably believe that he had authority, he would have had a problem later when Webb observed in the accounts, or through the records, that money had been expended on this project without is authority.

MR LAX: Well you see, that's why I asked your client those questions about budgets and approvals and his answer to me was the strangest one I've ever heard, the money was written off in advance.

MR WESSELS: Yes, that's from Treasury.  A budget is obtained and then it's written off, but there is still accounting at the end of whatever period, as to how that money had been utilised and you had a financial file and an operational file.  Now the Treasury didn't have access to the operational file, but Webb had.  So Webb would then see how the money was written off and he would then know that in terms of the operational file, it was utilised in a certain way.  The Treasury wouldn't know exactly how that money was spent, but Webb would know.

MR LAX: Sorry, are you saying that Webb saw all 160-odd projects, all the financial files of each one of those?  Because on his version he didn't see any of that stuff, he only got a global report.

MR WESSELS: Well he had access to them. If he wanted to he could see it.  The fact that he might not have done so, that's a different matter, but he had access to those files and the fact that Verster did that in an official way, is an indication of the bona fides of Verster at least.  Because if he wasn't bona fide, there was a possibility that this would be picked up by Webb and then he would have a problem.  So all this shows that Verster was bona fide in his belief that this was an officially sanctioned project.

MR LAX: I think we can probably move on now.

MR WESSELS: Mr Chairman, I'm on page 13 of my Heads.  We deal with Section 20(3), in regard to the criteria to be used and whether there was a political motive present.  I will not refer to it in detail, I didn't gain the impression that there was any real dispute about any of those aspects.  I will just refer briefly to the proportionality principle that has been dealt with on page 17 and further of my Heads, and make the submission Mr Chairman, that this is a very relative concept and the way that it's been applied in these cases, show that there is not really a true weighing of the act committed, on the one hand, towards the end result or the success to be achieved by that.  It is impossible to do it really.
	It is my submission that the proportionality principle would only find practical application in extreme cases, where you may have a case that in a war situation although the attempt is made to fight the enemy, there are means used which are so far removed from the possible success to be achieved that you can't say that it falls within the parameters of the Act.  And one can perhaps think of examples where the Forces of one country tries to subject the Forces of another country in any possible way.  It would be legitimate for the parties to shoot each other, in war theory, on the one hand.  But now how far does it go?  Would it be permissable for the one party's Forces, the enemy's Forces to burn down the houses of the opposing Forces soldiers and take their wives and children, put them in concentration camps, because it may have an effect on the outcome of the war situation?  Does it go further, if that is legitimate, would it be further to rape all the women that stay behind, because that will weaken the moral resolve of the enemy Forces.  And one can go to very bizarre examples and it's very difficult to apply that.

CHAIRPERSON: When one's looking at this whole question of proportionality, what must one look at?  Must one look at the actual result of the offence or the act, or can one stop at the intention of the perpetrator before there has been an actual result?  I don't know if you understand what I'm saying.
	In other words, if one takes a look, just take the case of conspiracy to murder, you've got a conspiracy right, that's an offence, you can go to jail for that, but it's never carried out, so there's not actual result to the conspiracy other than itself being in the minds of people or maybe they might have taken certain acts, whatever, but as far as the victim is concerned there's no result, the victim is unharmed.  Can proportionality ever apply in that?  
	Can you say well look, conspiracy, the reason given, the motive to conspire to kill the person, was not justified at all.  You want to kill a person who is an ordinary civilian and there was no justification, on a political basis or any other basis, at all, to kill him.  Therefore, your arriving at that decision is unreasonable and disproportional.  If it had been carried out.  In other words, just your intention, without there being any actual physical harm.  Can proportionality apply?  That's been argued by the victims that it can apply.  I just want to hear your submission.

MR WESSELS: Mr Chairman, it's a very slippery effect, this proportionality principle and it's easy in theory, but to apply it in practice can become very difficult.  And it is my submission that it shouldn't really be applied in those sort of circumstances.  But it's very relative, and where does one draw the line if the intention is to go in and move and shoot down a lot of civilian women and children?  It's one of end of it ...(intervention)

CHAIRPERSON: Yes, there's no fine line you know, if one takes regard to the Norgaard principles, they are quite clear on proportionality and if you put a, what he said was if you put a car bomb in an empty car park and there's nobody around and it goes off, that's disproportional to any ...(indistinct), because it's a bomb.  He goes very strict on proportionality does Norgaard, and we all know that this Act is to a large extent, his principles played a part in its compilation.  But we also know that in our application, I say our, the Committees generally, particularly when one gets dealing with car bomb situations and there's been various matters, Church Street Bombing and various other bombings, haven't strictly gone to Norgaard with regard to the question of proportionality otherwise none of them would have got off first base ...(indistinct) car bomb ...(intervention)

MR WESSELS: With respect Mr Chairman, if those principles are applied as strictly as set out, then this whole process of this Act would become nugatory and it would have been a waste of time having all this, because then nobody should really get amnesty.

CHAIRPERSON: But I'm not saying that proportionality doesn't apply, I mean it does, but it's just ...(indistinct) difficult.