Amnesty Hearings — Cape Town — 2000-11-18

GEORGE BIZOS: Yes, building.  I'm sorry.
	In relation to paragraph 17, please look at paragraph 130, 131 and 140.  In relation to paragraph 18, please look at B275 to 288.  
	18.1 is a conclusion, but we would ask you to note there, that we will argue that in relation to the requirement of bona fides, if you could make a note there please Mr Chairman, under 18.1, the requirement of bona fides in Section 20(2)(b), is to be taken into account and we will argue in due course, based upon the Judgment of His Lordship Mr Justice Greenberg, as to what bona fides means, and we will refer you to it, Mr Chairman.  Well whilst I am at it, Mr Chairman, I might as well give you a reference to it, it's Milne NO vs Singh.  Perhaps we should hand it over to you so that you can have a look at it, because we believe that it is of some importance because the words bona fide, the expression has not been addressed by any of the ...  It's Milne NO vs Singh NO and Others and the references - we've given you only one page, Mr Chairman, of the ..., because His Lordship - if you have a look at paragraph E on page 457:
"The implication is if he'd honestly taken a wrong view of the legal position, that wrong view or his resulting conduct would not have been weighed against him."
At page 261, De Villiers, JA, said:
"Bona fides is a term of wide import, but I shall assume that it refers to possible prejudice to creditors in an eventual consocis(?) creditorum."
you can see that I haven't done an insolvency case for a long time, Mr Chairman.  
"Using the term in this restricted sense, it is important to remember that good faith demands first, that there shall be absence of definite knowledge that the transaction in question violates the insolvency laws.  And second, that neither of the parties deliberately refrained from giving the other information or from ascertaining the exact state of affairs, for fear that if the information given or the known facts, the transaction might be illegal."
	In Rex vs Meyers 1984 1 SA375 (AD) at page 382, Greenberg JA, referred to the well-known passage in Hallsbury, that:
"A belief is not honest, which, though in fact entertained by the representor, may have been itself the outcome of a fraudulent diligence in ignorance.  That is of a wilful abstention from all sources of information which might lead to suspicion and a sedulous avoidance of the possible avenues to the truth, for the express purpose of not having any doubt thrown on what he desires and is determined to and afterwards does, in a sense, believe."
	Now what we say in relation to this and particularly in relation to Mr Van Zyl, that once he comes to the conclusion that this is at the request of Verster, that he must act quickly and that he would be held responsible if another bomb goes off, and he doesn't find out who the owner is, when he could so easily have done so.  He doesn't find out where this youth organisation stands, the Kew organisation, doesn't find out whether the information that one of the leaders had a sister who was killed in a bomb explosion.  He could quite easily have ascertained that by asking you know, what was the name", and all the others matters on which we cross-examined.  
	And we are going to place emphasis that bona fides means that you mustn't close your eyes to the obtaining of information which may shake your belief in what you want to do, and we rely on this case for authority.  And you have to be bona fide in this sense in relation to the political objective to be achieved. And I want to give you a simple example.  It may well be that some person in the CCB, and assume that all the requirements are ..., decides that the UDF in the Cape, has a very efficient messenger, he runs around the whole day and he delivers pamphlets and UDF pamphlets so efficiently that: "Let's kill him and the work of the UDF is going to be impeded and therefore the aims of the UDF, which we be believe to be aligned to the ANC, will not be so easily ...".
	Now I take an extreme example in order to illustrate the point that bona fides are not to be assumed and although there may be some subjectivity in relation to bona fides, the reasonable aspect of it must not be thrown out of the window altogether, you must examine it, you must examine it carefully and not rush into action.  And this is what we really are referring to.
	And in relation to 18.2, Mr Chairman, that:
"Far more effective and far less violent options were available which were far likely to achieve the co-conspirators' purported objectives"
This was a matter raised by you, Mr Chairman, and you will find that in section B, paragraph 280(?).
	And 18.3:
"The manner in which the acts were carried out, occurred with reckless disregard."
We would refer you to paragraphs 281 to 283, which covers 18.3.1 as well, which is argument Mr Chairman.  Oh, I'm sorry, B, 281 to 283.
	In relation to 18.3.2, that there were people injured and had nothing to do with the KTYM, you will find in paragraph 294B, Mr Chairman.
	In 18.4, that:
"We find that the rationale which underpinned the reasoning behind the explosion, was based on information from a clearly unreliable source (could you strike out the "t" please).  No evidence was provided to show ..."
You will find that in B351 to 357, Mr Chairman.  And then we say in paragraph 19, that:
"All the applicants failed to act within the course of scope of their duties, in that they breached the CCB's internal rules by omitting to do a number of matters."
And we would refer you to B167, Mr Chairman.  
	191 and 192 are argument and are self-evident on the facts.
	Please read paragraph 20 together with paragraph 28.1.  In view of what Mr du Plessis said about our lack of understanding, Mr Chairman, I want to expand on the submission that we make in paragraph 20.  What we mean by that is this, that it is not enough in the circumstances of the Brixton people, to say that: "We were members of the National Party", a couple of million people voted for the National Party.  "We were brought up in the Dutch Reformed Church and we went to Afrikaans speaking schools, and therefore, (say the applicants who were at Brixton) we changed over".  Now it may be that if the matter stopped there and if their evidence had been that on a morning they woke up and they said "you now this business of Murder and Robbery isn't good enough to save our country, we are going to go over to a hit squad in the CCB, in order to save our country", that was not their predominant motive, on their evidence Mr Chairman.  Mr Chairman, I'm sorry to use the expression, but patriotism is the last refuge of the scoundrels.  A good authority for it - a great man said ...(indistinct).  They went over because they were dissatisfied with their conditions of service and they went there because they had such a better deal.  They are to be distinguished, with the greatest respect.
	To take an extreme example, my sister was injured at the Church Street bomb and I said to myself, no I can't sit back and do this, I will go and do the same.  Or I was a soldier, instead of doing police work I went to the Angolan border, my best friend was killed next to me and I thought to myself that this is a war which SWAPO has waged and the ANC is it's ally, and I decided then that I will serve my country by committing unlawful acts, sometimes of a horrible nature and therefore this is my motivation.  
	Not one of these applicants, Mr Chairman, has put before you a tittle of evidence what it was in their lives that made them make this change.  Obviously the Attorney-General of the Transvaal was unhappy with the manner in which they supported some of their colleagues whom he believed were guilty of murder, he was making life difficult for them, they decided through Mr Burger's friendship with Mr Verster, to open the door for these people to transfer.  The predominance of motive was the better conditions and not patriotism.