Amnesty Hearings — Cape Town — 2000-11-18

UNKNOWN: What should be taken into consideration is that this was information which was to the disposal of the applicants, they truly believed it, they - and this was checked out by the information section of the CCB, through Derrick, the evidence came back and if it wasn't true then at least they bona fide believed it.  And on that basis they are saying that they are entitled to amnesty, even if it wasn't true then.
	The next point is whether the act was committed in the execution of an order and with the approval of the organisation the applicant was a member or agent for.	  I submit that - that's under 4.4.5, I submit that as far as this is concerned on page 28 and further, there could be no dispute that all three the applicants I represent, in fact acted as members of the CCB at all relevant times.
	And then 4.4.6 is then the relationship between the act or offence and then also the proportionality question.  I have dealt with that on pages 30 and 31.  I've already referred to that.  I submit that this is a very important part of the argument, but I'm not going to repeat it.  It has to be seen in the full context of the time.  And I submit that there was a direct relationship between the act or offence and the political objective.  
	If we take the ELC, the information was that those people were so-called terrorists, they were going to let off bombs, they were interfering with the election in that way.  At least we know from Mr Oesman Alexander that even if he only conceded that they were educating people not to vote in the tri-cameral election, at least they were involved, they were politically involved and he considers himself to be an activist.
	Now immediately I say again, obviously I'm not saying that seen in isolation that would be now a reason to set off a bomb in the place they're meeting, but it must be seen in the full context.  So if we deal with this specific factor, I submit that there is a direct relationship between the offence and the political objective.  
	And if we then quickly proceed to Mr Omar's matter, the same thing can be said again, prominent figure, he's perceived to be a very important leader figure in the UDF, it is perceived that if he is harmed, if he is killed it would disrupt the enemy.  And I would submit with respect that the applicants, on the information they had, were justified in thinking so.
	As far as the conspiracy to murder Gavin Evans is concerned, I deal with that on page 34 and 35, I submit that - well it should read ECC and not EEC in that paragraph, 5.38.3, what the ECC was doing was to encourage people not to due their military training and serve in the SADF.  And I make the submission that in many countries in the world that would be met by a very severe reaction if person does that, obviously not in a democratic State, like we were supposed to be, but we all know we were not and that's why people like Mr Evans was trying to change the system.
	Now again the perception of these people, the applicants, they were part of the Security Forces and the South African Defence Force and their perception was if Mr Evans and people similarly minded carry on with what they were doing, it would destroy the moral of the South African Defence Force and it could lead to the overturning of the State.  They were then trying to preserve the sovereignty of that very State.  So I submit that once again there is a direct relationship between act and political objective. 
	The Apie incident I then also refer to, I don't want to waste time on that further.
	Regarding the foetus at Bishop Tutu's house, I just make the submission regarding Barnard and Van Zyl, that this Committee would not be able to find which one of the two are telling the truth.  I submit that with Barnard's background and with the fact that he is a self-confessed liar, that is his own evidence, and with Van Zyl's evidence, even though he may have contradicted himself here and there and also in previous hearings or documentation, this Committee will not be able to make a decision and say: "I'm going to accept Barnard's evidence" or "I'm going to accept Van Zyl's evidence".  My submission is that the decision should be that as far as Van Zyl is concerned, he will be judged on his evidence and as far as Barnard is concerned, one could possibly accept his evidence and judge his application by his own evidence, but the Committee will not be able to make a decision that Barnard's evidence is now accepted and Van Zyl's evidence is rejected, because on what basis is one going to reject Van Zyl's evidence and accept Barnard's?
	And the importance as far as my applicants are concerned is that I'm suggesting that this Committee will not be able to find as a fact that there was a so-called five point plan, firstly.  And secondly, even if it is found that there was in fact such a five point plan, there's no indication that Burger or Basson was aware of that.
	Then as far as 4.5 is concerned at page 8, the offence must not have been committed for personal gain.  There was the evidence of Van Zyl that he gave certain monies to Burger and Burger stole that money.  I submit that the Committee would not be able to make a decision here again, to believe Van Zyl, or for that matter, to believe Burger.  Now the fact of the matter is, Van Zyl had the money, he gave some of it to Barnard, for the same price he could have kept some of the money for himself.  Burger is denying that he ever received the money back from Van Zyl, so Van Zyl may have used the money for some other purpose, but for reasons of his own he's now saying that Burger took it.  But I submit that there is no reason or no ground on which Van Zyl's evidence could be preferred to that of Burger's.  But even if it is accepted that Burger did take the money, then it was done ex post facto, after the offence was done.  It can not be argued in any manner, that he planned this offence, the ELC matter, with the purpose of taking money from the budgeted amount.  There was no suggestion like that made to him at any stage.
	Then lastly, the applicant must make a full disclosure of all relevant facts.  Once again ...(sound cut off) and I will rather use the opportunity in view of the later hour, to answer tomorrow if necessary, to the argument of my learned friends for the victims.  
	Now I submit in my Heads that the term "relevance" has a certain meaning in law and it should not only be relevant, but sufficiently relevant - it's found on page 37 and 38, I'm not going to deal with that in detail at the moment.  The fact is, the question that has to be asked is, would any of the matters or the acts perhaps done in foreign countries, is there any indication that the facts pertaining to those actions would have any bearing on this case, would be relevant to the facts in the instances the applicants apply for amnesty?  And I submit that there is no such indication that these acts were logically linked to any other actions in foreign countries.  And if that is so and it cannot be found that any such other actions which may or may not have existed, would be logically relevant to these acts, then it cannot be found that the applicants did not make full disclosure.
	Now it is submitted by my learned friends for the victims, and they mention numbers here, I will refer to that briefly tomorrow if necessary, but they mention numbers of so many projects, etcetera, etcetera and so much money spent by the CCB.  
	It has to be remembered that Maree was a footsoldier in Region 6, there were cut off points, he didn't have any knowledge of how big the CCB may have been and what they may have done or may not have done and where they may have operated or may not have operated.  
	And as far as Basson is concerned, he was the Regional Coordinator, he did work in other regions as well, but it also cannot be said that he was so high up in this organisation that he should have had knowledge of any of those.
	And as far as Burger is concerned, we know that he was limited strictly to Region 6 and he was only the Regional Manager and he wasn't allowed to contact any of the other regions' Regional Managers, because of the very fact that he was a high profile person, at that stage in the sense that he was known as the ex-Commander of Brixton.  So obviously those statistics which are quoted by my learned friends for the victims, can not be held against any of the applicants I appear for.
	And I then make the submission that with reference to all the requirements as set out in paragraph 4 of my Heads, that all three the applicants in fact did comply with all the elements.  
	And may I just briefly refer to Maree specifically.  I submit that as far as Burger and Basson are concerned, for their own reasons they didn't want to give evidence about foreign matters.  As far as Maree is concerned, he did not hesitate to make full disclosure of his full involvement with the CCB and this aspect or this criticism levelled by my learned friends, obviously does not pertain to Maree himself, he made a full disclosure also of any foreign matters he was involved in.
	That concludes my argument unless there are other aspects you wish to hear me on, Mr Chairman.